David Brooks, the conservative who wants to teach us how to be good, has an op-ed in the New York Times today that looks like it was penned by me, “Upwsingers and downswingers”.
Brooks points out that both major political parties have their own winners and losers. Economic growth adds wealth to society, but tends, by creating efficiencies, to provide gains to some at the expense of others, especially traditional workers. Further innovation tends to smooth things out and the cycle repeats. In my own 2014 DADT III book, I characterized innovation (paired with ego) as in tension with equality (as paired by belonging to the group).
On the right especially the “losers” (to borrow from Trump, ironically) tend to find identity in a zero-sum world in ethnicism, nationalism, and sometimes religious fundamentalism and even racism. People who don’t do well in a society where they have to make a lot of their own choices and get held responsible for them, tend to gravitate to identification with the group, and identity politics. They may become combative and try to deny people outside of their own circle of victimhood a right to be heard, and also tend to view speech as attacking group rights already achieved. Along these lines, we should also read Katy Steinmetz’s recent piece in Time, “The fight over free speech on campus isn’t about just free speech.”
Brooks notes the slope between economic, political, cultural, and even personal cycles. He criticizes hyperindividualism, as needing to be curbed by ways to get the “leavers” to do “penance” – a process I have called “right-sizing” here in previous posts. It can also be called “pay your dues”, although that doesn’t quite cover all the ground.
What would those dues be? National service? Some sort of encouragement of people to put their own skin in the game before they are heard?
Brooks notes that the cultural resentment gets personal, when the “losers” resent those who think that the winners are really better than losers.
My own interest is in looking at moral ukase though the eyes of the individual. I am a bit of an existentialist: what happens to someone is what happens, and there is no honor in claiming that victimization changes it. Ultimately, we are all responsible for ourselves, but we are also responsible for what we inherit and become complicit in. Past persecution of one’s group does not change this or demand special treatment for the individual. Along these lines, this piece by Frances Lee on callouts, shared today on Facebook by DC Center’s David Mariner, is interesting.
The media is indeed swooning at Trump’s latest supposed outrages, including his veiled threat to broadcast licenses after NBC supposedly reported his plans for increasing US nuclear supremacy.
Oliver Darcy and Brian Stelter have a typical summary on CNN.
There’s a potpourri of obvious legal problems if Trump were to try to do this. The biggest is that it is owned stations that have licenses, not the networks. I remember this from my own days working for NBC as a computer programmer in the 1970s. I was responsible for an accounting ledger for “owned and operated stations”. I remember networks were allowed to own five. Often, individual stations are owned by one company and affiliated with a network, like WJLA is owned by Sinclair and affiliated with ABC. Often the stations don’t follow the bidding of owners. Sinclair is a “conservative” media company that has played up the power grid threats which I have reported here, but WJLA has toned down these reports, even though I’ve encouraged WJLA (which knows me) to take them seriously.
Another interesting point is that the president doesn’t have the full legal authority to order the FCC exactly what to do. Furthermore Trump’s appointment, Ajit Pai, has favored loosening and eliminating Obama’s network neutrality rules in a way that would benefit Comcast, which owns NBC. Even so, loosening of network neutrality rules really hasn’t in big companies like Comcast trying to throttle smaller businesses and individual speakers from having fair treatment in access to self-broadcast on their telecom pipes (something that the “liberals” feared more than the gutting of Section 230 as a threat to user speech).
It’s ironic that, in his propagation of “the people” and populism, Trump really hasn’t gone after individual elites (like standalone bloggers) as much as he had certain big companies (mainstream liberal media) whom he can portray to the “people” as their enemies with fake news. But, of course, it is the world of user-generated content that the Russians infected with their fake news barrage in order to divide the people further. But Trump wants the people divided. He believes that it is the strongest tribes that survive, not the strongest individuals. Yet, in Trump’s individual behavior, it’s obvious that Trump admires strong young adult individuals – look at who he hired on “The Apprentice”. At a personal level, he probably does admire young scientists, young tech entreprenuers, and even young conservative journalists who would show him up. More contradictions on the LGBT side: he seems to admire plenty of LGBT individuals, but attacks the intersectional politics of the LGBT activist establishment with all his appointments.
The mainstream media’s reaction to this latest flap over violating the first amendment (the freedom of the press standards apart from the more general freedom of speech in the First Amendment) has sometimes been a bit silly and hyperbolic. Look at how the Washington Post (“Democracy dies in darkbess”) asks “can he really do that?” by dragging you into listening to an overlong podcast. By now everybody has forgotten all about “opening up libel laws.” British style (as Kitty Kelly explains in 1997, truth doesn’t always defend against libel, especially if absolute truth no longer exists).
