30 June 2019

Right And Wrong: The Rule Which Never Changes

"The rules have changed."

This argument has been appearing with increasing frequency of late.  In business, in culture, in politics, we are told that the old ways of doing things no longer apply, that the new era has brought new ways, new ideas, and new rules.

Two noteworthy examples come to us from commentary on two entirely unrelated events, yet addressing this same common theme.

First we have Stephanie Wilkinson's commentary in the Washington Post on an incident involving Eric Trump, son of President Donald Trump, who was recently accosted in a Chicago restaurant when a server spat on him. Her conclusion about that incident is found towards the end of her piece:
The rules have shifted. It’s no longer okay to serve sea bass from overfished waters or to allow smoking at the table. It’s not okay to look away from the abusive chef in the kitchen or the handsy guest in the dining room. And it’s not okay to ask employees, partners or management to clock out of their consciences when they clock in to work.
For comparison--and more than a little contrast--we have Christopher Dale's column in The Federalist where he takes the US Women's Soccer Team to task for what he considered an egregious display of bad sportsmanship in running up the score against Thailand in World Cup competition. In addition, he takes several sports commentators to task for their rationalizations of the team's behavior:
In The Atlantic, Jemele Hill also tenuously ties the ladies’ off-the-field fight for equal pay with the on-the-field fight for their right to party at an opponent’s expense: “Instead of Team USA being celebrated for what its players achieved, the victory became an opportunity to lecture these women on how to behave… The women are fighting… for equal pay and respect—and, on the field, for the right to pummel their opponents and express themselves in a way that men often do.”

This is, quite simply, wrong. Men do not typically act like that in sports. Or at least not without catching well-deserved criticism.
In other words, Christopher Dale argues, the rules have not changed, and whatever struggles women athletes endure off the playing field should not be used to excuse poor behavior on the playing field.

Against these two commentaries I shall inject merely this--Romans 12:17:
Do not repay anyone evil for evil. Be careful to do what is right in the eyes of everyone.
I ask you to consider this verse as merely a moral proposition; we need not burden the discourse here with defenses of Christian belief or Christian theology. Regardless of one's religious views, we have in this verse a simple moral proposition that may be interrogated from any moral perspective.

The proposition of not repaying evil for evil carries several important inferences Most significantly, we must presume that notions of good and evil are not themselves mere matters of opinion or perspective, simple and mutable relativistic notions to be defined and redefined as we find convenient; rather, these notions form for us an absolute frame of reference, they are, as it were, the North and South of our moral compass, and we must orient our assessment of proper conduct accordingly. This understanding of good and evil is found also in the Noble Eightfold Path of Buddhism, with its prescriptions of "Right Speech" and "Right Speech".

The proposition of not repaying evil for evil also carries the understanding that, regardless of motivation or intent, evil action is evil action. Explain and rationalize as you will, under this proposition you cannot convert evil act into good deed; it is simply not possible.

Which brings us back to Stephanie Wilkinson's assertion that people should not "clock out of their consciences when they clock into work."

First, let us recall the meaning of "conscience":
the sense or consciousness of the moral goodness or blameworthiness of one's own conduct, intentions, or character together with a feeling of obligation to do right or be good.
The notion of "clocking out" of one's conscience, then, can only be understood as a setting aside of basic human impulse to do the right thing and make the good choice. That, however, brings us to a conundrum: That's the old rule, not the new rule. Paul's Letter To The Romans, as part of the New Testament in the Christian Bible, stands as a compendium of moral statements and arguments that has existed for centuries. Romans 12:17 enshrines as a moral virtue the idea of doing the right thing, of making the good choice, regardless of situation or circumstance. We have always been called to do the right thing, and we have never been justified in "clocking out" of our consciences, at work or anywhere else. We can argue and debate over what the right thing truly is, over what truly constitutes the good choice, but we can never argue that we have not always been called upon to do the right thing and make the good choice, whatever that thing and choice might be.

Simply put, our understanding of what is the right thing to do may evolve, but we must never doubt that we are always--and have always been--called upon to do the right thing. That rule has never changed, not throughout the whole of human history.

Moreover, as Christopher Dale points out, we cannot change notions of right and wrong in any moment because of things wholly separate from that moment. Regardless of what struggles the US Women's Soccer Team has endured off the playing field, one thing is absolutely certain: The Thailand team had absolutely no part to play in them. The Thai players are not hindering the US women athletes in their quest for equal (or equitable) pay, and certainly are not preventing the US women athletes from achieving respect equal to their male counterparts. Further, the Thai team has no role in deciding the pay rates for women athletes in the US, and no voice in determining the proper measures of respect women athletes should receive in the US. Regardless of the worth of such debates, they are not debates that involve the Thai women's soccer team. 

Christopher Dale makes the argument that male athletic teams have never been encouraged to run up the score when they overmatch an opponent, and are criticized when their celebrations of success go too far. To be sure, male professional sports organizations such as the NFL have an ongoing debate over how much celebration is "too much" when a team scores. There is an explicit declaration within male sports that excessive celebrations upon victory are examples of poor sportsmanship--they are the bad choice and the wrong thing to do. Against such a backdrop, he makes a cogent argument--if the goal for women athletes is to be regarded the same as their male counterparts, they must hew to similar guidelines as to good sportsmanship and proper conduct, and must endure reprobation when they fall short of such standards.

