Cato Institute covers many First Amendment topics in day long forum; what about downstream liability concerns?

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.

(Posted: Tuesday, October 3, 2017 at 12 noon)

Who “gets to be recognized” as a legitimate “journalist”?

So, who gets to call the self a journalist?

The recent queasiness in Congress and the FCC about matters like Section 230 and network neutrality bring this question back.  Yes, I’ve talked about the controversies over “citizen journalism” before, like the day before the Election on November 8, 2016.  And recently (July 19) I encountered a little dispute about access requiring “press credentials”.

The nausea that President Donald Trump says the “media” gives him seems to be directed at mainstream, larger news organizations with center-liberal bias – that is, most big city newspapers, and most broadcast networks, and especially CNN – he calls them all purveyors of “fake news” as if that were smut.  More acceptable are the “conservative” Fox and OANN.  Breitbart and Milo Yiannopoulos (with his own new site) seem to be in the perpetual twilight of a tidally locked planet.  Perhaps I am in the same space;  Trump doesn’t seem to have the same antipathy (or hostility) to “independent” or “citizen” journalists (which I had feared he would when he said he didn’t trust computers), but a lot of other people do.

I digress for a moment. Coincidentally has set up his “Trump News Channel” on Facebook (Washington Post story) but the URL for it reverts to “Dropcatch”, with Twitter won’t even allow as a link as supposed spam.

The basic bone politicians and some business people pick with journalists is that “they” spectate, speculate and criticize, but don’t have to play, like right out of the script of the Netflix thriller “Rebirth”.  Politicians, hucksters, sales professionals, and perhaps many legitimate business professionals, and heads of families – all of them have accountabilities to real people, whether customers or family members.  They have to go to bat for others.  They have to manipulate others and concern themselves with the size of their “basis”.  Journalists can do this only through double lives.

I could make the analogy to kibitzing a chess game, rather than committing yourself to 5 hours of concentration in rated game.  (Yes, in the position below, Black’s sacrifice hasn’t worked.)

But, of course, we know that renowned journalists have paid their dues, most of all in conflict journalism. Sebastian Junger broke his leg working as an arborist before writing “The Perfect Storm”. Bob Woodruff has a plate in his skull but recovered completely after being wounded in Iraq. Military services actually have their own journalists and public affairs.  Young American University journalism graduate Trey Yingst helped found News2share before becoming a White House correspondent, but had done assignments in Ukraine, Gaza, Rwanda, Uganda, Ferguson, and was actually pinned down at night during the Baltimore riots in April 2015.

That brings us back to the work of small-fry, like me, where “blogger journalism” has become the second career, pretty much zoning out other possible opportunities which would have required direct salesmanship of “somebody else’s ideas” (“We give you the words”), or much more ability to provide for specific people (maybe students) in directly interpersonal ways.

Besides supporting my books, what I generally do with these blogs is re-report what seem like critical general-interest news stories in order to “connect the dots” among them.  Sometimes, I add my own footage and observations when possible, as with a recent visit to fire-damaged Gatlinburg.  With demonstrations (against Trump, about climate change, for LGBT) I tend to walk for a while with some of them but mainly film and report (especially when the issue is narrower, such as with Black Lives Matter).  I generally don’t venture into dangerous areas (I visited Baltimore Sandtown in 2015 in the day time).

I generally don’t respond to very narrow petitions for emergency opposition to bills that hurt some narrow interest group.  What I want to do is encourage real problem solving.  Rather than join in “solidarity” to keep Congress from “repealing” Obamacare by itself, I want to focus on the solutions (subsidies, reinsurance, the proper perspective on federalism, etc).  But I also want to focus attention on bigger problems, many of them having to do with “shared responsibility” or “herd immunity” concepts, that don’t get very consistent attention from mainstream media (although conservative sites do more on these matters).  These include filial responsibility, the tricky business of reducing downstream liability issue on the Web (the Section230 issue, on the previous post, where I said Backpage can make us all stay for detention), risks taken by those offering hosting to immigrants (refugees and asylum seekers), and particularly national security issues like the shifting of risk from asymmetric terror back to rogue states (North Korea), and most of all, infrastructure security, especially our three major electric power grids.