Trump’s latest action on health care (like with immigration) shows he is willing to let “ordinary people” become pawns as he makes his ideological points, which really do have some merit. Yup, making health young people buy coverage they don’t need sets a bad example for other areas. Yes, it may really be illegal for the Executive to continue premium and copay support for poor people until Congress does its job, does its math, and can explicitly authorize it (sounds like how he handles DACA).
And, yup, previous administrations may have appeased North Korea too much, and a “domino theory” that tends to enlist ordinary citizens as potential combatants may have some real merit (as I covered particularly in my first DADT book). But all of this, right now, sets up a very dangerous situation, the most perilous for the safety of ordinary Americans since the Cuban Missile Crisis, even more so than 9/11. If Trump really wants his zeal for populism to wind up with martial law (as one friend on FB suggests), or a “purification” (as another puts it), he might have his duel in the Sun.
I also wanted to point out Sean Illing’s compendium on Vox, “20 of America’s top political scientists gathered to discuss our democracy. They’re scared”. One out of six Americans is OK with military rule (like in the Philippines — that’s like saying one out of six movies should be a horror movie). Our society of individualism requires a talent for individualized abstraction. That tends to leave out a lot of “average joes”. But all of us find more meaning in power structures and “station in life” than is healthy for freedom.
I recently got a questionnaire about eligibility for jury duty. In fact, because I will be moving to an adjacent county very soon, the event is probably moot point.
States vary in the frequency registered voters are summoned for potential jury duty. But typically many states are coming to a “one day one trial” concept, which, for example, Texas has followed for years. Less frequent is the possibility of jury duty for a federal trial.
Juror conduct has long been a subject of controversy, as can be seen from this US Courts Manual. Jurors are not allowed to discuss a case of subject matter related to a case outside the courtroom, or “research” it, even in newspapers. In the past twenty years, the likelihood of finding related material on the World Wide Web or through social media sites has obviously increased exponentially. The AP has a major story in the Los Angeles Times in April 2016 on the problem.
In a cursory look at the problem, I didn’t find any evidence that most juror duty episodes wind up with jurors being required to cut off all Internet access. But if you think about it, the likelihood of this sort of the thing in the future seems to increase. It is true that most actual cases are obscure and are likely to be unknown to a juror and not obviously conspicuous even on the Internet.
The greatest danger, of course, is sequestration, which is pretty rare, although it may happen more frequently in the future, given the controversy of many cases. Changes in venue could become more common, but one could argue that Internet coverage makes venue change less effective.
However, if a juror is denied all Internet access for a significant time, he or she can face significant losses, such as even of social media accounts or followers or even of hosted accounts if not able to respond to a problem, and if not having an employee or proxy person who can handle questions (I do not).
People can get out of duty if old enough (in some states, over 70), or if having sole custody of minors or disabled persons, or if the sole person with certain work responsibilities. Blogging alone, even given the risk to it, would not qualify unless it paid its own way.
But a news blogger could possibly “ get out” of being selected in a voir dire by having blogged in the pst about the subject matter. An interesting, if evasive, strategy.
This is an area where the fundamental right to a fair trial can live in tension with free speech.
Dave Bier of the Cato Institute has a new detailed analysis of all the flaws in Trump’s Faustian demands (call it a “wish list“) on Congress before he’ll go along with letting most of the DACA “Dreamers” stay after six months, as in this link.
The most conspicuous demand was overbuilding “that Wall”, much of which might be ineffective or relatively unnecessary.
But another demand is practically requiring asylum seekers to prove their cases on entry. This would sound like it could shut down most LGBTQ asylum seeking.
Furthermore, overstayed visas would be treated much more harshly.
At the same time, there is a lot of attention to the “new” (?) travel ban. Jason Dzubow, normally very cautious in his blog posts, takes a cheerier approach on the affect on asylum seekers (in his most recent post), which in many cases, he feels, won’t be important. People who have already applied and getting some sort of legal and perhaps housing assistance in the US will not fare worse than before.
My own reaction would be to imagine myself in the shoes of a “dreamer” (maybe Jose Vargas in the 2014 film “Documented”). I would feel that, while the president has claimed a big heart and that somehow things will turn out OK personally, my own life had been made into someone else’s political bargaining chip. It’s easy to imagine that if I were a member of a racial minority in a poorer community subject to police profiling. As a white gay man with some of the typical troubles in the distant past, it is not so clear cut. I did not perceive myself, when younger, as a member of an oppressed “group”, but rather as someone who individually had difficulty conforming to some of the gender-related expectations made of me which were more understandable in the Cold War world in which I grew up.
Likewise, I’m disturbed that Trump sounds willing to play with the existing health insurance of disadvantaged Americans to claim he is keeping a promise to some people in his base.
