This seems like a bad idea in so many ways. For one thing, the World Wide Web is, well, world wide. And although regulations by individual nations seem unavoidable — who’s to stop them? — we should definitely not allow smaller state-level governments to regulate what is essentially a national resource, because this is one area where the “laboratories of democracy” are a bad idea.

It’s confusing enough that industries such as automakers, gun manufacturers, and pesticide companies have to adjust their products on a state-by-state basis, but at least those products have to be explicitly transported into a state’s jurisdiction. It imposes an incredible burden on social media services to expect them to pay attention to the laws in each and every jurisdiction where someone might browse to their site.^[1]Yes, some online companies do have to adjust for state laws — banking and gambling sites come to mind — but those sites also involve real-world financial transactions, and implementing such systems is expensive, difficult, and error-prone. E.g. some people near state lines can’t use online gambling sites because the geolocation service can’t tell with certainty which state they’re in.

I’ll let Ilya Somin explain some of the other problems with the law:

HB 20 is blatantly unconstitutional because it compels speech, forbids the exercise of editorial discretion by social media firms, and is meant to target firms the Texas state government believes are hostile to “conservative” speech specifically.

The Fifth Circuit didn’t see it that way:

In urging such sweeping relief, the platforms offer a rather odd
inversion of the First Amendment. That Amendment, of course, protects
every person’s right to “the freedom of speech.” But the platforms argue
that buried somewhere in the person’s enumerated right to free speech lies a
corporation’s unenumerated right to muzzle speech.

Ilya Somin, writing about a slightly different issue, has a pretty good response:

Eugene Volokh asks “Whose rules should govern how Americans speak with other Americans?”…..

Th[e] answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.

Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries’ views….

Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm “no.”

I’m by no means an expert on constitutional law (or any kind of law), but that argument sounds basically correct. However, First Amendment Badass Marc Randazza (who is very much a legal expert), responded with a thoughtful Twitter thread (unwound, reflowed, and excerpted here) that makes an interesting point:

A long time ago, I worked for condo and homeowners associations in Florida. People wanted to protest. But, in this area where I worked, there was literally almost no public space. Everything was a strip mall or an HOA. Even the parks were HOA or mall properties. Working for the property owners, I was tasked with giving my opinion on how they could keep these (left leaning) protesters out of these areas. […]

I colored a map with where you could protest. It was sad… because there were a few slivers of “public space,” where nobody went, where your message was sure to be unheard, and where you would have zero effect. There was no real internet at the time. And the net effect was that dissent was privately prohibited. […]

Given his support of free speech, Randazza wasn’t thrilled about doing that work, and he found an interesting line of thought in Pruneyard v. Robins:

[The ruling] was based on the California free speech clause – but it recognized free speech as a positive right. […] It recognized that private property could consume the public square, and that the public square still needed to exist. That freedom of speech is that important — at least under the CA constitution […]

There are libertarian minded people who have a very principled objection to Pruneyard — which (very simplified) comes down to “this is my property, and you can fuck off if I don’t want you saying certain things here.” And there is an allure to that — when someone makes the unprincipled argument that “if you have to be allowed in our corporation’s shopping mall, the next thing you know, the government will mandate that people can barge into your house and protest in your bathroom.”

But Pruneyard provides no support for that. It recognizes that if private companies make a public square, that there is a positive right to free speech — not just a negative restriction on the government. That you can’t get rid of dissent by selling off all the land.

This dovetails with some concerns I’ve had with the traditional libertarian distinction between public (i.e. government) property and privately owned property when it comes to our rights.

If a government of, say, Oakbrook, Illinois allows people to hand out fliers in a public park, it might be able to limit the “time, place, and manner” they are handed out — e.g. no blocking the sidewalk, must be within 20 feet of a garbage can to discourage littering, keep away from the memorial fountain, etc. — but Oakbrook cannot limit the distribution of fliers based on their viewpoint or the ideas expressed within. ^[2]There are narrow exceptions such as fraud, true threats, and incitement to imminent violence, but they don’t affect my argument.

On the other hand, if the Oakbrook Center shopping mall allows people to hand out fliers in the open areas of the mall, not only can mall management limit the time, place, and manner in which they are handed out, they can also prohibit the distribution of fliers based on their content. So they would be free to allow charities to hand out fundraising materials but prohibit political advocacy groups from doing the same. They could allow gun control organizations to hand out fliers, but not gun clubs. Or allow local college theater groups to distribute ads for performances of You’re a Good Man, Charlie Brown but not for Cabaret, Twelfth Night, or Mrs. Warren’s Profession. It’s their property, and they get to decide what kind of environment they provide for their visitors.

My concern is that these lines can get blurry. What would happen if the Village of Oakbrook transferred ownership of all its parks, plazas, and playgrounds to a private corporation? Let’s also include all the sidewalks and parking lots as well, and all of the facilities needed to operate and maintain these areas. ^[3]The deal could be structured as a purchase by the corporation, financed with a loan from the village, to be paid back out of the fees the village pays the corporation to operate and maintain these recreational area for the benefits of village residents. Let’s call this new entity the “Greater Oakbrook Collective,” a non-profit corporation whose board just happens to overlap with 75 percent of the village board and include officers of the largest companies in Oakbrook.

The GOC is a private corporation, so at first glance it makes legal sense that they should be allowed to discriminate against pamphleteers on the basis of viewpoint, just as the shopping center could. And yet…the GOC is pretty much operating like a government, controlling traditionally government controlled resources and offering a number of traditional government services. This raises the question of whether a government could slip past First Amendment restrictions simply by transferring parts of itself to a private entity? Or could new governments form companion corporations to circumvent the First Amendment for them?^[4]If that doesn’t sound enough like a government to you, let’s make it a restricted corporation where stock is granted to all land owners in Oakbrook and must be returned if they leave. Maybe also combine all land ownership under a cooperative ownership agreement, and pay the Collective out of assessments and fines. This makes it work much more like a tax-supported government system.

(Note that this kind of corporate arrangement is not purely fiction. There are already entities that work a lot like this, such as the aforementioned homeowners associations, as well as college campuses, amusement parks, and industrial parks, some of which even have their own police or fire departments.)

If I understand the holding in Pruneyard correctly, the California Supreme Court says that the people have a right to free speech, and that right doesn’t automatically go away just because they are on private property, at least not when that private property serves as a public gathering place.^[5]Thus it doesn’t apply in your house, in a church, or in businesses that are not normally wide open to the public. Even then, the right to free speech on private property is not absolute and can be limited when it conflicts with the public use of the space. Unfortunately for the Pruneyard Shopping Center, its lawyers couldn’t explain to the court’s satisfaction how unrestricted speech conflicts with the primary purpose of a shopping mall.

Randazza explains how this could apply to social media sites:

[…] you can draw a line — that you can’t compel speech, but you can require access to the town square.

In Miami Herald v. Tornillo, the court said you can’t force the Herald to give you a space to reply to criticism. But, that was in part because there are only so many pages in a newspaper. If you have to give a page to a replier, what are you going to have to omit? And your church bulletin board can’t be told that it has to allow a flyer for SATANIC ANAL FUCKFEST 2022! Because 1) it could be seen as endorsing it, and 2) how big is that bulletin board?

Massive platforms, which have loved their argument of “it’s not our speech” fostered freedom of expression on glorious level up until 2016. But then they flexed. They decided that they would be the HOA + shopping complexes of my old Florida days.

I don’t think that’s really an accurate picture of what happened, because the big social media platforms have always filtered what people could post on their sites. We just didn’t pay much attention, because it was stuff we mostly didn’t want anyway — animal snuff films, explicit pornography, how-to videos for crimes, threats of violence, explicit racism, and so on. It’s only now that they are filtering more controversial messages about the 2020 Presidential election, transgender issues, and Hunter Biden’s laptop that a lot of people began to take interest in how social media sites were filtering content.

And it is not persuasive to me, but it is a principled argument that forcing them to allow free speech could violate the first amendment. Which is bizarre… because we all think of the First Amendment as a the guardian of freedom of speech. And we are now discovering that it could be employed to provide freedom to censor as well.

The argument is that the big social media platforms have free speech too and in addition to the right to say what they want, it also includes the right to refuse to say things you don’t want to say.

But, that’s a common law development. And the common law changes. I personally think that the common law should guide the First Amendment to be protective of the marketplace of ideas, of robust freedom of expression but I also see no need to overturn Tornillo nor any other existing Supreme Court case for Netchoice to become the law of the land.

Whether or not I buy the argument in Pruneyard, I’m not convinced it’s relevant to social media sites. I think there are important distinctions between the shopping malls and social media sites.

For one thing, shopping malls can crowd out the public square. The Oakbrook Center mall takes up a big chunk of Oakbrook which could have been put to public use. And Randazza’s home owners’ association took over all the places where one might normally expect a public space. As he says, Pruneyard recognized that “private property could consume the public square.”

But social media websites don’t consume public space. Both the Village of Oakbrook and the Oakbrook Center mall have websites, and neither one limits the size of the other.^[6]Technically, web servers are a scarce economic good, in that any web server dedicated to one purpose cannot be used for another, but it’s far easier to build more web servers than it is to make the planet have more land. Nor do the websites infringe on public land.

Furthermore, if a public square is lost, you might have to travel for miles to reach another one, but you can reach any website in the world in a fraction of a second. So if you don’t like Facebook or Twitter, you can try YouTube or WhatsApp or Instagram or WeChat or TikTok or Telegram or Snapchat or Backpage or Pinterest or Reddit or Quora or LinkedIn.

If you don’t like any of those, you can always build your own. Any organization with a few million dollars can probably build a starter bespoke social media site from scratch.^[7]Scaling it up to hundreds of millions of users will cost more. But if that’s too expensive, for prices starting at $6/month you can set up your own Twitter-like community running Mastodon on a cloud server. Or you can just download the Mastodon source code and run it any way you want on your own server. Or if you limit group membership, you can use a collaboration suite, such as Teams, Slack, ZoHo, Discord, or dozens of others.

Furthermore, I think that having multiple communities with different viewpoints will lead to much more vigorous and useful debate than than trying to force every community to carry the same bland balance of viewpoints in the name of some vague concept of fairness.

All of this discussion may be moot anyway, because I’m pretty sure the big social media sites like Facebook will, in the end, have no trouble skirting laws like this with a simple two-step process: First, convert all suspended accounts into unpublished accounts — accounts where people can still login and post stuff, but other users are blocked from seeing them. Second, give every user a big switch — a setting that turns off filtration of their feed, allowing them to see all content, blocked or not. This turns Facebook’s content censorship into an optional curation service, thus complying with the requirement to carry all content.

Of course, unfiltered Facebook would be vile and unusable. Yes, you’d get those alternative viewpoints you wanted, but you’d also get everything else that Facebook removes: Robo-posted spam, pornography, blatant racism, animal torture, Nigerian scams, suicide videos, Isis beheadings, dead people in car accidents… It would be ugly, but it would certainly be uncensored and compliant with the law.

Actually, I’ve long wanted to see social media sites take a route similar to that, but I wanted them to go a step farther and allow users to select third-party curators other than the site itself. The MAGA community could use a MAGA curator, who lets in all the Covid and Q conspiracies but keeps out wokism and CRT. The leftists could have curator that lets in global warming, union organizers, and loan forgiveness advocates but keeps out all the MAGA stuff. Transgender people could get a curator that filters out the trans-haters, climate deniers could filter out global warming content, and libertarians could filter out the other libertarians who are wrong. You could even have combination rules that say things like “filter everyone from this curator, unless this other curator whitelists it.”

I used to naively assume that this was the perfect solution since it meant nobody would have to see anything they didn’t want to see. Think modern culture is deteriorating into crass trash? Have the American Family Association filter your feed. Think old white cis-hetero males are the problem? Find a feed that curates trans-lesbians of color. You are the master of what you see.

I now realize there are some people who want social media to filter content not so much because they don’t want to see it, but because they don’t want anyone else to see it either. They don’t want MAGA fans to communicate with other MAGA fans. They don’t want transgender people to communicate with other transgender people. They want to control the ideas that spread around in the world, no matter who else wants to hear them.

This seems like a more complicated problem to solve, but as it turns out, I have identified a solution: The censorious asshats can mind their own business.

This post by Mark Draughn at Windypundit was originally published at Netchoice, Pruneyard, and the digital public square

And U.S. v. Edwards, a nonprecedential decision handed down Thursday by the Sixth Circuit, read it precisely this way:

Joy Edwards made numerous derogatory posts on Facebook about a confidential informant who testified against her brothers during their criminal trial. The Facebook posts revealed the informant’s identity and called him—among other things—a “snitch.” Edwards was indicted on a single count of retaliating against a witness in violation of 18 U.S.C § 1513(e). At a bench trial, the district court found that the informant suffered harm as a result of these Facebook posts and that the posts were intended to retaliate against the informant. Edwards was convicted and sentenced to short terms of prison and lesser forms of confinement….

Basically, a confidential informant referred to as D.B. did controlled buys from some drug dealers to set them up for arrest. A few months after the trial, the sister of several defendants attacked D.B. on social media:

• Re-posting another user’s photo of D.B. on the witness stand and calling him a “snitch” in the comments section
• Commenting on her own post saying “f*** him,” “Look at that bitch ass snitch lips! They are crack up and ashey white from running it so much! His bitch ass needs some WD40!”
• Re-posting another user’s doctored photo of D.B. holding a t-shirt with a police badge on it
• Re-posting another user’s photo of D.B. with the caption “stop snitching” over it, to which Edwards added, “Snitch ass bitch”
• Commenting on her own post in response to another user’s question about the identity of D.B., saying, “This guy is snitching! He snitched on my brothers! And lied about everything!”
• Re-posting another user’s photo of D.B. with the caption “Snitching like a bitch”
• Re-posting another user’s picture featuring hands in police handcuffs with the caption “Man up … Shut your mouth. Take the charge and don’t snitch.”
• “Liked” numerous other users’ posts of similar material

It’s important to note two things here. First, all of this activity took place after the trial was over, so this wasn’t a case of interfering with a trial by attempting to intimidating a witness. Second, although the posts revealed D.B.’s name and other personal information, none of these posts amount to a “true threat” or an “incitement” which would not be protected by the First Amendment.