The claim that "the rules have changed" is therefore simply not true. The rule of doing right and avoiding wrong has not changed even a little, not in the whole of human history. Our understanding of conscience is that, no matter what the circumstance, right remains right, and wrong remains wrong. That has always been "the rule"; it has never not been "the rule."

When has it ever been "right" to spit on one's fellow human being? 

When has it ever been "right" to humiliate one's opponents in a sporting contest?

When has it ever been "right" to settle political differences with violence?

When has moral authority to declare "right" and "wrong" ever flowed from the barrel of a gun?

In my experience, I have never known a time when any of these things were the "right" thing to do.

The rule of right and wrong has not changed, not once. We may change the rules we set for ourselves--our laws and our civic virtues--from day to day, but the rule of right and wrong is as it has always been on every day.  

We have always been called to do the right thing. We will always be called to do the right thing. That will never change.

26 June 2019

Speech Or Silence: Google Says You Should Just Shut Up

I will say it again: Free speech is not just a civil right, but a moral imperative. It is both our great privilege and our great duty. If we are to have a free society, we must speak out on matters we hold dear, and we must defend our capacity to speak out. If we are to have a free society, we must be able to listen to a diversity of opinions, so we must be free to listen to others, and we must defend our ability to hear those diverse voices.

Without the freedom of speech, there is no freedom at all.

We should be alarmed, therefore, when we hear senior executives at search and social-media giant Google cavalierly discussing how to prevent people either from speaking or listening. Yet, in the latest investigative journalism piece from James O'Keefe and Project Veritas, that is exactly what happened.

How should we react when we hear Jen Gennai, Google's Head of Responsible Innovation, talk about preventing a specific outcome in an American election?
We all got screwed over in 2016, again it wasn’t just us, it was, the people got screwed over, the news media got screwed over, like, everybody got screwed over so we’re rapidly been like, what happened there and how do we prevent it from happening again.
One can only presume that Ms. Gennai, in saying "people got screwed over", meant that it was a tragedy Donald Trump was elected President.  Yet what "people" got "screwed over" in 2016? 

Was it the people who voted for Hillary Clinton? 

Was it the people who voted for Donald Trump, despite voting for Donald Trump? 

This question, of course, raises an even more important question: How is it either Google's right or Google's responsibility to do anything about this? By what right does Google arrogate to itself the capacity to decide who wins an election?

No less disturbing is what appears to be the prevailing attitude at Google regarding the people and politics they dislike. Among the other nuggets uncovered by Project Veritas are documents where noted conservative commentators such as Ben Shapiro and Jordan Peterson are referred to as "Nazis" (Note: Ben Shapiro is Jewish, which makes such characterization particularly obnoxious).

Also troubling is Google's response to the story. When James O' Keefe uploaded the video presentation where they broke this story to YouTube (owned by Google), Google deleted it. Faced with criticism of their policies and censorious business practices, Google doubled down on censorship and attempted to silence Project Veritas:
In an ironic development, when a Google executive was questioned by Senator Ted Cruz over the Project Veritas report and its implications, while she had heard of the report she had not viewed it herself (because it had already been deleted?). However, when pressed, not only did she affirm that Google does indeed view itself as a "neutral public forum" but she explicitly disagreed with Ms. Gennai's sentiments about "preventing the next 'Trump situation'".

Yet how can Google pretend it is neutral when it deletes YouTube content it does not like? How can it pretend not to be working to influence political dialog when the whistleblower within the Project Veritas report speaks of Google using its search algorithms to steer search queries away from conservative content and towards legacy media sites such as CNN and MSNBC? Whatever else such maneuvers might be, "neutral" is definitely not one of the apt descriptors.

Sadly, and perhaps scarily, it is quite possible that Google views such conduct as "neutral" because it has become commonplace. As I have commented on before, Facebook unapologetically banned a number of commentators, including Paul Joseph Watson and Laura Loomer, claiming they were "dangerous". Last fall, Twitter CEO Jack Dorsey admitted that conservatively inclined employees were reluctant to express opinions at Twitter:
....we have a lot of conservative-leaning folks in the company as well, and to be honest, they don’t feel safe to express their opinions at the company.
Tim Pool's response on Twitter to the Project Veritas report sums up the blase attitudes regarding the trend of suppressing politically conservative ideas and opinions:
Not only has tech censorship become commonplace, but significant portions of the legacy media appear to be just find with it. Charlie Warzel of the New York Times seemed singularly nonplussed by the story:
The rest of the legacy media had nothing to say at all about it. As of the time of this writing, I could find not one single piece on CNN, The Washington Post, CNBC, The Huffington Post, The New York Times, Newsweek, Politico, nor The Daily Beast.  

One of the largest of the Big Tech companies, the dominant force in Internet search engines as well as a major social media entity thanks to YouTube stands accused of suppressing political speech from one side of the political spectrum but not the other, and the legacy media has managed barely a casual, dis-interested yawn. A seeming clear-cut case of political bias, censorship, and the suppression of dissident voices is occurring within social media, and the legacy media has no interest whatsoever. Either censorship is so commonplace and accepted by the legacy media or the legacy media is choosing to ignore the story in hopes that it will go away. I leave the reader to form his or her own conclusions on that score.

