It’s been truly amazing that, for years, despite being the heart of the media business in the US, New York state had a pathetically weak anti-SLAPP bill. It only applied to issues related to petitioning the government. So you were protected from lawsuit if you were complaining about a law or zoning issues, but these days most SLAPP suits are unrelated to such things. So it’s exciting to find out that the New York legislature has finally passed a real anti-SLAPP law. The actual bill expands the coverage of NY’s anti-SLAPP law to include:
Any communication in a place open to the public or a public forum in
connection with an issue of public interest; or ii. Any other lawful
conduct in furtherance of the exercise of the constitutional right of
free speech in connection with an issue of public interest, or in furth-
erance of the exercise of the constitutional right of petition. The bill
also specifies that “public interest” should be broadly construed.
That’s… great. Like many other anti-SLAPP laws, this one seeks to stop expensive discovery early on until the plaintiff can prove their case has a chance, and expands the situations in which attorneys’ fees will be awarded to the defendant who was victimized by a SLAPP suit. The new law says that such costs and fees:
“shall be recovered upon a
demonstration that a SLAPP suit was commenced or continued without a
substantial basis in fact or law and could not be supported by a
substantial argument for the extension, modification, or reversal of
existing law.”
NY Senator Brad Hoylman took a well deserved victory lap for getting this bill through (it still needs to be signed by Governor Cuomo):
#BREAKING: For decades, powerful men like Donald Trump & Harvey Weinstein have abused our justice system to silence, intimidate, and impoverish their critics with frivolous lawsuits known as SLAPPs.
Of course, given that we were just talking about how the 2nd Circuit (which covers NY), has decided that state anti-SLAPP laws don’t apply in federal court, that still means that those wishing to bring SLAPP suits there can get around the law by coming up with some federal cause of action. This is yet another reminder of why we need a federal anti-SLAPP law already and it’s a travesty we don’t have one yet.
I wasn’t expecting this, but this morning Judge Alvin Hellerstein ordered Michael Cohen released from prison, saying that the Bureau of Prisons violated his 1st Amendment rights. If you haven’t been following this story beyond the fact that Cohen was sent to prison last year for tax evasion and campaign finance violations, what you need to know is that (following his request for such), Cohen was furloughed from prison to home confinement in May, as the prison system tried to lessen the number of people in prison during the pandemic. A little over a month later, he was returned to prison. While there were reports it had to do with the fact that he was seen eating out, it turned out to be because he refused to sign an agreement saying he would not speak to the media in any form, including saying he could not publish the “tell-all” book he is supposedly writing.
While there was some belief that Cohen’s lawsuit claiming that being sent back to prison was retaliatory against his speech wouldn’t get very far, given that the Bureau of Prisons is given wide leeway in how they handle those who they have within their custody, Judge Hellerstein surprised many and recognized the obvious:
?How can I take any other inference than that it?s retaliatory?? Hellerstein asked prosecutors, who insisted in court papers and again Thursday that Probation Department officers did not know about the book when they wrote a provision of home confinement that severely restricted Cohen?s public communications.
?I?ve never seen such a clause in 21 years of being a judge and sentencing people and looking at terms of supervised release,? the judge said. ?Why would the Bureau of Prisons ask for something like this … unless there was a retaliatory purpose??
In ruling, Hellerstein said he made the ?finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory.? He added: ?And it?s retaliatory for his desire to exercise his First Amendment rights to publish the book.?
This is a good, 1st Amendment supportive ruling, though I do wonder if it would have come out the same way if it weren’t for the high profile nature of Cohen and the president. The prison system, quite frequently, retaliates against prisoners for their speech, but it would be nice if that would start to change. Unfortunately, this will probably be a one off situation, rather than anything leading to real change.
We’re not partisan here at Techdirt. We have our personal preferences, certainly, but technology policy tends to transcend normal political divisions. We have been just as likely to see good policy proposals from Democrats as Republicans, and bad ones just the same. What we care about here is ensuring that the founding principles of liberty articulated by the Constitution can be meaningfully applied in a modern, technology driven world. That value is not a partisan one. We don’t care who is the hero who makes sure we do not spiral into dystopia; we just want to make sure we don’t. And our job is to point out how we may already be.
For the first years of the Trump Administration I took to writing annualsummaries of how things might shake out on the tech policy front given the current make-up of government. And then I stopped. By then we had children in cages, and suddenly trying to read the political tea leaves seemed like a remarkably pointless exercise. Also unhelpful, glib, and potentially even harmful. There is no point in acting as though everything is politics as usual when the situation has become anything but. A horrific line had been crossed, and it wasn’t even the first. But unless everyone recognized how dangerously abnormal politics had become, it would certainly not be the last.
And yet it sadly appears that politics has chugged on as usual. And as a result more uncrossable lines have, indeed, been crossed. As was inevitable, yesterday’s rounding up of immigrants became today’s rounding up of American citizens.
So if we’re going to talk about tech policy in the time of Trump, we need to be worried about what will happen tomorrow. Our paramount concern therefore needs to be ensuring that tech policy enables us to check further misuse of power. It certainly must not help further entrench it.
So let’s dig in and see where we are. In my original posts I distilled my comments into four general policy areas that now seem trivially pedestrian. The breakdown implies that we can simply focus on a particular area and its localized political skirmishes and leave the others for another day. Which is silly; when the whole house is on fire focusing on how an individual room may be decorated is not going to be an effective way of addressing the actual crisis at hand. But for the sake of uniformity, I might as well continue with the same organization.
Free speech/copyright. President Trump is infamous for lying. But there’s one thing he said that has been true: that he was going to “open up” our libel laws to make it even easier to sue someone for their expression. In fact he’s gone even further than that, undermining every expressive right the First Amendment guarantees, including the right to protest, which he has now co-opted federal forces to physically attack.
But as for making it easier to sue people for their speech, he has done that by example, as he and his confederates have launched specious lawsuit after specious lawsuit against speakers, platforms, and traditional press and publishers to challenge their critical (and generally completely lawful) contributions to needed public discourse. On morethan one occasion he didn’t even wait for them to make the speech before suing to shut them down. It turns out he didn’t need to change a single law to effectively obviate the right to free speech; he just had to drown out the voices speaking against him with a flood of litigation in order to silence them.
The running theme throughout this commentary is that lawmakers should not waste time with the traditional horse-trading that fills the corridors of our capitols as policy normally gets set. We do not have the luxury, here in 2020, of developing policy that would optimize life in America; at the moment our only task is to save it. And that requires recognizing the urgency of the moment, because if you don’t vote against totalitarianism when you have the chance, you may never have the chance again. So while there are plenty of areas where ordinarily lawmakers should act to articulate good policy in law, including on the tech policy front, right now there is no policy value more important for lawmakers to express in law than preserving the right to expression.
In particular, they should waste no time getting effective anti-SLAPP laws on the books. Every state needs one (looking at you, Virginia?). As does the entire federal legal system, so that we can ensure that federal courts can no longer be the refuge of the censor eager to chill the speech of their critics. Do not pass go; drop almost everything else to get this done. Because if we cannot ensure the public’s right to speak out against oppression, then we all but guarantee that oppression to prevail.
Which brings us to copyright, the deck chairs on this sinking Titanic. Could copyright policy be better attuned to the economics of producing and consuming expression in the 21st century? Perhaps. But at the moment that policy challenge is largely irrelevant. The very ability to create and consume expression is itself under fire, and our sole goal needs to be to preserve it. Copyright law inherently is about controlling expression, and that’s the last thing we need to be empowering anyone to do.