Nevertheless, it was enough to send her to jail, and her conviction was upheld:

The court upheld Edwards’ conviction—not because her speech was a true threat or incitement (again, this statute doesn’t require proof of that), but simply because it was intended to retaliate and was intended to and did cause “harm”

As Eugene Volokh explains, that isn’t normally considered to be an exception to First Amendment protections. As long as you don’t make false statements of fact, it’s entirely legal to say things about people that you know will make their life difficult.

Volokh summarizes 18 U.S.C. § 1513(e) as applying to

• “Whoever knowingly,
• “with the intent to retaliate,
• “takes any action harmful to any person, including interference with the lawful employment or livelihood of any person,
• “for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense,

That’s extremely broad. Taken at face value, this would make it nearly impossible to criticize anyone who reported a crime to federal law enforcement, even when the crime is…not a very big one:

(@CrimeADay says “18 USC §1865 & 36 CFR §2.11 make it a federal crime to picnic in violation of the picnicking conditions in a national park.”)

So if someone reported you to the rangers for a picnicking violation, and you found out they owned a car dealership in your town, you would not be allowed to call out the dealership owners as joyless assholes, because that would be “retaliation” which could cause them to lose business.

It’s not even clear you have to have a connection to the crime to get in trouble. In theory, if I called out D.B. by name in this post for being a snitch ass bitch, I could be charged with a crime, as could you if you reposted it somewhere.

For that matter, if news broke that a major politician reported one of his neighbors as a “suspected terrorist” with no more evidence than that he was dark skinned and wore a turban, it looks like we would technically be in violation of the witness retaliation statute for attacking him on Twitter during election season, because that would interfere with his livelihood.

The good news is that the decision in the appeal did not reach the First Amendment issue for technical reasons, and it won’t set a dangerous precedent. Nevertheless, at least one federal prosecutor and one federal judge didn’t see a problem with this law.

In any case, this issue will probably end up in court again, and as Eugene Volokh says,

I hope that, when the First Amendment question is squarely presented to an appellate court, it will recognize that the statute (at least unless it’s sharply limited to threats, incitement, or nonspeech conduct) is unconstitutionally overbroad.

You can read Eugene Volokh’s whole post here.

This post by Mark Draughn at Windypundit was originally published at Snitches Get Disses

There can be legitimate reasons for such drastic measures: If you know the terrorists are using cell phones or the internet to set off remote-detonated bombs, it makes a lot of sense to shut down those communications networks until the situation is resolved.

A less credible reason for shutting down communications is if authorities believe the terrorists are using cell phones or social media or whatever to coordinate their operation. People in our government have talked about developing similar capabilities — everything from being able to shut down cell towers in the middle of a terrorist incident to an “internet kill switch.” The idea is that we can disrupt the terrorists’ plans by denying their access to communications.

I’m not convinced by that argument, however, because it neglects the harm to civilian welfare from shutting down civilian communications. Protecting our national infrastructure has always been one of our domestic anti-terrorism priorities: If the FBI discovered a terrorist cell was going to shut down internet access in a major American city, you can bet the FBI would try to stop them. So doesn’t responding to a terrorist incident by shutting down the internet just give the terrorists a gift by causing fear and disruption?

The Sri Lankan government did not block social media for either of those reasons, however. Their reason was much worse:

The government has decided to temporarily block social media sites including Facebook and Instagram. Presidential Secretariat said in a statement that the decision to block social media was taken as false news reports were spreading through social media.

The Washington Post gives an example of the sort of thing they might be worried about:

Sanjana Hattotuwa, a senior researcher at Center for Policy Alternatives in Colombo who monitors social media for fake news, said he saw a significant uptick in false reports after the bombings Sunday.

[…] He cited two instances of widely shared unverified information: An Indian media report attributing the attack to Muslim suicide bombers, and a tweet from a Sri Lankan minister about an intelligence report warning of an attack.

As Joe Setyon of Reason points out, that’s kind of ironic:

Notably, neither of those instances appears to have been fake news. As previously mentioned, the Sri Lankan government does indeed believe Muslim extremists were responsible for the attacks. And intelligence agencies had been warned about a possible terror attack in recent days, as CBS News reported.

What’s going on here is that the Sri Lankan government is saying they want to protect against false news reports, but I’m pretty sure what they really want is to suppress news they don’t control. That’s usually the real motive when people in power complain about some unruly form of media.

What made me want to blog about all this was the disturbingly positive tone of the response from some corners of the media. Consider Global Voices, an activist organization which describes itself as

…an international and multilingual community of bloggers, journalists, translators, academics, and human rights activists. Together, we leverage the power of the internet to build understanding across borders. How do we do this?

• Report: Our multilingual newsroom team reports on people whose voices and experiences are rarely seen in mainstream media.
• Translate: Our Lingua volunteers make our stories available in dozens of languages to ensure that language is not a barrier to understanding.
• Defend: Our Advox team advocates for free speech online, paying special attention to legal, technical and physical threats to people using the internet to speak out in the public interest.
• Empower: Rising Voices provides training and mentorship to local underrepresented communities who want to tell their own stories using participatory media tools.

You’d assume that the Executive Director of an organization dedicated to “free speech online” and to that idea that “underrepresented communities” “whose voices and experiences are rarely seen in mainstream media” can “tell their own stories using participatory media tools” would be outraged over Sri Lankan censorship. As it turns out, not so much:

What really gets me about Sigal’s tweet is that he describes Sri Lankan censorship as a “signal for lack of platform trust.”

My God, who in their right mind cares how the Sri Lankan government feels about media platforms? Since when do we consider any government to be a reliable arbiter of news and truth, let alone the Sri Lankan government. They’re not the worst, but it’s not a good thing that Sri Lanka is rated by Freedom House as only “Partly Free” — with the addendum that the Sri Lankan press is “Not Free.” Furthermore, it turns out Sri Lanka’s President Maithripala Sirisena is an admirer of Philippine President Rodrigo Duterte’s murderous war on drugs, which is definitely not a good sign.

Is Sigal so naive that he believes the Sri Lankan government is really imposing censorship to protect their citizens from “fake news,” rather than employing the time-honored authoritarian trick of exploiting a tragedy to grasp for more power? (Later retweets in his timeline suggest he’s coming to his senses.)

Perhaps the worst response I’ve seen comes from Kara Swisher at the New York Times:

[…] when the Sri Lankan government temporarily shut down access to American social media services like Facebook and Google’s YouTube after the bombings there on Easter morning, my first thought was “good.”

Good, because it could save lives. Good, because the companies that run these platforms seem incapable of controlling the powerful global tools they have built. Good, because the toxic digital waste of misinformation that floods these platforms has overwhelmed what was once so very good about them.

One of the things going on in Swisher’s piece is the natural tendency of social media participants to overestimate how much of social media content is about the things they happen to be following. Those of us who follow politics and political issues tend to assume twitter is mostly about politics and political issues, but there is so much more to Twitter. We filter and curate our feeds, and then forget we are seeing what we want to see.

To be fair, sometimes the filtering is done by algorithm. I’ve seen people complain that every time they search for something on YouTube — even something innocuous — YouTube includes Nazi-themed videos in the results.

That never happens to me, not even if I do the exact same search. Unless these people think anyone to the right of Bernie Sanders is a Nazi, they’re doing something that makes the algorithm think they want to see those results. I want to ask them, “Are you, perhaps, clicking on the Nazi videos to see if they are what they appear to be? Are you visiting lots of racist websites because you are monitoring hate groups?” If so, the search engine is just trying to give you more of what clearly interests you. It’s not smart enough to tell when you’re just hate-reading something.

The same thing can happen with political issues on social media: If the algorithm figures out that’s what interests you, it will keep showing it to you. If you only follow people who repeat unverified rumors, you will see a lot of unverified rumors.

It pains me as a journalist, and someone who once believed that a worldwide communications medium would herald more tolerance, to admit this — to say that my first instinct was to turn it all off.

That’s an excellent instinct. Turning it off is a great response to fake news…for yourself. But please let everyone else make up their own mind.

In short: Stop the Facebook/YouTube/Twitter world — we want to get off.

Obviously, that is an impossible request and one that does not address the root cause of the problem, which is that humanity can be deeply inhumane. But that tendency has been made worse by tech in ways that were not anticipated by those who built it.

I noted this in my very first column for The Times almost a year ago, when I called social media giants “digital arms dealers of the modern age” who had, by sloppy design, weaponized pretty much everything that could be weaponized.

I resent the hell out of the word “sloppy” in that sentence. To the surprise of absolutely no one who knows anything about product development, it turns out that a first-generation world-wide social media site, available to two billion people, every day, for free…isn’t very good. That’s not sloppy, that’s the evolutionary curve of new technology. Just because a brand new piece of technology doesn’t work as well as it could doesn’t mean the inventors were sloppy.

“They have weaponized civic discourse,” I wrote. “And they have weaponized, most of all, politics. Which is why malevolent actors continue to game the platforms and why there’s still no real solution in sight anytime soon, because they were built to work exactly this way.”

Can we take a minute to regret the now widespread use of the word “weaponize” in the metaphorical sense? The first time I saw somebody use “weaponize” that way, it seemed edgy and inventive. It may even have been a fairly clear analogy. But now it seems everyone is talking about everything being weaponized. It’s quickly evolved into a way make something sound sinister without saying anything substantive.

Swisher goes on to discuss the role of social media in the aftermath of the recent mass shooting in New Zealand:

After the attacks, neither Facebook nor YouTube could easily stop the ever-looping videos of the killings, which proliferated too quickly for their clever algorithms to keep up. One insider at YouTube described the experience to me as a “nightmare version of Whack-a-Mole.”

New Zealand, under the suffer-no-foolish-techies leadership of Jacinda Ardern, will be looking hard at imposing penalties on these companies for not controlling the spread of extremist content. Australia already passed such a law in early April. Here in the United States, our regulators are much farther behind, still debating whether it is a problem or not.

By characterizing U.S. regulation of social media as “much farther behind,” Swisher makes it clear that she is on the side of the censorious thugs. The U.S. is not behind on regulating social media. Rather, New Zealand and Australia are weak on free speech and freedom of the press.

Heck, the shitbag authorities in New Zealand are actually trying to send ten people to jail just for distributing the video. A few of them, including a 16-year-old boy, were held without bail, and a guy named Philip Arps has plead guilty and is probably going to jail. Make no mistake, from the description in the news pieces, Arps is an awful human being with awful ideas, but he’s still being locked in a cage for the “crime” of sharing a video that someone in the government didn’t like. (Specifically, the someone in the government who didn’t like the video is David Shanks, Chief Censor in New Zealand. Fuck that guy.)

Getting back to Swisher’s article:

It is a problem, even if the manifestations of how these platforms get warped vary across the world. They are different in ways that make no difference and the same in one crucial way that does. Namely, social media has blown the lids off controls that have kept society in check.

This Is the Future Libertarians Want^TM.

These platforms give voice to everyone, but some of those voices are false or, worse, malevolent, and the companies continue to struggle with how to deal with them.

In the early days of the internet, there was a lot of talk of how this was a good thing, getting rid of those gatekeepers. Well, they are gone now, and that means we need to have a global discussion involving all parties on how to handle the resulting disaster, well beyond adding more moderators or better algorithms.

We can have a discussion. Discussions are fine. I’m all for discussions. Just don’t involve government thugs in your response to the “disaster,” because throwing people in jail is not a discussion.

It’s one thing to argue that Facebook (or Twitter or whoever) could improve social welfare by doing a better job of removing objectionable content, but recently social media critics have begun to advance the pernicious idea that social media companies should have a legal obligation to police the content that users post.

That’s actually been the normal rule in print media: The publisher is responsible for what they publish, because they make the decisions about what to publish. On the other hand, the distributor is not generally held responsible, because they don’t have knowledge of the content they are distributing. So if a columnist writes a defamatory article for a newspaper, the columnist can likely be successfully sued for libel, as can the newspaper, but newsstand owners need not worry.

For digital media, the prevailing rule is spelled out in Title 47 USC §230 — commonly referred to as “Section 230” — of the Communications Decency Act, which includes the clause “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In a real way, these 26 words defined the form of the modern Internet. That protective clause is the reason I don’t have to carefully examine every comment on my blog to see if it contains libelous statements, and that protection is why I can have open comments. Section 230 is also the reason my hosting provider doesn’t have to worry about my content, which means its also the reason why I can have a blog. It’s also the reason Twitter and Facebook and Instagram can exist: These sites host billions of user-provided content items, and they couldn’t possibly afford to review every single one of them for actionable content.

Unfortunately, Section 230 is coming under attack in recent years. The most serious blow so far is the passage of FOSTA (the Allow States and Victims to Fight Online Sex Trafficking Act) which opened up websites to criminal and civil legal action for allowing ads for sex work. A bunch of websites closed down, and opportunistic lawyers launched lawsuits against offending sites such as Backpage, which had for years allowed ads for sex work.

Of course, as predicted months in advance by everyone who opposed FOSTA, Backpage was not the only victim. Lawyers naturally went after the deep pockets at Facebook for not preventing sex traffickers from using its services. Then, rather Amazingly, the lawyers went after Salesforce.com. To be clear, Salesforce.com has nothing to do with sex trafficking. They’re a Fortune 500 company that provides business software solutions loosely organized around customer relationship management. But apparently Backpage was one of their customers, and thanks to the hole FOSTA poked in Section 230, that may make them vulnerable to a lawsuit.

This is a horrible legal development, and it is paralleled by the recent cultural trend of blaming social media sites for content posted by their users. Although arguably an extension of “political correctness” from college campuses — where having to listen to ideas you disagree with is often treated as some kind of “verbal violence” — it seems to have spread to social media in response to the rise of Trumpism and the alt-right, with the accompanying attention given to racists, white supremacists, and more-or-less actual Nazis.

Suddenly, it was no longer enough to merely confront the Trumpists, racists, and what-have-you. Instead, people started yelling at Facebook and Twitter to “get rid of the Nazis.”

(As private enterprises, Facebook and Twitter have every right to refuse access to people who would ruin the environment they are trying to create for their users. But as always, the remedy for bad speech is good speech, not demanding that your ideological enemies be shut out of open forums.)

I’ve even seen people yelling at CloudFlare, of all things, for “protecting Nazis.” Cloudflare isn’t even a social media site. They’re about as content-neutral is it gets: They provide DNS, caching, optimization, and security services to millions of websites (including this one). It just takes a few minutes to sign up for protection, and many of the base services are free. One of those services is protection against denial-of-services attacks, and so people are mad at CloudFlare because they tried to crash Stormfront’s website and couldn’t.