Let us be clear on the key issue here: Google executives are implicated in a general pattern of behavior at the Big Tech company to not only suppress particular political content based solely on political ideology, but are actively interested in working to control the outcome of the upcoming 2020 Presidential elections. Google is alleged to be using the online search results generated by its algorithms to "program" people with specific attitudes and outlooks--arguably to control how people think, if the logic is extended to its ultimate conclusion.

For such behavior there can be no defense. No single entity should ever possess such capability within our society, and absolutely no single entity should ever seek to possess such capability. No social media platform should have leave to silence and suppress particular political content, opinions, and ideas, while simultaneously enjoying the shield from liability granted such companies under Section 230 the Communications Decency Act (47 USC 230(c)). As Congressmen Louis Gohmert stated in response to the Project Veritas report:
This video shows Google’s biases are now a threat to a free and fair election, all while they hide behind the immunity given by Congress years ago when they were supposed to be a simple ‘town square’ where everyone’s voice could be heard without biased results. In fact, Google references a significant role they see themselves fulfilling in the 2020 elections. This discovery should set off alarm bells throughout the country. It is no secret that Google has a political agenda. Multiple brave tech insiders have stepped forward and exposed Google’s censorship of content and specialized algorithms. This media giant’s ‘social justice narrative’ should distress all Americans who value a free and open society. Google should not be deciding whether content is important or trivial and they most assuredly should not be meddling in our election process. They need their immunity stripped and to be properly pursued by class action lawsuits by those they have knowingly harmed.
As I have argued previously, Section 230 of the CDA is an unconstitutional abridgment of the freedom of speech, and Project Veritas has now demonstrated the consequences of that abridgment. Thanks to the aegis extended by government, ostensibly to curtail obscene and profane speech reaching minor children and being used to harm minor children, companies such as Google are now emboldened to curtail any speech of any kind, based on no other criteria than their own private opinion and judgment.

The classical libertarian arguments that social media platforms such as YouTube are private property, and that Google, as the owners of that property, are at liberty to allow or disallow almost any speech or activity as they see fit, simply cannot prevail, given the breadth and scope of social media within modern society. The argument is immediately contradicted by the general provisions of the CDA, which apply criminal sanctions to the distribution of particular speech even on social media, thus overriding the presumed sovereignty of Google. Moreover, the Supreme Court has already acknowledged, in Packingham v North Carolina (2017, 582 US ___), that social media and the Internet in general are a "digital commons", the public square of the 21st century. The right of individuals to access the public square, both to speak and to listen, and to have access to a diversity of thought and ideas, must prevail over any assertion of private property control by Google, Facebook, or any social media company.

Indeed, the stated purpose of the Section 230 shield is a compromise with platform providers, granting them immunity from liability in return for a policy of content neutrality--a policy Google's representative before the Senate affirmed to be Google's policy when questioned directly on the matter by Senator Cruz. If Section 230 confined itself to simply establishing that compromise in law, this issue might never even have arisen. Alas, Section 230 does not confine itself thus, but extends to the Googles of the world an unconstitutional (not to mention unconscionable) right of censorship. 47 USC 230 (c)(2) is the devilish detail that causes all this mischief (emphasis added):
(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of— 
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or 
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
230(c)(1) was sufficient to guarantee platform neutrality. By establishing in law the premise that merely providing a platform is distinct from publishing content on that platform, and that providing a platform does not equate to endorsement of or agreement with any such content, 230(c)(1) arguably performs a valuable function, allowing the platforms provided by companies such as Google to continue to be our "digital commons". Shielding them from liability for the inevitable bad actor who uses the public square of social media to harm others relieves them of any interest in regulating any speech that might be published on social media. There is no requirement to then extend that same shield into the very acts of speech regulation 230(c)(1) seeks to render unnecessary. 

In fact, there has been some legal argument suggesting that the presumed platform neutrality shield does not exist at all, that the shield is rather connected to efforts by a platform provider to block the objectionable materials that are at the core of the CDA itself. In Doe  v.  GTE  Corporation,  (347  F.3d  655,  660  (7th  Cir.  2003)), Judge Frank Easterbrook described 230(c)(1) as definition and not a grant of immunity (again, emphasis is mine):
The district court held that subsection (c)(1), though phrased as a definition rather than as an immunity, also blocks civil liability when web hosts and other Internet service providers (ISPs) refrain from filtering or censoring the information on their sites. 
Easterbrook goes on to explore how to harmoniously apply 230(c)(1) and 230(c)(2):
True, a statute's caption must yield to its text when the two conflict, but whether there is a conflict is the question on the table.   Why not read § 230(c)(1) as a definitional clause rather than as an immunity from liability, and thus harmonize the text with the caption? On this reading, an entity would remain a “provider or user”-and thus be eligible for the immunity under § 230(c)(2)-as long as the information came from someone else;  but it would become a “publisher or speaker” and lose the benefit of § 230(c)(2) if it created the objectionable information.   The difference between this reading and the district court's is that § 230(c)(2) never requires ISPs to filter offensive content, and thus § 230(e)(3) would not preempt state laws or common-law doctrines that induce or require ISPs to protect the interests of third parties, such as the spied-on plaintiffs, for such laws would not be “inconsistent with” this understanding of § 230(c)(1).   There is yet another possibility:  perhaps § 230(c)(1) forecloses any liability that depends on deeming the ISP a “publisher”-defamation law would be a good example of such liability-while permitting the states to regulate ISPs in their capacity as intermediaries.
Earlier in his ruling, Easterbrook in fact acknowledged the potential for constitutional conflict, stating that "Congress is free to oblige web hosts to withhold services from criminals (to the extent legally required screening for content may be consistent with the first amendment)..." While 230(c)(2) does not mandate any such screening or policing of content, if one applies Easterbrook's harmonious interpretation of 230(c)(1) with 230(c)(2) the clear consequence of Section 230 is to encourage such policing, and by the text of the section extends that policing even into constitutionally protected speech. One does not even need to argue the literal language of the First Amendment, which is a simple and categorical prohibition of Congress making any law which abridges the freedom of speech to see that this construction of Section 230 leads into Constitutional conflict, for the Section explicitly mentions "constitutionally protected" speech--thus however First Amendment speech protections are understood to exist, Section 230 at a minimum encourages social media platform providers to violate those protections, thereby abridging speech, which is expressly prohibited by the First Amendment.

