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)