My interest in book self-publication and citizen journalism had started in the 1990s with “gays in the military”, linking back to my own narrative, and then expanded gradually to other issues about “shared risks” as well as more traditional ideas about discrimination.  I had come into this “second career” gradually from a more circumscribed world as an individual contributor in mainframe information technology. “Don’t ask, don’t tell” had suddenly become a particularly rich issue in what it could lead to in other areas.  So, yes, I personally feel that, even as an older gay man, the LGBTQ world has more to worry about than bathroom bills (Pulse).  I think the world we have gotten used to could indeed be dialed back by indignation-born “purification” (as a friend calls it) if we don’t get our act together on some things (like the power grid issue).  But I don’t believe we should have to all become doomsday preppers either.  We should solve these problems.

A critical component of journalism is objectivity and presentation of Truth, as best Truth can be determined. Call it impartiality. You often hear Trump supporters say that, whatever Trump’s crudeness and ethical problems, what Trump promotes helps them and particularly family members who depend on them.  Of course many journalists have families without compromising their work. But this observation seems particularly relevant to me.  I don’t have my own children largely because I didn’t engage in the desires or the behaviors than result in having that responsibility.  I can “afford” to remain somewhat emotionally aloof from a lot of immediate needs.

In fact, I’ve sometimes had to field the retort from some people that, while some of the news out there may be dire, I don’t need to be the person they hear it from.  I could be putting a target on my own back and on others around me.  Indeed, some people act as if they believe that everything happens within a context of social hierarchy and coercion.

My own “model” for entering the news world has two aspects that seem to make it vulnerable to future policy choices (like those involving 230 or maybe net neutrality). One of them is that it doesn’t pay its own way.  I use money from other sources, both what I earned and invested and somewhat what I inherited (which arguably could be deployed as someone else’s safety net, or which could support dependents, maybe asylum seekers if we had a system more like Canada’s for dealing with that issue).  That means, it cannot be underwritten if it had to be insured, for example.  I can rebut this argument, or course, by saying, well, what did you want me to do, get paid to write fake news?  That could support a family.  (No, I really never believed the Comet Ping Pong stuff, but the gunman who did believe it an attack it claimed he was an “independent journalist.”  I do wonder how supermarket tabloids have avoided defamation claims even in all the years before the Internet – because nobody believed them?  Some people obviously do.)   No, they say. we want you to use the background that supported you as a computer programmer for decades and pimp our insurance products. (“We give you the words,” again.)  Indeed, my withdrawal from the traditional world where people do things through sales middlemen makes it harder for those who have to sell for a living.

The other aspect is that of subsumed risk.  I can take advantage of a permissive climate toward self-distribution of content, which many Internet speakers and small businesses take for granted, but which can be seriously and suddenly undermined by policy, for the “common good” under the ideology of “shared responsibility”.  I won’t reiterate here the way someone could try to bargain with me over this personally – that could make an interesting short film experiment. Yes, there can be court challenges, but the issues litigated with CDA and COPA don’t reliably predict how the First Amendment applies when talking about distribution of speech rather than its content, especially with a new literalist like Gorsuch on the Supreme Court.

A lot of “Trader Joe” type people would say, there should be some external validation of news before it is published.   Of course, that idea feeds the purposes of authoritarian rules, like Vladimir Putin or Xi Jinping, or perhaps Donald Trump.  But we could see that kind of environment someday if we don’t watch out.

(Posted: Monday, August 7, 2017 at 4 PM EDT)

It’s all too easy to act like a bigot, even without a lot of group-based prejudice

We often hear the word “bigot” to characterize persons of public influence whom we want to go away or don’t want to have to pay heed to.

Wikipedia treats the concept of “bigotry” as pretty much synonymous with “prejudice”.  But Merriam-Wesbter’s definition mentions intolerant or obstinate “devotion” to one’s own “opinions” and only then refers to the idea of prejudice against members of an identifiable group.

Typically, we’re used to thinking about “bigotry” more in terms of groups, particularly when we look at history.  For the United States, the most glaring example comes with the racism that followed the ending of slavery and, almost a century later, segregation and the evolution of the Civil Rights movement of the 1960s.  At the outset, bigotry by whites was first motivated by economic loss:  “property”, ill-obtained, was going to be expropriated from them by force.  This is the “Gone with the Wind” worldview of Reconstruction.