It is not a great distance from the immunity and inducement to censor with impunity to the outrages of Google uncovered by Project Veritas. It is not a reach to describe Googles conduct and corporate attitudes as outrages--how else to describe the presumption by any person or any company to determine how people should think, to control how how people discourse and over what, and, ultimately, to "program" people to support whatever Google deems socially proper? It is scandalous to realize that what Project Veritas has uncovered at Google is but the latest in a string of usurpations and abuses by the social media giants against the civil liberties of regular individuals. Yet outrage and scandal is exactly where we are, and is exactly with which we must contend.

As I stated at the outset, without the freedom of speech, there is no freedom at all. When Google, or Facebook, or Twitter, seeks dominion over online speech in this fashion, Google, or Facebook, or Twitter is seeking dominion over people. These entities are seeking--deliberately, at least in the case of Google--to end our civil liberties. It is hardly an exaggeration to state--as others besides myself have stated--that the tech giants aim to reduce the mass of people to the status of "tech serfs", existing merely to service the goals of the tech elite. In light of Project Veritas' investigations of Google, we would appear to have rather damning evidence that such is the explicit goal of the social media companies.

The first step in defending civil liberties against such incursions is to call these companies out, to make public all their malevolent designs. This first step has been performed admirably by James O'Keefe and Project Veritas.  

The next step is the challenge that is put before us all: what shall we do? Certainly we should act to reduce the power of entities such as Google and Facebook. We should use search engines besides Google, engines such as DuckDuckGo. We should explore social media sites besides Facebook and Twitter, sites such as MeWe, Minds, Parler, and Gab. Diversity is a strength to the individual chiefly by preventing the accretions of power Big Tech now enjoys. Ultimately, companies such as Google only have the market power we cede to them, and what we have given we can also take away, if we have the will to do so.

Some will argue that government regulation is needed. I will confess I am not sanguine about this approach, because Big Government can scarcely be said to be any better than Big Tech where defense of civil liberties is involved. Both Big Tech and Big Government have a demonstrated desire to act as Big Brother, with all the Orwellian connotations of dystopian dictatorship that implies. However, at a minimum Congress could at least do the good service of repealing Section 230 and eliminating Big Tech's unconstitutional authority to censor and regulate online speech. I encourage everyone to reach out to their Senators and Congressmen, and ask them to craft such legislation.

The growing furor over the Project Veritas report is also certain to add to the public appetite for anti-trust action by the government. There is no denying that the case for breaking up Google just got that much stronger.

Regardless of which path one prefers, the way to defend the freedom of speech, the way to defend freedom itself, is to speak out.  The more people speak, the more people seek to be heard, the less powerful Google and the rest of Big Tech becomes. The United States Constitution assures us we have a right to free speech. We will only continue to have that right if we embrace the corresponding duty to speak freely.

18 June 2019

Harvard Will Be Judged By The Redemption Denied Kyle Kashuv

Kyle Kashuv is many things. Most notably he is a survivor of last year's shooting incident at Marjory Stoneman Douglass High School in Parkland, Florida. In the wake of that tragedy, he has been a forceful and articulate advocate for the right to keep and bear arms enshrined in the Second Amendment to the Constitution. In March of this year, he became a member of Harvard University's Class of 2023.

Kyle Kashuv is also a teenager, prone to teenage recklessness, teenage crassness, teenage crudeness, and teenage stupidity. He is also someone who made a series of outrageously crude, crass, stupid, and racist comments in an online document just a couple of months before the Parkland shooting. He is also someone who apologized for those comments when they were revealed recently. He is also someone who has had his Harvard admission rescinded because of those comments.

Is Kyle Kashuv a racist? That I do not know.  Is he an anti-Semite? That seems unlikely, as he is himself Jewish. However, other than this one bit of online posting, there are no other examples of racist language coming from Kyle Kashuv.

Which is why we must remember that Kyle Kashuv is a teenager, prone to teenage recklessness, teenage crassness, teenage crudeness, and teenage stupidity.  We must remember there is a reason teenagers are regarded as possessing an ample reservoir of bad judgement--teenagers in fact do possess an ample reservoir of bad judgement.