AOL has a discussion of the Supreme Court’s actions today allowing one of Trump’s travel bans to stand; likewise Politico. It’s hard to give much reaction because the sands keep shifting. Here’s the June 2017 opinion for Trump v. International Refugee Assistance Project.
(Posted: Tuesday, Oct. 10, 2017 at 11 PM EDT)
Update: Thursday, Oct. 12, 2017
Jason Dzubow has a 9-part piece “DACA Reform and it’s Hostages (i.e., Asylum Seekers)” which seems to be a change in tone and alarm level. I would particularly wonder if the application of concepts like “membership in a social group” or “political opinion” would be tightened in a way to affect LGBT asylum seekers already in the U.S. (possibly some in detention seeking parole), especially from non-Islamic countries, including Russia (Chechnya) and Central America.
Sessions says he will ask Congress to tighten the rules on asylum seekers, claiming asylum fraud is widespread, Washington Post story by Sari Horwitz, link. The Center for Immigration Studies had made claims like this in a session reported here May 10 (q.v.)
Recently the New York Times ran a constructive op-ed by Michelle Goldberg “The Worst Time for the Left to Give Up on Free Speech”, featuring a split demonstration poster demanding to “Shut Down Milo Yiannopoulos”.
The editorial makes a central point that democratic societies typically feel they need to take certain topics off the table as legitimate content for discussion. For example, the essay gives, the idea that women and people of color should be subordinate to white men (you can expand that to cis white straight men). The editorial relates an incident at William and Mary recently where an ACLU speaker was heckled and disrupted for supposedly working for white supremacists, which activists demand there be zero tolerance for.
There are plenty of similar examples, such as bans on neo-Nazi speech in present day Germany. The most obvious bans are usually intended to protect groups defined by race or religion (and sometimes ethnic nationality) from being targeted again by future political developments.
By way of comparison, many people believed, back in the 1950s, that there was a legal ban on discussing communism. The federal government, for example, who not employ people who could not ascertain they had never been members of the Communist party. Communism could be banned if it was construed as embedding violence (or the attempt to overthrow the US government) as part of its definition (as compared to socialism, even Bernie Sanders style). But Communism generally, as defined, did not target specific races or religions (although we can certain argue that Stalin persecuted people of faith, including Jews, and so did Communist China).
You could have a similar discussion about trying to overanalyze the roots of homophobia and gender or sexuality related discrimination and persecution in the past, and today in many authoritarian countries. Much of my own writing has dealt with this for the past twenty years, especially the three “Do Ask, Do Tell” books. I’ve generally (as in my post here Jan. 4, 2017) offered arguments that a lot of it had to do with family patriarchs keeping their own confidence in their own power to have biological lineage (procreation). I’ve also paid heed to the past public health arguments that got made in the 1980s in the early days of the AIDS epidemic, before the cause was identified. In my writings I’ve paid particular heed to the history of military conscription and past deferment controversies.
A lot of people don’t appreciate my rehearsing the ghosts of the past (John Carpenter’s metaphorical “The Ghosts of Mars” (1995)), for fear that I could be legitimizing lines of thinking long thought debunked and bringing them back. Sound familiar? Is this what people fear from Donald Trump, or, more properly, the people he has chosen in his group? (How about Mike Pence?)
Goldberg doesn’t go there, but the Left is in a real quandary when it wants to shut down all biological speech The Left has demonstrated against and protested Charles Murray for his past writings on race and biology. They object to James Damore for his Google memo on biology (whether this expression belonged in a privately owned workplace is a different discussion). They would probably object to Nicholas Wade’s 2014 book “A Troublesome Inheritance” (media commentary, July 24, 2017). But then what about the gay Left’s dependence on immutability to demand gay equality? I do think there is scientific merit to discussion of genetics (especially with regard to gender identity) and epigenetics (especially with regard to sexual orientation, most of all in non-first-born men) I don’t think that replaces libertarian ideas of focus on “personal responsibility”. But if you want to discuss homosexuality and biology (as in Chandler Burr’s monumental 1996 book “A Separate Creation”) with possible political change as a result, you have to accept discussions of biology, evolution and race. Admittedly, some people can skid on thin ice when they ponder these things, as they consider plans to have or not have their own children (eugenics used to be an acceptable idea a century ago).