Mass surveillance/encryption. We have been warning for years against giving the police the unchecked power to invade people’s privacy. The ability people need to have to keep their personal affairs free from the prying eyes of the government is no less essential to preserve now, in the 21st Century, than it ever was in the 18th. If anything it is even more important to hold fast to the constitutional barriers that prevent the government from readily invading our private lives now that so much of those lives ? personal choices, associations, ideas, etc. ? are so casually captured in digital records so easy for the government to track.
We also challenged the excuses law enforcement gave for why they needed this exceptional ability to bypass the basic constitutional tenets normally prohibiting them from helping themselves to this data. They were nearly all predicated on the assumption that the state authority was the good guy and that it needed to save the public from the bad guys hiding among us. We challenged these arguments because these assumptions were inherently unsound ? as the news lately has been daily proving.
It is proving us right on a local level ? see all the examples of violent police behavior that have inspired weeks and weeks of protest ? and increasingly on the federal level, as President Trump unleashes federal forces against those who speak against him. These are not the acts of benevolent protectors we can safely entrust with the awesome power of the state, unchecked. These are the acts of the sorts of bad actors that our civil liberties were designed to protect us from. But when we bless digital surveillance programs that ignore our constitutional protections, and undermine the encryption technology that allows us to make the protections meaningful on a practical level, we make ourselves vulnerable to abuses of power by eliminating our defenses against them. No policymaker committed to the enduring idea of American democracy can possibly advocate in good faith or with intellectual coherence for any policy agenda that continues down such a destructive path. When a powerful state actor has already abused his power against the public, it makes no sense to give him more power to continue that abuse, and it is beyond na?ve to believe it wouldn’t be so abused. Not when we can already see in painful clarity how much it already has.
Net neutrality/intermediary liability. The political corruption of antitrust enforcement has poisoned this entire policy area. Net neutrality stands for the principle of non-discrimination on the part of service providers enabling the public’s online expression. For Internet services where there is no meaningful competition, regulation committed to maintaining that principle is important. It is not, however, useful to enforce that principle in areas where there is competition. In fact, it presents its own harm to expressive liberty when these service providers are denied the freedom to discriminate. Having some sort of principled, meaningful, and consistent way of identifying which service providers are which is therefore crucial. Yet that is not what we’ve got. Instead we have angry, reactionary, inconsistent, unrealistic, unwise, and often unconstitutional policy demands from both sides of the aisle.
The upshot is that people’s ability to speak freely online is at risk. The only way we can protect that ability is by protecting and promoting the existence of the service providers that enable it. Which means not only encouraging the competitive market needed to ensure there are enough avenues for basic Internet access, but also ensuring that there are no barriers limiting our supply of other platforms. Unfortunately, we are currently doing the complete opposite on both fronts, and in the process directly preventing needed lawful discourse.
In some cases it’s because people can’t get online at all. Either they don’t have any service due to a failure of broadband competition policy, or, worse, because we have forced service providers to deny their expression. In those cases sometimes we’ve used copyright as the rationale to bludgeon service providers into removing speech or even kick off users from their services entirely (and regardless of whether they had actually violated any law). But it’s also not the only way we have scared providers into pre-emptively kicking off users or their expression with the plausible fear of being held liable for that expression. The inscrutable FOSTA has already directly chilled platforms and the lawful expression they facilitate, and now lawmakers are threatening even more cumbersome regulation to do even more to terrify platforms into removing user expression, if not cease to exist entirely.
When the United States of America is teetering towards autocracy, it is not the time to impose any policy that would inhibit the public’s ability to use the Internet to speak out against it. But that’s what most of the proposals being put forth that target service providers threaten to do, from undermining their Section 230 immunity, to further conditioning their DMCA safe harbor, to even encumbering them excessively with ill-tailored regulations on the privacy and security front. Any policy that will have the effect of reducing the supply of online outlets or constraining their ability to enable protected speech ? as all these policy proposals do ? will only invite disaster when it erodes our ability to use the Internet to speak out against abuses of power, including state power. They all are a mistake.
Internet governance. In his tenure President Trump has accomplished two things: (1) eroding international cooperation and the US’s commitment to the public international law that supports it, and (2) empowering autocrats. In the previous posts I lamented how Trump has also undermined the organs enabling international cooperation, but maybe it’s just as well. Internationalism inherently wrangles input from around the globe, and that input increasingly includes hostility to freedom. The United States should be standing against this trend. Our tradition of liberty should be our chief export. But so long as all we are busy modeling is our indifference to freedom, if not also our abject surrender of it, then there may be no point in engaging with other national governments who would hasten its demise for everyone by giving them the institutional foothold from which to do it.
A little more than a year ago, a federal court was asked how much First Amendment do we hand out to minors? Well, it’s more than this particular school thought. The Pennsylvania school being sued was pretty sure it could draw the First Amendment line wherever it felt was appropriate. That’s why administrators took action against a teen cheerleader (referred to in the lawsuit as “B.L.”) when she decided to express her displeasure with her extracurricular activities with some extra-colorful language.
B.L. took to Snapchat to rant about her cheerleading experience, culminating in a “fuck school fuck softball fuck cheer fuck everything” post that the school decided violated B.L.’s agreement not to disparage the school or its cheer program. The school agreed that students had Constitutional rights, but that B.L. had waived hers when she joined the cheerleading program. The federal court disagreed, stating that the revocation of rights must be voluntary, but B.L.’s wasn’t really of the free will and volition variety.
[N]either B.L. nor her mother had bargaining equality with the coaches or the school; the Cheerleading Rules were not subject to negotiation; and B.L. and her mother were not represented by counsel when they agreed B.L. would abide by the Rules.
Also:
Additionally, conditioning extracurricular participation on a waiver of a constitutional right is coercive.
Having learned a valuable lesson about the First Amendment and how voluntary agreements should actually be voluntary, the school walked away from the suit chastened and newly respectful of students’ rights.
Oh wait. The other thing.
The school appealed, determined to waste more taxpayer money attempting to secure judicial blessing to screw taxpayers’ offspring. And the Third Circuit Court of Appeals says the First Amendment still holds.
Before we get to the heart of the First Amendment affirmation [PDF] delivered by the Third Circuit, let’s stop and appreciate this brief discussion of emojis.
B.L. was frustrated: She had not advanced in cheerleading, was unhappy with her position on a private softball team, and was anxious about upcoming exams. So one Saturday, while hanging out with a friend at a local store, she decided to vent those frustrations. She took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story. 1 The snap was visible to about 250 “friends,” many of whom were MAHS students and some of whom were cheerleaders, and it was accompanied by a puerile caption: “Fuck school fuck softball fuck cheer fuck everything.” J.A. 484. To that post, B.L. added a second: “Love how me and [another student] get told we need a year of jv before we make varsity but that’s [sic] doesn’t matter to anyone else? ??.”2
Here’s the footnote appended to the inverted smiley:
The “upside-down smiley face” emoji “indicate[s] silliness, sarcasm, irony, passive aggression, or frustrated resignation.” Upside-Down Face Emoji, Dictionary.com, https://www.dictionary.com/e/emoji/upside-down-face-emoji (last visited June 25, 2020).
A wealth of emotions contained concisely. If brevity is the soul of wit, I have severely underestimated the incredible depth of the text messages I’ve received from my offspring. That being said, it’s great to see courts willing to discuss emojis since they’re going to be an inescapable part of First Amendment jurisprudence for the foreseeable (and unforeseeable, if we’re honest) future.
The court makes quick work of the First Amendment arguments. Is this speech protected? Yes. Tinker says so and has said so for years. Online communication platforms can blur the line between on-campus and off-campus speech, but the courts should err on the side of caution rather than draw harmful conclusions that damage free speech protections this country has respected since its conception.
