1st amendment – Media Matters

January 11, 2021January 11, 2021

Big Tech, Political Polarization, and the Assault on Democracy

The Age of Surveillance Capitalism by Zuboff and Why We’re Polarized by Klein

I’ve been catching up on some reading over the holiday break and two books that caught my attention are proving to be quite helpful to understanding the recent events in our nation’s capitol. What we’re witnessing is shocking, but not surprising, to those who have paid attention to the ever-increasing power exerted by Big Tech over every detail of our lives, including our political identities.

Big Tech is shorthand for the companies that control much of our everyday lives through their use of software and hardware designed to capture and hold our attention. And speaking of attention, if I were to add another recent title that addresses this concern it would be The Attention Merchants, by Tim Wu.

By gathering the massive amount of data generated every minute of every day by billions of users, these companies have tapped into a resource that they have turned against us to predict and control our future behavior. Siloing, creation of filter bubbles, nudging users towards certain behaviors, shadow-banning (and now more overt actions to disenfranchise users) are just some of the ways that Big Tech is meddling in the political process. If that sounds like a radical conspiracy theory to you, I urge you to read these books and then we can have a conversation.

And while all of us can agree that what transpired this past week in the halls of congress was both dangerous and disgusting, reasonable people continue to disagree about how to respond to controversial political speech on the leading tech platforms. The ban of the President of the United State by numerous platforms, regardless of your opinions about Trump himself, is cause for concern and should not be taken lightly.

Similarly while the attack on right-wing alternative platforms, e.g. Parler, by Amazon, Apple and Google, may feel like a reasonable and perfectly legal response to unhinged speech that calls for political violence, the danger is to further marginalize and force underground a movement that has enormous popular support.

I’m not suggesting that racists, white-nationalists, and anarchists should have a seat at the table, but I am suggesting that unelected leaders of a few massive tech companies cannot be trusted to make decisions about who gets to participate in our political discourse. This time they may appear to be on your side, but what about when the tables are turned? We’ve given these tech platforms enormous power over the future of our democracy…and that makes me very concerned.

October 20, 2020October 20, 2020

Section 230 is Under Attack

Section 230 of the Communications Decency Act, a law passed during the Clinton administration, is under attack from both the left and the right. President Trump wants to revise Section 230 because of what he believes is unfair throttling of conservative news by liberal tech platforms. And liberal legislators want to revise Section 230 to make it more difficult to post “hate speech” on these same platforms.

Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg have been blamed for everything wrong about these leading social media platforms. We could debate whether they deserve the blame, but we can’t deny that they are caught between a rock and a hard place. One one hand, they love Section 230 because it removes corporate responsibility for content published on their platforms by users. On the other hand, they worry about the future of a platform that could becomes a free-for-all without any ability to control the most poisonous content. They want to be free to limit obscene pornography, dangerous speech, libel, and other content not protected by the 1st Amendment, but they don’t want to be responsible for damage that might be caused by speech that comes close, without crossing, the line. According to the Recode website…

FCC Chairman Ajit Pai announced that his agency would “move forward with a rulemaking to clarify” the meaning of Section 230, which gives internet platforms like Facebook and Twitter immunity from lawsuits over content their users provide. That is to say, if someone defames you in a tweet, you can sue the Twitter user but not Twitter itself. This 25-year-old law is what allows websites that rely on third-party content to exist at all. It also allows those sites to moderate that content as they see fit, which has been a source of ire for conservatives who believe they are being censored when Facebook bans them, YouTube demonetizes them, or Twitter appends fact-checks to their tweets.

The most recent fuss over Section 230 involves Hunter Biden’s laptop that was left with a computer repair shop. The shop owner turned the contents of the hard drive over to an attorney with connections to former NYC major Rudy Giuliani, who turned the information over the the New York Post, a tabloid newspaper with a less-than-sterling reputation. The last-minute release of Hillary Clinton’s emails by Wikileaks, (amplified by James Comey and the FBI), just days before the 2016 election is believed to have been a factor leading to the election of President Donald Trump, and social media platforms don’t want to facilitate a repeat of that outcome. Twitter prevented sharing of the New York Post’s stories based on the idea that the data was obtained by hacking, (not technically accurate), but a few days later apologized for not communicating more clearly and then reversed their policy. Facebook continues to restrict sharing on their platform because they claim that they are unable to verify the accuracy of the claims alleged by the NY Post.