I see this, and I wonder what’s next. Are people going to accuse utility companies of “supporting white supremacists” for selling them electricity or gas? Is Walmart going to be guilty of supporting racists if they sell toilet paper and cleaning supplies to Stormfront headquarters? There’s a certain level of madness to this, and I don’t know where it ends.

The other source of the trend toward holding social media platforms culpable seems to be the discovery of Russian intelligence efforts to influence the 2016 election through social media. It boggles my mind that Congress held hearings about social media and blamed Facebook for this, as if Facebook was supposed to carefully evaluate every single ad for its political content. That’s not what Facebook is built for. That’s not what social media is for.

In the 15th century, the Gutenberg press reduced the cost of publishing so much that almost anyone could afford to read written works. Now in the 21st century, the world wide web has reduced the cost of publishing so much that almost anyone can afford to publish written works. With costs that low, companies like Facebook don’t have the resources to mediate more than a tiny fraction of the material that flows through their platforms. Instead, readers are expected to curate their own reading choices. The role of the platforms has been to provide them with efficient means to do so.

I thought everybody understood this — that everyone realized social media was a nationwide electronic bathroom wall — and that we all knew it was going to be a wild ride. But now people are demanding that social media sites step up and do a job we never asked them to do before.

I have so many questions about the thinking here. Did people do this with telephones when they were the scary new technology? I’m sure people were upset by political calls during elections, but did they blame the phone company for them? Were TV stations blamed for allowing awful political ads to run? What about other misdeeds? Was Henry Ford hauled in to testify before Congress because gangsters were using cars to commit crime sprees? Or because teenagers were having sex in them?

Sigh.

I know that record labels and comic book publishers and video game houses have all been blamed for society’s ills at one time or another. So I understand on some level that this kind of moral panic at new media is not unusual.

I guess I was hoping that, just this once, we had skipped that miserable tradition.

This post by Mark Draughn at Windypundit was originally published at Sri Lanka and the Ongoing Social Media Panic

Since days after the 2012 shooting at Sandy Hook Elementary School in Newtown, Conn., Mr. Jones has spread bogus theories that the families were “crisis actors” in a government plot to confiscate Americans’ firearms. The families have endured online abuse, physical confrontations and death threats from Mr. Jones’s devotees.

Unfortunately, the Times story finds an unhelpful angle, as telegraphed by its title, “Lawyers for Neo-Nazi to Defend Alex Jones in Sandy Hook Case.” Reporter Elizabeth Williamson probably did not write that headline, but she did write the rest of the story:

Alex Jones, an online conspiracy theorist who claims the Sandy Hook massacre that killed 20 children and six adults was a hoax, has hired lawyers representing a founder of the neo-Nazi Daily Stormer website to defend him against defamation claims brought in Connecticut by families of seven Sandy Hook victims.

[…]

Marc Randazza and Jay Wolman of the Las Vegas-based Randazza Legal Group are defending Mr. Jones in Connecticut. The lawyers also represent Andrew Anglin, the co-founder of the Daily Stormer, who is being sued for harassment by a Montana woman after Daily Stormer followers subjected her to a torrent of anti-Semitic slurs and threats. Mr. Anglin has cited Mr. Jones as an early influence.

It’s a general principle of legal ethics that everyone is entitled to a lawyer. Alex Jones and Andrew Anglin are no exception. They are entitled to a lawyer, so somebody in the legal profession has to represent them. In this case, they’ve picked Marc Randazza.

Scott Greenfield, who manages to write about all legal things before I do, has found some dumb reactions to Randazza’s representation of Jones, and one of them is a common but tiresome response from Above the Law‘s Elie Mystal, who should know better.

And I respect what he’s doing. No, I don’t agree. I don’t think he should be doing it. Just because Nazis deserve a legal defense doesn’t mean you’re a good person for defending them.

That’s a slight variation of something lawyers must hear a lot when they defend unlikable clients: “Just because somebody has to represent them, that doesn’t mean you have to do it. You could have said no.”

That’s a weak argument. Everyone, including guys like Alex Jones and Andrew Anglin, has a right to legal representation. As an ethical matter, the legal profession, considered broadly as an institution, owes them a duty of defense, no matter how unpleasant it may be. And when faced with a repellent duty that someone has to fulfill, there is no virtue in refusing the duty when you that know someone else will have to do it. If Randazza had refused to take this case, then some other poor lawyer would be stuck in his place, having to endure the same stupid crap.

Beyond that, guys like Alex Jones and Andrew Anglin deserve a defense simply because our legal system is built around the assumption that they will get one. Our adversarial system encourages both sides to present their strongest and most aggressive argument in court. So although Jones and Anglin may be bad people, they aren’t necessarily as bad as the opposing party accuses them of being. That doesn’t mean they did the specific things that the lawsuit alleges. That doesn’t mean the people suing them are entitled to everything they’re asking for. A one-sided proceeding does not produce justice. Which is why everyone deserves a defense.

I suppose you could ask, even if everyone deserves a defense, why it is that Randazza seems to represent so many figures from the alt-right.

…he’s taken on a number of far-right clients, including Daily Stormer founder Andrew Anglin, the alt-right site GotNews and its founder Chuck Johnson, right-wing internet personality Mike Cernovich, and the alt right-beloved forum 8chan. Last month, he also entered the case of alt-righters and neo-Nazis accused of conspiracy to riot in Charlottesville.

I think the reason is probably the obvious one: They pass his name around between them. You defend dentists against malpractice suits, you get calls from other dentists. You defend cops from brutality claims, you get calls from other cops. And you defend alt-right trolls, you get calls from other alt-right trolls. That’s just how word-of-mouth marketing works.

(If I had to guess — and guessing is much less work than investigating — I wouldn’t be surprised if Mike Cernovich was the key. Randazza is a long-time legal blogger at Legal Satryicon, and long before Cernovich was a leading figure on the alt-right, he had a perfectly normal legal blog called Crime and Federalism, which he shared with Connecticut lawyer Norm Pattis. In those early days, the legal blogosphere was a small community, and Cernovich almost certainly would have been aware of Randazza. I was part of that community, and I knew both of them.)

Marc Randazza is not some kind of “Nazi lawyer.” He’s a well-known First Amendment lawyer who has helped a lot of different kinds of people, sometimes for free. In a small way, I’m one of them. Randazza’s blog has one of the most hilariously pugilistic Terms and Conditions pages I’ve ever seen, and when I asked him something about it, he told me I could use it on my blog if I wanted to, and he let me list him as the legal contact for Windypundit.

At another time I was thinking of registering a “Windypundit” trademark, and Marc gave me some free advice. He even offered to do the registration for me. (I didn’t take him up on it because it felt funny to ask him to work for free, even though he’d offered.) It would be misleading to say Marc Randazza is my lawyer — he’s never represented me in anything — but I wouldn’t be surprised if our minor interactions meet the technical legal definition of a lawyer-client relationship.

What it comes down to is this: When planning the military defense of a country, you want the battle against the invaders to start at its borders, not in its heartland and cities. The same is true when defending free speech. We want the battles to occur at the fringes, with the weirdos and deplorables, because if we’re fighting for the freedom of speech of people who say ordinary things, we’ve already lost the war.

Marc Randazza is one of the people fighting for us at the fringe.

This post by Mark Draughn at Windypundit was originally published at Marc Randazza, Freedom Fighter

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech.

That’s where things get wobbly:

The typical answer is that judges must balance benefits and harms.

Okay…this feels awkward… Nielsen is a professor of sociology and the director of the legal studies program at Northwestern University, and she’s also a research professor at the American Bar Foundation, whereas I’m just a loudmouthed blogger. And yet…I’m pretty sure she’s wrong.

The limits on our First Amendment rights are narrowly defined, and to the extent that those rights are balanced, it’s not by judges. First Amendment lawyer Ken White explains the distinction, in another LAT piece:

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don’t decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, “[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

Back to Nielson:

At the same time, our regime of free speech protects the powerful and popular. Many city governments, for instance, have banned panhandling at the behest of their business communities. The legal justification is that the targets of begging (commuters, tourists, and consumers) have important and legitimate purposes for being in public: to get to work or to go shopping. The law therefore protects them from aggressive requests for money.

Yeah, I’m not a big fan of some of those anti-panhandling laws either.

Consider also the protections afforded to soldiers’ families in the case of Westboro Baptist anti-gay demonstrations. When the Supreme Court in 2011 upheld that church’s right to stage offensive protests at veterans’ funerals, Congress passed the Honoring America’s Veterans’ Act, which prohibits any protests 300 to 500 feet around such funerals.

Again, Nielson is some kind of expert and I’m not, but…I’m pretty sure that particular law is written in a way that is viewpoint neutral: It doesn’t prohibit protests based on the content of the protesters’ speech. In fact, it doesn’t prohibit protests at all. It prohibits disrupting veterans’ funerals.

Nielson does go on to make an important point in what I think is the best part of her piece:

So soldiers’ families, shoppers and workers are protected from troubling speech. People of color, women walking down public streets or just living in their dorm on a college campus are not. The only way to justify this disparity is to argue that commuters asked for money on the way to work experience a tangible harm, while women catcalled and worse on the way to work do not — as if being the target of a request for change is worse than being racially disparaged by a stranger.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.

These negative physical and mental health outcomes — which embody the historical roots of race and gender oppression — mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality.

This part of Nielson’s argument is a solid explanation of why hate speech is unethical. In fact, I would go further: One of my recurring themes around here, usually in connection with economics, is that just because some benefit or cost isn’t tangible doesn’t mean it isn’t real. So even if people hurt by hate speech didn’t suffer tangible harms, they may still have suffered harm. For lack of a better word, their “hurt feelings” matter.

The hard part, however, is figuring out what to do about it. It is here that Nielson’s argument runs into the usual problems.

Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world.

Many readers will find this line of thinking repellent. They will insist that protecting hate speech is consistent with and even central to our founding principles. They will argue that regulating hate speech would amount to a serious break from our tradition. They will trivialize the harms that social science research undeniably associates with being the target of hate speech, and call people seeking recognition of these affronts “snowflakes.”

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

I acknowledge both of these facts, but I don’t think they get Nielson where she wants to go.

Actually, Nielson never says where she wants to go. Beyond a vague statement that “courts and legislatures need to…perhaps, allow the restriction of hate speech,” she never spells out what remedy she wants for the problem she identifies. So let’s get that out in the open: In order to protect members of traditionally marginalized groups from hateful speech, Nielson wants to make hate speech a crime.

How do you think that will turn out?

Pop quiz: If a middle-aged white guy walking down the street in a business suit calls a black woman a “cunt,” and at the same time in a different part of town a young black male walking down the street in baggy pants and a do-rag calls a white woman a “cunt,” which one of them is more likely to be arrested for hate speech? Which one is more likely to be stuck in jail because they can’t make bail? Which one is more likely to be pressured into pleading guilty because they are locked up? Which one is more likely to serve time in a cage? Which one is more likely to have trouble finding a job because they have a criminal record?

Oh, I’m sure there will be a few high-profile prosecutions of racist white guys — maybe some prosecutor will try to make his bones prosecuting Milo Yiannopoulos or Richard Spencer — but you’re kidding yourself if you think most of the arrests won’t be of people from the same groups that always get arrested for petty crimes: Blacks, Hispanics, poor people, immigrants, and the mentally ill.

History has shown that creating whole new reasons for incarceration rarely works out well for members of traditionally marginalized groups. Make hate speech a crime, and sooner or later we’ll be reading stories about a 45-year-old homeless black man killed by cops who were arresting him for a racist slur.

This post by Mark Draughn at Windypundit was originally published at The Perils of Restricting Hate Speech

Honestly, I can’t even remember why exactly I don’t like Gavin McInnes. Somewhere between his annoying appearances on The Independents and the amazingly awful crap he wrote for the cesspool that is Thought Catalog, I developed my opinion that he is a huge asshole. However, I also support a broad concept of free speech, so I support his right to speak unmolested. The combination just feels a bit weird.

I had a similar response earlier to the news that reputed neo-Nazi Richard Spencer got sucker-punched on video.

There’s something I find fascinating about the tension I feel when this kind of thing happens. I despise neo-Nazis and their fellow travelers, but I support their right to free speech. Those of us who hate what they’re saying have every right to criticize them, and the people who invite them to speak, and the people who come to hear them. But we do not have the right to use violence (or the threat of violence) to stop them from speaking, or to otherwise prevent people from hearing them. That’s not how freedom of speech works.

It’s tempting to allow a few exceptions — Nazis for God’s sake! — but exceptions have a way of swallowing the rule. Shortly after everyone got so excited about a Nazi getting attacked, protesters at a university apparently became violent enough that they shut down a speaking event by a gay Jewish man. That gay Jewish man was Milo Yiannopoulos, a noted alt-right troll, so lots of people cheered his being shut down for his “hate speech,” but note how quickly some people went from cheering a neo-Nazi getting silenced to cheering the silencing of a man the real Nazis would have sent to the gas chamber twice over.

If nothing else, this kind of thing seems like bad strategy. We’ve just elected a president who campaigned against “political correctness” blown all out of proportion, and now protesters are handing him real examples of political correctness gone too far. He even tweeted about the Milo incident and threatened to cut UC Berkeley’s funding. That’s probably an empty threat, but you can bet a lot of his followers agreed with it. And given Trump’s own hatred of free speech, is it really a good idea to be making the argument that some speech deserves to be suppressed? Trump would almost certainly suppress speech that the protesters like.

(Also, this incident got Milo far more attention than he’s had in months. Was that really a good result for the protesters?)

I firmly believe in freedom of speech, and for reasons both principled and practical, I have no trouble supporting the rights of Gavin McInnes, Milo Yiannopoulos, and Richard Spencer to speak and be heard.

However…I still enjoy it when bad things happen to to assholes. Especially Nazi assholes.

https://youtu.be/-ukFAvYP3UU

This post by Mark Draughn at Windypundit was originally published at Free Speech For Assholes

In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins — at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing.

I’ll leave the legal analysis up to the lawyers (Scott Greenfield’s review of this article is scathing), but I think the professor has an interesting analysis of the problem. I think his solution is wrong, which I’ll get to later, but his analysis is still interesting.