One problem was that it was possible to find “rationalization” for slavery or subordination of others int the Bible, with right away reminds us that you can justify almost anything with carefully framed “scripture” (Ephesians 6:5).  The idea that information could be passed to the “ordinary people” from those in power (as propaganda) was part of the problem.  Over time, people could use the Bible to maintain the convenient comfort and “security” of segregation, an idea my parents somewhat believed even though at the church I grew up in the 1950s (First Baptist of the City of Washington DC), Dr.Edward Pruden was one of the most progressive of the time (as in his 1951 Judson Press book “Interpreters Needed“).  Huffington takes this up in a piece about Bob Jones University; also see Lewis).

The other great “group” marker for prejudice has been , of course, religion.  Anti-Semitism in Europe leading to WWII and the Holocaust in part resulted from the idea that fascism could portray the Jews as “elitist” and against “the common people” or “folk”  and could scapegoat them for the economic difficulties after WWI.

And anti-Islam sentiment has become the most obvious example of religious prejudice in the past decades, as a predictable result of terrorism.  It’s clear that intolerant passages can be found in the scriptures of all religions (and get used by political demagogues), but the concentration of certain passages in the Koran does seem troubling.

And particularly with radical Islam, the focus on focus and violence seems to be related to the idea that modernism and individualism has created a world of abstraction and self-focus that doesn’t make sense to a lot of people, and that leaves a lot of “ordinary people” behind.  But that attitude is often found in some evangelical Christianity.

History is typically concerned with “vertical” groups of people, classified by nationality, ethnicity, religious affiliation, and race.  What’s more difficult is how any group deals with those in its midst who are “different”, especially with regards to gender expression and sexuality.

I’ve tended to regard affinity groups related to gender and sexuality issues as “horizontal”, as they are spread out among all vertical groups.  It’s rather like comparing the sprawling office buildings over land plots in Washington to the skyscrapers in New York.

Furthermore, most of these horizontal groups are somewhat characterized by attitudes and behaviors, things that are partially chosen, even if underlying drives have biological (epigenetic or genetic) aspects.  Typically people in horizontal groups are not noticed at first sight (so “do ask do tell”).

So this brings me back to “homophobia” or sometimes “transphobia”.  I covered that on Jan. 4.  Particularly significant is that many heterosexual men find the whole panoply of courtship, dating, marriage, and the same family bed for generations quite challenging, as is the economic burden.  That’s easier for a lot of men to handle if they think all other men have to play the same cards.

But there’s also the need, as a gay midwestern district attorney pointed out to me, some people believe they need to feel superior to someone.  One reason for “bigotry” is then the need to have people to boss over.  Procreative potential for some men becomes a convenient proxy for superiority.

In fact, this brings me back to an element of my own therapy in those days of William and Mary and NIH (covered in my books), that in my own mind, I would tend to equate people’s visible trappings as a proxies for moral virtue.  I like to see “perfect” men.  I am uncomfortable with the idea of promoting gender fluidity.  In practice, I generally just ignore it when I see it.  You see things all the time you don’t necessary approve of, say little or nothing, and just move on.  Isn’t that the “harmlessness” of libertarianism?  But I have made myself visible on my own, indeed, self-promoted my own “opinions” without the supervision of gatekeepers.  (Sustaining the capacity to do that can remain challenging).  But these days I get challenged, that I am not willing to be more pro-active, to step up to actively promote those who have less privilege and more need.  Sometimes (as with fluidity) it really is hard to tell what is “chosen” and what is immutable.  But to do less, and still continue to be heard, is seen as bordering on bigotry, even from me.

Indeed, if you think about the most extreme acts of ISIS or some lone wolf terrorists, it seems as though they are making a public stir of what they personally see as non-virtuous.  (You could get into a discussion of impulse control, too.)

You also wonder if unwillingness to consider dating someone (say trans) would be viewed by some people as bigoted. (An example is the episodeLean In” in the ABC series “Mistresses”.)

But the fact that there are different forms of bigotry does not detract from a perpendicular thesis of mine, that “how you should behave if you think you’re different”, and whether “being different” implies “being special”, is a worthy topic on its own and has moral substance.  It’s part of connecting the dots.

It’s also instructive to look up “bully” in the dictionary.

(Posted Monday, April 17, 2017 at 3 PM EDT)

My own self-broadcast speech in a post-truth world (?)

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So, how do you know what’s right and what’s wrong?  Let’s get back to that epistemology of Philosophy 101.

