Free speech

The Purchased Primary: Did Citizens United Work?

I think I speak for all Democrats when I say, I’m going to miss Rick Santorum. (Though odds are he’ll be back.) For all of John Stewart’s mockery, Rick really was an improbable candidate — as is Newt Gingrich, still. So improbable in fact, that…

Well, how the Hell did it happen, anyways?

The answer seems to be money. Lots, and lots of money. Money, you see, works. And thanks to eccentric billionaires and Super PACs, it was on display in this past cycle like never before. There’s no reason to believe any of these candidates would have survived against Mitt Romney for as long as they did, but for massive and repeated capital infusions.

That’s a good thing. The degree to which Romney had to outspend Rick – and the ridiculous disparity between the price-per-vote rates — suggests that, for all his absurdity, Rick Santorum’s protracted presence in the race was good for democracy. Something about the deranged theocrat resonated with the American public, at least in comparison to Mitt Romney, something that may not have had a chance to play out in full but for the wealthy donors who substantially underwrote the campaign.

As a means to evaluate the effects of our political experiment in unrestrained spending (symbolized by Citizens United, Super PACs, etc.) on foundational First Amendment principles, we might conclude from this primary that the marketplace of ideas survives… after a fashion. Recall that ideally, First Amendment law should remove the distortionary effect of government regulation from the marketplace , allowing the people to speak clearly, and thereby enabling the truth to rise to the top. For whatever reason, the distortionary effect of money in politics has not, yet, at least in this limited sample, resulted in an unhealthy loss of ideological diversity. Instead of favoring the establishment (Romney), limitless spending allowed the various partisans in this little war for the soul of the Republican Party to fight on something closer to an equal footing than they might otherwise have attained. Maybe true freedom, by letting everyone try to buy the election, actually is better for free speech?

Any such conclusion would be premature. After all, it only happened to be the case that the whims of the super-rich favored a diversity of opinions, and therefore aligned with what’s best for democracy. Come the next election, it could be entirely different. And, regardless of his staying power, Rick Santorum ultimately lost. Would strict regulation have prevented Romney from buying the primary as surely as he did, while also not starving his opponents of the cash they needed to compete? Would that have been a better race? We’ll never know. On to the next experiment.

A Quick Note on Santorum & Porn

Rick Santorum’s pledge to enforce U.S. obscenity law in a new fight against pornography – widely reported and debated on conservative sites — ought to raise questions. First; why? Second, and more importantly; what laws? As a capstone on America’s sordid history of pornography laws, Reno v. American Civil Liberties Union makes clear that banning adults from viewing pornography is just not a thing. 521 U.S. 844 (1997). The road to that conclusion was long, and full of fits and half-starts, as the Court tried to build a view of the First Amendment that would let them ban “obscene” images without infringing on protected speech. They failed. In a free society, you just can’t draw the line, and Rick Santorum should know better. Maybe he missed an entire half-century of First Amendment jurisprudence, or maybe he just doesn’t care. Either way, he’s in the curious position of being so extreme that he’s looped around the spectrum, and finds himself with no less of an ally than Catherine MacKinnon, who’s walked this path to ruin ahead of him. I’m sure they’ll get along just fine.

The Effective Boycott and “Freedom”

Friend-of-the-site Evan at Truth Wins Out just won a fantastic victory: reacting to a successful petition, spearheaded and originated by his site, Apple pulled from the Apple Store an iPhone “app” by the extremist Christian organization “Exodus International.” The app would have provided, one imagines, a convenient way to dehumanize gay Americans “on the go.” TWO spotlights Exodus in the video below, demonstrating that this is not just another anti-gay group pursuing their own political interest. Exodus, as a member of the discredited “ex-gay” movement, sought and waged active psychological warfare against gay Americans. This is not something polite society should condone.

There’s no legal issue here. As a private content provider, Apple can curate the content that it hosts on its servers, and supports for its devices, as surely as Fox can cancel Firefly.