So it is that we should remember something else as well, something the admissions office at Harvard has forgotten, something the far-left outrage mob that called for him to be denied entrance to Harvard has forgotten--the twin miracles of forgiveness and redemption.

As I argued in my Easter Sunday essay, redemption is an integral part of Western thought and Western civilization. Redemption, the act of one paying the debt of another, is at the core of our notions of mercy and of justice. It is woven through our most important legal documents, and it is what makes the very idea of forming a "more perfect Union" possible. Regardless of whether one is a devout Christian or a committed atheist, redemption is elemental to how we grow as people and as a society.

Redemption is how we can be tolerant of Kyle Kashuv and intolerant of his racist remarks. Redemption is the nuance that allow us to condemn all hatred, bigotry, and intolerance without condemning everyone who wallows in hatred, bigotry, and intolerance. Redemption is how we ourselves can avoid being condemned for our own mistakes, our own errors of judgement, even our own judgmentalism towards others.

We may be fairly certain that, at the time he made those comments, Kyle Kashuv never envisioned what direction his life would soon take. He could not have known that, barely two months later, he would be at the center a horrific school shooting, that he would witness friends gunned down by a mentally disturbed young man. Perversely, but for that tragedy, his remarks likely would never have come to light, for without that tragedy, Kyle likely would not have been admitted to Harvard, would not have emerged as a young advocate for the Second Amendment, and would not have attracted the attention of leftist activist types--the "outrage mob"--that went searching for and discovered his racist outburst. At the time he made those comments, Kyle was the epitome of the anonymous person, enjoying the ironic liberty that comes from being part of the nameless faceless crowd.

Anonymity does not excuse racism, nor racist rantings, nor should we allow Kyle Kashuv to use anonymity as an excuse for his execrable postings. He was wrong, his words were wrong, his impulses were wrong. There is no room for doubt about that point.

Yet the reason redemption matters is because past mistakes do not necessarily become future sins. Because redemption is real, all of us do not need to be defined by our failures. Because redemption is real, each of us can climb back up again.

To say that Kyle Kashuv made a mistake is both trite and cliche. It is also true.

The challenge for the rest of society, at least for those who take notice of Kyle Kashuv, is simply this: What do we do now?

We have Harvard's answer: excommunication, expulsion, eternal damnation for past mistakes. Harvard has offered no redemption, no forgiveness, and will not allow Kyle Kashuv to rise above this error. Harvard has judged Kyle, found him wanting, and cast him out.

Nothing ever happens without consequence, as Kyle has learned brutally by this incident.  Every choice begets an action, which begets a reaction, which becomes a consequence. While we have total control over our choices, and thus our actions, we have zero control over the reactions and thus the consequences, save that by choosing the right actions, we may hope to evade the worst of consequences.

Thus, even without concluding whether Harvard is right or wrong in expelling Kyle Kashuv from the Class of 2023, we may be certain that Harvard will face a consequence for its choice and its action. It will receive commendation from some quarters, and condemnation from others. Whether it receives the commendations it seeks or accepts as earned the condemnation it gets is a tale yet to be told, but there will be no avoiding the reality that Harvard has chosen for itself both the particular commendation and the particular condemnation arising from its expulsion of Kyle. For better or worse, it has chosen this outcome.

That may be the best argument of all for why society should consider forgiving Kyle Kashuv. Ultimately, forgiveness is for each of us a choice, but it is always a choice about ourselves, about what consequences we want for ourselves. If we wish to avoid condemnation in our own lives, we must at least entertain the possibility of not condemning others for theirs. We must consider the possibility that what a young man says at 16 is not some depiction of immutable personality, but merely a crass, cruel, thoughtless, stupid thing that comes out in a burst of momentary impulse.  We are well advised to contemplate what consequences for ourselves we desire to arise from our choice in this matter--redemption or rejection. We should answer in our private minds the simple question, do we want the consequences of offering redemption or do we prefer those from demanding rejection?

Harvard has chosen to reject Kyle Kashuv. No doubt that school's administrators believe they are right in this choice. Yet whether they are right or wrong, they must now face the consequences for their choice. Having judged Kyle and found him wanting, they will now be judged, and the measure of that judgement will be the redemption they chose to deny Kyle Kashuv.

11 June 2019

Shouting Fire In A Crowded Theater: An American Right

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Oliver Wendell Holmes, Schenck v United States (1919, 249 US 47)

The other day, Facebook censored me. In their vast, infinite wisdom, the powers that be Zuckerberg decided this post, which I had also put out on Twitter, was offensive:
I am unsure of why Facebook felt this was offensive and needed to be removed. Certainly, none of the other platforms expressed any concern over the item. Nevertheless, shortly after making the post I was greeted with this in my Facebook inbox:

The reflexive response of the classical libertarian is to scoff at my discomfiture, and remind me that, as a private company, Facebook is entirely within its rights to decide what can and cannot be posted on its platform. Certainly it is true that we do not want, as a rule, government micromanaging the affairs of private enterprise.

But is Facebook within its rights to arbitrarily ban such content? Does that claim stand up under scrutiny? I have come to the conclusion that a proper reading of the First Amendment means that Facebook does not have such a right.