But to take the marketplace metaphor seriously means admitting that sometimes, markets fail. Holmes himself gave us the most famous example of market failure when he said, in a different 1919 case, Schenck v. United States, that even “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”This thought experiment in turn led Holmes to his most famous formulation of free speech doctrine: that the question in every case is whether the words “create a clear and present danger.”

Falsely shouting fire in a theater is a perfect example of market failure in the communication of ideas. The person shouting knows he is lying — but others don’t know, and won’t have time to check. The words will cause an immediate panic, even if everybody is acting rationally, because the only logical thing to do is to get out, and get out quickly.

The “marketplace of ideas” is mostly a metaphor, not a literal marketplace, but putting aside the questionable value of Holmes’s example, this is actually a fairly good analogy to the kind of market failure that can occur because of asymmetric information between the parties.

As the Nobel Prize winning economist George Akerlof showed in his classic 1970 article, “The Market for Lemons,” asymmetric information can systematically distort the quality of what’s available in the market. In his stylized example, if good cars and lemons are both for sale, and consumers know this but don’t know which are which, they will be willing to pay the average price. That will lead the sellers to withhold the good cars, which could fetch a higher price — but that in turn will lead consumers to lower the price they are willing to pay. The resulting spiral of adverse selection leads to market failure.

As it happens, it’s a lot more expensive to generate true news stories than false ones. News requires reporting and research and institutional structures like editors and fact checkers to support them. Fake news only takes one person’s imagination. And there is certainly information asymmetry between the person who writes a story and the person who reads it. Applying the Akerlof analysis suggests that fake news could conceivably drive out true news.

This is an interesting example of applying economic thinking to a problem that is not normally considered economic in nature. “The Market for Lemons” argued that in the presence of asymmetric information about quality, buyers wouldn’t know how to identify quality products and therefore the market would not reward sellers for quality. Sellers of high-quality products would therefore leave, and the process would spiral down until only very low-quality products were trading. In the worst case, the market would disappear completely.

Ackerlof’s paper takes asymmetric knowledge about product quality as a given, but in real-world markets it’s often not clear whether asymmetric information is a serious problem. That’s not a slam on Ackerlof. He was clear about his assumptions, and there’s strong evidence that asymmetric information does cause real problems in some markets. (It rules how insurance plans are designed and sold.) But there’s also evidence that many real-world markets have found ways to circumvent the problem.

The most common solution is for sellers to try to reduce the information asymmetry by establishing and maintaining a reputation. This makes use of the fact that buyers will want to purchase the same product over and over, so if a seller has a history of producing good products, buyers can rely on that history to guide their purchasing decisions. This sets up a positive feedback loop: The seller’s reputation gives buyers confidence in the product and therefore a willingness to pay more money, and that increase in potential future revenue makes it valuable for sellers to have a good reputation, which makes it worthwhile for sellers to build a good reputation by expending the effort to produce a quality product.

Another common solution is for buyers to try to reduce the information asymmetry by relying on third parties to provide reliable assessments of product quality. I had to buy a snowblower for the first time this year, and I relied on information from knowledgeable friends, Consumer Reports, a variety of web sites, and online buyer reviews at Home Depot, Lowes, and Amazon. In this age of the internet, information is easier to find than it’s ever been.

(Other solutions, such as offering easy returns and product warranties are effective as well, but I can’t see a way to apply them to news.)

Feldman, however, doesn’t seem interested in any of these solutions. He goes straight to stepping on necks:

The classic solution to market failure is regulation. Holmes, in his fire-theater example, certainly believed that was permitted by the First Amendment.

The question is whether government regulation of fake news would be justified and lawful to fix this market failure.

Justified? No, not even under Holmes’s example. If you’re in a crowded theater and someone shouts “Fire!”, your best move is to get out as fast as possible. You don’t have time to reflect on the shouter’s claim and debate it with your fellow theatergoers. The “market failure” in shouting fire in a crowded theater is that there’s no time for the “marketplace of ideas” to operate.

Reading the news doesn’t come with that kind of urgency. There’s plenty of time to research stories and read what other people are saying about them.

Obviously, it would be better if the market would fix the problem on its own, which is why attention is now focused on Facebook and Google. But if they can’t reliably do it — and that seems possible, since algorithms aren’t (yet) fact-checkers — there might be a need for the state to step in.

Here’s where Feldman tries to play a trick on his readers. He starts by saying the problem is that Facebook and Google are unable to function as fact checkers, which is fair enough, and then he says the state should “step in.” But he doesn’t just want the government to provide the fact checking that he says is needed. He wouldn’t need to write an article about that because fact-checking isn’t legally controversial: Government employees are free to research the statements of fact within a news story and publish their evaluation, and government press offices do that all the time already.

No, what Feldman wants is for the government step into the marketplace of ideas and pick winners by force, which is why he runs into concerns about constitutionality.

Under current First Amendment doctrine, that wouldn’t be allowed. The Supreme Court has been expanding protections for knowingly false speech, not contracting it. And it would be extremely difficult to separate opinion from fact on a systematic basis.

From there, Feldman’s argument dissolves into attacking a straw man with a flurry of hand waving:

But we shouldn’t assume that the marketplace of ideas works perfectly. And given that, we shouldn’t be slavishly committed to treating the marketplace metaphor as the basic rationale for free speech.

Perfection is not the standard. I don’t think anyone believes the marketplace of ideas is perfect. But if you propose to replace the free market with something else, you should at least do your audience the courtesy of trying to explain why your proposed solution would be better, and Feldman doesn’t even try. It’s like he thinks it’s just obvious that of course government can do this.

The current freakout over false news depends on two major items of concern: (1) That fake news is produced by liars, and (2) that fake news is believed by fools. Feldman’s proposal is utterly lacking in detail, but I’d love to hear why he’s so sure that his solution will not be created and carried out by more of the same liars and fools.

For Christ’s sake, we’ve spent the last year and a half watching a gruesome demonstration of how government leaders are chosen. What in God’s name makes anyone think those people should have the final word on what’s true in the news?

False news that hinders public discussion and encourages irrationality may have a role in the marketplace; but it doesn’t contribute to the good functioning of democracy.

Speaking of democracy, politicians are notorious liars. Unsurprisingly, so are a lot of the government functionaries who work for them. I’m not talking about crazy anti-government conspiracy theories, either, I’m talking about the routine lies that government employees tell to keep their jobs and make them easier: Cops lying about incidents, experts exaggerating their credentials, and department heads who refuse to recognize facts that would be inconvenient for the continued funding of their departments.

I’m talking about the Drug Enforcement Agency refusing to recognize the medical benefits of marijuana long after its acceptance by the medical community. I’m talking about the Tuskegee syphilis experiment. I’m talking about the numbing sameness of the lies that many cops tell on the stand. I’m talking about the legal fictions that label people as drug dealers when they don’t deal drugs, as pimps when they aren’t pimping anyone, and as money launderers when they aren’t laundering money.

I’m sure Professor Feldman imagines that when the government implements his fake news suppression program they will decide which news is real or fake with the help of wise and honest scholars (such as himself). I think it’s more realistic to assume it will be staffed by people like TSA agents, DMV clerks, and those public school administrators who call the cops when a kid makes a shooting gesture with his fingers.

This post by Mark Draughn at Windypundit was originally published at The Worst Way To Fight Fake News

Now comes news of a counterattack: Rep. Lamar Smith (R-Tex.) has issued congressional subpoenas for Schneiderman and Massachusetts Attorney General Maura Healey, along with nine climate activist groups, requesting all relevant communications between the groups and the attorneys general in order to investigate a possible conspiracy “to act under color of law to persuade attorneys general to use their prosecutorial powers to stifle scientific discourse, to intimidate private entities and individuals, and deprive them of their First Amendment rights and freedoms.”

I have two responses to this development:

(1) AH-HA-HA-HAHA! LIVE BY THE SWORD, DIE BY THE SWORD, MOTHERFUCKERS!!! PAYBACK’S A BITCH, AIN’T IT?

and

(2) This is really very wrong.

I have no actual sympathy for AGs Schneiderman and Healey. They are government employees, public servants subject to oversight and review. They started this, and for their attempts to stifle free speech they deserve to be gang-subpoenaed by congress, repeatedly.

The climate activist groups, on the other hand, are citizens exercising their free speech rights to discuss matters of public importance and — to the extent that they communicated with various attorneys general — petition the government. They don’t have to explain themselves to anyone.

As I said before, this is not how science is supposed to work. That’s not how debate over public policy is supposed to work.

This post by Mark Draughn at Windypundit was originally published at A Bad Remedy For Bad Climate Speech, Again

This time a pack of twenty AGs are attacking the free speech of climate change skeptics:

Not only do Schneiderman and his new claque climate crusaders aim to force ExxonMobil to repent (while possibly extracting some cash along the way), they also evidently intend to shut up non-profit groups to which the oil company donated funds that have questioned the notion of impending man-made climate catastrophe.

In service of this goal, the Attorney General of the U.S. Virgin Islands Claude Walker has issued a subpoena to the Washington, D.C.-based think tank the Competitive Enterprise Institute. According to CEI, the subpoena demands that the non-profit produce “a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.”

Admittedly, this is not a direct attack. The main thrust of the investigation is aimed not at CEI but ExxonMobil. The attorneys general are investigating whether ExxonMobil lied to investors about the effects of climate change on shareholder value.

For example, changing patterns of Arctic ice thawing could disrupt the company’s oceanic drilling and shipping operations, and thawing permafrost could cause upheavals that might damage buildings or pipelines, as could increasingly violent weather patterns. By playing down climate change, critics (and attorneys general) might argue, ExxonMobil is playing down the costs they will incur. Of course that applies to any business that could be affected by climate change, not just the oil companies that are the favorite targets of environmentalists.

A more specific concern is the oil in the ground. Oil companies make their money by pumping that oil out of the ground and selling it to people, and a large part of their current stock value comes from the expectation that they will be able to continue doing that for many decades into the future. The problem is that burning those enormous oil reserves will do immense damage to our planet’s climate. So it’s quite likely that world governments will at some point force the oil companies to leave most of their reserves in the ground — at least if the world is going to limit warming to the commonly cited 2°C target. In other words, because of climate change, oil companies will not be able to make nearly as much money as everybody thought they would. Therefore, by playing down climate change, companies like ExxonMobil are effectively lying about the value of their stock.

It’s an interesting economic point, and the same reasoning applies to coal and gas companies as well, but so far we haven’t seen the expected massive decline in the stock prices of companies with large fossil fuel reserves. The capital markets don’t seem to believe that we’ll be leaving all that oil, gas, and coal in the ground. That may be a realistic analysis: Current predictions are for an increase in fossil fuel consumption over the next couple of decades, likely blowing through the 2°C warming target.

There are a lot of unknowns here, and unknowns are risks, and risks are supposed to be disclosed to investors. Have the oil companies been doing it right? I haven’t got a clue, but that’s what the attorneys general are claiming to be investigating.

On the other hand, I’m pretty sure the Competitive Enterprise Institute has nothing to do with any of this. They have no obligations to investors in the fossil fuel industry. So how did they get sucked into the investigation?

It sounds like the attorneys general are pursuing some sort of conspiracy angle in which ExxonMobil was paying CEI to mislead the public as a means of influencing investors. I suppose that theory gives them plausible legal cover for harassing CEI. However, given that U.S. Virgin Islands Attorney General Claude Walker worked for eight years as an attorney for the U.S. Environmental Protection Agency, and that former Vice President Al Gore was included in a recent press conference about the investigation, it seems likely that this move is less about financial fraud and more about finding a way to strike back at ideological enemies in the climate argument.

New York Attorney General Eric Schneiderman started his investigation of ExxonMobil last year, but the subpoena to CEI didn’t come until after CEI attorney Hans Bader published an article critical of the investigation, which sounds a lot like retaliation. I can’t help thinking that some of the attorneys general are enjoying the chance to slam an enemy of environmentalists with the high cost of fighting or complying with the legal process. And if they could find a way to implicate CEI members in the conspiracy, all the better, right?

University of Tennessee law professor Glenn Reynolds argues that this is illegal:

Federal law  makes it a felony “for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).”

I wonder if U.S. Virgin Islands Attorney General Claude Walker, or California Attorney General Kamala Harris, or New York Attorney General Eric Schneiderman have read this federal statute. Because what they’re doing looks like a concerted scheme to restrict the First Amendment free speech rights of people they don’t agree with.

I don’t know if Reynolds is right, but this kind of legal action seems to be part of a disturbing trend in which environmentalists have been trying to use the legal system to suppress the free speech of climate change skeptics.

I suppose it started with climate scientist Michael Mann’s lawsuit against several critics, including columnist Mark Steyn at the National Review and Rand Simberg at CEI. That’s just one guy (and he kind of had a point, even if the lawsuit is apparently stalled), but more recently 20 climate scientists signed a letter to President Obama calling for far more dangerous action:

We appreciate that you are making aggressive and imaginative use of the limited tools available to you in the face of a recalcitrant Congress. One additional tool – recently proposed by Senator Sheldon Whitehouse – is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change.

The RICO statutes are one of the biggest loose cannons in federal law. Originally intended to help fight organized crime, RICO laws have been used to enhance penalties for things like securities fraud and teachers altering test scores or to fight marijuana legalization. Apparently, there’s been some talk in the Department of Justice about using RICO against climate skeptics, and I wouldn’t be surprised to see DOJ joining the attorneys general in their crusade against bad science.

Even Bill Nye “the science guy” is kind of okay with jailing people over climate science:

Asked about the heated rhetoric surrounding the climate change debate, such as Robert F. Kennedy Jr.’s previous comments that some climate skeptics should be prosecuted as war criminals, Mr. Nye replied, “We’ll see what happens.”

…

“In these cases, for me, as a taxpayer and voter, the introduction of this extreme doubt about climate change is affecting my quality of life as a public citizen,” Mr. Nye said. “So I can see where people are very concerned about this, and they’re pursuing criminal investigations as well as engaging in discussions like this.”

You know who else’s quality of life is going to be affected? Everyone involved in the fossil fuel industry, if we switch to greener energy. You don’t think they’d like to shut down climate scientists’ claims of anthropogenic global warming? If RICO actions about climate science had been available a few decades ago, oil and coal companies would have used them to suppress research into global warming by labeling it a conspiracy to destroy the energy industry and hurt the U.S. economy.

