Trump’s threat to media broadcast licenses, while silly and self-contradictory, shows the dangerous paradoxes of his populism

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.

(Posted: Friday, Oct. 13, 2017 at 11:30 PM EDT)


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)

Some elements of the GOP go out of their way to marginalize LGBTQ people, and then fail to address infrastructure and health care with real policy

I’ve had a running debate on Facebook Messenger with a particular friend in northern Virginia’s LGBT leadership, and he asked that his name not be reproduced because be feared (however facetiously) the “alt-right”.

I have said to him that I resist being drawn into specific initiatives sponsored generally by the political Left on narrow issues mostly having to do with discrimination (however “systematic” the “oppression”) against (members of) self-defined groups.  Likewise, right now at least, I don’t raise money under my own name (like with GoFundMe) for “other people’s causes” however compelling (I don’t ask people to give for the Houston flood, except maybe here in this post; I simply do it myself.)  That could even change in the future with certain circumstances.  I’ve said I want to focus on civilization-threatening problems like North Korea, nuclear weapons, power grid security.  I also want to focus on subtle free-speech (and gatekeeper resistance) problems, like downstream liability and implicit content. I’ve said that “we” have bigger problems than bathroom bills.  (As I type this, I hear on CNN that North Korea claims now to have miniaturized ICBM-mountable hydrogen bombs, not “just” Hiroshima-like atomic bombs.  And we have Trump with the nuclear suitcase.)

My friend (whom I see as pretty centrist between Left and Right, more or less with Hillary Clinton’s positions on most things, much more conservative than Sanders or even Obama) agrees that the GOP should focus on actually fixing healthcare, securing infrastructure security and solving the problems with refugees, and with enemies like ISIS and North Korea  — and facing the responsibility to future generations on climate change.  He says it is the GOP that looks for scapegoats (right now, transgender people) with bathroom bills or pseudo-religious freedom bills. I agree.  And some parts of the alt-right make scapegoats of all immigrants, and are more aggressive in a desire to subjugate non-white people than I would have believed.  This puts pressure on me to come back to focus on defending “oppressed groups” rather than paying attention to existential problems that can affect us all.  In my situation (benefiting from inheritance and trying to downsize myself out of a house partly for “political” reasons), it gets harder to work on what I want than on what others would demand of me.  It’s harder to stay away from unwelcome personal entanglements.

Here are a few of his comments:

“Focusing on infrastructure like FDR did during the Great Depression, of that scale, is definitely the winning ticket. The real problem is the GOP in Congress doesn’t want to spend money, especially on big national projects. However, they will if it is funneled through the largely Republican controlled states. So the grid and space projects all have to be designed as pork spending to states with only a small national office to coordinate, if that. Moreover, the money has to go to key swing states.

“I’m getting tired of this extreme bipolar discord manufactured by billionaires who spend their money on this negative crap rather than helping society in productive ways. None of this was in the news (Page 1) until Trump began dangling red meat at crowds to capitalize off fringe. Even the labels of left and right are becoming meaningless. Whatever happened to a sense of decency? It’s been replaced by circus clown.

“I look at another way. The bathroom bills are pushed and funded by right wingers who make it a priority over everything else. The LGBTQ-activist aren’t to blame for reacting. The blame lies squarely with the well-funded right that wants to obliterate all the gays off the face of the earth. And any progress made in the last 20 years. Why pinpoint blame people who fight against them for human rights and social justice. It makes no sense to me. You are right however, that the priorities of the nation need to be focused on things like infrastructure and beefing up national defense.”

Here are a few of his best links:

Americans United for Separation of Church and State: “The Religious Right’s War Against LGBT Americans

I think there is more to say here.  People “on the right” see meaning in forcing others to comply with the same moral rules they think they should follow; that’s their answer to “inequality”.  They also have to deal with the logically existential idea of personal “rightsizing”.

Emily Crockett, “How the Left can stop arguing and beat Trump”.

James Hohmann “The Daily 202: False moral equivalency is not a bug of Trumpism; it is a main feature”.

George Michael’s “The Rise of the Alt-Right and the Politics of Polarization in America”.

It strikes me that the alt-right uses identity politics and even “intersectionality” much as does the radical Left.  The groups are different.  But the exploitation of “relative deprivation” (and the personal undeservedness of others) is the same, even if the Right seems to have much less justification in history.

(Posted: Saturday, September 2, 2017, at 9 PM EDT)

Activism, watcherism, and subtle vigilantism: those just outside the “systematic oppression” zones

CNN has run an op-ed by John Blake, “White Supremacists by Default: How ordinary people made Charlottesville possible.”

Yes, to some extent, this piece is an “I am my brother’s keeper” viewpoint familiar from Sunday School. But at another level the piece has major moral implications regarding the everyday personal choices we make, and particularly the way we speak out or remain silent.

I grew up in a way in which I did not become conscious of class or race or belonging to a tribe, or people. I was not exposed to the idea of “systematic oppression” against people who belong to some recognizable group. My self-concept was pretty separated from group identity.

I gradually became aware that I would grow up “different” especially with respect to sexuality. But I believed it was incumbent on me to learn to perform in a manner commensurate with my gender, because the welfare of others in the family or community or country could depend on that capacity. My sense of inferiority was driven first by lack of that performance, which then morphed into other ideas about appearance and what makes a male (or then female) look desirable.