Let us begin with the text of the First Amendment itself:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The common presumption is that the First Amendment acts to prevent the government from inhibiting one's freedom of speech, but private individuals are free to do so with impunity.  Yet the text of the Amendment itself does not support such a restriction.  The rule is simple: Congress cannot pass any law which results in an inhibition of speech. This binding upon Congress is simple, categorical, and absolute--in its language the First Amendment, along with the Second, are the most categorically phrased and rhetorically inflexible passage in the whole of the Constitution, including its amendments.  

If a law inhibits free speech, regardless of scope or intent or involved agency, that law is immediately repugnant to the Constitution and must therefore be declared void, as per Marshall's famous conclusion in Marbury v Madison (1803, 5 US 137). Marbury and the language of the First Amendment admit of no other conclusion.

As it so happens, there is such a law, under which Facebook is given free rein to block, screen, and delete content it deems "offensive"--the Communications Decency Act, or rather the "safe harbor" provision of that statute found at 47 USC 230. Social media platforms are protected from liability when they take steps to "protect" people by blocking content that is offensive and hateful. By virtue of that law, Facebook is given liberty to decide that even a scholarly mention of Adolf Hitler warrants suppression and censorship.

My contention is that this law is blatantly unconstitutional. There is no denying that a bit of speech was suppressed, and thus my right of free speech was abridged. On what basis? Contrary to their notice of my post being deleted, it was certainly not "spam", and certainly not by their own standards. The closest any of my page postings gets to being "commercial" is the link I have for people wishing to support my research efforts by donating via BuyMeACoffee, but even at that, the post does not fit Facebook's definition of spam.

Further, my post was not "hate speech" according to Facebook's own definitions within their community standards, and could not be banned on that basis. 

Given that my posting referenced a news item in The Guardian, the basis for the post was unquestionably factual, as is the news item itself: the content removal on YouTube is having these side effects. As a statement of demonstrable provable fact, such a post is unquestionably speech and unquestionably constitutionally protected speech. By Facebook's own community standards, such speech is not only permissible but even encouraged:
Voice: Our mission is all about embracing diverse views. We err on the side of allowing content, even when some find it objectionable, unless removing that content can prevent a specific harm. Moreover, at times we will allow content that might otherwise violate our standards if we feel that it is newsworthy, significant, or important to the public interest. We do this only after weighing the public interest value of the content against the risk of real-world harm.
With no substantiated violation of their community standards, and given the principles articulated in those standards, not only was Facebook not empowered to delete the post but it had asserted a positive duty to permit such content. Thus their necessary reliance on 47 USC 230 as a cover for their arbitrary deletion of my content. If 47 USC 230 is unconstitutional then Facebook's action was wrong and indefensible.

How is 47 USC 230 unconstitutional?  47 USC 230(c)(2)(A) eliminates any civil liability for social media platform providers who block "objectionable" content even if that content is constitutionally protected. Put simply, it empowers social media platform providers to abridge the freedom of speech. Constitutionally, that can not stand. The First Amendment is the superior law, and explicitly forbids Congress from granting such waiver of liability.

The Schenck decision, in addition to being famous for Oliver Wendell Holmes' oft-quoted (and oft-misquoted) declaration, provides much of the judicial reasoning by which Congress is given leave to circumscribe the First Amendment and abridge not just freedom of speech but of the press, of peaceable assembly, and the capacity to petition for redress of grievance. In particular, it articulates the "clear and present danger" standard by which much incendiary speech is often curtailed under the law:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
With the excessive effluence typical of legal writing, Holmes establishes in case law what is arguably common sense: when speech inspires specific action the speaker is to some degree responsible for the action.  Perversely, even though Holmes' reasoning on the evolution of speech into action (which may be circumscribed by law), his conclusion in Schenck was fatally flawed, because he never established a foundation to presume Congress had a right to prevent the actions being encouraged (i.e., obstructing the draft of soldiers to fight in World War I). However, the flawed conclusion should not detract from the relevance of the reasoning, because it reiterates how people can and should respond to speech, particularly controversial and incendiary speech--people should be held to account for their actions, not their ideas.

An important aspect of Holmes' "shouting fire" example that is frequently overlooked is the word "falsely." Holmes very clearly identifies that false speech which creates a disturbance is a problem, and in his example this makes sense--if a person shouts fire in a crowded theater, and there is a fire, panic or no his words arguably will save lives. Only if there is no such danger does the incited panic create a danger.

This concept appears again in Brandenburg v Ohio (1969, 395 US 444) , in which the "Brandenburg Test" was established, creating a two part test by which speech advocating criminal acts could be circumscribed:
  1. The speech is “directed to inciting or producing imminent lawless action,  AND
  2. The speech is “likely to incite or produce such action.”
The linkage is clear: people must account for their actions, not their ideas.

While we commonly presume these criteria apply only to government acts and agencies--and certainly the Brandenburg Test is necessarily limited to governmental authority, as it involves explicit criminality--accountability standards among private citizens and thus private corporations is a foundational element of even civil law.  Accountability is what allows for the creation and adjudication of torts, civil wrongs for which liabilities are assessed based on provided facts and evidence. As accountability is a doctrine that goes beyond government authority and agency, it is hardly a stretch to argue that prohibitions against abridgments of free speech also go beyond government authority and agency.

When Congress passed the Communications Decency Act, it empowered social media platform providers to decided whether or not people should be allowed to shout fire within their crowded theaters--not falsely, but factually. They are empowered to police not actions, but thoughts and ideas, a legal doctrine that is charitably described as Orwellian.