About the potential for a “chilling effect,” Mr. Nye said, “That there is a chilling effect on scientists who are in extreme doubt about climate change, I think that is good.”

But it’s not just going to be people with “extreme doubt” (whatever that means) who experience chilling effects. It’s going to be every scientist with a theory that suggests global warming isn’t as bad as we think it is — every researcher who theorizes there’s a bias in the satellite record or a natural carbon sink that’s more effective than expected. When trying to decide whether to pursue the research, they’ll have to ask themselves if it’s worth the risk of severe legal problems, and they’ll have to line up advisors, assistants, partners, and funding agencies that are also willing to face the risk. Or they could play it safe and pick a different research topic.

That’s not how science is supposed to work. That’s not how debate over public policy is supposed to work in a democracy. Environmentalists had no trouble understanding this concept back when Virginia Attorney General Ken Cuccinelli was engaged in a bogus investigation of Michael Mann and the University of Virginia for supposedly manipulating data to prove global warming.

It’s not a question of who is right and who is wrong. It’s not even about who is lying and who is telling the truth. It’s about how we as a society are going to make decisions together. It’s far better that we talk things out and let everyone be heard than that we enlist attorneys general to imprison or impoverish those with whom we disagree. The best remedy for bad speech is good speech. Not a RICO prosecution.

This post by Mark Draughn at Windypundit was originally published at A Bad Remedy For Bad Climate Speech

To be sure, Trump brought it on himself. The aphorisms are plentiful: You reap what you sow. Live by the sword, die by the sword. What goes around, comes around. Trump applauded and even encouraged violence at his rallies. He set the rules of the contest, and now he’s complaining that his opponents are playing by them.

It’s actually kind of a law of nature: Trump’s embrace of violence unsurprisingly drives away the peaceful protesters, which leaves behind the kinds of protesters who aren’t afraid to mix it up, and probably even attracts protesters who look forward to busting some Trumpkin heads. So it’s not surprising that things eventually blew up. Trump and his supporters got the response that they created. Thugs begat thugs.

But…

Even Donald Trump has the right to free speech. I’m not talking about the legal First Amendment right, which doesn’t really apply to private action. I’m talking about the basic moral premise that underlies the First Amendment: Within some very broad limits, people have a right to say what they want. Whatever they want. Even if other people don’t like it. Even if they themselves have no respect for freedom of speech.

And perhaps even more important than Donald Trump’s right to speak is the right of other people to hear what he has to say. People who come to his rallies ought to be allowed to hear him speak, and the rest of us should respect that right. That doesn’t mean opponents can’t protest his speech. There’s a difference between speaking out against Trump and blocking Trump from speaking. When Donald Trump is speaking to cheering supporters and crowds of protesters are shouting in the streets and the police are keeping the peace rather than taking sides, that’s American free speech at, well…perhaps not at its finest, but certainly at its most exuberant.

On the other hand, if anyone violently attacked Trump supporters, I fully support arresting them for it. (And vice versa, of course.) Similarly, if protesters disrupt Trump’s speech, I have no problem with them being escorted from the premises. They have a right to speak, but they don’t have the right to prevent Trump from speaking in a forum assembled for that purpose, nor do they have the right to prevent others from hearing what he’s saying.

Granted, I’m not entirely convinced that anyone other than Donald Trump was responsible for shutting down the Donald Trump rally. At the time he called it off, there hadn’t been any injuries or arrests in Chicago. I think it’s possible he saw a chance to skip a rally and blame it on the opposition, and so he took it, and now he’s using it to play the victim card. But as Donald Trump might have said, I like Presidential candidates who don’t cancel their rallies. Who’s the pussy now, Donald?

Except…

When the cancellation of the rally was announced, the only proper response from any protest organizers who really respect free speech should have been either (1) an apology for letting things get out of hand, (2) criticism of the rally organizers for not providing enough security for Trump to feel safe, or (3) calling Trump out for cancelling his own rally and blaming it on the free speech of others. Depending on what you believe caused the rally to be cancelled, any one of these might be appropriate.

Some of the protesting organizations, however, are taking credit for stopping Trump from speaking. That’s nothing to be proud of. Even if he quit for reasons of his own, claiming credit shows they have little respect for free speech. And if they actually did shut him down from fear of violence, that’s even worse.

In our open society, the remedy for bad speech is supposed to be good speech, not violence. Trump doesn’t understand that. “Freedom of speech” is just a buzz phrase he uses when he senses it might help him. The rest of us should try to be better than that.

This post by Mark Draughn at Windypundit was originally published at Even Trump Has Freedom of Speech

The city called Red Moon and requested they not host the concert, calling Chief Keef “an unacceptable role model” who “promotes violence.”

Apparently Mayor Emanuel is acting as the arbiter of acceptable musical performances in Chicago. So if you’re planning to have gangsta rappers or outlaw country singers at your event, be sure to run them past the Mayor’s office first to make sure they are morally pure. Also, I assume performances of Threepenny Opera are now forbidden, because Mack the Knife is a bad role model for the children.

Chief Keef’s performance was rescheduled to be at the Craze Fest concert festival in nearby Hammond, Indiana, but Hammond Mayor Thomas M. McDermott Jr. reached out to shut that down as well:

“I know nothing about Chief Keef,” Mayor McDermott, 46, said. “All I’d heard was he has a lot of songs about gangs and shooting people — a history that’s anti-cop, pro-gang and pro-drug use. He’s been basically outlawed in Chicago, and we’re not going to let you circumvent Mayor Emanuel by going next door.”

First of all, circumventing Illinois by going next door is kind of northwestern Indiana’s value proposition: Drive toward Indiana on I-80 and you’ll see a dozen billboards for fireworks stores and strip clubs.

In any case, the argument for kicking Chief Keef out of Craze Fest comes with a bit more of a rationalization:

All of the Craze Fest acts — which included Riff Raff, Lil Bibby and Tink — had been previously vetted because the event was held at a public park…

That sounds at least superficially reasonable, except that when public space is involved, I’m pretty sure the authorities aren’t supposed to discriminate against the views expressed. Just because newspaper vending machines are placed on public sidewalks doesn’t mean government authorities can control what stories are printed. They shouldn’t be allowed to control the content of musical performances either.

There’s one more thing, and if you haven’t spoiled it by reading the links, it will blow your mind: Chief Keef apparently has outstanding warrants in Illinois (for a missed DUI hearing and child support), so he was never planning to come here anyway. Instead, he was going to appear by hologram, which is apparently a thing we can do here in the future.

So what this boils down to is that, except for a difference in display technology, the mayors of Chicago and Hammond now think it is their business to tell event producers what they can have on television. Logically, it’s no different than them putting pressure on movie theaters to not show Roman Polanski movies. Even if they have a valid point — that watching Polanski movies or Chief Keef concerts is repugnant — they have no business using the power of public office to force their cultural tastes on others or to prevent others from exercising their own cultural tastes.

I don’t know anything about Chief Keef, but Mayor Emanuel is right that there are bad role models involved: He and Mayor McDermott are censorious thugs.

Update: First Amendment expert Eugene Volokh weighs in:

Unless I’m missing something here, then, this is a pretty clear First Amendment violation on the part of the City of Hammond. And it seems to me that, in America, performances by controversial singers can’t be “basically outlawed,” even “in Chicago.”

This post by Mark Draughn at Windypundit was originally published at Censorious Thugs Detected In the Holodeck!

This post by Mark Draughn at Windypundit was originally published at Free Speech From a Friend of the Blog

I had thought about a similar issue a few years ago, when writing about threats against the Danish newspaper Jyllands-Posten which had published cartoon images of the prophet Mohammed. In that case, I didn’t see a reason to include any of the images under discussion. As my regular readers are no doubt painfully aware, Windypundit is mostly just a lot of words. I don’t normally include images unless I have to. So the way I saw it, there were only two reasons for including the images in a post: (1) News value, and (2) saying “Fuck you” to assholes.

I have no objections to saying “Fuck you” to assholes, but posting offensive images risks saying “Fuck you” to the wrong people. If a racist politician used the N-word in a speech, and some kind of black militant group assassinated him for it, I see no problem with telling them to go fuck themselves, but I wouldn’t use the N-word to do it. I may want to say “Fuck you for being a terrorist,” but the N-word says “Fuck you for being black.” It’s the wrong message in so many ways.

The same is true for the offensive images of Mohammed. Instead of saying “Fuck you for being a terrorist,” I might inadvertently be saying “Fuck you for being a Muslim,” which is not at all the message I want to send. So when writing about the Jyllands-Posten images, I decided not to use the images to say “Fuck you”.

The Charlie Hebdo images were slightly more complicated because I didn’t even know how to tell if they’re offensive. Translating from the French is the least of the problems. Things like racist epithets and stereotypes are culturally defined in a complicated way, and I wouldn’t have a clue what constitutes anti-Arabic or anti-Muslim material in French culture. The cartoons are not drawn realistically, but I can’t tell which oddities are considered racists stereotypes and which are just the Charlie Hebdo style. Some people say the cartoons are racist and others say they’re just over-the-top satire, and I don’t know who to believe. It’s a messy situation.

It is for this reason that I reluctantly did not sign on to Marc Randazza’s “We are Charlie Hebdo” post. I understand what he’s doing — Randazza is a Kung-Fu master of “Fuck you” — but I felt that by signing onto the post I would in effect be signing onto the messages in the Charlie Hebdo cartoons, and I don’t even know what those messages are.

I realize not everyone who publishes the images (or signs on to Randazza’s post) feels they are endorsing the content of the cartoons, but that’s how it felt to me.

The other reason for including the offensive images would be if they have legitimate news value. When writing about the Jyllands-Posten images, I thought the actual images were marginally relevant, but there’s no point in embedding a dozen images in a post when I would normally just link to them. Embedding the images would be gratuitous, and therefore just a “Fuck you,” about which please see the previous few paragraphs.

Pretty much the same line of thinking applied to the Charlie Hebdo images, except that the slant of my post was that the people making the images were pretty bold in the face of censorship and violent opposition. In particular, I thought it took big brass balls to publish this image right after their offices were firebombed:

That’s got to be a giant “Fuck you” to the (presumably) homophobic religious nutcases that would firebomb a magazine because they didn’t like the cartoons, and I felt you really have to see the image to understand the magnitude of the message. That’s why I included it in the post. (And of course you need to see the image in this post to understand why I felt that way.)

I have to admit that posting that image also allowed me to issue my own small “Fuck you” to the terrorists in a way that I hope wouldn’t unintentionally offend anyone who doesn’t have it coming. Also, I hope it will be enough to get me past the inevitable gormless trolls who insist that anyone who doesn’t publish the images is a coward.

This post by Mark Draughn at Windypundit was originally published at To Publish or Not To Publish

Honestly, until this shit happened, I didn’t know a damned thing about Charlie Hebdo. I don’t have a clue what Charlie Hebdo stood for, so I’m not about to identify myself with them or support their editorial agenda, whatever it is.

Besides, in my mind, “I am Charlie” links to the scene in the 1960 film Spartacus where rebellious former Roman slaves refuse to identify their leader Spartacus by all claiming “I am Spartacus!” thus consigning themselves to be crucified alongside him. That’s real dedication to a cause. And as Matt Welch points out, Charlie Hebdo was run by badasses. Their own government went after them for offensive speech and they fought back and won. Muslim extremists firebombed their offices, and six days later they responded with this:

(“Love is stronger than hate.”)

By comparison, I’m publishing this blog from the middle of the United States of America which is still — despite all the problems detailed here on a regular basis — a bastion of free speech. The worst that’s ever happened to me for something I wrote is that people left nasty messages in the comments or said mean things about me on their blog. The worst that’s ever likely to happen to me is that I have to find another job because my employer doesn’t like something I wrote. If someone shoots me, it’s more likely to be my wife than terrorists.

Look, whatever Charlie Hebdo stands for — I don’t know or care what it is — I stand by their right to believe it and say it and publish it. It’s insane to kill someone for drawing comics and saying mean things. The gunmen who shot the Charlie Hebdo writers and artists are a bunch of terrorist assholes, and I want them all to die in a fire.

But my saying so doesn’t get me any points for bravery. I’ve got it easy. I realize that many of the people posting “I am Charlie” don’t mean it this way, so this is not a knock on them, but to me “I am Charlie” feels like trying to portray myself as having courage on a level that is simply not required for what I do. My world is not that dangerous. I am not Charlie.

This post by Mark Draughn at Windypundit was originally published at Je ne suis pas Charlie

However, thanks to the London-based Open Rights Group (which I stumbled upon in the sidebar on Charlie Stross’s blog), I’ve discovered that my blog is now banned by some of the ISP content filtering recommended by the U.K. government.

You may remember hearing that the UK had pressured ISPs into blocking pornography in their default settings. (People who wanted to receive it could remove the block.) But the blocking also included other categories such as malware, drugs, gambling, suicide, weapons and violence, obscenity, hate, cyberbullying, and hacking. This site is not particularly about any of those things, but I do discuss them in the context of analyzing public policy, and like most automated filtering, it blocks a lot of stuff that it shouldn’t.

I checked around on my blogroll, and surprisingly few of them are blocked. Scott‘s not, and neither is Popehat, despite their extensive discussion of criminality. Even Pete Guither’s Drug WarRant isn’t blocked, and all he talks about is drugs. On the other hand, Maggie McNeill‘s site about sex work is blocked kind of a lot, and anthropologist Laura Agustín‘s site about migrant sex work is blocked a little. It sounds like the Brits are threatened by the sexiness.

Or maybe I just say “fuck” too often.

You can check your site here.

(Title allusion here.)

This post by Mark Draughn at Windypundit was originally published at The Queen is a Fink!

It seems that while your regular woman on the street has no way to keep religious fanatics from harassing them while they seek 100% legal healthcare, the rich can hire security to keep you and your petty complaints at arm’s length. So because they’re rich they get special rights. Again. What a shocker!

Uhm, I’m pretty sure that private bodyguards aren’t allowed to close off parts of the public sidewalks for their rich clients. More likely, they conduct their affairs on private property that’s big enough to keep the rabble away.

I pointed out that during the Occupy Wall Street protests, we were not allowed to actually march on Wall Street. We were diverted around it. This should have been 100% illegal but, of course, you can’t have the rabble pestering the masters of the universe as they rake in billions from an economy they destroyed.