I remember, back in the mid 1990s, about the time I was starting to work on my first DADT book, an African-American co-worker (another mainframe computer programmer) where I worked in northern Virginia said that he was teaching his young son to grow up to deal with discrimination. Another African-American coworker who had attended West Point said I had no idea what real discrimination was like, because I could just pass. (That person thought I lived “at home” with my Mother since I was never married.)  I would subsequently be a witness in litigation by a former black employee whom I replaced with an internal transfer, and the “libertarianism” in my own deposition seemed to be noticed by the judge dismissing the case.

Indeed, the activism in the gay community always had to deal with the “conduct” vs. “group identity” problem, particularly during the AIDS crisis of the 1990s. Libertarians and moderate conservatives like me (I didn’t formally belong to Log Cabin Republicans but tended to like a lot of things about Reagan and personally fared well when he was in office) were focused on privacy (in the day when double lives were common) and personal responsibility, whereas more radical activists saw systematic oppression as related to definable gender-related class. Since I was well within the upper middle class and earned a good income with few debts and could pay my bills, both conservatives with large families and radical activists born out of disadvantage saw me as a problem.

The more radical commentators today are insisting that White Nationalists have an agenda of re-imposing or augmenting systematic oppression by race, even to be ultimate end of overthrowing normal civil liberties, reintroducing racial subjugation and other forms of authoritarian order. The groups on the extreme right are enemies (of people of color) as much as radical Islam has made itself an enemy of all civilization. Radicals insist that those who normally want to maintain some objectivity and personal distance must be recruited to actively fighting with them to eliminate this one specific enemy.  This could lead to vigilantism (especially online) to those who speak out on their own but who will not join in with them. Ii do get the idea of systemic oppression, but I think that meeting has a lot more to do with the integrity of individual conduct. But this goes quite deep. Refusing to date a member of a different race could be viewed as active racism (June 26).

The possibility of including ordinary independent speakers or observers (or videographers) among the complicit indirect systematic “oppressors” should not be overlooked. Look at the comments and self-criticism of Cloudfare CEO Matthew Prince, about the dangers of new forms of pro-active censorship by Internet companies. This does bear on the Backpge-Section 230 problem, and we’ll come back to this again. In a world with so many bizarre asymmetric threats, I can imagine that Internet companies could expand the list of certain speech content that they believe they cannot risk allowing to stay up (hint: Sony).

I want to add, I do get the idea that many left-wing activists (not just limited to Antifa) believe that Trump was elected in large part by white supremacists and that there is a more specific danger to everyone else in what he owes this part of his base. I have not taken this idea very seriously before, but now I am starting to wonder.

(Posted: Saturday, August 19, 2017 at 6:15 PM EDT)

Hawking’s warning about elitism v. populism rings true for me

Stephen Hawking authored an op-ed in December, 2016, shortly after Trump’s win, in which we warned about the existential dangers from inequality, especially wealth inequality as well as income, as well as cognition inequality.  The original article is in the Guardian, here.

We have the ability to destroy the planet, whether with nuclear weapons or by allowing runaway climate change.  But we don’t have the ability to escape it (as with the “space ark” in the NatGeo film “Evacuate Earth”) and won’t for at least a century.  Hawking has previously warned, in fact, that we have about another century to find a new home.

Indeed, that undertaking would be no picnic. Imagine pre-selecting those to be “saved” or literally “raptured” onto a spacecraft, having to reproduce for generations, maybe even to reach an exoplanet near Proxima Centauri, which may well be tidally locked.   (This problem is related to a set-up in my novel “Angel’s Brother”).

Hawking talks about the dangers of elitism, and in one paragraph seems to characterize himself as one of the elites drawing the indignation of populists on both the far Left and the alt-Right.  Without his superior intellect and communication skills and considerable support, he would have become “just another pitifully dependent disabled person. “The Theory of Everything” (2014) did document how his disability came on to him quickly as a young man, although he was able to marry and have a family.  In a distant way, his self-commentary perhaps parallels mine, especially in my 2014 DADT-III book. I’ll take this further in future posts.   I know what he is saying.  If you take advantage of the system and avoid the “people” (like on the lower deck of the “Titanic”) and something happens, your end can get ugly indeed.

Along these lines, I’ll share a friend’s link on the different styles of thinking (elites, the “Democrats are capitalists” crowd of Nancy Pelosi) vs. real people, where Berkeley’s George Lakoff warns, “Don’t count out Trump”.  I tend to think about policies and winning arguments rather than “selling” or “conversions”  My mother used to talk about “real life”.

I’ll share Lindy West’s op-ed “Save the First Amendment” (or “Save Free Speech from Trolls”, in the New York Times Sunday Review July 2, somewhat convoluted by pertinent to elitism.   I’m remined of a 2005 Washington Times editorial “Suffocating the First Amendment”, which had figured into a major incident in my life.

The Guardian, by the way, is pimping for donations.  (So does Truthout many other sites.)  I find it unacceptable indeed to let others speak for me.  There goes false pride again.

(Posted: Tuesday, July 4, 2017 at 11 AM EDT)