Category: regulation

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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.

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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.

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First Person [School] Shooter Videogames

First person shooter (FPS)  video games have been around for quite a few years. Even if you haven’t played them, you’ve probably heard about Wolfenstein 3D, Doom, Quake, Call of Duty, and Halo. While the idea of putting a virtual gun in the hands of young, impressionable gamers creates angst for parents and other adults, the fact that little Johnny is killing Nazis, monsters or aliens softens some of the objections.

FPS games played in more natural settings, e.g. inner cities, elevated concerns once again and games like GTA: San Andreas led to protests and calls for greater restrictions on content and labeling.

But it took a Colorado resident who created a video game based on the Columbine High School shooting to really fire things up. Danny Ladonne made Super Columbine Massacre RPG in 2005 and a documentary about his experience a few years later.

In 2011 another video game based on Columbine was released as a modification for Half-Life 2 and received equally harsh criticism. School Shooter: North American Tour 2012 was cited in the Supreme Court ruling Brown v. Entertainment Merchants Association. The 7-2 opinion established protection for video games under the First Amendment.

Most recently, a new release slated for June 6 is renewing the controversy around FPS video games in school settings. Active Shooter is designed to give players the option of the role of S.W.A.T. team or shooter. According to a news report,

Steam said in a statement on its site that the game does not promote any sort of violence, especially any sort of a mass shooting, referring back to the phrase dynamic SWAT simulator.

However, in light of recent and strong criticism the game maker is considering removing the option to take the role as shooter.

If you believe that FPS games set in high schools is a bad idea, sign the petition at Change.org

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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 in 2010.

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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.

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Fake News, Social Media, and Russian Influence

In the days following the 2016 election Mark Zuckerberg said, “The idea that fake news on Facebook, of which it’s a very small amount of the content, influenced the election in any way I think is a pretty crazy idea.” Since then Facebook has uncovered more than $100,000 of ad spending by Russian operatives designed to highlight divisive election issues. In late September Zuckerberg issued an apology saying, “Calling that crazy was dismissive and I regret it.”

It now appears that social media regret is more widespread as well. This past week Twitter admitted to a Congressional panel that it too was targeted by Russian operatives attempting to influence the election.

According to Recode,

Twitter informed congressional investigators of its findings in a series of briefings in Washington, D.C., on Thursday — and the revelations are sure to stoke further speculation on Capitol Hill that Kremlin agents sought to co-opt social media platforms to stir social and political unrest in the U.S.

In a separate report, Recode reported…

…about 20 percent of tweets sampled around the U.S. presidential election qualified as “polarizing and conspiracy content,” including links to “junk news,” WikiLeaks or Russian sources, like Sputnik and RT.

Next on the stand will be Google. Congress wants to know whether its email, advertising, and YouTube services were compromised by Russian operatives attempting to manipulate the outcome of the Presidential election.

In all of these instances it is becoming apparent that the meddling was intended to influence the outcome of the election not by promoting or attacking any one candidate, but by stoking political unrest on a variety of hot-button social issues, including: immigration, gun control, religion, LGBT, and racial issues such as Black Lives Matter.

CNN reported that a Russia-backed account called Blacktivists used Facebook and Twitter to promote racial tension and its Facebook account had more “Likes” than the Black Lives Matter Facebook account.

According to a report published in the Washington Post,

These targeted messages, along with others that have surfaced in recent days, highlight the sophistication of an influence campaign slickly crafted to mimic and infiltrate U.S. political discourse while also seeking to heighten tensions between groups already wary of one another.

Even if Congress cracks down on reporting of political ads on social media there is little evidence that much will change. After all, these are not political ads by traditional definitions.

There are, however, a couple of take-aways from these reports. First, if you’re consuming news exclusively on social media you are vulnerable to manipulation. And second, hyper-partisanship makes us even more likely to believe propaganda and lies. The first issue is fairly easy to address…the second will take significantly greater effort.

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Time for a New Theory of the Press?