That brings me back to a correlated area: that the identity of the speaker matters, as well as the predictable behavior of the listener of speech (possibly creating risk for the original speaker or others connected to him) — what I have called “implicit content”, a most disturbing and sometimes offensive notion. The most obvious example in current events news is, of course, the manipulation of social media especially by the Russians to sow discord among different American classes or quasi-tribes, beyond simply influencing the outcome of the 2016 presidential election. The Russians and other enemies used fake accounts and posted fake news in supposedly legitimate-looking news sites and in advertorials. All of this follows earlier concerns about the misuse of social media, especially Twitter, for terrorist recruiting (by ISIS), as well as cyberbullying or stalking and revenge porn. The Russians seemed to have noticed that Hillary-like “elites” would not pay attention if “deplorables” could be lured by silly, divisive supermarket tabloid-like content and false flags; elites tend not to care about people “beneath” themselves in this “mind your own business” world much until those people suddenly knock at the door for personal attention (which is something that happens to speakers who make themselves conspicuous, especially on social media).
You can raise a lot of questions here. Is fake news libel? Maybe. Litigation is often impractical because it involves criticism of public figures (actual malice, etc). You get to Trump’s ideas about using Britain’s standard on libel. But a bigger idea is that the fake news fiasco shows why authoritarian leaders keep a tight lid on dissent, even on individual bloggers’ speech, perhaps maintaining that the dissemination of news to the public need be “licensed” to guarantee (alternative) “truth” (sic). That hasn’t really happened with Trump, yet at least; Trump seems to admire individual speakers even as he hates the established liberal media.
A related idea is whether political ads, and whether commercial ads, are protected by the First Amendment the same way as other speech. That topic was covered in the second session at a recent Cato conference (Oct. 3, 2017 posting here). Generally, the answer is yes. But this topic has become controversial with regard to campaign finance reform, long before Trump.
In fact, back in the 2002-2005 period, there was a concern that even “free content” of a political nature posted by bloggers like me could constitute illegal campaign contributions (as if not everything in life can be measured by money). The June 12, 2017 post here gets to that, as does this 2005 editorial in the Washington Times, which wormed its way into a major incident when I was working as a substitute teacher then.
That brings us to what I do, which is put out my own series of article and blog posts on the news, augmenting my three “Do Ask, Do Tell” books, under my own brand(s). No, this doesn’t pay its own way. I have exactly the situation the 2005 Washington Times editorial was talking about.
I’ve been at this since the mid 1990s. I originally entered the world of self-publishing as a way to participate in the debate over gays in the military (and the “don’t ask don’t tell” policy from Bill Clinton’s compromise that predates Trump’s current transgender ban controversy). I made a lot of unusual, very individualistic arguments, often but not always consistently connected to libertarianism. Generally, most of what I have said starts with the individual, apart from any group he or she belongs to. The first book sold decently (in 1997 and 1998, especially) but then became old hat. The subsequent POD books have not really sold all that well, and I get hassled about it because “other people” can’t keep their jobs based on my books, I guess. I did have the resources from a well-paid job and from stock market good luck under Clinton (Democrats can be good for the stock market, as Hillary’s elite knows). I got lucky with the 2008 crash and that turned out well for me. (Short selling?)
But you see where this is heading. In line with the thinking of McCain-Feingold, one person can have political influence, with no accountability for how the funds were raised. I actually focused on issues, not candidates (which a lot of people seem not to get), and have very little interest in partisanship. I could even claim that I know enough about policy and am temperate enough in my positions that I could function in the White House better than the current occupant, but I don’t know how to raise money for people, or for myself. I but I know the right people to get health care to work, for example. (Do the math first.)
Then, there is the issue of the left-wing boogeyman, “inherited wealth”. Yes, I have some (from mother’s passing at the end of 2010). My use of it could be controversial, and I may not have been as generous (yet) as I should be. But I have not needed it to fund the books or blogs or websites. (I I had, that could be a problem, but that’s too much accounting detail to get into right here. But I can’t just turn into somebody else’s safety net.)
I do get prodded about other things I “should” be doing, as a “prole”, because others have to do them. Let’s say, accept “the free market cultural revolution” and prove I can hold down a minimum wage job (like in Barbara Enrenreich’s book “Nickel and Dimed”). My life has its own narrative, and that narrative explains my personal goals now. They’re my goals; they don’t need to be anyone else’s. I don’t need to appear on Shark Tank to justify my own “business model”. But I’m corkscrewing into a paradox: if morality is indeed about “paying your dues” before you’re heard, then it’s really not just about group solidarity.
Both sides of a polarized political debate, but especially the Left, would like to see a world where individuals are not allowed to leverage their own speech with search engines the way I have (with an “It’s Free” paradigm, after Reid Ewing’s 2012 short film, where blog postings become “free fish”), but have to march in step with larger groups that they join. Both sides want to force others to join their chorus of some mix of relative deprivation (the alt-right), or systematic oppression (the Left). Both (or two out of three) sides want mass movements (as in Eric Hoffer’s 1951 manifesto, “The True Believer”). Religious groups often follow suit, demanding people join them in proselytizing (which is what an LDS mandatory missionary assignment is all about). It is certainly personally shameful to walk in a (Charlottesville) torchlight march screaming “You shall not replace us”, but I find carrying anyone’s picket rather shameful. Other’s will tell me, get over it. Well, you get over it only if you’re on the “right” (sic) side? I won’t bargain away my own purposes.