Yeah, that wasn’t private security keeping you off Wall Street. That was the New York Police Department. (That police departments often function as private security for the rich and powerful is a different problem.)

However, Rosario sort of touches on something I’ve been wondering about ever since the court handed down the decision: If free speech means that anybody on a public sidewalk has the right to talk to anybody else that’s there, and if this includes the right to approach close enough to have a conversation, then shouldn’t this mean the end of “free speech zones”?

Whenever there’s a World Trade Organization meeting or a political convention or a controversial college guest lecturer, police like to set up these so-called “free speech zones” for protesters, usually far enough away that the people they’re protesting against can’t hear or see them. But if you can’t keep people from protesting outside an abortion clinic, how can you keep them away from a convention hall?

This post by Mark Draughn at Windypundit was originally published at Buffer Zones and Free Speech Zones

There’s a first amendment case going in front of the Supreme Court right now that’s very, very dangerous. Why? Because it might allow religious opinion to become legal fact, corrupting the intent of our constitutional rights, if not the specific wording.

Actually, Acuff is concerned the Supreme court might overthrow the ability of election commissions to control speech about politicians:

The Susan B. Anthony List (SBA List), an anti-choice and anti-family planning group, is suing because they believe they have a right to publicly advertise lies if they have sufficient reason to hold the advertised opinion. Paradoxical, yes, but if you’re familiar with American culture, you’ll completely understand. Cognitive dissonance and bold denial in the face of proof are defining characteristics.

The specific issue at hand is the 2010 campaign of Democratic former Rep. Steve Driehaus, a pro-life moderate in Ohio. Because he was running in Ohio, Ohio’s “false statements” law applied. Many states have an equivalent law. The idea is that stopping political ads from outright lying might be a reasonable restriction of free speech, in order to protect our democratic process. Probably a good plan, and not just for elections — after all, an appellate court has previously ruled that media sources, such as Fox News (the specific agency in the case), have the right to lie.

Granted, it’s bad that politicians lie. But you know what’s worse than allowing politicians to lie? Allowing politicians to decide what people are allowed to say about politicians. Ohio’s law against false statements in a political campaign is enforced by the the Ohio Elections Commission, which is a politically appointed body, that has been used to press “false statement” charges against political candidates attacking incumbents and against people protesting Tax Increment Funding. Are we really supposed to believe they’re going to keep mainstream politicians honest? Or are they just another way to keep small players out of the field of politics?

The SBA List was upset they weren’t allowed to advertise things that weren’t true. After all, Driehaus supported Obama’s healthcare agenda, and they didn’t. So, they wanted to put up a bunch of billboards and use radio ads to blast Driehaus, a self-proclaimed pro-life candidate, as supporting a program that includes taxpayer-funded abortions. Except…the ACA, Obamacare, does not fund abortions. It’s actually illegal for the federal government to fund abortion. Instead, the ACA has private insurers offering abortion coverage under unique rules.

And as he just demonstrated, this is easy enough to explain to anyone who was fooled by the lies and who wants to learn the truth. You don’t need a special truth commission to rule on it.

Facts matter. Especially when it comes to democratically electing leaders. Without an educated, informed populace, there can be no progress in democracy.

Of course fact matter. And if SBA List is misrepresenting the facts about the way abortion is treated under the Affordable Care Act, it’s important to correct them, and it’s important to point out that they are a bunch of liars who can’t be trusted. But there’s a world of difference between responding to political opponents by calling out their lies and responding to political opponents by suppressing their speech.

It’s not like these kinds are laws are going to be used evenly across the board. During the long course of a political campaign, a lot of people will say a lot of things, and some of those things will be wrong. And despite the supposed goal of getting the lies out of politics, there aren’t enough investigators on the Ohio Election Commission to investigate every lie that is told during an election season.

That means that the commission will have to engage in selective enforcement, picking and choosing among all the lies to decide who they want to go after. Does anybody think that choice won’t be influenced by politics? My guess is that lies told by (or on behalf of) influential mainstream candidates will go unchallenged, because the political hacks on the election commission wouldn’t want to anger anyone who could hurt their chances of collecting a nice state pension. On the other hand, the commissioners will have nothing to lose by nitpicking fringe candidates and small special interest groups that are a thorn in the sides of candidates from both parties.

And let me point out something that every power-mad would-be censor seems to ignore: You may have the power now, but someday it will be your enemies who are in control of the power. Today the commission might be targeting a right-wing pro-life group, but tomorrow a different commission could be controlled by the other side, and it could be some left-wing cause that’s in the crosshairs. For example, I’ve heard a lot of gun control advocates say things that just aren’t true: They get confused about firearms technology, they misstate the current firearms laws, they use incorrect statistics, they make unsupported claims about things the NRA does, and they mischaracterize pro-gun arguments. Will the people demanding the SBA List be silenced have the same hardball attitude about “false statements” when a Republican-controlled election commission goes after a grassroots gun control group and runs them out of business with legal expenses?

I’m not defending the SBA List or the lies they are tell. But giving politicians the power to control political speech during an election is not something that’s good for democracy.

This post by Mark Draughn at Windypundit was originally published at No Need for the Truth Police

Let me start, however, by pointing out that the Nazis themselves were no fan of free speech, which puts Thane Rosenbaum squarely in the Nazi camp himself. In fact, his post violates a new Israeli law he describes with some approval:

Meanwhile, Israel’s parliament is soon to pass a bill outlawing the word Nazi for non-educational purposes.

Maybe if he gets his new speech police, their first job will be taking a closer look at his potential pro-Nazi leanings…

Nah. Not really. I don’t actually believe for even a moment that Thane Rosenbaum harbors Neo-Nazi tendencies. I’m just trying to make the point that when you pass a law, you have to give someone the power to make the decisions about who to use it against, and you could find yourself in handcuffs if they don’t share your vision of who the bad guys are. This is a recurring problem with most laws against bad speech.

For example, if these kinds of hate speech laws had been in place in the years before World War II, when Hitler’s Germany was seen by many as a bulwark against Bolshevik Communism, you might have been investigated and prosecuted for speaking out against the Nazis. (As it was, agents of Hoover’s FBI at the time considered anti-Nazi statements to be evidence of pro-communist leanings.) So if Rosenbaum ever gets his “hate speech” laws passed, he better hope no one in charge is ever offended by anything he wrote.

Then there’s his use a certain tired legal-sounding argument:

Yet, even in the United States, free speech is not unlimited. Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety. There is no freedom to shout “fire” in a crowded theater.

There sure as hell is. You can (and should) shout “Fire!” if the theater is on fire. Or if it’s a theatrical theater instead of a movie theater, the performers can certainly shout “Fire!” if it’s part of the play. The original quote that Rosenbaum is referencing is from a Supreme Court decision on Schenck vs. United States written by Oliver Wendell Holmes: “The most stringent protection would not protect a man in falsely shouting fire in a theater and causing a panic.”

Note the parts about “falsely” and about “causing a panic.” The scenario Holmes describes is about making false statements of fact (not just opinion) in a situation where people would not have time to give it due consideration and debate (because the theater might be on fire) which causes actual harm (by causing a panic). This is a far cry from “hate speech” which might possibly influence someone to make the decision at some point in the future to do something wrong.

(Holmes himself did not see these distinctions, and upheld restrictions on speech in Schenck, but they were soon wiped out by later decisions, including some by Holmes himself. Ken White tells the whole story.)

As I said earlier, however, Rosenbaum’s argument really goes off the rails when he explains the reason he wants speech-restricting laws:

Yet, the confusion is that in placing limits on speech we privilege physical over emotional harm. Indeed, we have an entire legal system, and an attitude toward speech, that takes its cue from a nursery rhyme: “Stick and stones can break my bones but names can never hurt me.”

All of us know, however, and despite what we tell our children, names do, indeed, hurt. And recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in New South Wales, show, among other things, through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic. Physical pain subsides; emotional pain, when recalled, is relived.

Pain has a shared circuitry in the human brain, and it makes no distinction between being hit in the face and losing face (or having a broken heart) as a result of bereavement, betrayal, social exclusion and grave insult. Emotional distress can, in fact, make the body sick. Indeed, research has shown that pain relief medication can work equally well for both physical and emotional injury.

He doesn’t link to these studies, so I don’t know how to evaluate them, but this seems plausible (especially if the pain relief medication he speaks of is an opium derivative).

We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious?

In other words, he’s advocating laws against hate speech as part of a larger policy of laws against causing emotional harm in general. This strikes me as a horribly bad idea.

For one thing, I can’t imagine how you’d establish emotional pain outside of a laboratory setting. Sticks and stones leave bruises and broken bones, which are clear and objective signs of injury. Both common sense and medical science tell us there will be pain and suffering. Calling someone bad names, though…that’s a lot harder to prove. Broken bones always hurt. Bad words are more subjective.

For example, I was in high school when serial killer John Wayne Gacy was arrested for raping and killing 33 young men and boys here in Chicago, and a kid named Harry (I think) decided to make fun of me because he thought I looked a bit like Gacy. Whenever I’d run into him or pass him in the hall, he’d call out “Gacy!” at me. (He wasn’t very inventive.) This was arguably a pretty hateful thing to do, and at the time, a friend who’d observed Harry’s harassment asked me why I let him get away with it.

I was completely surprised by his question, because until he asked, it had simply never occurred to me that I should care what Harry said. Obviously, my friend had strongly different feelings about it. And that raises the question of whether Harry’s speech comparing me to one of America’s most monstrous serial killers would be some sort of crime under the emotional harm statutes envisioned by Rosenbaum.

Since I suffered no emotional harm, then maybe not. But what if Harry had been picking on my friend instead, who clearly felt it was much more demeaning? It’s a strange and confusing way to define a crime when it depends on how the victims feel about it. It’s also rife for abuse by people who are good at faking their feelings, such as sociopaths. Pass this sort of law, and someone will figure out a way to harass people or make money by filing wholesale accusations about hurt feelings.

(Intent is important as well, and can be difficult to judge. For example, misunderstandings have arisen because foreigners visiting America don’t realize that young black boys will get offended if you address them as “boy.” And if the young black man responds with angry words, is he being insensitive to the foreigner’s culture? So which one should we arrest for causing emotional harm? The one who feels most hurt? The black guy as usual? It could go either way, and neither one is good.)

In the marketplace of ideas, there is a difference between trying to persuade and trying to injure. One can object to gays in the military without ruining the one moment a father has to bury his son; neo-Nazis can long for the Third Reich without re-traumatizing Hitler’s victims; one can oppose Affirmative Action without burning a cross on an African-American’s lawn.

That’s where Rosenbaum’s argument breaks down completely. In the paragraph above, Rosenbaum is picking sides and dismissing the feelings of people he disagrees with. He speaks of people who “object to gays in the military” as if they had some antiseptic policy concerns. But the people who object to gays in the military, or gay teachers, or gay Boy Scouts, or gay marriage, or gay anything, do so because they are genuinely upset by homosexuality.

I know of no reason to think anti-gay people are faking when they claim to be disgusted by gay sex. I’m sure they find it genuinely disturbing. I’ll bet the discomfort they experience from seeing two men kissing — or even just from knowing that people somewhere are having man-on-man oral and anal sex — would be measurable on those brain scans Rosenbaum mentioned.

To pick one example, if we’re going to make it a crime to cause emotional distress, then shouldn’t gay “kiss-ins” — gay couples visiting non-gay bars or restaurants in large groups and then all starting to make out at the same time — be a hate crime? After all, they do it with the explicit intention of freaking out anti-gay bigots.

While we’re at it, I’m pretty sure that opponents of inter-racial sex and marriage also experienced genuine emotional harm from miscegenation. Just seeing a young white women in the company of a black man must have been very upsetting to all the good white folk. You can pick almost any controversial social trend — women wearing pants, men with long hair, women drinking in bars, birth control and casual sex — and you can find some people who were very upset about it. Should they all have the power of laws against emotional harm to suppress the things that upset them?

I suppose supporters of emotional harm laws could counter that my examples are silly: That’s not the kind of emotional harm they’re talking about, and no one is going to use those laws to arrest anybody for those kinds of things. But that’s because I wanted to illustrate the absurdity of such laws, so I chose examples of social conflicts which have already been won: Blacks and whites can get married, women can get birth control, gay sex is legal.

But there was a time in this country when the majority of people (or at least the majority of people with political power) thought all of those things were wrong, and they probably would have been illegal under Thane Rosenbaum’s envisioned system for punishing people who caused emotional harm. (In fact, many of them were illegal even without his laws.)

Let me put it this way: If laws against emotional harm had existed in 1950 and police were called because two gay men were caught making out in an alley behind a bar and a group of onlookers were yelling anti-gay slurs at them…who do you think would get arrested? Or if a bunch of gay-rights advocates were protesting a group of preachers who were denouncing sodomites, who do you think would would be accused of causing emotional harm? If a black civil rights group denounced a leader of industry as a racist, and he claimed emotional harm from that, who do you think the police would be more likely to arrest?

There’s plenty of historical evidence. The black Americans who lead the civil rights movement were denounced as agitators, traitors, and communists, all because they demanded rights that are nowadays considered uncontroversial. The first women to complain about sexual harassment were denounced as man-hating troublemakers. More recently, gays who want to get married have been denounced for harming straight marriage.

Obviously, some people say hateful things because they are intentionally trying to hurt other people, but an awful lot of people say these things because they really believe them. Just because someone is an anti-gay, -black, -women, -Jew, -gay bigot doesn’t mean their feelings aren’t genuinely hurt when someone denounces them for it, often because they just can’t see what they’re doing wrong. For example, in recent years, the traditionally male-dominated subcultures of atheism and computer gaming have gone through several flare-ups in which women complained of sexism and were in turn accused of being oversensitive and mean. If those communities had adopted Rosenbaum’s rules against emotional harm, do you think they would have been used against the men accused of sexism or the women who dared to accuse them?

Actually, the United States is an outlier among democracies in granting such generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags. Many more countries have outlawed Holocaust denial. Indeed, even encouraging racial discrimination in France is a crime. In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma.

I mean no disrespect to my lawyer readers when I say that the goals of “mutual respect and civility” will probably not be helped by making it easier for people involved in emotional disputes to file lawsuits or criminal charges.