Four Theories of the Press, published in 1956, was an attempt to explain the role of journalism in the modern world. Each of the four theories are established on the essential values and norms held by governments and citizens who consider the press an essential component of governance. Values that we hold dear are “normalized” by our policies and behavior. Governments, media corporations, and individuals all play a crucial role in determining which values are advanced over competing values.

Recently I came across a blog post from February, 2007 and a comment that I wrote in response. The blog is no longer being maintained, but my comment seems somehow relevant in lights of the current issues plaguing the profession of journalism. Here is the comment as posted nearly 10 years ago…

Press models have never been very good at describing the real world…and even less so now that access to vast quantities of raw, unfiltered information is the norm. Never in the history of communication has there been such unrestricted access to information…and access to the means of production. However, as we all know, information alone does not make for an informed public.

However, there are signs that the investigative reporting role of traditional media is in for a dramatic upheaval. Memogate was just one example of how the collective intelligence of the masses trumped big media. The Consumer-Generated Media model that makes Wikipedia a qualified success is being applied to a particular role played by journalists commonly known as whistle-blowing. Wikileaks.org is a website designed to give a voice to dissidents and critics of oppressive regimes…but may also be equally helpful at exposing corruption within democracies and Fortune 500 companies. One of the most important roles of the press in the Social Responsibility Model is that of watchdog…and now they have the potential to add hundreds and even thousands of eyes and ears of citizen reporters who already have access to closed systems. Sure there are a host of potential landmines…but if you believe that “information wants to be free” you have to believe that this is going to shake things up. This could get interesting.

I think we can agree that things have gotten interesting.

While watching President-elect Trump’s press conference yesterday I couldn’t help but think that the role of the press has never been more in question, and at the same time it has never been more important. In front of a room full of journalists, Trump declared CNN to be “fake news” and BuzzFeed a “failing pile of garbage.” Just two days earlier Meryl Streep called for public support for the “principled press” to serve as a check and balance to the Trump presidency.*

Journalists are not only trying to figure out how to respond to an aggressive and combative President-elect, they are trying to rebuild credibility that is at an all-time low. At the same time they are divided about whether BuzzFeed’s publishing of the Trump oppo-research file helped or hurt the cause of journalists everywhere. One might argue that if you accept BuzzFeed’s rational for their decision it makes journalists unnecessary.

Which takes us back to the point of the blog comment above…the growth of citizen journalism, the explosion of social media, and an ever-more partisan press have created a perfect storm that makes the Social Responsibility function of the press much more difficult…if not impossible.

*For the record, I support the “principled press”…the challenge is figuring out who they are.

 

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Free Speech for All in a Fact-Free Era?

Overheard in a newsroom: “What is journalism even supposed to be now? We reported the facts, but they didn’t matter.” In case you didn’t hear, “post-truth” is Oxford Dictionary’s word of the year for 2016. Here’s how they define it on their website. post-truth

The challenge for journalists, and really anyone who get to the bottom of things, is sorting out fact from fiction, reporting from commentary, and bias from perspective.

The problem with the newsroom quote above is that too many “journalists” DIDN’T report the facts. Or when they did, they didn’t put the facts in proper context. Added to that is that reality that nearly anyone can become a de facto journalist thanks to the wonders of modern digital media and social networks. Given a place to stand and a megaphone, the most strident voices have suddenly found themselves with the ability to sway opinions…even, perhaps, influence elections.

If it seems that this blog is stuck on this topic (see recent posts about fake news and fact-checking), you’re right. But this is important…and if we don’t get this right we’ll have to live with the consequences. What consequences you say? Well, for starters how about a future where ideological conflicts spill over into the streets…where discourse and discussion give way to hate-filled rhetoric designed to alienate and subjugate the opposition?

Unfortunately some of the proposed solutions may turn out to be worse than the problem. Giving social media platforms a reason and permission to edit users’ posts is a dangerous and slippery slope. Do we really want Mark Zuckerberg’s algorithm and a team of editors deciding between fact and fiction, bias and perspective? We’ve already witnessed the failure of that approach earlier this year.