To me, the existential threat is being forced or coerced (maybe even with expropriation) to join somebody else’s chorus, or hiding from personal responsibility behind a curtain of “systematic oppression”, to be allowed to speak at all. Some pleas for donation to political opinion sites (from both the Right and Left) make insulting, hysterical clams that only they can speak for me, as if I were impotent and had no right to my own branded voice. They want to force me to join their causes to be heard at all. It would be more honorable to become a slave on a plantation, or at least a minimum wage worker, whose turn it is now to be exploited just as he was once the undeserving exploiter, until dropping dead. And then there is no funeral.
But, you ask, why not “raise people up” in a personal way, when they knock, in a way “you” had not considered before you were so challenged. Is it up to me to make others “all right” in a personal way if others once did that for me? Maybe. But that’s entirely off line. It doesn’t seem like “accomplishment” (maybe it’s a “creative” challenge for someone who did not have his own kids). It doesn’t replace my mission of delivering my own content first.
On Tuesday, October 3, 2017 the House of Representatives Judiciary Committee, Chairman Bob Goodlatte, held a two-hour hearing on a House bill HR 1865, Allow States and Victims to Fight Online Sex Trafficking Act of 2017. The Senate has a similar bill, SESTA, Stop Enabling Sex Traffickers Act, S1693 . Ann Wagner (R-MO) had a press release in April 2017, with this commentary. Govtrack also offers this provocative editorial.
Electronic Frontier Foundation has a blog posting by Elliot Harmon, Sophia Cope, and India McKinney. The actual session starts at about 23 minutes in.
The hearings were chaired by Steve Chabot, R-OH. Jackson Lee (D-TX) gave a long statement.
There were four speakers. All of them recognized that Section 230 had been essential for the growth of user-generated content by relieving service providers of much potential downstream liability that would require prescreening of content before it could be published.
Chris Cox, a former SEC Chairman during Reagan, explained how Section 230 in the Communications Decency Act after a decision (Stratton Oakmont v. Prodigy) held that a service provider who tried to do any “good Samaritan” editing of user content became a publisher of the content and liable for all user content from the facility, forcing pre-screening everything. Cox explained that the law should encourage sample monitoring for content that is grossly illegal, without penalizing for content that cannot be caught when providers act in good faith.
Cox would also later explain that right now there is no “knowing” standard for most illegal content (except probably child pornography). A website operator loses section 230 protection only when it participates in creating or curating illegal content.
USA Naval Academy Cybersecurity Professor Jeff Kosseff spoke, relaying similar concerns. He said that with the House bill as proposed now, he would advise clients not to take the risk of inviting user-generated content at all.
Catholic University Columbus School of Law professor Mary Leary testified that the sex trafficking problem had become an emergency, extending beyond very reasonable parallel concerns about promoting terrorism or providing murder for hire. Leary works with the National Center for Missing and Exploited Children.
There was mention of the long running Roommates.com case, where the site was sued for allowing users to post requests discriminating in what sounds like a personal choice of roommates.
There was a suggestion that Sex Trafficking should be handled just like child pornography, where there is a knowing standard.
There was incidental mention of the Las Vegas shootings, with talk of stricture laws on gun add-ons to make them into machine guns. There was also a suggested that any undocumented victims would not be pursued by USCIS.
Last Thursday, September 28, 2017, I attended a day-long event at the Cato Institute in Washington DC, “The Future of the First Amendment”. I could call it aka “the future of free speech” in the U.S.
Cato has a link for the event and has now uploaded all the presentations, which you can view here. The videos include embeds of the slides and of the audience members asking questions as professionally filmed, better than I can do on my own at an event.
The “table of contents” in the link shows the topics covered as well as identifying the credentialing the many invited speakers, and indeed the presentation was segmented and topical and tended to focus on many narrow, separate issues. I’ll come back at the end of this piece as to what I would like to have seen covered more explicitly.