Consider the current ongoing fight between lesbians, feminists, and trans women over competing definitions of who belongs to the right tribe. It’s ugly and it’s mean and lots of people’s feelings are hurt. As a privileged heterosexual cis male, I have only the vaguest idea what the issues are and no sense at all of the feelings in play. But if it was against the law to hurt people’s feelings, some judge — probably a hetero cis male like me — would be expected to figure it out and punish the malefactors. Does anybody really believe such a clueless intervention would make things more civil?

Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.

Laws against causing emotional harm will only protect those who are in the majority or those minorities who are easy to sympathize with, or who have gained political power. Powerless minorities, as always, would be ignored, or would themselves be accused of causing emotional harm when they protested their treatment. Abridging free speech will cause more discord than it will prevent. Free speech is not an impediment to civil society, it is the mechanism through which civilized societies resolve their internal differences.

This post by Mark Draughn at Windypundit was originally published at Thane Rosenbaum Wants Us to Stop Being Mean…Or Else

“…I think Ima shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them. lol. jk.”

— Justin Carter, on Facebook, March 2013.

Because today, August 1, is Quote Justin Carter On Social Media Day, as promoted by Jack Marshall on Ethics Alarms.

According to Ken White, sometime last March, Justin Carter got into an argument about the game League of Legends with some friends on Facebook. In the course of the argument, one of them implied he was crazy, and Justin responded with the quote above. Shortly thereafter, police in Austin, Texas arrested him on charges of making “terroristic threats.” His bail was set at an astounding $500,000, and he was held in jail for about five months until some anonymous person bailed him out.

While I’m feeling all rebellious for quoting a comment that got someone thrown in jail, I’d also like to say a big “Fuck You!” to Comal County Criminal District Attorney Jennifer Tharp, who’s responsible for this mess.

Personal note to DA Tharp: Since you seem to have trouble discerning context or understanding hyperbole, I just want to make it clear that I am a married man, and my telling you “Fuck you!” is in no sense an offer of a sexual liaison. It’s just my somewhat figurative way of using common vernacular slang to express my opinion that you are a terrible human being.

This post by Mark Draughn at Windypundit was originally published at “Oh yeah, I’m real messed up in the head…”

This weekend we’re seeing a one-two-punch against freedom of speech — at least as it exists on the internet — one from Arizona, the other from the U.S. Senate.

You may have heard of the first punch, in the form of a stupid law that I can only guess is an overreaction to the “bullying” panic. The Media Coalition offers this description of Arizona House Bill 2549:

Arizona House Bill 2549 would update the state’s telephone harassment law to apply to the Internet and other electronic communications. It would make it a crime to communicate via electronic means speech that is intended to “annoy,” “offend,” “harass” or “terrify,” as well as certain sexual speech.  However, because the bill is not limited to one-to-one communications, H.B. 2549 would apply to the Internet as a whole, thus criminalizing all manner of writing, cartoons, and other protected material the state finds offensive or annoying.

The Media Coalition explains what’s wrong with this in their letter to Arizona Governor Janice Brewer:

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

In other words, this law would enact broad censorship of the press, and precisely because its result is so blatantly unconsitutional, I’m not too worried about it, even if it spreads outside of Arizona.

The second punch comes at the federal level, from reliable internet panic-monger Senator Joe Lieberman.

I know a lot of blogs attract crazy people, but I don’t get too many of them here. I was reminded of this recently when I got a comment on this post about Julian Assange blaming me for the decline of journalism since Walter Cronkite died (or something). Perhaps the most dangerous sounding was “Albatross,” who stopped by to defend writing about his fantasy of killing one of my former co-bloggers, and even he wasn’t as crazy as that short summary makes him sound. I’d like to think the relative lack of crazy is because all of you regular readers are so goddamned intelligent and level headed, but I suspect it has more to do with the fact that there just aren’t very many of you.

But even if the craziness in the comments got much, much worse, I don’t have to spend too much time worrying about it, largely due to Section 230 of the Communications Decency Act, which makes it clear that web sites that accept content from third parties are not considered publishers of that content, and are therefore not legally responsible for it. Essentially, comments I receive are not editorial content of this blog; they’re more like sheets of paper pinned to the billboard at a neighborhood community center.

All that could change if Senator Lieberman gets his way with a stupid new bill he’s just proposed. The bill changes Section 230 to essentially strip away the protection against third-party content, making every blogger responsible for what commenters post. This will kill or cripple the lively comment areas of many blogs.

Even worse, remember that in many cases the blogs themselves are third-party content on someone else’s site, such as blogs hosted by Live Journal, Blogger, or WordPress. (The Huffington Post media empire itself would never have gotten off the ground if this law had been passed a few years ago.) There’s no way those companies could afford to police the millions of blogs for which they would now be liable, and I suspect most of them would go out of business. Even my own humble blog might go under, since the company I pay to host it might somehow become liable for its content.

The Arizona law seems blatantly unconstitutional, but I’m not sure to what extent something as technical as the status of third-party content is constrained by the Bill of Rights, especially since 1st Amendment lawyer Brian Cuban seems concerned:

One may look at this and think, “good riddance to sites like the Dirty” but free speech for one is free speech for all, even commentary we find offense.  If this amendment passes, we are all stripped naked in our ability to engage in the honest and blunt discourse that anonymous commenting protects. It  puts an unbearable burden on not only the sites we might not like but the sites that encourage legitimate discourse. All consumer rating sites would disappear practically overnight.

Hat-tip to Florida criminal defense Lawyer Brian Tannebaum, who takes a Voltaire-esque stand:

I’m not a fan of the sewage that is most anonymous comments. In my little part of the blogging world they come from lawyers, lawyers parading as cowards – afraid to express their thoughts unless protected by anonynimity. But I certainly don’t support federal legislation controlling the sewage.

Strangely, Mark Bennet thinks it might be a good idea:

Obviously, making it possible for web hosts to be held responsible for the conduct can’t help but raise the tone. Letting people who have been libeled online seek justice from those who allow the comments rather than chasing anonymous ghosts will essentially bring much-needed grown-up (but — and this is the key — nongovernmental) supervision to the Internet, raising barriers to entry and therefore the quality and utility of the discussion.

I think the Other Mark is forgetting that he doesn’t own the servers his blog is hosting on, and if this stupid bill passes, he might get an ugly surprise when his hosting company decides they don’t have the time to research the facts behind some of the potentially libelous things he writes.

First Amendment Badass (and restauranteur) Marc Randazza confirms my interpretation and, naturally, stands strong, so I’ll let him have the last word, in his inimitable style:

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments.  If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

…

Needless to say, inhibiting anonymous speech is an attack on this right in gross.  It will be a grave day if this amendment succeeds.  Although anonymous speech on the Internet is not always the most intelligent, it still has its place in public discourse — for me to poop on.  Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government.  At this point, what’s one more right ceded to the security theater’s alphabet soup?

Eternal vigilance, folks. Enternal vigilance.

This post by Mark Draughn at Windypundit was originally published at A One-Two-Punch Against Free Speech

And this is what you can do about it. Make waves. Talk to people. Tell your congresscritters to vote against it.

If you want to know more, you can read more about SOPA at Wikipedia, you can see its progress at GovTrack, and you can find out more about your representatives at places like Project Vote Smart and OpenSecrets.

This post by Mark Draughn at Windypundit was originally published at Why SOPA is Bad and What You Can Do About It

That sentiment so enraged the morons in the campus police department that they ripped down the poster. and Chief Lisa Walter sent Miller a nastygram:

Dr. Miller,

I wanted to notify you that I removed a printed/copy (pictures attached) of a poster from the outside of your office. I don’t know if you posted it or if someone else placed it on your board, but it is unacceptable to have postings such as this that refer to killing.

I knocked on your office door while there, but it appeared as though you were not in your office at the time.  Contact me if you have any questions.

Respectfully,

Chief Walter

When someone complains about something because it “refers to” a killing or “refers to” drug use or “refers to” some actual conduct, it’s almost always a sign that they are censorious bastards trying to stretch a loophole to cover something they don’t like.

Miller’s reply was short and to the point:

Unacceptable to whom?

How dare you act in a fascistic manner and then sign your email “respectfully!” Respect liberty and respect my first amendment rights.

Walter, who hasn’t learned that you don’t have to respond to everything people say to you, responded thus:

I appreciate and understand the First Amendment, but also understand my responsibilities as the Chief of Police at UW Stout regarding postings that refer to violence and/or harm.

There’s that stretchy “refer to” again.

My actions are appropriate and defensible. Speech can be limited on a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat. We were notified of the existence of the posting, reviewed it and believe that the wording on the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.  This posting can cause others to fear for their safety, thus it was removed.

I am willing to schedule a meeting with you to discuss this further, if you wish.  If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.

As Professor Miller points out, this is insane: 

Postings that “refer” to violence constitute a threat? As in a poster from Hamlet? Or a news clipping about Hockey players that commit violent murder?

Don’t threaten me with charges that have no basis in reality–I am a committed pacifist and a devotee of non-violence, and I don’t appreciate card carrying members of the NRA who are wearing side arms and truncheons lecturing me about violence.

Exactly right. Police officers have no business complaining that words on a poster can cause people to fear for their safety. Not when they’re carrying weapons.

Miller responded with another poster on his door, this one showing a diagram of a cop beating someone down, with the text “Warning: Fascism. Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

On the one hand, calling this incident Fascism is a bit over-blown. This is just a run-of-the-mill case of an overbearing bureaucrat abusing her power for her own self-aggrandizement. On the other hand, Chief Lisa Walter certainly seems to be trying to live up to Professor Miller’s expectations with her response to the new poster:

Dr. Miller,

My office removed another posting from the outside of your office. The posting depicts violence and mentions violence and death. The campuses threat assessment team met yesterday and conferred with UW System Office of General Counsel and made the decision that this posting should be removed. It is believed that this posting also has a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat.

Got that? A college Professor puts up a poster showing police beating someone and the police tear it down because it depicts violence. It doesn’t get much more blatant than that.

This part gets me: “The campuses threat assessment team…made the decision that this posting should be removed.”

As it happens, I know a little bit about threat assessment. A very little bit. As in, I’ve read a few books on the subject. That’s it. I am far from an expert. And yet I’m pretty sure I know more about distinguishing actual threats than the entire University of Wisconsin (Stout campus) threat assessment team.

The materials in question — one from a popular television series and the other an anti-fascism message — simply aren’t indicative of any kind of threat. They lack specificity, especially as to the target of the threat, and they therefore lack the intimacy that makes it likely the threat will result in action. Miller’s responses to the chief are hardly enraged or indicative of unstable emotions. I suppose his references to Fascism could indicate a paranoid over-reaction, although the chief did threaten to have him arrested for a poster. And technically a fascination with violent entertainment is an indicator, although I don’t think ordinary American television counts.

In fact, as the wording of the email indicates, they didn’t do a threat assessment at all. They simply decided that people seeing the poster could feel threatened. That’s really not what a threat assessment is about. That’s not how a threat assessment team should be used.

Fortunately, University Chancellor Charles W. Sorensen stepped in and reminded Chief Walter that the campus police are there to support the university’s faculty, and that trying to suppress their First Amendment rights is unacceptable…Nah! Just kidding. Chancellor Sorensen was actually a total dick:

UW-Stout administrators believe strongly in the right of all students, faculty and staff to express themselves freely about issues on campus and off.  This freedom is fundamental on a public university campus.

Don’t be fooled. That’s just the standard bureaucratic tyrant’s obligatory genuflection to free speech. It always comes right before they explain why they’re suppressing free speech:

However, we also have the responsibility to promote a campus environment that is free from threats of any kind–both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence. That is why they were removed.

This was not an act of censorship. This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.

Of course it was an act of censorship. Free speech is not limited to only speech which makes people feel safe and secure. Although, really, if either of the things that Miller had on his door makes you feel threatened, you’re kind of a wimp. Or a liar.

The Foundation for Individual Rights in Education has gotten involved.

This post by Mark Draughn at Windypundit was originally published at You Know Your Threat Assessment Team is a Bunch of Pussies When…

In the wake of the tragic shooting of Representative Gabrielle Giffords last weekend, we’ve been hearing the usual scolding from public figures worried about the anger and hatred in our political discourse:

Last spring Politico.com reported on a surge in threats against members of Congress, which were already up by 300 percent. A number of the people making those threats had a history of mental illness — but something about the current state of America has been causing far more disturbed people than before to act out their illness by threatening, or actually engaging in, political violence.

And there’s not much question what has changed. As Clarence Dupnik, the sheriff responsible for dealing with the Arizona shootings, put it, it’s “the vitriolic rhetoric that we hear day in and day out from people in the radio business and some people in the TV business.” The vast majority of those who listen to that toxic rhetoric stop short of actual violence, but some, inevitably, cross that line.

Here’s an example from an AP article by Charles Babington and Calvin Woodward:

Sen. Dick Durbin, the second-ranking Democratic leader in the Senate, on Sunday cited imagery of crosshairs on political opponents and Sarah Palin’s combative rallying cry, “Don’t retreat; reload.”

“These sorts of things, I think, invite the kind of toxic rhetoric that can lead unstable people to believe this is an acceptable response,” Durbin said Sunday on CNN’s “State of the Union.”

The attack might be the work of “a single nut,” Democratic Rep. Raul Grijalva, whose Arizona district shares Tucson with Giffords’ district, said Saturday, the day Giffords was shot. But he said the nation must assess the fallout of “an atmosphere where the political discourse is about hate, anger and bitterness.”

It seems like every time something like this happens, some people try to blame it on the rhetoric of their political opponents. They tell people to tone it down, to quell the vitriolic rhetoric, to be careful what they say, so that crazy people don’t violently overreact.

I say to hell with that.

First of all, if politicians and other public figures don’t want us to hate them, if they don’t want us angry at them, then they should stop doing stuff that pisses us off. I know that’s going to be difficult: Every issue has people on all sides of it, so no matter which side they take, someone’s going to be angry at them.

Tough. That’s the job. If they want to hold an important public position, then by definition they’re going to be responsible for making decisions that matter to people. They’re going to have to make hard calls, and they won’t be able to please everyone. That’s what having power means. Thinking you can hold public office without angering people is like wanting to be a race car driver without damaging any cars.