As you can see, there is no easy solution to this dilemma…and many other current debates. Facebook just recently announced they will take a tougher stance on holocaust denialism, anti-vaccine posts, and QAnon conspiracy pages. But this is a slippery slope for platforms. Once you begin deciding what is true and appropriate and permissible, you open yourself to criticism from all sides.

July 10, 2020July 10, 2020

Cancel Culture Just Got Real

Remember the saying “live and let live”? Another variation was, “to each his own.” Those were quaint ideas. I suppose the latest iteration is “you do you” or something to that effect. However you choose to express it, the idea is to give individuals personal space to hold their own opinions, ideas, preferences, and even actions (to a point) without judgement or condescension. Those days are long gone.

You may have heard the phrase “cancel culture” bandied about in conversation. Depending on who’s wielding it, the phrase itself can be a put-down intended to stifle an opposing view. But at its core the idea of cancel culture is the illiberal or fundamentalist notion that opinions and ideas outside of the accepted norm must be squelched. Fundamentalism is another useful idea to explain what’s going on. Fundamentalism is often used to describe religious extremism, and in fact the Taliban and other extreme religious groups demonstrate the kind of intolerance that we’re talking about. One might even think of this current movement as a type of religious adherence to modern tenets of “faith” that privilege feelings and identity over contrary facts. Cancel culture results in speakers being disinvited or shouted down. It results in reporters and editors being dismissed from their jobs for writing or publishing something that is interpreted as hurtful. It results in academics and researchers being reprimanded for researching or teaching ideas that have fallen out of favor among the “woke” class.

A very recent example of this “illiberal” mindset can be seen in the reaction to A Letter on Justice and Open Debate, to be published in the October edition of Harper’s magazine. A firestorm of controversy erupted when it became apparent that the letter, and its signatories, transgressed the bounds of accepted thought…which, of course, was inevitable since the letter was intended to push back on narrow-minded views of what is acceptable discourse. Jesse Singal, one of the signers of the letter, wrote an interesting piece in Reason that makes this point. Twitter has been abuzz with opinions on the letter and the fallout from both conservative and progressive points of view.

This debate is really about the conflict between traditional liberals and those to their left who have prioritized social justice reforms. Freddie de Boer addresses the tension between those who traditionally support free speech and those who see free speech as an unfortunate feature/bug that allows their adversaries a platform. But ultimately, like most cultural debates, it comes down to power. Who has it, who wants it, and how traditional and new media can be harnessed to shape the narratives that tip the balance.

Sources:
* https://harpers.org/a-letter-on-justice-and-open-debate/
* https://reason.com/2020/07/08/the-reaction-to-the-harpers-letter-on-cancel-culture-proves-why-it-was-necessary/
* https://fredrikdeboer.com/2020/07/07/ending-the-charade/

November 6, 2019November 6, 2019

Zuckerberg v Dorsey, round 1

Jack Dorsey, head of Twitter, just announced that political advertising will not be allowed on his platform. Meanwhile, Mark Zuckerberg, head of Facebook, will allow political ads and has taken a hands-off approach to policing political ads for false or deceptive content. The stakes are high and the debate is contentious.

Regardless of your political views, you can easily see how these different policies are complicated by very real and important foundational issues. First up is freedom of speech. In the US Constitution, freedom of speech as enshrined in the First Amendment is at the center of this debate. First and foremost the First Amendment protects political speech…which includes political advertisements. Those who are First Amendment absolutists argue that the solution to wrong speech is not banning speech. Rather, the solution is to allow MORE speech. In the end, they argue, truth will win out as long as everyone is free to speak and present their views. Score one for Zuckerberg

If you have a lower view of human nature you might argue, yeah, but advertising is paid speech, and those with the most money can afford the most advertising and most sophisticated advertising strategies and campaigns. Free speech is great, but allowing people with money to distribute political messages to the masses without any responsibility to speak truthfully will result in many people being deceived and manipulated for political ends. Score one for Dorsey

I could go on but am more interested in your thoughts. Which of the arguments articulated by Zuckerberg and Dorsey resonate with you?