The courts’ task, then, is to discern and enforce the line separating “on-” from “off-campus” speech. That task has been tricky from the beginning. See, e.g., Thomas, 607 F.2d at 1045–47, 1050–52 (declining to apply Tinker to a student publication because, although a few articles were written and stored at school, the publication was largely “conceived, executed, and distributed outside the school”). But the difficulty has only increased after the digital revolution. Students use social media and other forms of online communication with remarkable frequency. Sometimes the conversation online is a high-minded one, with students “participating in issue- or cause-focused groups, encouraging other people to take action on issues they care about, and finding information on protests or rallies.” Br. of Amici Curiae Electronic Frontier Foundation et al. 13. Other times, that conversation is mundane or plain silly. Either way, the “omnipresence” of online communication poses challenges for school administrators and courts alike.
[…]
The lesson from Reno and Packingham is that faced with new technologies, we must carefully adjust and apply—but not discard—our existing precedent. The thrust of that lesson is not unique to the First Amendment context. But it may be of special importance there because each new communicative technology provides an opportunity for “unprecedented” regulation. Packingham, 137 S. Ct. at 1737. And even when it is unclear whether the government will seize upon such an opportunity, the lack of clarity itself has a harmful “chilling effect on free speech.” Reno, 521 U.S. at 872. Updating the line between on- and off-campus speech may be difficult in the social media age, but it is a task we must undertake.
When B.L. hopped on Snapchat to deliver a set of derogatory F-bombs about her school experience, she did so with the force of the First Amendment behind her. This was about school. This was not of the school, so to speak.
Applying these principles to B.L.’s case, we easily conclude that her snap falls outside the school context. This is not a case in which the relevant speech took place in a “school-sponsored” forum, Fraser, 478 U.S. at 677, or in a context that “bear[s] the imprimatur of the school,” Kuhlmeier, 484 U.S. at 271. Nor is this a case in which the school owns or operates an online platform. Cf. Oral Arg. Tr. 25 (discussing a “school listserv”). Instead, B.L. created the snap away from campus, over the weekend, and without school resources, and she shared it on a social media platform unaffiliated with the school. And while the snap mentioned the school and reached MAHS students and officials, J.S. and Layshock hold that those few points of contact are not enough. B.L.’s snap, therefore, took place “off campus.”
Good stuff, but it gets even more entertaining here. The Appeals Court cited Tinker in support of its respect of the student’s free speech rights. The school cited Tinker in support of its refusal to respect the First Amendment rights of the student. Guess who’s actually correct.
The Tinker test asks whether or not contested speech might reach the school and leapfrog the gap between on-campus and off-campus. The Appeals Court says that’s an inevitability in the social media age. But that doesn’t change the underlying rationale. The question isn’t whether f-bombs on social media will be seen by other students. That’s always a possibility. The question is whether the student’s speech is perceived to be a representation of the school itself. In this case, the student’s Snapchat messages could not have been seen as a proxy for the school’s speech. It was solely the disgruntled cheerleader’s protected expression of displeasure.
We hold today that Tinker does not apply to off-campus speech—that is, speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.
The Appeals Court lays down the ground rules for further school-related free speech challenges. Social media platforms may have muddied the waters but the court wades in to draw a bright line.
[A] test based on whether the speech occurs in a context owned, controlled, or sponsored by the school is much more easily applied and understood. That clarity benefits students, who can better understand their rights, but it also benefits school administrators, who can better understand the limits of their authority and channel their regulatory energies in productive but lawful ways.
Finally, the court addresses the school’s contention that B.L. waived her rights when she agreed to participate in the cheerleading program. Whether or not the waiver was valid, the rule that waived it didn’t apply to B.L.’s fuck parade.
B.L.’s snap contained foul language and disrespected her school and team. But the rule’s language suggests it applies only “at games, fundraisers, and other events,” a suggestion echoed by its invocation of “[g]ood sportsmanship.” Id. That would not cover a weekend post to Snapchat unconnected with any game or school event and before the cheerleading season had even begun. And common sense supports this reading: It is hard to believe a reasonable student would understand that by agreeing to the Respect Rule, she was waiving all rights to malign the school once safely off campus and in the world at large. Indeed, one of the cheerleading coaches recognized that the rule “doesn’t say anything about not being able to use foul language or inappropriate gestures . . . away from school.” J.A. 90. So this rule is of no help to the School District.
The court’s conclusion? We personally may not have chosen to deploy a mixture of swear words and emoji to convey our thoughts but that doesn’t make this conveyance of thoughts any less worthy of First Amendment protection.
The heart of the School District’s arguments is that it has a duty to “inculcate the habits and manners of civility” in its students. Appellant’s Br. 24 (citation omitted). To be sure, B.L.’s snap was crude, rude, and juvenile, just as we might expect of an adolescent. But the primary responsibility for teaching civility rests with parents and other members of the community. As arms of the state, public schools have an interest in teaching civility by example, persuasion, and encouragement, but they may not leverage the coercive power with which they have been entrusted to do so. Otherwise, we give school administrators the power to quash student expression deemed crude or offensive—which far too easily metastasizes into the power to censor valuable speech and legitimate criticism. Instead, by enforcing the Constitution’s limits and upholding free speech rights, we teach a deeper and more enduring version of respect for civility and the “hazardous freedom” that is our national treasure and “the basis of our national strength.” Tinker, 393 U.S. at 508–09.
Fuck cheer, indeed. Students of the Third Circuit: rejoice. The court has your foul-mouthed backs.
Looks like we finally have some secret police to call our own. Ongoing protests stemming from a Minnesota police officer’s brutal killing of an unarmed Black man have provoked a federal response. In some cases, the National Guard has been called in to quell the more violent and destructive aspects of some demonstrations. Others — like the 50+ days of continuous protests in Portland, Oregon — have been greeted with something far more frightening.
In the early hours of July 15, after a night spent protesting at the Multnomah County Justice Center and Mark O. Hatfield Federal Courthouse, Mark Pettibone and his friend Conner O’Shea decided to head home.
[…]
A block west of Chapman Square, Pettibone and O’Shea bumped into a group of people who warned them that people in camouflage were driving around the area in unmarked minivans grabbing people off the street.
“So that was terrifying to hear,” Pettibone said.
They had barely made it half a block when an unmarked minivan pulled up in front of them.
“I see guys in camo,” O’Shea said. “Four or five of them pop out, open the door and it was just like, ‘Oh shit. I don’t know who you are or what you want with us.’”
Pettibone was grabbed by the unidentified officers, who wore nothing indicating which branch of the federal government they worked for, and shoved into a van with his hat pulled down over his eyes. He was taken to the federal courthouse (something he wasn’t aware of until he was released), patted down, photographed, and had his belongings searched. After all of this, he was put into a cell where he was finally read his Miranda rights. He refused to talk to the officers and they released him about 90 minutes later. At no point was he told what he had been detained for, nor was he given any paperwork documenting his detainment.
No one appears to know for sure which branch of the federal government is taking people off the street and detaining them without probable cause. The officers performing these sweeps use unmarked vehicles and dress in camouflage uniforms that contain no identfying info that might indicate what agency they work for.
The federal government has deployed a mixture of federal agencies to cities with ongoing protests, including the US Marshals Service, CBP, ICE, and Bureau of Prisons riot officers. Presumably the DEA is in the mix as well, since it invited itself along for this anti-free-speech ride.
The city of Portland has been under siege for 47 straight days by a violent mob while local political leaders refuse to restore order to protect their city. Each night, lawless anarchists destroy and desecrate property, including the federal courthouse, and attack the brave law enforcement officers protecting it.
A federal courthouse is a symbol of justice – to attack it is to attack America. Instead of addressing violent criminals in their communities, local and state leaders are instead focusing on placing blame on law enforcement and requesting fewer officers in their community. This failed response has only emboldened the violent mob as it escalates violence day after day.