The earliest morning session focuses particularly on partisan political speech related to elections (the “Citizen’s United” problem) and on commercial speech, including whether companies or commercial entities are separate persons. One concept that stuck out was that listeners or receivers of messages are entitled to First Amendment protections. I would wonder how that concept would play out given more recent reports of Russian attempts not only to influence the 2016 elections but also to spur social instability and resentment in American society, based particularly on the idea of relative collective deprivation (which is not the same idea as “systematic oppression”). There are understandable concerns over wanting to regulate paid political ads (especially if supplied by foreign agents), but we should remember back around 2005 when there were concerns based on a particular court interpretation of the McCain-Feingold Campaign Finance Reform Act that even free blogs (written without compensation and without ads) could be construed as “political contribution” if they expressed political viewpoints. The discussion of commercial speech recognizes that advertisements sometimes do express points of view going beyond immediate ad content, and that valuable speech, such as well-made studio Hollywood movies about major historical events, made with good faith, can express political viewpoints while being funded through the open securities markets available to publicly traded companies. But one auxiliary idea not explicitly mentioned was something I encounter: that speech available to the public should pay its own way.
The second segment dealt with “religious liberty in the post-Obama era”. Here we have the dubious idea that an employee of a business open to the public is engaging in religiously-connected “speech” when she sells certain products or services to a person of a different faith or who engages in certain intimate personal relationships as now recognized by law (especially same-sex marriage). One speaker in particular (Robin Fretwell Wilson) suggested that states should carve out laws that require public accommodations to serve all customers but allow individual employees (even in government agencies, such as with Kim Davis in Kentucky) to turn over the duties to someone else. While I would support such a solution, if can mean an unequal workplace (such as the catse when some employees observe Sabbath’s explicitly and others cover them without getting any compensation in return, which I have done – an extreme extension of this idea is the “conscientious objector” problem with the past military draft). It’s also true that sometimes “religious speech” can serve as a mask for personal moral ideas that in fact are not really founded in recognized interpretations of scripture, for example, political aversion to working with inherited wealth.
The keynote speaker for the second floor luncheon(well catered with deli sandwiches) was Eugene Volokh, of UCLA Law School and the Volokh conspiracy blog. Volokh gave a spirited presentation on how the Internet has accelerated the application of libel law (well before Donald Trump noticed) because the Internet allows speakers with no deep pockets and little formal publishing law experience to be heard, and also because the “online reputation” damage from defamation, as propagated by search engines, is permanent, as opposed to newspaper defamation in the past. Volokh made the interesting point that sometimes cases are settled with court injunctions that could prohibit a blogger from mentioning a particular person online again anywhere. (That could matter to bloggers who review films or music performances, for example). At 41:07 on this tape, I ask a question about Backpage and Section 230. Volokh’s answer was thorough and more reassuring that it might have been, as he indicated that “knowingly” standard could be included in service provider downstream liability exposures. (He also explained the distinctions among utility transmission, distribution, and publication.) He also got into the question as to whether fake news could be libel. Usually, because it largely involves politicians, in the U.S. it does not. But it might when applied to celebrities and companies.
The afternoon session featured a presentation by Emily Ekins on the 2017 Free Speech National Survey. A number of startling conclusions were presented, showing partisan divides on what is viewed as hate speech, and also a lack of understanding that most hate speech is constitutionally protected. There is a tendency among many voters and especially many college students to view words as weapons, and to view speakers as morally accountable for the actions of the recipients of their speech, even when there is no direct incitement for rioting or lawless action. Many respondents showed a shocking dislike of journalists as “watchers” who don’t have their own skin in the game. A majority seemed to take the pseudo-populist position that a heckler’s veto on speakers was morally OK, and a shocking substantial minority thought that government should heavily sponsor speech to protect special groups. A shocking minority accepted the idea that hate speech should sometimes be met with political violence.
The final session talked about censorship and surveillance. The speakers included Flemming Rose (“The Tyranny of Silence” and the cartoon controversy). Rose mentioned, in an answer to an audience question, that in some countries speakers were arrested for “qualification of terrorism” in public statements. All the speakers noted a desire from the EU to force tech companies to export their rules to the US, especially the supposed “right to be forgotten”. Daniel Keats Citron from the University of Maryland Law School mentioned the Section 230 controversy in an answer, as she talked about distinguishing “good Samaritans” from “bad Samaritans”
At the reception afterward, a speaker from Cloudflare noted that Hollywood has been lobbying heavily on Congress to force service providers to prescreen content, as motivated by the Backpage controversy. Hollywood, he said, has been pressuring agents and Wilshire Blvd law firms to join in the effort. He mentioned the DMCA Safe Harbor, which has a similar downstream liability concept but applies to copyright, not to libel or privacy. The tone of his remarks suggested that this goes way beyond piracy; Hollywood does not like dealing with the low cost competition of very independent film that is much less capital intensive, and taking up much larger audience share than in the past.. Even Mark Cuban admitted that to me once in an email. Cloudflare also said that the law, unchanged, would today handle sex trafficking the way it handles child pornography, with a “knowingly” standard, which seems adequate already.