Second, the idea that we should tone it down is related to the pop-psychology idea that anger and hatred are “negative emotions” which we should try to suppress. That’s mostly nonsense. Feelings of anger and hatred are part of the perfectly normal human reaction to dreadful situations. So if you think the folks who run our government are doing bad things, it’s normal to be angry. It’s normal to hate them. How else should we feel about the people who are ruining everything?

That said, you don’t want to let anger and hatred consume you. Timothy McVeigh should not be your role mode. (And, for different reasons, neither should Fred Goldman.) But getting pissed off at the people you think are messing up our country…that’s normal. Don’t worry about it.

Third, anybody who’s ever given a speech or written a blog knows that it’s hard to make people understand what you want to say. Some people will misunderstand your point because they lack the background, or because they’ve had different life experiences, or just because they have a different way of thinking about the world. It’s hard work telling a story or making a point in a way that communicates clearly with most of your audience.

And that’s just with normal, sane, and intelligent people. Throw in some real insanity, and there’s no hope of being understood properly. Crazy people are quite likely to hear something very different from what you’re saying. We’re talking here about the kinds of people who watch David Letterman on television and think he’s sending them secret personal messages, or the kind of people who talk to Steven Spielberg for 30 seconds in a hotel elevator and think he’s agreed to produce their script.

There’s no way to predict how someone like this will understand the things you say, and it’s madness to censor yourself in anticipation of every possible reaction. You just can’t let crazy people run your life that way.

Finally, we have to look at the kinds of people calling for moderation: Politicians and media personalities. The prominent and the powerful. They always hate it when the rest of us have something to say.

For example,

In Pima County, Ariz., Sheriff Clarence Dupnik suggested “all this vitriol” in recent discourse might be connected to Saturday’s shootings. “This may be free speech,” he told reporters, “but it’s not without consequences.”

So we’re getting a lecture about violent rhetoric from a guy who has his own SWAT team? A dozen guys like Glenn Beck and Keith Olbermann–or a thousand bloggers like me–couldn’t begin to do as much harm with words as Sheriff Dupnik’s SWAT team could do in one bad day. The Sheriff was probably even carrying a gun while he spoke, so those consequences he’s worried about are just one trigger pull away for him.

It’s the same with all the members of Congress. They’re funding big wars in two countries–not to mention the drug war here are home–and they’re telling us to tone it down? President Obama orders the assasination of an American citizen, but we’re supposed to be worried about violent subtext on talk radio? Police around the country are shooting innocent people as the unavoidable consequence of performing forty thousand armed raids every year, but we should worry about heated expressions of opinion?

I’m not saying it’s good to be a tough-talking jackass, but people who have the authority to kill–and who have on occasion used it–should lay off telling the rest of us to be careful how we say things.

Update: Since I wrote this, the Pima County Sheriff’s SWAT team has had their bad day. On May 5, they killed a United States Marine during a drug raid.

This post by Mark Draughn at Windypundit was originally published at To Hell With Toning It Down

I’m getting an uneasy feeling when I watch Julian Assange using pretentious phrases such as “my philosophy” and “my work.” … It’s the same feeling I had when I saw the World Trade Center going down. A feeling that I am watching a golden opportunity for people in power to take away some of my freedoms.

That wasn’t exactly my first thought when I saw the towers fall, but I know what he means. This is going to be an excuse for some people in government. Oh, they’ll say they’re all for freedom of the press, they just want to make sure it’s used responsibly, not abused by people who aren’t legitimate members of the press.

Assange’s self-righteous crusade is sufficiently defiant, and is being done in such a pompous style, some kind of retaliation seems inevitable. Already the UN is on record as wanting to “harmonize” efforts to regulate the Internet, in response to Wikileaks. (See this news item.)

Oh God, the last thing we need is U.N. involvement. Those are the folks who put Lybia in charge of the Human Rights commission and recently decided not to concern themselves that some countries were executing people for being gay.

I am old enough to remember how publishers got rid of US laws regarding pornography. They fought a carefully executed, incremental campaign. Freedoms tend to be won this way, slowly but relentlessly, in small steps. Media whores who make grand gestures are not useful in this process. They just provide more fuel for backlash.

Look, I’m not a huge fan of Julian Assange, either. He comes across like a self-important jerk. But when you fight for free speech rights, you often fight for the free speech rights of self-important jerks–pornographers, gangsta rappers, foul-mouthed comedians, primadonna rock stars, racists, Fred Phelps. They’re the kinds of people that everybody wants to shut up. Nice people, the ones with accomplishments and values you admire, are a lot less likely to set some would-be censor on a clean-up crusade.

(There are, of course, exceptions. Even non-controversial people can run into campus political correctness or bizarre commercial speech laws.)

We enjoy freedoms online because resourceful groups such as ACLU and EFF fought and won test cases. How unfortunate it would be to see those freedoms squashed because of a prima-donna whose “philosophy” and “work” have been of negligible value so far. It’s important to remember that he is really just another content aggregator, and the material that he has revealed has not been of critical significance. Certainly not important enough to justify a battle that we are likely to lose.

The things WikiLeaks has revealed may not be “important enough to justify a battle that we are likely to lose” (although this is pretty awful), but that’s the sort of evaluation that would have been useful before they started dumping documents. Now that Assange has made his move, for better or worse, we’re in the battle, and we have to fight it or we certainly will lose.

(We all serve in our own way. Guys like Marc Randazza become First-Amendment lawyers, and guys like me just bitch about it to anyone who will listen.)

The other thing to remember is that this is how we want it to be. If we’re fighting the forces of government censorship over really important issues, then we’ve already let them get too far. It’s like defending a country against invasion: You want to stop the enemy at the borders, not in the heartland. We want the battles for free speech to occur at the fringes, and that means defending people like Julian Assange.

This post by Mark Draughn at Windypundit was originally published at Free Speech At the Fringes

“We have heard that in the US, a pastor has decided to insult Korans. Now although we have heard that they are not doing this, we tell them they should not even think of it.

“By burning the Koran, they cannot harm it. The Koran is in the hearts and minds of one-and-a-half billion people. Insulting the Koran is an insult to nations.”

It sounds like he has read Fahrenheit 451 and even managed to understand the premise that burning a book cannot destroy the ideas within the pages. Yet he still considers the act an insult to the book. Protesters around the world burn American flags (which doesn’t matter since that act cannot harm the ideals of the US Constitution) angry that the US government didn’t take away the liberties of the Koran burners.

This post by Ken Gibson at Windypundit was originally published at Eating Babies and Missing the Point

The manager of a North Chicago sandwich shop learned in a Lake County courtroom this week that the difference between a joke in poor taste and an inflammatory remark is about 75 bucks.

Arjunsinh Sindha, 64, said he feels as if he was treated unfairly when he was fined $75 after he was found guilty of disorderly conduct for asking a Pakistani-born customer if he was a terrorist.

…

Khan reported Sindha’s comment to North Chicago officials and Sindha was issued a ticket under a city ordinance for disorderly conduct.

I can’t tell from context if Sindha is a jerk or just a talkative guy who went a bit over the line, but either way I’m pretty sure this falls well within his right to freedom of speech. Cops have always stretched the definition of disorderly conduct to include whatever happens to piss them off, but speech restrictions like this are supposed to be based on time, place, and manner of speech — e.g. screaming your head off late at night in a hospital zone — not on the offensiveness of the words spoken.

This post by Mark Draughn at Windypundit was originally published at “Hey, are you a terrorist?”

In my previous post, I was a little peeved at Reason for not producing a better article for Everybody Draw Mohammed Day. After writing that post, I emailed both the authors of the offending piece, Nick Gillespie and Matt Welch, to encourage them to explain why the piece turned out the way it did.

Much to my surprise, Nick Gillespie answered:

Mark,
 
Now that my parents have been dead for over a decade, it is always a relief to know that I am still capable of seriously disappointing somebody!
 
Based on traffic volume and a desire to weed out gratuitously abusive comments (almost all of which revolved around Mohammed either fucking or getting fucked), we closed the comments to Matt’s and my blog posts introducing the contest–we continued that with this as well. Additionally, in what was probably an incorrect anticipation of server-crushing traffic (alas!), we decided to host our winners page on our backbone server, which is less prone to server squirrels shutting down.
 
Yrs,
 
Nick Gillespie
Editor in Chief
Reason.tv and Reason.com

Ah, Geez. That sounds right doesn’t it? And now that I think about it, I’ll bet that a lot of the drawings weren’t much better than the comments. I guess that makes sense.

This post by Mark Draughn at Windypundit was originally published at An Explanation From Nick Gillespie

As you probably know, today is Everybody Draw Mohammed day. In case you’re wondering, I’m not participating. Mostly because I couldn’t think of anything clever to draw. And you probably wouldn’t have recognized it if I tried. In case you haven’t noticed, Windypundit doesn’t have a cartoon section. There’s a reason for that.

On the other hand, I was looking forward to Reason magazine’s post on the subject. They’ve been asking people to send them drawings of Mohammed for about a month, and I wanted to check them out. So I waited, and waited, and waited…until finally, late in the afternoon, they posted this.

What the hell? They say they received over 190 images, but they just picked three winners and wrote a long article. Where are the other 187 images? I thought I’d get to see them all.

As for the winners, I think the first one is kind of dumb, the second one is pretty funny, and the third is absolutely brilliant. But there’s a problem with all of them: They’re not really pictures of Mohammed. Granted, none of the Mohammed drawings are pictures of Mohammed because nobody knows what he looked like: You only know it’s Mohammed becasue of the context (which is kind of the point of these three winning images).

Still, if people are going to celebrate free speech by drawing Mohammed, I would have expected the images to be a little more in-your-face offensive, like the original images here. Or this.

The post is a little strange for a couple of other reasons as well. First, it’s hosted on Amazon’s storage server at this URL: http://reason-contest.s3.amazonaws.com/index.html. What, did they think it would get so many hits that their server would crash? Maybe if they had all the images, but not with this weak collection.

Second, like most Reason articles, this one was announced in Reason‘s Hit & Run blog when it went up. But unlike every other post I’ve seen there, this one doesn’t allow comments.

What the hell is going on at Reason? Are they owned by Comedy Central now?

Update: Got an answer from the boss.

This post by Mark Draughn at Windypundit was originally published at What’s Up With Reason and Mohammed?

Johnson said the subpoena asks for ownership information of the blogs. Uptown Update is an active blog that has gained popularity as a clearinghouse for information about the neighborhood. What the Helen was active during the 2007 aldermanic election and has not been updated in over a year.

Both blogs have been highly critical of 46th Ward Ald. Helen Shiller. Shiller’s supporters and detractors often debate the alderman’s policies and neighborhood issues in both blogs’ comments sections.

[Link added. God forbid a newpaper would link to anything. The What the Helen blog has been removed.]

Holsten’s attorney, Tom Johnson, has confirmed he filed the subpoenas, but he hasn’t explained why. Holsten is being sued by the community organization Fix Wilson Yard, which opposes his development plans.

This post by Mark Draughn at Windypundit was originally published at Google Subpoenaed Over Anonymous Blogs In Connection With Controversial Chicago TIF Project

I couldn’t help but notice you mentioned you’ve never seen a Max Hardcore video. Perhaps you should. Once you have, you may understand how a jury could find his work obscene, based on the old Miller three prong test, and therefor not constitutionally protected speech. The outcome may not be what you would like to see, but the jury based their decision on the state of the law, not how they–or you–would like the law to read. The judge only enforced the law as it currently exists, she didn’t make this stuff up either. If you want guys like Max Hardcore to continue to crank out their particular brand of “art,” then get the law changed and quit pissing on the people who’s only offense is doing their duty under the law and not making up their own along the way in order to get the result you would have preferred.

I’m sure “jt” is right that Little is a scumbag. Practically everybody says so. It’s one of the reasons I don’t want to see his videos.

Yet that’s not what they prosecuted him for. I’ve heard that it looks like the women in his videos are really being abused. If they are, some cops and prosecutors really should come down hard on him for that. It seems like it would be a pretty easy case, what with all the video of the crime.

But that hasn’t happened. Instead we get this federal-level porn distribution case. It’s not even a real porn distribution case. Little was charged with conspiracy, for making the porn that the actual distributor sent to Florida.

(I’m always suspicious when the prosecution charges someone with crimes involving concepts like conspiracy and intent or their after-the-fact brethren, money laundering and obstruction. Not that those things aren’t against the law, but couldn’t they find a real, tangible crime? You know, something where people get hurt or lose money? Something with a victim?)

I have to admit that “jt” has a pretty good point about the judge and jury only following the law. This is especially true of the jurors, reluctant participants who are intentionally kept in the dark about legal theories other than the official version. Perhaps I was more disrespectful of the decision makers than they deserved.

Then again, all of Little’s actions took place in California, but the federal prosecutors made their case in Florida. The obvious reason for this is that the feds thought they would lose their case if they tried it in California. Suppose Little’s lawyer had been able to get the trial moved to California, and suppose Little had been found not guilty as the feds obviously expected. Wouldn’t that judge and jury also have been following the law? How much respect does a court decision deserve if it could easily have come out with the opposite result just by moving the proceedings to a different state?

Clearly, one of these trial outcomes—from the actual trial in Florida or the hypothetical trial in California—has to be wrong, and I’m saying it was the one in Florida that was wrong. To put it another way, the feds have no respect for California courts or California juries, so I’m not sure why I should give any more respect to the Florida court and the Florida jury.

Even if I accept that the judge and jury were only doing their duty and following the law when the found Little guilty, there’s still the matter of sentencing. It’s not as if the judge was just following an administrative process. She had broad discretion over the sentence, and she made the choice she did. It’s reasonable to criticize her for that.

Finally, as to whether I should “get the law changed” if I don’t like it, I think the law is already quite clear on this matter:

Congress shall make no law…abridging the freedom of speech, or of the press…

There’s not a lot of wiggle room in there, not even for dirty pictures.

Since “jt” mentions the Miller test, perhaps he’s not talking about the written law, but about case law as established by the history of court rulings on this subject. In that case, getting the law changed means getting judges to rule differently than they have been, so it only seems fair to comment on the judge’s ruling.

Speaking of the Miller test, I’m not a big fan. Consider the first prong of the test:

whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,

How are potential offenders supposed to know what community standards are? It’s one thing that “ignorance of the law is no excuse” but ignorance of the standards of every single community in the country?

And just what’s wrong with prurient interests anyway?

This post by Mark Draughn at Windypundit was originally published at Scumbags and Prurient Interests