A long list of supposed atrocities committed by protesters follows. Most of the list details graffiti, along with low-level vandalism targeting cameras and police barriers. Also listed are activities like trespassing, doxing federal officers, and deploying laser pointers. Secretary Chad Wolf universally describes the protesters as “violent anarchists,” even though there’s no evidence linking protesters to coordinated activities by anarchists groups. Setting off fireworks and clashing with riot police are normal behavior during protests, but Wolf’s narrative portrays these as acts of war in a clash local law enforcement agencies are losing.
Wolf says he’s going to take this local action nationwide. Protesters in other cities will soon be experiencing the federal government’s Stasi-esque bypassing of niceties like the need to establish probable cause before shoving people into unmarked vans and dragging them away for questioning.
With as much lawbreaking is going on, we’re seeking to prosecute as many people as are breaking the law as it relates to federal jurisdiction. That’s not always happening with respect to local jurisdiction and local offenses. But, you know, this is a posture we intend to continue not just in Portland but in any of the facilities that we’re responsible for around the country.
The Oregon state Department of Justice has already filed a lawsuit against the federal government for its actions. Oregon Attorney General Ellen Rosenblum issued this statement a few days after OPB broke the news.
I share the concerns of our state and local leaders — and our Oregon U.S. Senators and certain Congressional representatives — that the current escalation of fear and violence in downtown Portland is being driven by federal law enforcement tactics that are entirely unnecessary and out of character with the Oregon way. These tactics must stop. They not only make it impossible for people to assert their First Amendment rights to protest peacefully. They also create a more volatile situation on our streets.
TL;DR: the federal government’s secret police are rioting.
The mayor of Portland demanded Friday that President Donald Trump remove militarized federal agents he deployed to the city after some detained people on streets far from federal property they were sent to protect.
“Keep your troops in your own buildings, or have them leave our city,” Mayor Ted Wheeler said at a news conference.
Democratic Gov. Kate Brown said Trump is looking for a confrontation in the hopes of winning political points elsewhere and to serve as a distraction from the coronavirus pandemic, which is causing spiking numbers of infections in Oregon and the nation.
If Trump and Republicans don’t like Governor Brown politicizing the federal response to protests, they should take a long look at their own motivations first.
Flanked by AG Barr, Pres says he’s planning announcement next week on Federal action to quell violence in cities, citing Seattle, Minneapolis, Chicago. He says some cities “are like war zones,” and makes it partisan, saying they’re run by “liberal, left-wing Democrats.” pic.twitter.com/MEPVVrk1Dq
Flanked by AG Barr, Pres says he’s planning announcement next week on Federal action to quell violence in cities, citing Seattle, Minneapolis, Chicago. He says some cities “are like war zones,” and makes it partisan, saying they’re run by “liberal, left-wing Democrats.”
A U.S. Customs and Border Protection (CBP) spokeswoman said on Friday agents had been deployed to Portland to support a newly launched U.S. Department of Homeland Security (DHS) unit, tasked with enforcing last month’s executive order from Republican President Donald Trump to protect federal monuments and buildings.
But the DHS claims officers have not been rolling up on people in unmarked vans and dragging them to unknown locations for questioning.
A senior DHS official said officers arrested people for assaulting federal officers and vandalizing federal property, but did not provide specific cases. The official, who requested anonymity to discuss the issue, rejected the idea anyone was arrested without good cause.
“Federal officials don’t go around arresting people for no reason,” the official said. “This isn’t communist China.”
Let’s step away from the secret police tactics that everyone — including the agency overseeing the secret police — agrees shouldn’t be happening here and look at why federal agents and officers might be wandering the streets in gear that doesn’t clearly indicate their agency affiliation.
It’s all about dodging accountability. If arrestees and detainees don’t know who’s tossing them into unmarked vans, they’re going to have a much more difficult time suing them for violating their rights. Sure, you can sue Does and unknown agencies but without more, it’s going to be tough to keep the lawsuit alive. Detainees are being released without paperwork, ensuring there are no links between the officers doing the detaining and the rights violations they’re inevitably going to be sued over.
The lack of identifying insignias makes it impossible for onlookers to testify to more than the fact that they same someone toss a Portland resident into an unmarked van and drive away. This testimony would be mostly useless in a kidnapping investigation. It’s even less useful in federal lawsuits where officers and their agencies are already given a great deal of deference on top of the qualified immunity escape hatch.
But there’s more to it than lawsuits. This is truly frightening even for those not being disappeared. Friends and family members who witness this happening (or are informed of it by witnesses) don’t know who took the resident off the streets or who to contact to see if they can provide bail money or a ride home or even check on their well being.
Cops have been limiting personal accountability since the protests began by covering their badge numbers and removing other identifying information. The federal government’s insertion of a melange of federal agencies into the mix muddies the water further, making it almost impossible for citizens to know who’s coming after them or for what reason. Officers can stop people momentarily with reasonable suspicion but it requires probable cause to take them off the street and detain them for questioning. None of that appears to be in play, no matter what the DHS Secretary says. If the federal agents were so sure about the “rightness” of their actions, they wouldn’t be afraid to wear agency insignias and/or identify themselves when detaining people.
This is nothing more than federal-level intimidation tacitly approved by this administration — one that feels any local agency not actively brutalizing protesters has lost control of the situation. And the agencies involved are doing everything they can to ensure they and their officers will get away with it.
Earlier this week I wrote about the open letter that was published in Harper’s, signed by around 150 very prominent writers/thinkers. My response to it was to heavily criticize both the premise and the specifics in the letter, and to argue that it sought to do the very thing it claimed to be against. That is, it presented itself as support for free speech and counterspeech, and against attempts to shut down speech — and yet, almost all of the (deliberately vague) examples they pointed to were not examples of shutting down speech, but rather examples of facing consequences from speech and counterspeech itself. The open letter could — and in many cases was — read to basically say “we should be able to speak without professional consequences.”
Some people liked my response, and some people hated it. The debate has raged on, and that’s cool. That’s what we should be supporting, right? More debate and speech.
Many people are referring to the letter as being about “cancel culture,” even though the letter itself never uses the phrase. But everyone recognizes that the concept is what’s at the core of the letter: the idea that someone will say something that “the mob” considers beyond the pale, and suddenly they’re “cancelled.” We’ll get to how realistic that actually is shortly.
But part of the problem with the letter was that it was written in terms that could be used to both condemn overreaction by “mob” voices on Twitter and be used by certain people to say “stop criticizing my bad ideas so vociferously.” It provides nothing of consequence to anyone trying to distinguish between the two, and thus when some assumed it was for the purposes of the latter, rather than the former, that should impeach the drafting of the letter itself, rather than its critics. Still, that makes the letter at best useless and at worst, capable of being used not in support of free speech, but as a tool to condemn counterspeech and consequences.
Some well meaning critics challenged my criticism of the post on a few grounds that are at least worth considering. First, was the argument that my post imputes motives to the signatories that were unfair. And I’ll grant that criticism. Indeed, quite often lately, I’ve found that when people leap to assume the motives of others, that’s often when debates and discussions go off the rails. I’m just as guilty of that as anyone else, and I should try to be better about that. But there’s a flipside to that argument as well, which is that there are people out there who purposely engage in bad faith arguments, and go ballistic when you call them on that, insisting that you can’t impute such bad faith into their argument based solely on the words that they spoke (though, often by ignoring nearly all of the contextual relevancy that makes their bad faith evident).
In other words, there certainly are mixed motives among the signatories, and I’d argue that some signed on in good faith in the belief that the world really is being pushed by illiberal forces that are shutting down realms of speech, but also those who just seem to be upset that people are calling out their bad ideas and they’re suffering the consequences for it. I focused on the latter, when a more charitable read perhaps should have focused on — or at least acknowledged — the former.