All of this brings me back to what might not have been hit hard enough in the conference, the idea, as I said indicated in the title of my third book, of “a privilege of being listened to” (my 2005 essay), which sounds a little scary to consider and seems to lie beneath authoritarian control of speech.
I insist on managing my own speech, much of which is posted as “free content”. I get pestered that I don’t sell more physical copies of my books than I do and don’t try to be “popular” or manipulative in order to sell. (That helps other people have jobs, I guess.) I get told that my own skin should be in the game. I get sent into further deployments of the subjunctive mood (“could’a, should’a, would’a”), like in high school French class. – I should have children, or special needs dependents, or be in the trenches myself before I get heard from. (This could affect how I handle the estate that I inherited, which can get to be a Milo-Dangerous topic.) Content should pay its own way (which, ironically, might encourage porn.) Individual speakers weaken advocacy groups by competing with them and not participating. Before I get heard from myself, I should join somebody else’s cause against “systematic oppression” and not be above walking and shouting in their demonstrations. I should run fundraisers for other people on my webpage. I should support other publications’ fund raisers who claim (on both the right and left) to be my voice, as if I were incompetent to speak for myself. Or, as if that capacity will be taken away from me by force. Even the world of writers. I get confrontational ideas, that “real writers” get hired to portray other people’s narratives other than their own. (Okay, I might really have had a chance once go “ghost-write” so-to-speak one of the other “don’t ask don’t tell” soldier’s stories.)
One of the most serious underreported controversies is indeed the idea that speakers should be held responsible for what their readers might do, particularly because “you” are the speaker and not someone else. This is related to the notion of “implicit content” (Sept. 10). This concept was behind my own experience in October 2005 when working as a substitute teacher, see July 19, 2016 pingback hyperlink). That certainly comports with the idea that Section 230 should not exist, and that people should not speak out on their own until they have a lot of accountability to a peer group (family or not). This is far from what the First Amendment says but seems to be what a lot of people have been brought up to believe in their own home and community environments. It goes along with ideas of personal right-sizing, fitting in to the group, and a certain truce on social justice. In the past two or three decades (compared to when I was in high school and college), there has been a weakened presentation of the First Amendment (and Bill of Rights in general) in the way it is taught in high schools and to undergraduates. I could even say based on my own substitute teaching experience from 2004-2007 that even public school staff (including administration) is poorly informed on the actual law today, so you would not expect students to be getting the proper learning on these matters.
Individuals have natural rights, just as individuals; but people don’t have to belong to oppressed groups or claim “relative deprivation” to claim their natural rights.
The mainstream media, so to speak, is starting to pay more attention to the possible electromagnetic pulse threat that North Korea could try, especially as retaliation for a US strike. Here is the source for an article today by David Hamburg of Popular Mechanics, which was shared by Resilient Societies.
The article gives somewhat different explanations of what the E1 and E3 pulses do. The E1, it says. Might not harm cell phones or tablets or even laptops not plugged in, but probably many devices actually plugged in would be fired. There is a real question as to how many transformers could be severely damaged by an E3 pulse. And apparently some states are looking at requiring utilities to install neutral ground blockers, but these are more expensive than some activists claims.
The article maintains that an EMP-intended weapon need not be as accurate as one intended to explode near the target and could be harder to shoot down at high altitude. But it is not clear whether North Korea really has the ability to carry out this specific threat right now.
The article also links to a 2010 Oak Ridge National Laboratory report on the EMP threat and countermeasures. I visited the facility in July 2013 and took the tour available at the time and asked some questions about this issue.
Back on September 4, 2001, one week before 9/11, Popular Mechanics had run a story on localized non-nuclear magnetic flux EMP weapons, which have remained relatively little known.
As the YouTube video included above shows, National Geographic had made a video on the EMP threat in 2013, and doesn’t seem to have been taken that seriously. It may be a little over-hyped.
(Posted: Thursday, September 28, 2017 at 11 PM EDT)
So, how did the Russians pull it off and dupe American voters with fake Facebook accounts, fake news and fake ads? They still seem to be doing it.
After all, what happened to my own theory and practice of passive influence, putting my own version of the “truth” out there to be found by search engines, playing devil’s advocates, gumming up traditional activism with its identity politics and exaggeration of victimhood?
Is it my own insularity, my own bubble, the likelihood that most of my pieces are read mainly by my own choirs?
Is it that I don’t “care” enough about “average Joe’s” to bother with whether my own messages reach them? Think about how I get prodded to “sell books”.
The Russians, the enemies, sensed that a lot of the “elites”, the people who insist on seeing others through meritocratic scoping, would never pay attention to what the “proles” thought because the “proles” didn’t “merit” attention as real people from the elites.
