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.

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.

Going for Ratings Gold

The 2018 Winter Olympic Games, aka XXIII Olympic Winter Games, are underway in Pyeongchang, South Korea and millions of viewers are tuning in to see nearly 3,000 athletes compete in 102 events in 15 sports. In addition to the traditional winter sports of figure skating and alpine skiing, you can watch athletes compete in big air snowboarding and mixed doubles curling.

Shaun White’s back-to-back 1440s for the gold medal and a high-flying gold medal performance by Chloe Kim in the half pipe have given Americans something to cheer about. And if you like spills and chills, pay attention to “notorious curve 9” on the luge course.

Besides the obvious appeal of world-class athletes competing on a world stage, the Olympic Games offer compelling stories with drama at every turn. Who can forget the Jamaican bobsleigh team or the US Hockey team’s miracle on ice at the 1980 Winter Olympics.

There’s also the political angle. Athletes from Russia are banned from competing in Pyeongchang under the Russian flag because of doping charges. However, Russian athletes are being allowed to complete under the banner of “Olympic Athletes from Russia.”  Also, the opening ceremony unity displayed by the teams from North and South Korea has prompted plenty of discussion about future prospects for peace.

But this is a media blog, so we need to mention that the US broadcast rights were purchased by NBCUniversal for $963M (part of a larger $4.38B rights package that extends through 2020 summer games in Tokyo). NBC will provide 2,400 hours of coverage with 176 hours of broadcast coverage, the most in winter Olympics history. The remaining coverage will stream on NBCOlympics.com and on their NBC Sports app.  More stats here. Some of the coverage will be in 4K UHD (Ultra High Definition) and HDR (High Dynamic Range) giving viewers options for high quality at a premium price. How to watch, and more info here.

And of course the costs will be passed along to advertisers who are paying top dollar to reach the desirable demographics provided by Olympic programming. However, with viewership in decline among younger viewers, the future of multi-billion dollar Olympic deals may be in jeopardy.

 

Fake News and Press Freedom

In an attempt to preempt President Trump’s announced “fake news” awards, the Committee to Protect Journalists has released its own list of world leaders who have done the most to undermine press freedom.

According to the CPJ website,

The Committee to Protect Journalists is an independent, nonprofit organization that promotes press freedom worldwide. We defend the right of journalists to report the news without fear of reprisal.

The Press Oppressor Award website identifies world leaders who have done the most to censor the press and weaken democratic ideals. Presidents of Turkey, China, Russia and Egypt are exposed for their chilling rhetoric and harmful policies.

One indicator of the global crack-down on press freedom is the record-high number of journalists who are serving time in prison…oftentimes simply for doing their jobs.

But what is unusual is the criticism leveled at a U.S. President. Other U.S. Presidents have been criticized by the CPJ for lack of transparency (Obama) or for not moving quickly enough to denounce attacks on global media (G. W. Bush), but never before has a U.S. President been singled out and recognized for the “Overall Achievement in Undermining Global Press Freedom” award. But then there has never been a U.S. President who has gone after the press quite like Donald Trump.

 

 

Net Neutrality Regulations Under Review

Network neutrality is back in the news as FCC Chairman Ajit Pai has announced plans to review the Obama-era regulation. An upcoming vote by the five FCC commissioners will likely overturn the rules that attempt to level the playing field for businesses that depend on the internet to deliver their content to users. According to the Washington Post, Pai claims that his proposal would,

…restore a ‘light-touch’ regulatory framework for Internet services and would stop the government from micromanaging the Internet.

If you’re still unsure about what Net Neutrality is all about, or want to hear about the debate from multiple points of view, see this excellent card stack by Vox. MediaShift also has a nice 2017 guide on the topic.

As with any debate, the heated rhetoric on the margins often overlooks the nuance that captures the real issues at stake. You owe it to yourself to read carefully before taking a position on this divisive topic.

Paying for Media

Paying for media is both unavoidable and, at the same time, pretty unusual. All media content is paid for by someone, but for the end user that “cost” is not always visible. It used to be very obvious every time you bought a book or a movie ticket or a CD (remember those?). But most folks don’t buy books, movie tickets or CDs anymore. And a lot of our media content appears to be free. It’s not, but the cost is hidden from view and only apparent in the form of annoyingly-hard-to-avoid advertising.

