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.

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.

Spotify’s Values

Spotify provides a streaming music service to millions of users, and like any media platform is legally entitled to pick and choose which artists and content to carry and feature. In what is very likely a response to the #TimesUp and #MuteRKelly movements, Spotify’s recent decision has become the subject of debate by both artists and listeners.

According to Billboard magazine’s website,

As part of the new policy, Spotify also de-playlisted works by R. Kelly, who has faced a slew of sexual abuse allegations he denies but who “never has been convicted of a crime, nor does he have any pending criminal charges against him,” Kelly’s team said in a statement Thursday, noting that the “lyrics he writes express love and desire” while Spotify “promotes numerous other artists who are convicted felons, others who have been arrested on charges of domestic violence and artists who sing lyrics that are violent and anti-women in nature.”

To be clear, I’m not a fan of R. Kelly, or XXXTentacion, but this new policy by Spotify raises some important questions about how sanctions are applied to artists/performers who have been accused of bad behavior. In the past it was often a criminal conviction that was the tipping point that led to censure. But in the absence of a criminal charge, on what basis is Spotify making this decision? And will this move by Spotify be followed by similar action by Apple Music, RCA, and Ticketmaster: other entities that have a stake in Kelly’s music? And what about other artists that have been accused of mis-behavior?

Spotify is trying to make clear their decision-making process and published a webpage for artists that details what kinds of private behavior may lead to censure by the company. According to Spotify,

We don’t censor content because of an artist’s or creator’s behavior, but we want our editorial decisions – what we choose to program – to reflect our values. When an artist or creator does something that is especially harmful or hateful (for example, violence against children and sexual violence), it may affect the ways we work with or support that artist or creator.

This problem is not limited to Spotify and we can expect to see similar responses from social media sites, especially content-communities such as YouTube and Reddit, when cultural norms are breached and offended individuals/groups bring complaints.

 

 

 

Sinclair Stumbles

Sinclair Broadcast Group owns 193 local TV stations in 89 markets around the US. As the largest owner of local TV stations, they wield enormous influence and are closely watched by those who are concerned about media convergence and consolidation.

If you were paying any attention to social media this past few days you probably saw a short video (edited by Timothy Burke of Deadspin) that mashed up recordings of Sinclair anchors/reporters reading from the script that was sent to affiliate stations. Here’s the script that Sinclair’s management asked each station’s news department to read on-air:

“Hi, I’m (anchor A) ____________, and I’m (anchor B) _______________…
(B) Our greatest responsibility is to serve our (station location) communities. We are extremely proud of the quality, balanced journalism that (station call letters) News produces.
(A) But we’re concerned about the troubling trend of irresponsible, one sided news stories plaguing our country. The sharing of biased and false news has become all too common on social media.
(B) More alarming, some media outlets publish these same fake stories… stories that just aren’t true, without checking facts first.
(A) Unfortunately, some members of the media use their platforms to push their own personal bias and agenda to control ‘exactly what people think’…This is extremely dangerous to a democracy.
(B) At (station call letters) it’s our responsibility to pursue and report the truth. We understand Truth is neither politically ‘left nor right.’ Our commitment to factual reporting is the foundation of our credibility, now more than ever.
(A) But we are human and sometimes our reporting might fall short. If you believe our coverage is unfair please reach out to us by going to (station call letters)news.com and clicking on CONTENT CONCERNS. We value your comments. We will respond back to you.
(B) We work very hard to seek the truth and strive to be fair, balanced and factual… We consider it our honor, our privilege to responsibly deliver the news every day.
(A) Thank you for watching and we appreciate your feedback”

When you just read the script there’s not much that raises concern. Fake news and biased reporting shared on social media ARE, in fact, “threats to democracy.”  And few would argue the idea that truth is “neither politically left nor right.” And in fairness to Sinclair the editing of the video was manipulative. The repetitiveness of certain phrases and the omission of the call for input and feedback was intentionally designed to create its own bias.

But the optics tell another story. Comedian and provocateur Jon Oliver said, “Nothing says ‘we value independent media’ like dozens of reporters forced to repeat the same message over and over again, like members of a brainwashed cult.”