That reminds me of my own father’s reporting of what psychiatrists had said of me in early 1962, after my William and Mary expulsion after I attracted homophobic ridicule from other boys in the dorm (aka barracks), especially the fatties and the “deplorables”. “You have to worry about what everyone thinks”, my father would retort.
A few links are in order. Look at David Brooks, “The Abby Hoffman of the Right: Donald Trump”. The protests of the late 60s (probably accelerated by reaction to student deferments from the military draft, which I took advantage of) led to a settling in of individualistic meritocracy by the late 70s, going into the Reagan years, which would really accelerate the notion.
Look also at chess champion Garry Kasparov and Thor Halvorssen, “Why the rise of authoritarianism is a global catastrophe”. There’s another reason. Over emphasis on meritocracy makes it OK to leave people behind, almost as part of one’s own psychic strategy. Soon, it’s OK to keep people “in their place”, which dictators (on both the right and left) do very well.
Remember the displacement of meritocracy in Charles A. Reich’s book “The Greening of America” in 1970 (given to me as a going-away present with a job change), somewhere between Consciousness II and III.
Look at these two rebuffs that I got back around 2006 (pre-Blogger days).
(Posted: Wednesday, Sept. 27, 2017 at 9:30 PM EDT)
OK, let’s lay things out in the whole problem of the player protests in the NFL and NBA over racism during the playing of the National Anthem at games.
First, I can’t imagine how kneeling (or locking arms) is disrespectful of the flag, or offensive. At least personally.
The best information suggests that NFL and NBA owners seem so support the protests, and are not doing so out of fear of player “rebellion”.
Players do have a First Amendment right to protest when a national symbol is displayed as far as the government is concerned (including president Trump) but their employers have a legal right to constrain what they say on the job, and sometimes off the job in public mode if the speech can cause disruption to legitimate business interests (essentially “conflict of interest” in speech).
The NFL and its associated professional sports franchises are private businesses. Same with MLB, NBA, NHL, soccer, etc. They can regulate what players say on the job, or what they do on social media if behavior affects business. But they don’t have to. If the leagues and the owners want to single out the issue behind the protests (especially police racial profiling and BLM) they are free to do so.
Apparently, yesterday, the support for the protests in the NFL was overwhelming, including at the Washington Redskins’ game (a 27-10 win)Sunday night (and this is ironic given the controversy over the team name and trademark as a potential slur against Native Americans).
In the past, however, the owners were not as supportive. Consider the history if Colin Kaepernick. This morning, Bob Costa said on CNN that Colin has said before that voting was useless because of the current power structure (reportedly he said that before the 2016 election).
I do have problems with a couple of areas. One is if another group (BLM or anyone else) decides that its issue must be implemented in such a way that anyone else (like me, as an individual speaker an author) must somehow pay them homage to have a voice at all. There are many examples of oppression, and I can’t say that one is always more demanding than another (Charlottesville and Trump’s “both sides” notwithstanding). Along these lines, Juana Summers piece on CNN “It’s impossible for black athletes to leave politics off the field”.
Another is that I had my own issue back in the 1990s, where I had a potential “conflict of interest” over my planned speech on gays in the military when I was working for a company that served members of the military as a fraternal provider. I wound up transferring to Minneapolis (and having some of the best years of my own life). There was a time when a family medical emergency (Mother’s surgery in 1999) might have forced me to come back, conceivably costing me my job as a result. I did not have the right to “hide” behind “systematic oppression” as an out. Fortunately, this worked out OK on its own.
President Trump was certainly out of line Saturday night in Huntsville AL when he “demanded” that NFL owners “fire” players for protesting. The President doesn’t have the right to tell private businesses what protests to support or allow on the job.
Major league sports have come a long way in dealing with discrimination, particularly MLB with its various statements including sexual orientation.
But the NFL may have problems with its own treatment of players regarding head injuries (the recent revelations about Aaron Hernandez are among the worst). Trump wanted to deny even football brain injuries (WSJ editorial).
I want to mention Margaret Sullivan’s Washington Post (Style section) article today about new state laws restricting protests that disrupt traffic or businesses. She says that the kinds of protests that ended the Vietnam War (and the draft) might be illegal in many states (well, remember Kent State in 1970). We’ll have to come back to this.
I also want to mention Villasenor’s study for Brookings on attitudes toward free speech on campus. Younger adults, without the same grounding in civics classes that my generation had, seem to gravitate to a more authoritarian concept of how speech works in society. That is, the intended effect and likely actions on the listener or watcher matter (“implicit content”), as does the idea that words can be weaponized (even if by Russia on Facebook).