Recently Twitter booted accounts from those connected to the alt-right movement for “harassment and ‘hateful conduct,’ which includes “non-consensual slurs, epithets, racist and sexist tropes” and “behavior that incites fear about a protected group.”  This led the editors at Slate to ask if Facebook or Twitter might possibly ban President Trump. Twitter responded that it wouldn’t rule it out. As Slate said, “That’s a tough line from a company that once declared itself the ‘free speech wing of the free speech party.’” (BTW, the click-bait headline for this post might have been: “Twitter considers banning President Trump!”)

So where are we now? Some of the ejected Twitter users have moved to a new platform that promises greater freedom of speech. Gab.ai is, according to the New York Times, the far right’s “new digital safe space.” It’s much too early to tell if Gab has any legs, but if it does it will likely do little to advance dialog and understanding between those contending for the future of our country. Amanda Hess of the NYTimes sums it up nicely, “It’s the next logical step after all the blocking and muting on Twitter and filtering and unfollowing on Facebook split America into two social media realities. Where there once was a bubble, now there’s a wall.”

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The Sky is FALLING…And You Won’t Believe Who’s Responsible!

misleading-fake-news-sitesThere’s been a lot of discussion lately about the potential danger of fake news. Apparently we’re a lot more gullible and susceptible to misinformation than anyone imagined, and IT IS KILLING DEMOCRACY! Okay, that conclusion may be overstating it a bit, but the number of media and political analysts who are wringing their hands over the outcome of the recent election seems to be growing. And seeking an explanation (or scapegoat), some are pointing the finger at fake news.

The proliferation of satire, fake news, clickbait, propaganda, and commentary masquerading as news is undeniable. While there have always been people with an agenda spreading lies and hearsay, the dynamics have changed in recent years. Social media platforms provide opportunities to people who, before social media, had to work a lot harder to gain an audience. For those familiar with Ryan Holiday’s “trading up the chain” approach to media manipulation, this should come as no surprise.

There have been quite a few excellent summaries of the issue. Some have questioned whether media platforms like Google and Facebook bear responsibility (here, here, and here); others have reported on specific case studies (here, and here), and efforts to combat (or at least categorize) the growing number of questionable sites (here). A new report from Stanford suggests that we have a lot of work to do while MediaShift proposes a role for journalism programs.

I have a few suggestions of my own.

  1. In a world where anyone can be a source of news, what we need is for everyone to behave like a journalist when confronted with new information. Remember the motto of skeptical journalists everywhere: “If your mother says she loves you, check it out!” We need more skepticism and less single-source research.
  2. For those of you who prefer social media for your news…because it’s free, quick, and often fun…remember that you get what you pay for. Unless you read in-depth from multiple and diverse sources you can’t consider yourself an informed consumer of news.
  3. Learn about confirmation bias and make a commitment to discovering your own vulnerability. Until we take a long, hard look in the mirror we have no right to point out the bias in others.
  4. And finally, don’t share anything on social media unless you’re willing to vouch for its accuracy and authenticity. That rule alone will do wonders to improve the overall news IQ of our democracy.
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Stop, or I’ll Record

StopCSU-Pueblo  MCCNM alum Daneya Esgar (class of 2001) is co-sponsoring legislation before the Colorado state legislature. Before becoming a State Representative, Esgar was a news producer for local affiliate KOAA-TV. In her new role Esgar is promoting legislation that expand protection for citizen journalists and ordinary citizens who may find themselves eye witnesses to law enforcement agencies working in the local community.

HB 15-1290 “would allow a civil suit against a law enforcement agency if an officer seizes or destroys a recording without a person’s consent, possibly resulting in damages of up to $15,000.” Recent incidents in the news have demonstrated the value of civilian video recordings that have brought to light misbehavior by law enforcement personnel.

Body cameras on officers are becoming the new norm and many expect this change to have a positive effect. Now, with nearly every citizen having the ability to record and broadcast (in near real time) video from the scene of the incident, we may have even more evidence of wrongdoing and…perhaps more important…incentive to do the right thing in the first place.

Of course one downside is the loss of privacy that we all will experience as the “surveillance state” expands.

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