According to an article in Politico, some of this is changing. Partly because of the gradual acceptance of online services that have a small monthly fee (e.g. Netflix and ad-free streaming music services) Millennials are starting to consider paying for other forms of media.

The other contributing factor that the article identifies is the election of President Trump. It appears that online journalism is getting a boost from those opposed to Trump, and that has been good news for online news providers…especially those that have taken an aggressive stance  to the current administration. The ideological factor is substantial according the following excerpt from the article.

Newman said that 29 percent of Americans responded to the survey that their reason for paying for news was, “wanting to help support or fund journalism,” which was twice the average for all countries included in the study. Americans on the political left were four times more likely than those on the right to cite supporting journalism as their reason for paying, Newman said.

But there are still concerns. Again, according to Politico…

For all the good news, the truth remains that those willing to pay for journalism still represent a relatively small group—according to the Reuters Institute study, 84 percent of Americans do not pay for online news. Subscriptions are not cheap, and Newman pointed out that there is danger in quality journalism becoming an increasingly elite product. “The danger is that you get a two-tiered system,” he said.

This notion of two classes–information “haves” and information “have nots”–is disconcerting for those who see income inequality as a barrier to political engagement.

Still, for an industry that has been pummeled for more than a decade by terrible financial news and, for the last 10 months, by the President of the United States, the growing willingness of millennials to open their wallets is welcome news.

 

Trust and Credibility Issues Growing for Journalists

Last fall a Gallup poll found that Americans’ trust in mass media had reached a new low at 32%. A new study out this week led Politico to write a story with the following headline: “Poll: 46 percent think media make up stories about Trump“.  Here’s the question that produced the polling data.

Of course President Trump tweeted the poll results blaming the media’s loss of credibility on what he labels “fake news.”

Even if you’re not a journalist this should be cause for concern, and here’s why. Journalism is a profession that serves the public by reporting the news of the day with fairness and accuracy. It is important that reporters get their information from multiple reliable sources, contextualize the facts based on other relevant information, and present it to the public in a timely manner. It is good to be fast, but never at the expense of being right…in other words, journalists need to take time to double-check their facts and do everything within their power to strive for accuracy. If they make a mistake there should be a correction and an apology. If they make too many mistakes, they become accountants (sorry, I couldn’t resist). No seriously, if they screw up too many times they’ll be looking for a new profession.

For news reporters (as opposed to commentators) it is also important that they make every effort to set aside their personal beliefs in order to report the facts without bias. No reporter can do this perfectly, but s/he must work tirelessly to eliminate bias that constantly tries to insert itself into the story. After reading a story from a seasoned journalist you should be unable to ascertain that reporter’s beliefs about politics or any other number of personal choices that they’ve made.*

In journalism, fabrication is a fireable offense. There are many journalists whose names will go down in infamy because they fabricated stories…in whole or in part. Here’s a top-10 list that should provide plenty of motivation for any young journalist who might be tempted to cut corners or embellish a story.

This is why this poll result is so startling and disturbing. The fact that nearly half of those polled think that “major news organizations fabricate news stories about President Trump  and his administration” is shocking. It reveals a deep distrust of “the press” by a significant portion of the population. Consider for a moment the fact that trust is the only thing of value for members of the press. It doesn’t matter how much information you have or how good it is, if half of your potential audience thinks that you sometimes make things up you’re wasting your time. It’s like asking people if they believe that employees at major fast food chains spit on your food before serving it. If half the people think that they do, chances are they’re not eating fast food. (My apologies to the squeamish.)

This poll, and another from Marist College, led a commentator at the Washington Post to declare that Trump has won his war against the media. While it may be too soon to make that claim, it certainly is not too soon to sound the alarm.


The poll was conducted October 12-16, surveying 1,991 registered voters. The margin of sampling error is plus or minus 2 percentage points.

Morning Consult is a nonpartisan media and technology company that provides data-driven research and insights on politics, policy and business strategy.

More details on the poll and its methodology can be found in these two documents — Toplines: http://politi.co/2xMOykV | Crosstabs: http://politi.co/2kU6DYm

*According to a study by Harvard University, reported in the Chicago Tribune, some of the loss of credibility by the news media may be a direct result of biased coverage of the first 100 days in office for the Trump administration.