Perhaps Exodus can justly feel marginalized. But it is the job of society to enforce discretion and decency within the exceedingly broad range of speech permissible, and unregulable, under the First Amendment. Losing the war of ideas does not indicate that the system has failed to protect value. The system decides value, meaning some ideas must lose for the system to work. The marketplace can and must make these judgments, or the “search for truth” has failed, and the First Amendment becomes a hollow husk. Contra Fox and Forbes, subjective judgment calls like this one, delimiting what’s legitimate political argumentation and what’s “hate speech,” are exactly the kinds of decisions the Founders expected citizens and private organizations like Apple — but never the government — to make. The market’s decision made, the analysis should conclude.

Nevertheless, Exodus is doing a great job of playing the victim, asking by way of hashtag (like ya do) if this is what “freedom” has become. Yes. This is, in fact, the way the concept works, as should be apparent to any tea partier. We hear elsewhere how corporations must be trusted, and allowed to do what’s best for their bottom line, almost without limits, according to an increasingly relevant fringe. And Apple is doing just that. The company’s decision is compelled as much by the amoral calculus of capitalism as by any “liberal agenda.” Apple isn’t selling out to the liberals. It’s selling out to its shareholders, who would suffer from any successful boycott.

No-one would raise an eyebrow if Apple published, but then pulled, a Klan app. Exodus International is not different in any meaningfully way. Exodus entered the marketplace of ideas but, like the buggy to the Model T, summarily lost. So it goes.

Update: apparently “homofascism” is a word?

Has the Marketplace of Ideas Failed, or Just the Metaphor?

Andrew Sullivan (through co-bloggers) flags a question that must occur to any witness of the past two years:

Justice Holmes said a long time ago that the best test of the truth is its ability to get accepted in the marketplace of ideas. Glenn Beck has gotten very far in the marketplace of ideas. If he’s so wrong, where is the speech on the other side showing him to be wrong?

The full quote, by the way:

The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.

U.S. v. Abrams, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). So why are we losing in the marketplace?

It strikes me that we have two answers to this question. The first, to concede that we’re not doing enough to push back against those who we (rightly) view as extremists, but (perhaps unwisely) ignore. The second, that some failure in the marketplace functions to distort the voices of some over others, preventing the marketplace from being able to accurately gauge and evaluate the claims of all players.

In truth, it’s probably a little from Column A, a little from Column B. True, unlike Republicans (e.g.), Democrats and the institutional left seem particularly inept at forming a coherent and consistent message, the kind capable of infinite repetition by similarly aligned operatives, until it achieves dominance in the news cycle. But if the marketplace is a perfect mediator of ideas, this strategy shouldn’t work in the first place.

Justice Holmes’ metaphor was never perfect. Critically,  it fails to account for the unusual power (and frequency of occurrence) of demagogues, and assumes an absence of meaningful transaction costs for new participants (barriers to entry). But since 1919, despite lower barriers to entry for day-to-day participants, like me and you, the barrier for meaningful entry is vastly larger. The individual market power of larger speakers suffices to exclude any competition, and relegate new ideas to the fringe. In the aggregate, such speakers may together, collusively or otherwise, frame the national narrative, to the exclusion of third-way options. Thus, Glenn Beck may scream at Keith Olbermann, but CSPAN remains unwatched, and the marketplace has failed.

Despite this failure, the marketplace metaphor allows us to  identify the problem, and the impossibility of solution. As we trust free speech to lead to truth, we trust capital markets to generate innovation and prosperity. But we long ago recognized the possibility of failure in the capital markets, and addressed it with laws preventing fraud (the Securities and Exchange Acts) and monopolization (the Sherman and Clayton Acts). The marketplace of ideas suffers from similar problems, but admits of fewer solutions. Constitutional law expressly forbids the state from policing fraud in public discourse, and from preventing monopolies of ideas, unless they separately implicate antitrust law. We must therefore rely on competition and ingenuity alone to keep the marketplace running — a risky proposition indeed, and one that justifies anger against walking, breathing market failures like Glenn Beck, a veritable Standard Oil of the mind.

Alternately, although the marketplace metaphor may guide us to useful values, it may not be a good way to evaluate instant claims to truth, because it explicitly takes the long view. The marketplace may lead to truth, but a sampling of it at any given point in time will represent an incremental step that, depending on the phase of the discourse, may be closer to truth or to error. Consider a dampening sine wave (right), like y=sin(x)/x. The equation resolves at a value infinitely close to zero (truth), but at any given point, the value of the equation, and its first derivative, may point away from zero. So too with public speech. We simply happen to find ourselves at a peak of the equation, or rather, a valley.