October 17, 2019October 17, 2019

With $B at Stake, NBA Not Sure Freedom is Worth It

How much is freedom and free speech worth to you? You may never know until it costs you something. That’s what the National Basketball Association and star players are discovering in the wake of a tweet-storm that began with a statement by Houston Rockets general manager Daryl Morey in support of the Hong Kong protestors. Because of the nearly 300 million NBA fans, political statements about China come with a price-tag.

First a little background. Hong Kong was a British colony for 99 years and was returned to Mainland China in 1997. China, known for its record of authoritarian rule and suppression of human rights, has been criticized by much of the Western World for imprisonment of dissidents and persecution of religious and cultural minorities. The current protests in Hong Kong have been widely embraced by those around the world who want China to end its battle against human rights.

In response to the tweet from Morey, the NBA issued its own statement calling it “regrettable.” A few days later LeBron James said that Morey spoke too soon, that he “wasn’t educated on the situation.” What situation exactly James was referring to is unclear.

LaBron has a history of speaking out about social issues here in the USA. If he believes that human rights deserve world-wide respect, he owes it to his fans, and to the people of China, to stand for the protestors in Hong Kong. Yes, standing up for human rights and free speech does come at a cost…in this case the cost is more than lucrative contracts and endorsement deals.

According to an editorial in Slate,

The league has certainly not covered itself in glory in its handling of the blowback over the Morey tweet and, in the process, reminded fans across the U.S. that the NBA is, at its core, still a profit-seeking international organization serving multiple constituencies of which the most important one is money.
Elliot Hannon

LeBron was right about one thing…before you wade into politics on social media you need to consider the cost.

June 18, 2019June 18, 2019

Content Moderation and Shadow Banning

If you’ve spent any time on social media you’ve no doubt seen and heard things that were offensive and, quite possibly, even dangerous. Assuming you live in the USA, you also know that the “constitutional” right to Free Speech is a well-established right that goes to the heart of who we are and what we value. The challenge then is to know the fine line between constitutionally protected speech, and speech that is so harmful or dangerous as to pose a credible threat to actual life or property.

Social media platforms know that they do not have an obligation to grant users their “constitutional” rights. While their very size and oligopolistic nature give us cause for concern, they are not the government* and users are free to pick and choose which platforms and services they want to use. Those platforms are, likewise, allowed to make policies that allow certain types of speech and disallow others. Users who fail to abide by those policies can be warned, suspended, or banned.

So what to do about reports that platforms like Facebook, Youtube, Twitter, and even Pinterest are banning or demonetizing users who have come to reply on these platforms for their livelihood? In extreme cases such as death threats, doxing, and online bullying/harassment, the actions taken by these social media platforms appear to be justified. But what about provocative posts that deploy humor or satire to make a political statement? And what about users who fail to adhere to a standard that is difficult (some say impossible) to understand because it is so subjective?

According to a recent essay by Will Oremus,

The underlying problem of our platforms is not that they’re too conservative or too liberal, too dogmatic or too malleable. It’s that giant, for-profit tech companies, as currently constructed, are simply not suited to the task of deciding unilaterally what speech is acceptable and what isn’t.

On top of this is the fact that these are global platforms struggling to satisfy laws and regulations in an extremely wide range of contexts. Political, cultural, religious, ethnic and racial differences make it nearly impossible to avoid offending some segment of a potential audience that could reach into the billions. And too often it is the loudest voices, regardless of the strength of their argument, that get the most attention.

Again, according to Oremus…

In a good legal system, decisions may be controversial, but at least the rationale is clearly laid out, and there’s a body of case law to serve as context. But when Facebook decides to de-amplify a doctored video of House Speaker Nancy Pelosi, or YouTube opts to demonetize Steven Crowder’s channel, there’s no way to check whether those decisions are consistent with the way they’ve interpreted their rules in the past, and there’s no clear, codified way to appeal those decisions.

So, if you’re easily offended by either gritty content or over-aggressive thought policing…or if you’re counting on a social media platform to help you build an audience and then treat you fairly when you want to push the envelope, remember…you get what you pay for.