And as someone who has spent decades fighting for the importance of free expression, at times at great cost to myself, I have quite a lot of sympathy for what a “good faith” reading of the letter appears to want to say. But I think the letter fails to make its case on multiple grounds, even removing the question of the motives of the signatories.
First, there’s the question of how widespread “cancel culture” truly is. I would argue that it exists, but is vastly overstated — and I’m saying this as someone who has had friends expelled from their jobs unfairly in my view following online mobs ganging up on them. I do believe that, as with any speech, it is possible to use it to galvanize actions I disagree with. But, as I said in my original writeup the details matter. Many of the claims of “cancel culture” remind me of the claims of “anti-conservative bias on social media.” Lots of people insist it’s true, but when you ask for examples, you get back a lot of platitudes about “look around!” and “it’s obvious” and “you’re blind if you can’t see it!” but rarely many actual examples. And, in the few cases where examples are given, they frequently fall apart under scrutiny.
This is true of many — though not all — of the examples of “cancel culture.” Last fall, Cody Johnston did an amusing video arguing that cancel culture isn’t a thing. I’d argue it is exaggerated, and a few points it makes are also misleading, but on the whole he’s got a point. Many of the examples of “cancel culture” are really just the powerful and the privileged receiving some modicum of pushback for horrific actions or statements, that maybe pushed them down a rung from the very top of the ladder, but still left them in pretty privileged positions compared to just about everyone else:
Are there more relevant examples? Perhaps. A lot of people pointed to Yascha Mounk’s recent article in the Atlantic entitled Stop Firing the Innocent, and I mostly agree with that article. There are a few examples out there of people being unfairly fired in response to online mobs misinterpreting or overreacting to things. The story of David Shor in that article is certainly one that many people pointed out, and it does highlight what seems like an overreaction (Shor appears to have been fired for merely tweeting a link to a study about historical voting patterns in response to violent v. non-violent protests, and some, somewhat ridiculously, interpreted the conclusions of that study to somehow be a condemnation of some of the current protests). Another set of well known examples comes from John Ronson’s book from half a decade ago, “So You’ve Been Publicly Shamed,” which highlights a few cases of arguably unfair overreactions to minor offenses.
But, here’s the thing: after lots of people (including Mounk) called out what happened to Shor (more speech), many people now agree that his firing was wrong. And so, the cycle continues. Speech, counterspeech, more counterspeech, etc. Sometimes, in the midst of all that speech, bad things happen — such as the firing of Shor. But is that an example of cancel culture run amok, or one bad result out of millions? It is very much like our debates on content moderation. Mistakes are sometimes made. It is impossible to get it right every time. But a few “bad” examples here and there are not evidence of a widespread trend.
Also, I’m still hard pressed to see how the level here is any worse than it was a few decades ago. There may be different issues over which public shaming may occur, but it wasn’t that long ago that people would be ostracized for suggesting it’s okay to fall in love with someone of the same gender or someone of another race. On the whole, I’d argue that we’ve made a lot of progress in opening up avenues of discussion — and while we should be concerned about the cases that go wrong, the evidence that there’s some big change beyond what has happened in the past are lacking. Indeed, I feel like I remember this nearly identical debate from when I was a kid and the fight was over “too much political correctness,” which is a form of the same thing.
I think it’s natural for some folks to always feel that they are being treated unfairly for their beliefs, and that people overreact. It’s not a new phenomenon. It’s not driven by the internet or some other new idea. Indeed, as philosopher Agnes Callard tweeted, you can go back to John Stuart Mill’s “On Liberty” to find him discussing “cancel culture” as well:
If you want to understand cancel culture, JS Mill's On Liberty is a pretty good place to start. pic.twitter.com/wBXeFRN4aj
And, again, the details matter, and in many cases the different degrees of criticism and “cancellation” make a huge difference in whether or not the situation was just or not. The circumstances behind each of the stories matter not just in what happened but to whom and why — and this is why the questions were raised about the signatories and their motives. In some cases it certainly seemed that at least some of them are upset that they are facing more criticism or that they may be excluded from certain privileged platforms. But not being able to publish a nonsense opinion in the NY Times op-ed section is not being cancelled or silenced. It’s one thing to have a non-public figure thrust into the limelight and effectively have their career destroyed. I can see how that’s a problem. That, however, is entirely different from a very public figure having a bunch of people tell them that their ideas are bad and hurting others.
And while some signatories of the letter insisted to me that they meant the letter to be about those non-public figures, the letter itself does not make that clear and, again, can be used to serve both purposes.
Indeed, a response letter that was crowdsourced and put together by an even bigger list of people (though perhaps without as many “recognizable” names) walks through each of the vague examples in the original Harper’s letter and looks at the likely details. And, with the exception of the one example of David Shor — which it describes correctly as “indefensible, and anomalous,” the other examples highlight the issue here: the details have been twisted to hide situations in which people were censured for actually making huge mistakes, not for just taking a contrarian view.
And, once again, that gets at the problem of how awful the letter is: its language can be used both to defend free speech and to paper over truly awful behavior, and while some of the signatories meant it to do the former, it certainly gives the appearance of being used by others to do the latter.
One other criticism I received, along the lines of it being unfair to pin motives of some of the signatories on all of them, was this is the nature of getting a bunch of people to sign onto an open letter. By definition, those things will get watered down as more signatories have opinions, and many people will sign on without necessarily reading through the details. That’s not a good excuse. Recognizing the intent of the letter and who you are joining with is part of understanding context. And, as if to prove what a silly criticism that is, take a look again at the crowdsourced letter above, also signed by a bunch of people, and worked on together as a group. It makes key points much more directly and is a much, much, much riskier letter in many ways.
The signatories call for a refusal of ?any false choice between justice and freedom.? It seems at best obtuse and inappropriate, and at worst actively racist, to mention the ongoing protests calling for policing reform and abolition and then proceed to argue that it is the signatories who are ?paying the price in greater risk aversion.? It?s particularly insulting that they?ve chosen now, a time marked by, as they describe, ?powerful protests for racial and social justice,? to detract from the public conversation about who gets to have a platform.
It is impossible to see how these signatories are contributing to ?the most vital causes of our time? during this moment of widespread reckoning with oppressive social systems. Their letter seeks to uphold a ?stifling atmosphere? and prioritizes signal-blasting their discomfort in the face of valid criticism. The intellectual freedom of cis white intellectuals has never been under threat en masse, especially when compared to how writers from marginalized groups have been treated for generations. In fact, they have never faced serious consequences ? only momentary discomfort.
I think that Jill Filipovic’s response to the letter may be most aligned with my thinking: that cancel culture is overstated, that some of the signatories of the letter were signing on because they’re upset that a wider public with a voice is criticizing them, but that there are at least a few cases of egregious overreaction to online mobbing, and sometimes that involves the loss of a job. Her argument makes some amount of sense — that you shouldn’t be fired for your bad opinions if your bad opinions have nothing to do with your job:
So yes, most of the ?cancel culture? complaints are overwrought. On the long list of things worth caring about, cancel culture is very low down. Criticism is not cancelation. Conflict is not censorship. On all of these issues, the right is far, far worse (how many voices opposing the party line are at Fox, or on right-wing websites, or speaking at conservative religious colleges?). Often, the right uses this narrative of the ?intolerant left? to cover for its own misdeeds and groupthink, and it?s an underhanded, bullshit tactic that too many progressives fall for.
But.
It is also true that there have been instances ? many instances ? where people have been fired from their jobs (and not just in media) for holding opinions that have nothing to do with their ability to perform said job, and who are fired entirely because an employer doesn?t want the PR headache.
Of course, even that is not always so black and white. If your opinions create larger problems for a company — including costs that go beyond just giving PR a headache — does it really make sense to just say that the companies need to shoulder that burden? But I do think it’s fair to try to explore context more deeply. What is the context in which the statements are being made — and who is making them? Is it a situation that involves speaking truth to power? Or is it a situation that involves using a position of privilege to keep down the less fortunate?