We can propose some ideas.  The Golden Rule.  Or the libertarian idea of harmlessness.  What we run up repeatedly is inequality, not just among groups but among people in any group.  Individuals benefit from the sacrifices of others that they didn’t see happen before their eyes.  Practically none of us have fully paid our dues, practically all of us have some bad karma, and can have “stuff” taken away from us, and we won’t find claiming victimhood particularly honorable.  You can think of some sort of “axiom of choice” that’s self-evident. If you want a better station in life than what seems “assigned”, reach down and offer a hand up to others, with some real personhood from “you”.  You may have to accept the idea of belonging to some group, even if that group isn’t right about absolutely everything.

History suggests, though, that you can rationalize almost any ideology.  That’s particularly true when you talk about subcultures of your basic political formats:  democracy, communism, fascism (including ancient “Spartanism”), theocracy.  So it’s natural to turn to religion, and let scripture decide which ideology is right.  But then you have to decide, whose scripture, and which interpretation.  You often wind up with pronouncements (like homophobia) that sound totally irrational to an individual, but perhaps sensible for the long term survival of a circumscribed, threatened tribal group.  Or you may decide this by social affiliation.  You belong to a group, whose leadership fights for you.  You may belong to more than one group, and the groups could be somewhat at odds.  Examples of groups to belong to:  natural family (as extended), faith-based, labor, business, or civil-rights oriented (by race, nationality, or gender “tuple”).  It’s the task of a progressive democracy to overcome both over-rationalization and fundamentalism, and come up with a culture of what values are acceptable for people to live together and communicate.

So, then, we come to the “value” of my style of ungated speech.  That’s coming under fire because of where “fake news” has led (especially with the recent total libel of some local small businesses in Washington DC, in “pizzagate”, and the violence that erupted).

There is a view that “news” should be delivered by professionals, who know how to fact-check, and that their “privilege of being listened to” be regulated by a political structure.  That’s how (Putin’s) Russia and China work with their own people now.  You can argue that If the leadership reached power legitimately, it’s in the best interest of everyone to know their place (“rightsizing”) and not speak out of turn.  Yes, that’s a kind of authoritarianism, hidden under democracy, which can provide the illusion of stability for a long time, but not forever.  (Marxist states have not been able to sustain themselves forever.)   Authoritarian states argue, with some credibility though, that “average Joe” people are vulnerable to “propaganda” (one of Vladimir Putin’s favorite words, even in justifying the 2013 anti-gay law), and are unable to ferret out “truth” for themselves among a quantum sea of infinite information.

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So, then, you deal with my kind of speech.  I offer theories now as to how, for example, Section 230 could quickly come apart under Trump. But someone else might want me to shut up, inasmuch as I might be (unwittingly) throwing kerosene on a fire of people who want to  implement exactly the policies that I fear, that would end my own second career and my own life’s “second half”.  After all, there are some groups (many lower income families with children) whose members might be better off if there were no user-generated content because there was no Section 230.  These “average Joes” could be as passionate about something like this with Trump (protecting their kids, when many of us don’t even have them) as they are now about keeping manufacturing jobs within the United States.

A similar thing happened in the pre-Internet 1980s, in the early days of the AIDS epidemic, when, in Texas, conservative legislators wanted to expand the sodomy laws and ban gay men from most occupations (let alone the military) on a theory that gays would “amplify” a new disease until it threatens civilization as a whole. I actually corresponded with this group (the supposed “Dallas Doctors Against AIDS), looking for some sort of rational refutation.  As diabolical as it is HIV never has behaved this way, but it’s easy for a science fiction writer to conjure up a new imaginary virus that does.  (Something like that happens in my novel manuscript “Angel’s Brother”, where the “virus” contains short-lived micro black holes).

But what I’m doing is not spreading “news” or claiming that certain events have happened (as was done, for example, in the “Pizzagate” affair).  I’m articulating (playing “devil’s advocate”) possible new interpretations of known and reasonably verifiable facts. My doing so makes “identity politics” more difficult, because there is always the possibility that someone will have an inherited enhanced inclination to behave in some negative or (“downsteamly”) harmful way to overcome a disadvantage that society has assigned, over history, to hs or her “group”.  I am trying to force everyone to look for the truth in a post-truth world, before they act.

(Posted: Monday, December 5, 2016 at 10:15 PM EST)