The idea that a network of local TV stations, and their news departments, would be directed by their corporate owners to fall in line and deliver a commentary decrying “fake news” is problematic. For one, it sounds too much like the weaponization of the term “fake news” that President Trump has perfected in his first year in office. Add to that the fact that Sinclair leans to the conservative side of the political spectrum. And finally, Sinclair is asking the FCC to allow the acquisition of an additional 42 stations as part of their purchase of Tribune Media. All of this combined makes it look like a political maneuver rather than a sincere call to action.

Fake news and bias are real problems…but they won’t be solved by empty promises or by using the issue as a political weapon. What we need is a serious discussion about how we got ourselves into this mess, and how we can get ourselves out.

 

Regulation of Cyberspace

Social media, and by that I mostly mean Facebook, is a mess. We all know that it wastes too much of our time, makes us more agitated and irritable than we should be, and collects information about us and uses that intel to manipulate us. We’ve known most of that for some time now. But seeing the undercover Channel 4 video of the Cambridge Analytica executives has shaken people who had been fully in the techno-utopian camp when it came to the internet and Web 2.0 services like Facebook, Twitter, and YouTube. Suddenly the brave new world of the internet doesn’t look so bright and shiny.

In preparation for teaching a unit on new media and regulation I was reviewing my notes about the history of regulation of the internet…which is pretty short. Not that there haven’t been attempts to regulate “cyberspace”…but as early observers already noted, the internet does not take kindly to outsiders telling it how to go about its business. The early credo, “The internet interprets censorship as damage and routes around it” is testimony to the structural logic of the internet and explains the technical challenge of controlling something that was built to withstand external attacks.

Much of the early rhetoric was hyperbolic and now seems a bit silly. As the luster and new-car-smell has faded, we look back on those early utopian ideals as innocent and naive. Here’s an example from 1996. The speaker/author of A Declaration of the Independence of Cyberspace is John Perry Barlow; a cattle rancher, techno-philosopher, and lyricist for The Grateful Dead.

While many of the early attempts to regulate were focused on the content of the internet, e.g. the Communications Decency Act, other legislation focused on intellectual property and piracy, e.g. SOPA and PIPA.

The most recent piece of legislation, H.R. 1865 aka FOSTA-SESTA, if signed by President Trump, will modify the 1996 Communications Decency Act Section 230 which has provided cover for internet companies and shielded them from legal repercussions related to the actions of users on their sites.

So, what does Facebook and Cambridge Analytica have to do with any of this? Simply that users are starting to question whether big internet companies can be trusted to do the right thing without oversight. (Others aren’t so sure).

But if it is time for regulators to tell Craigslist, Reddit, and Backpage (among others) to clean up their Personal/Massage/Dating ads in the interest of combating sex trafficking, perhaps it’s also time for regulators to tell Facebook when it is and isn’t okay to harvest and sell our data to political operatives.

No one naively believes that this will end the sex trafficking problem…just as no one believes that Zuckerberg’s promise to do a better job handling the personal data of 1.5 billion users will end the kinds of abuse exposed by last week’s investigative journalism. But it may be a start.

Update (April 9, 2018): Since this was initially posted, Craigslist has eliminated its Personals section as a response to FOSTA-SESTA. Also, the FBI shut down Backpage and charged its founder Michael Lacey. Backpage has seen strong growth after Craigslist closed its Erotic Services section if 2010.

Democracy, Data, and Dirty Tricks

It’s no good fighting an election campaign on the facts, because actually it’s all about emotion.

This is just one quote from an investigative report conducted by Channel 4 News in the UK. The person quoted above is an employee of Cambridge Analytica. You may have heard of the big data marketing company when their use of data harvested from 50 million Facebook users was revealed this week. The use of big data in political campaigns is not new, but it is being pushed to new heights by companies who appear to be unconstrained by established ethical norms. Here’s the entire Channel 4 video…

While opposition research is not new, there appear to be new efforts to push the limits of op research to include entrapment, bribery, and investigative reporting motivated by a political agenda. This is not just muck raking, but rather “muck making.”

Just to be clear, the use of Facebook’s data is not a data breach or hack. This is how big data works and everything you do online is being scooped up by someone who wants to use that information to advance their agenda. It might be selling you something like a new pair of socks, or maybe a health insurance policy, or maybe…a president.