Moreover, despite the passage of the CDA, the courts have established that social media are a "digital commons", the public square of the 21st century.  This was articulated in 2017 by Justice Anthony Kennedy in Packingham v North Carolina (2017, 582 US ___) , and reiterated by Judge Naomie Reice Buchwald in Knight First Amendment v Trump, (2018, 302 F.Supp.3d 541) in her ruling establishing President Trump's Twitter feed (if not all of Twitter itself) a public forum. The CDA gives private citizens the power to police the digital commons in a way the government is not allowed to police a physical commons.

The standard Oliver Wendell Holmes articulated in Schenck was the correct standard, even if erroneously applied: hold people accountable for actions, not thoughts and ideas.  We can withstand incendiary words, even violent words, and certainly controversial words  Challenging thoughts will not harm us, and may even educate us. So long as we do not substitute physical violence for rhetorical violence, so long as we remember that our right of free expression does not give license to seek out the harm of any other person, we should not seek to inhibit the expressions and speeches of others.  We should be reluctant to silence and suppress, not eager. Censorship is never good policy--it is not good public policy nor is it good business policy. In most cases, it is not even legal (and should not be thought of as legal despite the highly erroneous rulings of the courts in this regard).

The First Amendment says Congress shall pass no law abridging the freedom of speech. It should be intuitively obvious that, with such prohibition in effect, Congress may not pass any law empowering  private citizens to do it for them.

07 June 2019

When The Rule Of Lawyers Replaces The Rule Of Law, You Get The Mueller Report

Robert Mueller's investigation into alleged Russian meddling in the 2016 election was supposed to be the definitive, objective, non-partisan word on the matter.

Now we are learning that it was neither objective nor non-partisan, and its findings are proving to be anything but definitive.

The latest crucial failing of the Mueller Report comes courtesy of Jon Solomon, writing in The Hill about the reports deliberate and egregiously inaccurate mischaracterization of Ukranian businessman and Paul Manafort associate Konstantin Kilimnik as a Russian intelligence asset, when the truth was that Mr. Kilimnik has been an American intelligence asset--and an extremely valuable one at that:
In a key finding of the Mueller report, Ukrainian businessman Konstantin Kilimnik, who worked for Trump campaign chairman Paul Manafort, is tied to Russian intelligence.

But hundreds of pages of government documents — which special counsel Robert Mueller possessed since 2018 — describe Kilimnik as a “sensitive” intelligence source for the U.S. State Department who informed on Ukrainian and Russian matters.
How sensitive an asset was Kilimnik? Sensitive enough to meet several times a week with the chief political officer in the US Embassy in Kiev.  Sensitive enough to meet with top level State Department officials. Sensitive enough to present a peace plan for the conflict between the Ukraine and Russia to the Obama administration in 2016.  

In other words, pretty sensitive.

How did Mueller characterize Konstantin Kilimnik? Judge for your self--from Page 6 of the Mueller Report (emphasis added):
Separately, on August 2, 2016, Trump campaign chairman Paul Manafort met in New York City with his long-time business associate Konstantin Kilimnik, who the FBI assesses to have ties to Russian intelligence. Kilimnik requested the meeting to deliver in person a  peace plan for Ukraine that Manafort acknowledged to the Special Counsel's Office was a "backdoor" way for Russia to control part of eastern Ukraine; both men believed the plan would require candidate Trump's assent to succeed (were he to be elected President). They also discussed the status of the Trump Campaign and Manafort's strategy for winning Democratic votes in Midwestern states. Months before that meeting, Manafort had caused internal polling data to be shared with Kilimnik, and the sharing continued for some period of time after their August meeting. 
Keep in mind that this is coming from a report that found no evidence of any "collusion" between the Trump Campaign and Russian intelligence. 

Keep in mind also that this comes after an earlier disclosure that the report altered the transcript of a voicemail left by Trump lawyer John Dowd to Lt. General Michael Flynn's attorney, as well as substantial allegations the Mueller team mischaracterized another interaction, between Trump attorney Michael Cohen and one Giorgi Rtskhiladze, going so far as to splice multiple recorded conversations together to form a telephone discussion that, according to Rtskhiladze's lawyers, is simply false. Keep in mind also that, despite Mueller's public statement that Department of Justice policy precluded even thinking about indicting Donald Trump, Attorney General William Barr flatly rejected this contention, or that Mueller could have been operating under such a presumption.
"I personally felt he could've reached a decision," he told CBS News chief legal correspondent Jan Crawford during an exclusive interview in Anchorage, Alaska, on Thursday.  
"The opinion says you cannot indict a president while he is in office, but he could've reached a decision as to whether it was criminal activity," Barr added. "But he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons."
For those keeping score, mischaracterizing Kilimnik's relationship to Russian vs US intelligence agencies is the third such revelation of factual inaccuracy within the report. Include Mueller's public statement about the report and the role of the DoJ guidance on indicting a sitting President and you have four not-insignificant challenges of fact within the report.