That is to say, as with so much, it’s complicated.
And part of that complication is not just that different people have different motives and that mistakes are made, but that the level of “penalty” people receive differs quite a bit as well. If the original letter had legitimately focused exclusively on some of the more significant consequences, and could clearly demonstrate were out of bounds, it might have a good point. But it lumps “public shame and ostracism” in the same category as more significant retribution. And that was part of what made me think the original letter was so lame. Sure, some people were signing onto it to highlight those few egregious cases (though, again, it’s unclear that those situations are new or any different than in the past), but the letter lumped in a much wider variety of things.
Another part of the complication is that as times change, our understanding and sensitivities to certain ideas shift as well. In my original piece I argue it’s not evident from where I sit that the space in which ideas can be discussed is shrinking. There are so many things today that can be seen, discussed, and read that were impossible to get out there just a few decades ago, and that’s incredible. That said, it is true that there are certain things that used to be more commonplace that are now much more sensitive areas. But a big part of that is actually our recognition that things which used to be considered okay (e.g., casual bigotry) are no longer considered okay. And a huge reason those are no longer considered okay is that we’ve opened up this wider “marketplace of ideas” to more voices, often from folks who were previously unable to share their points of view, and their persuasive speech has convinced many that what used to be deemed okay is not and, in fact, never was.
Finally, I’d argue that while it’s possible that some people make innocent mistakes, and that we should try to take into account whether or not saying a truly dumb or hurtful thing was an uneducated mistake or outright maliciousness, we can and should be able to judge that by what happens next. That is, I agree with the letter writers that people shouldn’t lose their job over a single innocent tweet taken out of context. But it’s much, much harder to make that case for someone who doubles down, refuses to learn, refuses to investigate why their words are causing so much pain and hurt, and then attacks those who are trying to educate them on their truly awful stance.
So if I were to try to rewrite the letter to make the actual point that the authors seemed to want to make, I’d probably go with something like the following:
Free speech is a key foundational idea and value which we support. Along with that, though, we recognize that speech has consequences, and some of those consequences may include counterspeech that may lead to action. We recognize that persuasive speech that leads to action may be for things we agree with and also for things we disagree with. We are concerned about situations in which the actions and consequences of speech may unfairly and disproportionately punish people for innocent transgressions — and how that may create unnecessary chilling effects that run counter to the ideal of free speech. Yet at the same time we recognize that this is complicated, and situations may appear differently to different people.
The world is a complicated and ever changing space. Some of that change is for good and some is for bad. There are people with all kinds of motivations out there, and it is all too easy to leap to the worst conclusions about motivations. We should all strive to be cautious in assigning motive, and we should investigate why someone said what they said before leaping to conclusions or rushing to condemn them to the level at which they’d face reprisal — while also recognizing that there are those out there who will argue in bad faith. Distinguishing between the two is often difficult.
In many ways, the world is more free and open for debate today than in the past — new and previously unheard voices are being heard and promoted and celebrated for the first time and we should encourage that. This open debate and discussion has also resulted in a changing societal consensus on what is, and what is not, appropriate. Quite frequently this is also for good. We are becoming more sensitive to the harms that people have faced and are reckoning with all of those, thanks in part to the robust debate and discussion about these ideas.
At the same time, in our ongoing and righteous zeal to revisit areas that were previously overlooked and underexplored, there are times when people may go too far. There are times when the nuance and details and context are not initially clear, and some people — including ourselves — may overreact. That overreaction often leads to consequences which, when the full situation is explored and understood, seem unfair. We should seek to be aware that this may happen, and try to avoid it. Furthermore, we should recognize that as fallible as humans are, we will sometimes discover this too late, and should seek to rectify it when we do.
The details will always matter. We should not assume simplistic narratives all of the time, when often there are mixed motivations and complex factors and variables involved. There may be situations that appear similar on the surface, but upon deeper exploration turn out to be quite different. We should be willing to explore those details and to recognize that, sometimes, people we like will face consequences for their speech for an extended pattern of truly reprehensible behavior.
However, we should leave space open for people to learn and to grow. We should recognize that a single misdeed may be innocent and should treat it as such. We should see how people respond to such feedback. At the same time, we should also recognize that a pattern and practice of questionable and hurtful behavior may suggest a person who is deliberately, and in bad faith, seeking to game the system.
This starts with us. We, who have signed this letter, have not always lived up to these ideals either. Everyone will make mistakes sometimes, and we hope to learn from them as well. We are excited about the power of new voices to be heard and join the conversation, and realize this often challenges our strongly held beliefs. We hope that, in the spirit of learning from these new voices that criticism of other views will also take on a recognition that there is room to understand and to change — or, on the flipside — to build stronger arguments to the contrary.
I think that approach would have made the point much better. It would acknowledge that things are often more complicated than they appear on the surface, that there are different motivations behind actions, and that sometimes speech does lead to consequences that not everyone will agree with. But, most of all, that approach acknowledges that everyone makes these kinds of mistakes at some point. The original letter framed the issue as if the signatories were the righteous believers in free speech, against the “others” out there trying to shut them down — without any recognition that some of the signatories and the letter itself often seemed to be advocating for the silencing of others as well.
In the end: free speech is important, but like with so many things it’s more complicated the deeper you explore, because free speech itself has consequences, and we should strive to understand the impact of our speech, to learn, and to expand our own thinking over time as well.
There’s a slightly bizarre Letter on Justice and Open Debate that Harper’s Magazine is publishing, signed by a long list of famous people (many of whom I respect, and plenty of whom I think are terribly entitled wannabe “controversial” intellectuals who are really just assholes). The framing of the letter is one I’ve heard quite a lot of late: concerns that there is some sort of “illiberal attack on free speech,” in which certain individuals and their ideas are no longer even allowed. It’s the more intellectual argument against so-called “cancel culture.” And, yes, there are examples of people being shut down for expressing their ideas, but it is much less common than people would have you believe. In many cases, what people are complaining about is not that their speech is being shut down, but that they are facing consequences for their speech being ridiculous.
There are few things more misunderstood than the distinction between speech and consequences. Indeed, all too frequently people argue that consequences from speech are attempts to stamp out free speech, and just as common is the idea that actual attempts to silence free speech (e.g., SLAPP defamation lawsuits) are just “consequences” of speech. Neither is accurate. Attempts to stop free speech are attempts to use state power (such as the courts) to stop people from being able to express themselves. But people saying your ideas are bad and venerable institutions shouldn’t amplify them is not an attack on free speech or open inquiry. It’s a recognition that not all ideas are equal, and not all ideas deserve the kind of escalation and promotion that some speakers wish they had.
This goes back to two recent discussions we’ve had here on Techdirt. First, a discussion about the differences between moderation, discretion, and censorship along with a followup on editorial discretion, and the debate over the NY Times publishing Tom Cotton’s op-ed about sending in the military in response to the possibility of violence at mostly-peaceful protests. There were a bunch of people who responded to criticism of the Times by claiming it was an attack on speech, which was utter nonsense. If the NY Times chooses not to publish something (as it does every damn day) that’s not censorship and it’s not shutting down debate of difficult ideas. It’s just editorial discretion. The fact that the NY Times eventually forced out the editor who made the bad decision to publish Cotton’s piece was not an attack on free speech but consequences for doing a bad job. That’s consequences for speech, and not censorship.
Back to the open letter at hand. It seems to confuse these concepts greatly. I agree that we should be vigilant and concerned about attacks on free speech, but almost nothing described in the letter is an actual attack on free speech.
The free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted.