Want to make sure that your data on Facebook won’t end up compromised? Electronic Frontier Foundation has you covered with this explainer on how to change your Facebook API settings.

I’ll leave you with one more quote from the video above…just to make it clear that the stakes couldn’t be higher.

“… we just put information into the bloodstream of the internet, and then, and then watch it grow, give it a little push every now and again… like a remote control. It has to happen without anyone thinking, ‘that’s propaganda’, because the moment you think ‘that’s propaganda’, the next question is, ‘who’s put that out?’.”

More at Nieman Labs.

Media Violence: Cause or Effect?

The age-old question about media content and make-believe violence comes up every time we have a horrific incident of violence in real-life. Movies, video games, and now fully-immersive VR are the focus when well-meaning crusaders attempting to explain, or reduce, violence and mayhem in our schools and streets.

An editorial by Jeremy Bailenson, director of Stanford’s Virtual Human Interaction Lab and a professor in the Department of Communication, asks serious questions about modern mass media and its consequences. It is definitely worth a few minutes of your time before continuing with this blog post.

I just had a Facebook “discussion” with a colleague who is a Clinical Psychologist and his take is that the research connecting social learning theory with violent media exposure fails to draw a direct cause-and-effect line between the two. But I would like to suggest that this failure to provide significant research findings is more about the limitations of our research methodology and ethical restraints imposed on experiments with human subjects than it is about real effects. The fact that the military uses video games and VR to train soldiers is important, and it suggests that there is evidence that the newest technologies in video gaming and VR can make players more effective shooters/killers in real life.

Fully immersive VR with input control devices that mimic real weapons, and simulated virtual environments that can map the game onto real (not virtual) physical spaces (e.g. a 3-D simulation of a high school) could be a deadly combination.

If we’re serious about taking away “assault” weapons we might also consider taking away “assault” media. Or perhaps, as Bailenson suggests, video game companies should follow the lead of major retailers who are pulling certain products and increasing the age requirements for purchasing. Software manufacturers could avoid regulatory oversight by imposing their own restraints on what they make available on the open market. But I wouldn’t suggest holding your breath.

How NOT to Cover a School Shooting

Being a journalist today is hard work. While getting it right and working under intense deadline pressure has always been part of the challenge, journalists today face increasingly difficult expectations from newsroom bosses, attacks from members of the increasingly partisan audience, and social media minefields where a misstep is rewarded with professional injury or death.

The school shooting this week gave us plenty of examples of good journalism performed by dedicated journalists. It also gave us reason to pause and reflect on what can go wrong when journalistic ethics are compromised. Let’s start with the good.

Data journalism and interactive technologies give us new ways to visualize old problems. The Washington Post gave us an excellent example in the form of a webpage that updates statistics about mass shootings.

Some of the reporting was done by students who were under attack. To better understand the horror experienced by students, read this series of text messages exchanged between two sisters.

But when students were contacted by members of the media while still in an active shooter situation, objections were raised…and justifiably so. Putting people at risk for the sake of a scoop is clearly unethical and directly contradicts the Society of Professional Journalists code of ethics, specifically the directive to Minimize Harm.

Another problem with using source material generated by eye-witnesses is that there may be graphic images and sounds that may contribute to the trauma experienced by survivors. Poynter, a leader in journalistic ethics, provided a very thoughtful analysis of Wednesday’s coverage and asked important questions that all journalists need to consider before rushing to publish.

And finally there is the increasingly distressing problem created by fake news. Some of the fake news is predictable “spinning” by political agents or PR hacks advocating for their particular cause or position. One example is the claim circulating on social media that there have been 18 school shooting since Jan 1, 2018. That claim was debunked by a story in the Washington Post. There’s also been reporting of Russian troll farms using the event to further their campaign intended to divide and mislead the American public.

But perhaps the most alarming instances of fake news related to the Florida school shooting are the fake tweets that were intended to implicate a working journalist in the very kind of unethical behavior described earlier in this post. According to Poynter,

One of Harris’ early replies quickly went viral. Within 45 minutes, she was getting a barrage of harassment from random Twitter users. Someone made a screenshot of a fake tweet alleging that she had asked someone for photos or videos of dead bodies. She decided to ignore the hoax and report it to Twitter instead.