*For more about the distinction between government and private industry and the legality of regulating speech, see this article by Reuters.

July 23, 2018

What Constitutes a True Threat?

threatening gesture — Looking For A Fight

My social media feed is filled with partisan bickering and that is pretty much par for the course. Recently I have observed a debate about a couple of letters to the editor published by my local paper, the Pueblo Chieftain. I’ll refer to the two letter writers as Citizen A and Citizen B to protect their identity, and to try to provide some space between the debate over their statements and the debate over this particular political disagreement.

Citizen A wrote a letter that was published on June 30th in which he took a stand on a highly contentious issue that is currently in the news. Here is an excerpt taken out of context (in order to minimize bias depending on your stand on the issue). “Silence is more than complicity. Silence is violence. The coming war must be fought by all means necessary, by the pen and by the sword.”

In response, Citizen B wrote a letter in which he quoted the last line of the above quote and then added this: “This guy is the kind of cancer who there needs to be a cure for. I have a cure, but it is illegal.”

While the First Amendment protects citizens’ rights, including the right to free speech or free expression, there are well-known exceptions to that protection. For example one cannot claim protection for speech that is defamatory, violates copyright, or incites violence. It is why you’ll likely be arrested if you talk about having a bomb while you’re in an airport (or other public spaces). Which brings us back to the discussion playing out on my Facebook page. Do either of these letters to the editor cross that line? Is either one a “true threat”? Are either/both of them protected speech, or does one or the other fall outside of the protection of the First Amendment and potentially place the “speaker” in legal jeopardy?

The statement by Citizen A is a vague call to violent action but is not directed at anyone specifically. The statement by Citizen B addresses a specific individual, but recognizes the legal constraint imposed on the implied action. One does not need to read between the lines to come to the conclusion that the “illegal” cure is physical harm directed at Citizen A.

Legal precedent is does not provide a clear answer to these issues. Whether one applies the “incitement to imminent lawless action” standard or considers whether the speech constitutes a “true threat” as interpreted by a “reasonable person,” much remains unsettled.

Supreme Court Justice Sandra Day O’Connor, in a response to a pair of cross-burning cases collectively known as Virginia v. Black (2003), upheld the Virginia law making it illegal to intimidate others by burning a cross. Such actions constituted a “true threat” and could be deemed illegal. According to her opinion,

‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.

The jury is still out, but some on Facebook have reached their conclusions. In fact, some reached their conclusions largely on the basis of the original political debate…long before the threatening language was introduced. And that, sadly, is the real tragedy on display.

June 17, 2018

Profanity and Politics

You may have missed the 72nd Annual Tony Awards broadcast last week…actually, based on ratings you almost certainly missed it…but even so you may have heard that movie star Robert De Niro dropped the f-bomb in a political statement directed at President Trump. Networks censors were ready and bleeped the offending word, as required by the FCC, but viewers at home still got the message.

While LA and New York are known for liberal politics, it still came as a bit of a surprise when De Niro’s condemnation of President Trump was followed by a standing ovation. The famous Michelle Obama dictum, “when they go low, we go high” was nowhere to be seen.

This is not the first time that awards programs have drawn attention for outrageous or profane statements. U2’s Bono, Cher, Nichole Richie, and others have uttered “fleeting expletives” on awards shows in the past.

Profane political speech comes with a special challenge . According to Frank Bruni, opinion writer for the New York Times,

When you answer name-calling with name-calling and tantrums with tantrums, you’re not resisting him. You’re mirroring him. You’re not diminishing him. You’re demeaning yourselves.

The stunt by De Niro reminds me of a similar statement made by the editorial staff of the CSU student newspaper, The Rocky Mountain Collegian, back in 2007. After publishing a very brief editorial very similar in tone to De Niro’s statement, reactions from the community and alumni led to the student newspaper being moved off-campus where it is now published by the independent 501(c)3 non-profit Rocky Mountain Student Media Corporation.

The paper’s editor-in-chief J. David McSwane said in response to the controversy, “While the editorial board feels strongly with regard to first amendment issues, we have found the unintended consequences of such a bold statement to be extremely disheartening.”

Many would agree that the tone of political debate has indeed become “extremely disheartening” on many levels.