These factual errors combine with the strong criticism (and in some cases, outright condemnation) of Mueller's statements claiming the report does not "exonerate" the President. Alan Dershowitz called Mueller's statements "shameful." Andrew McCarthy considered the non-exoneration a diversion from the report's substantive legal flaws. It cannot be said often enough that prosecutors must prove guilt, as innocence is presumed, yet Mueller felt compelled to say repeatedly, in the report and in public, that he could not prove President Trump's innocence.

How did such a well respected legal figure such as Robert Mueller, armed with presumably an A-list roster of legal talent to conduct his investigation, create such a hot mess of an investigative report? My personal theory is that it is because Mueller and his team are all lawyers.

In American jurisprudence, much is made of the term "the rule of law".  Our courts call particular attention to the phrase and its meaning:
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
  • Publicly promulgated
  • Equally enforced
  • Independently adjudicated
  • And consistent with international human rights principles.
In Chief Justice John Marshall's historic ruling Marbury v Madison (5 US 137) made the concept a simple yet powerful declarative: "It is emphatically the duty of the Judicial Department to say what the law is." 

The "rule of law" is a fixed and permanent legal guide; it is our legal system's due north compass heading, against which all legal theories, interpretations, and advocacies may be coherently oriented. The rule of law is not a whimsy of lawyerly invention; it is not the result of legal caprice.

Mueller, however, has paid but scant lip service to this ideal. Instead, through 448 pages of legal introspection, he and his investigation team sought ways to capriciously and inventively sidestep this bedrock principle. Where the law did not serve their purposes, they proposed alternate theories of the law that would bend the law until it did serve their purposes. Shaking off Marshall's long-standing dictum, Mueller, not satisified with what the law is, attempts to dictate what the law should be.

Nor is Mueller alone in his ignominy.  His tortuous statements regarding the non-exoneration of President Trump are an uncomfortable bookend to former FBI Director James Comey's July 2016 press briefing, where he outlined all the ways in which Hillary Clinton broke the law, and then said the Department of Justice would not be indicting her.

What Mueller and Comey represent is a dark and ultimately dysfunctional legal mindset, one that views the law as an infinitely malleable means to whatever ends are desired. It is a view that stands in direct opposition to the stated ideals of American courts. It is a view that is rejected outright throughout the United States Constitution, where due process and the rights of the accused are explicitly made paramount. It is a view that is more in keeping with Lavrentiy Beria's cavalier concept of law, "show me the man and I'll find you the crime." It renders law as autocratic authoritarianism rather than the best defense of liberty.

With this in mind, the political, biased quality of the Mueller Report comes as no surprise. When the "rule of lawyers" displaces the "rule of law", an hodgepodge of political poses and pontifications becomes not only likely, but inevitable. The Mueller Report is the result of lawyers presuming the law exists to serve them, to further their agenda, and eschewing the ideal that lawyers serve the law and, through the law, serve the public.

Given the history of American jurisprudence, the Mueller/Comey ideation of lawyers can not stand--it must not stand.  It cannot stand because even the Preamble to the Constitution, beginning as it does with "We the People....", rejects the notion that anyone can or should bend the law to their own ends. The Constitution is the supreme law of the United States, and from the very beginning it cast as one law, one rule of law, for the whole of the United States. As Ronald Reagan said in his farewell address:
Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: "We the People." "We the People" tell the government what to do; it doesn't tell us. "We the People" are the driver; the government is the car, and we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the government what it is allowed to do. "We the People" are free.
Mueller and Comey would reverse this. Mueller, Comey, and all lawyers of their ilk (names such as Strzok, McCabe, Weissman, and Rosenstein come to mind) by their actions seek to elevate their knowledge of the mechanics of the law into a diktat in lieu of the law. In the Mueller/Comey theory of law, "We the People" are only as free as they decide to allow for the moment, and only in this moment.

Thus apprehended, the Mueller Report perversely becomes, if not an exoneration of Donald Trump, certainly an explanation for Donald Trump. The single great political sin of Donald Trump has been his rejection and at times cavalier dismissal of the "norms" that have defined American politics for the better part of at least the last century. Where the Mueller Report crouches behind dense legalese, Donald Trump tweets in almost pedestrian vernacular.  Where the Mueller Report relies on complex convolutions and analyses, Donald Trump states his principles, his goals, his agenda simply and forthrightly ("A nation without borders is not a nation"). Mueller and Comey, longtime denizens of the permanent Administrative State apparatus within Washington, often derided as "the Swamp", are in every regard the antithesis of the free-wheeling Donald Trump Administration. The Mueller Report is how the permanent Administrative State view the law and how it applies to the average American; its publication allows the average American to gauge that view against their own notions of what the law should be.

That is, perhaps, the one clear political good to arise from the Mueller Report--the opportunity for the average American to decide for himself the merits and demerits of the permanent Administrative State, of an unelected bureaucracy that imposes its own notions of law and justice on a subservient public. Once more, thanks to Robert Mueller, we are presented with a time--and a chance--for choosing. 

Do we want lawyers deciding whimsically and capriciously who is innocent and who is guilty? Do we want lawyers reinventing law to further their ends, without regard to facts or evidence?

Or do we want laws, conceived, articulated, debated, and voted by those whom we elect, by those we charge to craft good and just laws in order to build the more perfect Union our Constitution seeks? 

Shall "We the People" remain free, with government bound to our will?

"Rule of law" vs "Rule of lawyers". In the Mueller Report, we get to clearly see the difference.