The Necessity of Public Radio

In last week’s Journal, a conservative commentator makes the “free market” case for defunding NPR, not because it’s “liberal” (read: fires bigots for being bigots), but because government funding presents an insurmountable barrier to entry to other, would-be “quality,” for-profit broadcasting providers.

Safe to say this guy isn’t getting Carl Kassel’s voice on his home answering machine. But he’s also wrong, for two reasons.

First, his argument seems to be premised on a fallacy. If NPR exists only because of government money, such that pulling government funding would kill the network, this seems to be a concession that the “quality” broadcasting model isn’t sustainable on private funds alone. If that’s true, NPR is preventing precisely no profitable businesses from entering the market, because the necessary predicate to the argument, that NPR fails on private money alone, proves that the author’s business model is simply not sustainable. Maybe the paltry amount of money NPR receives from the government is enough to give the network a competitive edge it’s able to leverage to keep out competitors. But that’s not the argument that’s being made here, and it’s separately wrong.

Second, regardless of the amount of money NPR needs from the government, the network’s ability to avoid the free market, in part, is probably uniquely responsible for its ability to provide the kind of quality content our author purports to be interested in offering. Faced with the corrosive influence of the Fox model, and the need to appeal to the lowest common denominator, very few businessmen will be able to, or even try to, resist the temptation to pander. Quality, nonbiased reporting is quite possibly one of those rare commodities for which the public will not pay, but which it desperately needs: if we can’t legally regulate speech content whatsoever (even through network ownership caps or “fairness doctrines”), the unavoidable conclusion is that the vigorous American first amendment has turned  “good journalism” into a public good. Private actors have no incentive to produce it; therefore, the government must.

Public broadcasting, then, is the best of several bad solutions to a very serious problem. How does a free nation remain free, when that very liberty depends on its citizens doing something that many would rather not do — remain informed about world events — and the government can neither force nor incentivize citizens towards that goal? The right’s feeble constitutionalism, possibly by design, can offer no answer to this difficult question.

Oh, and a closing note: to the author’s passing criticism, that the Public Broadcasting Act may fall outside of Congress’ enumerated powers, the general welfare clause (Art. I, § 8, cl. 1) sweeps pretty broadly. And besides, no private actor would have standing to challenge the Act’s constitutionality. Even a prospective competitor’s interest — the closest one gets to a cognizable, redressable injury here — is by definition prospective and therefore insufficient.

NPR Was Right

To the exact opposite of Huckabee’s point, isn’t there a problem with a government-funded media entity ratifying groundless fears about American citizens, based only on the color of their skin and their dress? It’s a problem that people are afraid to see Muslims on airplanes — a fairly common problem, from my conversations with others — and a bigger problem if the government is viewed as suborning those instincts.

The biggest problem of all, of course, is that we’re now in a position where top Republican names are explicitly condoning and supporting groundless fears, based only on ethnicity.

Two closing points: recall the last time conservatives were mad at NPR, and howling for blood, when the news outlet made fun of tea partiers, but on their opinion page (and therefore ex cathedra). Apparently, the right’s outrage over “censorship” is eminently selective. And, this has nothing to do with “free speech.” Entities both public and private may terminate employees for failure to live up to objective and subjective standards of conduct. Take a federal job, drive around with an “Obama 2008″ sticker, and see what happens.

A Victory for Transparency

Politico buries the most important lead, from a political perspective, to come out of the WikiLeads document dump:

Obama’s not fighting it.

Gibbs has said the disclosure has the “potential to be very harmful.” But he’s engaging on the merits, not trying to bury them. Compare this with the certain reaction of the Bush administration, had this dump happened on their watch. Bottom line: this is an administration with a more basic respect for what democracy means.