According to Jane Lytvynenko of Buzzfeed,

While traditional fake news stories have a financial incentive, amassing advertising revenue by monetizing page views, Lytvynenko said the motivation for creating fake tweets is less clear. While creating them could be politically motivated, there’s also the possibility that the people behind them are just bent on destruction.

There is virtually NO defense against misinformation motivated by that kind of animus.

 

Facebook’s Fraught Future

Facebook’s failed attempt to foil Fake News while fortifying financial fortunes at the expense of friends’ futures finally finds itself facing fearless foes. Okay, I can’t keep that up but I hope you get the idea. After an amazing decade of growth and incredible buy-in from more than 2 billion users, Facebook is finally getting some push-back. Investors and executives who have since left the company are publicly saying what others have wondered for some time: is Facebook too big and too focused on monetizing audience members’ attention for our own good? Here’s what some are saying:

In response to the criticism Facebook announced a change to the algorithm that dictates the contents of your news feed. According to Facebook,

…we’re making a major change to how we build Facebook. I’m changing the goal I give our product teams from focusing on helping you find relevant content to helping you have more meaningful social interactions.

We started making changes in this direction last year, but it will take months for this new focus to make its way through all our products. The first changes you’ll see will be in News Feed, where you can expect to see more from your friends, family and groups.

As we roll this out, you’ll see less public content like posts from businesses, brands, and media. And the public content you see more will be held to the same standard — it should encourage meaningful interactions between people.

While some may criticize this change as too-little, too-late, others may question whether these are mere cosmetic changes simply designed to deflect criticism. But it is fairly clear that several things are going to happen as a result: time spent on Facebook and engagement will both decline, (resulting in lower revenue for Facebook), and media companies that have relied on Facebook to distribute their content far and wide will have to find other ways to reach their audience.

But look on the bright side: that change will provide new opportunities for media-savvy storytellers who know how to reach an audience with compelling content. And that person could be you!

 

 

When is it Okay to Lie to Get the Story?

Journalism is all about finding and reporting the truth. And historically, to get to the truth, some journalists have resorted to telling lies. The history of yellow journalism, muckraking, and investigative journalism is filled with stories of reporters going to all lengths to get the scoop.

Renowned journalist Nellie Bly famously feigned insanity to gain access to the Women’s Lunatic Asylum just so she could report on the deplorable conditions experienced by its patients. A sting operation set up by the Chicago Sun-Times led to a series of reports about corruption and scandal that nearly won a Pulitzer Prize until the ethical questions surrounding the tactics used became a distraction. And just in the last few days we’ve been made aware of a clandestine attempt by Project Veritas to expose biased reporting on the part of the Washington Post newspaper.

What all of these incidents have in common is the use of deception to gain access to secret information with the goal of exposing corruption and outing bad characters. Where they differ is motive and outcome. In the case of the latest attempted sting, the target actually came out on top…and from all appearances was the party on the side of truth. While previous undercover investigations by Project Veritas may have exposed crooked dealings and bad characters, it appears this time that the Washington Post was vindicated and the undercover Project Veritas “reporter” exposed as the unethical party.

While the history of journalism has plenty of examples both of favorable and unfavorable outcomes when deception is part of the reporting strategy, there seems to be growing unease with the practice. An excellent piece by Jack Shafer at Politico includes this warning…

But if the press starts sanctioning the telling of lies and staging scenarios to get stories, what’s the next step? Wiretapping? Break-ins? Extortion? The employment of call girls? Other assorted dirty tricks? All of these methods would reap rich results, but at a cost that’s morally prohibitive.

Sometimes you just have to play by the rules and hope that the good guys win in the end. And regarding the rules, there actually are a list of ethical guidelines that have been developed to ensure that journalistic deception, when absolutely necessary, doesn’t go off the rails. Again, Jack Shafer writing at Politico

Even the high priests of journalistic ethics at the Poynter Institute allow for pure deception, high misrepresentation and hidden cameras in reporting. The circumstance must be isolated; the information gathered must be profound; all other alternatives must have been exhausted; the journalists must be willing to disclose their deceptions and justify them; and the harm prevented by the scoop must outweigh the harm caused by the deception.