First off, hogwash. There are more places and ways to speak your mind than ever before, and the free exchange of information and ideas is more available and accessible to all sorts of voices than ever before in history. The idea that it’s “more constricted” has no basis in reality. There are so many different ways to get ideas out there today, and that has actually enabled tons of previously suppressed voices to speak out loudly and clearly — even if sometimes it’s to point out that the supposed wisdom of others is anything but. There is no real evidence of any “constriction.” There is evidence that many people are utilizing their newfound voices and ability to express themselves to show that the emperor has no clothes when it comes to some of the ideas presented by the old guard.
While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.
With so many famous and serious authors signing onto this letter, I have to call out the use of the word “censoriousness”. This word is commonly misused and misunderstood. It does not mean, as many assume, prone to censorship. That word is “censorial.” Censorious actually means hypercritical of others, not trying to force them into silence. Given the literary nature and stature of the signatories of this letter, I would assume that those who wrote this (1) know this and are actually using the word correctly, but know full well that (2) most readers will assume the other, mistaken, interpretation of the word.
As to the larger point of this sentence, it is still, itself, quite problematic. First off, “public shaming” and “ostracism” are literally examples of counterspeech and open debate. In other words, this sentence appears to be complaining about the very thing the authors claim to be supporting: counterspeech. Public shaming and ostracism are the consequences of speech that a group feels is ridiculous, problematic, dangerous or otherwise not worth spreading widely. That’s the opposite of being censorial. It is the opposite of shutting down speech. It is literally people speaking up to explain why those who hold odious views should be shamed for those views. It is a form of counterspeech and consequences from that counterspeech. On top of that it is an attempt to encourage bodies that host, promote, and elevate speech to think carefully about which speech deserves it.
That is quite different than actually censoring such speech and suggesting that no one should ever be allowed to say what they want anywhere. It is saying if you have dumb ideas, people may think you’re dumb, and may ask why others are elevating those dumb ideas. The protests are not to say you can’t speak, but rather to ask “why is this speech being held up as insightful or praiseworthy?”
It is only on the very final point of this sentence that I agree with the authors. It is, indeed, a problem when we try to dissolve complex policy issues “in a blinding moral certainty,” and yet… that also seems to be exactly what the authors of this very letter are doing. They are saying that it is morally unconscionable that some of them and their friends have been censured (not censored) for their non-serious ideas. And that is fundamentally a refusal to recognize the complexity of how speech, counterspeech, and consequences work with a “moral certainty” that their own august voices being shunned and shamed must be bad.
We uphold the value of robust and even caustic counter-speech from all quarters.
Unless it includes public shaming or consequences for your in-group speech, apparently. Indeed, this is the most frustrating thing about this letter. It seeks to do to others exactly what it, itself is complaining about.
But it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.
Yes, via counterspeech. And, again, the complaint is not that one is allowed to speak wacky ideas, but rather that those ideas are being hosted, elevated, or held up as special when they are in fact trash.
More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms.
This is a complaint about consequences of speech, not speech. It is a complaint about how people react to the counterspeech the authors falsely claim to be so supportive of.
Then comes the list of examples — none linked, none with details.
Editors are fired for running controversial pieces; books are withdrawn for alleged inauthenticity; journalists are barred from writing on certain topics; professors are investigated for quoting works of literature in class; a researcher is fired for circulating a peer-reviewed academic study; and the heads of organizations are ousted for what are sometimes just clumsy mistakes.
With the possible exception of public schools (which have more restrictions as government entities), all of these appear to be about the actions of private organizations making decisions based on counterspeech, and presenting speakers with the consequences of speech that many have deemed (often for very good reasons, though not always) unworthy of praise, promotion or elevation.
Read that sentence again carefully. What the signatories here seem to be requesting is not more free speech. Nor is it more counterspeech (indeed, it’s an attack on counterspeech). They appear to be asking for freedom from consequences for their own speech. Please don’t publicly shame us or make our bosses rethink our employment for our speech, no matter how bad it is. That is not a pro-free speech stance. It is a anti-consequences stance, and it’s truly disappointing to see many of the signatories endorse this.
Whatever the arguments around each particular incident, the result has been to steadily narrow the boundaries of what can be said without the threat of reprisal.
The first clause of this sentence is doing a lot of heavy lifting. The arguments matter. The arguments are the counterspeech. The arguments are the speech that the signatories of this letter seem so uncomfortable with. The arguments have been persuasive. That’s why these signatories are so upset. The counterspeech has been effective. It has resulted in consequences as institutions have recognized that maybe they shouldn’t be employing people with bad ideas, or promoting and elevating those ideas.
And, again, it is fundamentally ridiculous and ahistorical to argue that the boundaries of what can be said have narrowed. Honestly, you do not have to go back very far to find examples of topics of conversation that were fundamentally taboo and are now widespread and common. And many of those new ideas have resulted in massive, important social change: civil rights and civil liberties now exist in more meaningful forms than they ever did before because of people speaking out. The ability of LGBTQ+ people to marry whom they love coming just decades after it was literally illegal to do so is a result of more people being able to speak out. The ability of the Black Lives Matter movement to rally so many people in support of their cause and pull the curtains back on centuries of institutional, systemic racism is a result of more people being able to speak out.
The idea that there’s been some narrowing of ideas is nonsense. These people are getting criticized for their bad ideas and their response is to play victim and pretend that the space in which they can speak has narrowed. They’re full of shit.
We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement.
Oh, come on. Spare me the sob story. Go down the list of signatories. Many are incredibly famous, are regularly published in the top publications, and often appear on TV. They have no fear for their livelihoods. And trust me, whatever “contrarian” ideas they claim they’re not able to share are, in fact, still being shared widely. There are all sorts of ways in which they get to express their viewpoints, and they do. Getting criticized for those ideas is counterspeech — the the thing they claim to be supporting. They’re just playing the victim.
This stifling atmosphere will ultimately harm the most vital causes of our time. The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation.
If the problem was a repressive government actually engaged in censorship, I would agree wholeheartedly. Yet, note that in their list of examples they do not provide a single one that involves a repressive government. Rather they only present examples of private entities making decisions (consequences) based on counterspeech. Counterspeech which these cowards pretend they support.
The way to defeat bad ideas is by exposure, argument, and persuasion, not by trying to silence or wish them away.
We agree. And yet, the only ones trying to silence anyone here are those in this letter, saying that public shaming is somehow beyond the pale. It’s almost as if they don’t really want “argument and persuasion” while pretending that’s exactly what they do want. If they believe that the public shaming (counterspeech) is bad, then they should go right ahead and use argument and persuasion to show why it’s actually bad, without claiming it’s an unfair attack on their speech. Inasmuch as this letter attempts to do so, it fails. They should recognize that if their arguments suck — as they often do — people nowadays are less afraid to call that out.
We refuse any false choice between justice and freedom, which cannot exist without each other.
A meaningless, empty sentence.
As writers we need a culture that leaves us room for experimentation, risk taking, and even mistakes.
Indeed. On this I agree. But if you look around, there are so many wonderful experiments and plenty of risk taking going on. More than ever before. That’s not the problem. The problem is this privileged bunch of elites are upset that people are now actually willing to call out their bad ideas as bad.
We need to preserve the possibility of good-faith disagreement without dire professional consequences.
And that gives away the ballgame: “we want to present bad ideas without losing our readers or our jobs.” That’s just not how it works. These people have spent their lives protected in ivory towers, and are now facing real free speech from people who are outside of their privileged bubble, and are freaking the fuck out about it.
If we won?t defend the very thing on which our work depends, we shouldn?t expect the public or the state to defend it for us.
Sure, but stop pretending consequences and counterspeech are anti-speech. You’re not actually the brave truth tellers you want to be. You’re coming off as privileged elitists who are being challenged on ideas for the first time. The signatories are so quick to clutch pearls about people actually calling out bad ideas as bad, and saying that maybe institutions who have editorial discretion should be a bit more discretionary, that they seem to think facing consequences for speech is somehow anti-free speech. It’s not.
Over at our Tech Policy Greenhouse, former FCC official and consumer advocate Gigi Sohn just got done discussing a landmark privacy case in Maine that hasn’t been getting enough attention. The short version: back in 2017, the GOP killed some pretty modest FCC broadband privacy rules at the telecom lobby’s behest. Despite a lot of whining from telecom giants, those rules weren’t particularly onerous — simply requiring that ISPs be transparent about what data they’re collecting and who they’re selling access to, while requiring that users opt in to the sharing of more sensitive financial data.
Much like net neutrality, federal lobbying by telecom giants had an unintended impact: namely once the feds showed they were too corrupt and captured to protect consumers, states began passing their own laws (some good, some bad) in order to fill the consumer protection void. On both the privacy and net neutrality fronts, giant ISPs like AT&T and Comcast cried repeatedly about how this created a “discordant and fractured framework of state protections,” hoping you’d ignore this was a problem the industry itself created by relentlessly attacking even the most modest federal guidelines.
Last year, Maine passed one such privacy bill modeled after the discarded FCC rules. Again the focus was largely on requiring that ISPs be transparent about what data is collected and who is buying access to it, while requiring that users opt in to the share and sale of access to more sensitive data. It also banned ISPs from charging you more money just to opt out of snoopvertising, something AT&T has already experimented with. The law was not, as telecom giants and their dollar per holler allies have claimed, particularly onerous.
Comcast and AT&T sued anyway in a bid to have the law thrown out before a broader trial. In short, ISP lawyers tried to argue that giving consumers control over their own data violates ISPs’ First Amendment right to market goods and services. They also claimed that by passing a privacy law that specifically targeted telecom providers, the law is based on their status as a “speaker” and should be subject to “strict scrutiny” under the First Amendment, which requires a law to be “narrowly tailored to serve a compelling state interest.” As Sohn noted, while the case didn’t get a lot of attention, the precedent of a telecom industry win here would be terrible for future efforts to pass any kind of intelligent, industry-specific tailored privacy protections whatsoever:
“Should it accept [these arguments], it would set the stage for overturning any and all sector-specific privacy laws as unconstitutional “speaker-based” violations of the First Amendment. If that were the case, then federal and state laws regulating the privacy practices of, among others, hospitals, financial institutions, pharmacies, credit reporting agencies, and libraries would all fall. Maine alone has nearly a dozen sector-specific laws. Now multiply that by 51.
Things didn’t quite work out as Comcast and AT&T had hoped. This week, a Maine court shot down AT&T and Comcast’s attempt to have Maine’s law trashed, ruling (pdf) in favor of Maine Attorney General Aaron Frey, who had argued that Maine’s law “regulates a space Congress explicitly left open, and any conflict is a figment of Plaintiffs? imaginative pleading.” In the ruling, Judge Lance Walker noted that Maine’s privacy law can’t conflict with federal guidelines, because the industry and government worked hand in hard to eliminate said guidelines:
“Congress?s nullification of the ISP Privacy Order, therefore, creates no overarching federal policy, and enacts no scheme with which the Maine Privacy Statute can conflict.”
In its net neutrality repeal (which gutted FCC oversight over ISPs), the FCC tried to include a provision banning states from protecting consumers. But courts so far haven’t looked kindly upon that effort, noting that federal regulators can’t abdicate their consumer protection authority, then tell states what to do. Walker again supported that position here. Walker also didn’t seem to think much of the telecom industry’s claim that the law violated their First Amendment rights:
“Plaintiffs? Motion simply fails to clarify how an ill-defined opt-in and opt-out regime would inhibit any protected First Amendment activity; for example, how it might chill them from preparing particular marketing materials for sale to customers. And, they have not begun to bear their burden to show the statute would be unconstitutional in “all of its applications,” as they must for a facial challenge.”
The case will now proceed to a full trial. But it’s worth noting this is just one of several fronts where the telecom industry is lobbying to kill federal consumer protections, then arguing that states are prohibited from doing anything on their own. The industry wants to have its cake and eat it too; it’s pushing for a world in which nobody anywhere would be able to hold natural, widely despised monopolies accountable for pretty much anything. Their arguments surrounding free speech are not made in good faith; they’re a flimsy attempt to use the First Amendment to effectively eliminate any and all oversight of a sector with a thirty-year history of anti-competitive and often fraudulent behavior.
So far, as we also saw when the net neutrality repeal tried to ban states from protecting consumers, this effort is not going particularly well. But as the courts are increasingly gutted and staffed with dutiful partisan bobbleheads, there’s no guarantee that trend persists.
Attacks on Section 230 are relentless and coming from all sides — so we’ve got another podcast all about the attempts to ruin the most important law on the internet. This week, we’re joined by Riana Pfefferkorn, the Associate Director of Surveillance and Cybersecurity at the Stanford Center for Internet and Society, to discuss what is currently the most serious threat of all: the latest incarnation of the disastrous and nonsensical EARN IT Act.
Hong Kong was handed back to China in 1997 with the understanding the Chinese government would not strip away the rights granted to Hong Kong residents prior to the handover. The Chinese government has no intention of honoring that agreement, which has prompted months of protests.
The Hong Kong government has consummated its acquiescence to the Chinese government with the adoption of a harsh law that directly targets dissent and protest under the guise of securing the nation. Hong Kong residents weren’t informed about the contents of the new law until after it was passed and adopted. The BBC runs down the key aspects of the new law — none of which appear to respect the rights supposedly granted to Hong Kong residents.
Crimes of secession, subversion, terrorism and collusion with foreign forces are punishable by a minimum sentence of three years, with the maximum being life
Inciting hatred of China’s central government and Hong Kong’s regional government are now offences under Article 29
Damaging public transport facilities can be considered terrorism
These are all things the Chinese government claims must be implemented to secure the nation. And these are all things that conveniently allow the government to imprison Hong Kong residents. It also allows them to target dissidents and opponents abroad, thanks to the government granting itself extraterritorial reach.
This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.
The law also says residents found guilty of these crimes cannot run for public office. This seems unnecessary, especially as many vocal anti-government activists have either chosen to go silent or leave the country completely.
The court process for adjudicating these cases has been streamlined to allow the Chinese government to imprison as many protesters and activists as possible. The chief executive of Hong Kong — who has already gone on record as supportive of the “long overdue” law — can appoint judges to oversee these trials. The Chinese government retains the option to take over prosecutions in cases where it feels local prosecutors just aren’t trying hard enough. And decisions made by the newly-formed “national security commission” cannot be challenged in court.
Reactions have been immediate. Pro-democracy books have been pulled from libraries by the Hong Kong government in order to review them for violations of the new law. And protesters are now carrying blank signs, since the law makes the existence of any anti-Chinese government words a potential violation of the new law, possibly putting protesters in line for life in prison.
No one seems to be immune from the new law. The Hong Kong police apparently visited a restaurant to warn it of a violation of the new law. It responded by covering its menu and windows with blank Post It notes.
A girl uses a blank piece of paper yesterday as a protest sign, as she wasn?t sure what constitutes breaking the NatSec Law.
Today, eateries are removing posters and replacing them with blank memo notes after HKPF visited a restaurant in Shau Kei Wan warning of a NSL violation. pic.twitter.com/3TLyfI9JIx
After months of battling a rebellious region, the Chinese government has placed Hong Kong firmly under its control. There will be no more “one country, two systems.” The only system the Chinese government is willing to back is its own. With countries like Australia and the UK opening their doors to Hong Kong citizens wishing to flee, the government may not have nearly as many people to place under its jackboot. But those who choose to stay run the risk of being jailed for years for complaining about a government willing to jail people for complaining.