Regulation & the Search for Truth

Why do we have a First Amendment — and, particularly, the “freedom of speech” (whatever that means)? Because the Amendment is vague, thus permitting (and requiring) judges to consider policy when applying it, different answers to this basic question compel different legal results. If we conclude that the Amendment exists to vindicate freedom for its own sake, it’s hard to justify banning any speech, ever, unless it creates an extrinsic harm. Given that justification, no-one would doubt a legislature’s ability to ban child pornography, but that’s about where their authority would stop. Even the regulation of true subversive advocacy (“Let’s assassinate the President — now.”) becomes questionable.

If, on the other hand, we conclude, as Meiklejohn did, that the right to free speech is primarily justified by its instrumental value — namely, by freeing the people to speak their minds, we prevent the intellectual stagnation that characterizes theocracies and other restrictive cultures — the reach of the Amendment becomes a question of balance. This kind of rule would forbid the government from taking a stand on individual issues (no true censorship), but permit regulation of objectively harmful speech, and encourage the generation of rules that, while incidentally restricting speech, channel the public discourse towards productive goals.

The jurisprudence we have tends to approximate the former rule, at least in application. Consequentially we look very skeptically at any government participation in the “marketplace of ideas” — even when it would probably improve the quality of public discourse. For example, the confluence of Citizens United and the death of serious media ownership caps functionally obliterates whatever “intellectual antitrust” law we ever had. We no longer have any real safeguard against a single actor, or small set of actors, acquiring a monopoly on public thought.

There’s not inconsiderable evidence that we’re worse off for that, too. Narrow presentation of major political issues follows as a direct consequence of the narrow media options. The Obama administration can be forgiven, then, for thinking of ways to salvage the admitted public value of independent newspapers, and investigative journalism as a concept, but — and on this, Hot Air comes close to being right on something (ugh) — that’s all for naught if a valuable medium has to take government money to maintain its existence. Those and similar suggestions in a recent FTC working paper on the subject (pdf) will have to go. But others are worth considering — tax breaks to news organizations, for one, where balanced with a serious second look at market consolidation rules, could encourage new, independent, and competitive news entities, to counter the monopolistic and anti-intellectual power of media monoliths. This will mean making peace with the somewhat counterintuitive notion that government regulation over the processes of content production can, when done properly, validate capitalist values like competition, thus energizing the national discourse while undermining and de-necessitating actual government control over the substance of the media. After all, no-one actually wants content regulation.

For years we’ve convinced ourselves that a rigid formalism, opposing all government influence on the media, is the only way to prevent the main harm to be avoided by the First Amendment — the notion of enforceable orthodoxy, which simultaneously stagnates and restricts the intellectual culture that a democracy demands of its citizens. But if corporate monopolies can, de facto if not de iure, create the same harm by dominating content, it’s time to abandon that brightline and experiment. That may mean tolerating some mistakes along the way — so long as they’re made for the right reasons.

Free Speech, Coexistence, and “Everybody Draw Mohammed Day”

I support this self-congratulatory blogosphere holiday begrudgingly and therefore omit any drawing.

As someone who knows the history, and just how thoroughly Islam saved much of what we today call “The West,” while my erstwhile co-religionists were trying their hardest to destroy it, I bear the utmost respect for Islam. I am fully cognizant of  Islam’s independent value not just as a faith that’s won many adherents, but as a tradition without which the world would be a dimmer place. I don’t just “have Muslim friends,” in the Stephen Colbert sense; I have Muslim best friends, whom I love dearly, and miss, because they’re far away, and whom I’ve defended personally from those who held their faith against them. I believe in respect in debate to a fault, and honor and decency in all relations. Thus, the “South Park” notion that all taboos must be plumbed for comedic value, because offense is its own value, strikes me as wrong-headed, destructive, and juvenile — the kind of thing that most of us outgrew in, say, ninth grade (though I do enjoy “South Park” occassionally).

I hardly need add, too, that as someone who’s thought about the issue for more than a second, I can readily parse the difference between an idea taken to its extreme, violent end, and the idea itself. Fundamentalist Islam is not Islam, no more than Fred Phelps is Christianity; and, as a resident of the Financial District, living in the shadow of the Towers’ absence, when New York builds a mosque near Ground Zero, I’ll cheer its construction as a symbol of that vital understanding. Although some never will, I hope my countrymen eventually see it that way, too.

But.

To the extent that the injunction against drawing the Prophet applies even in the mainstream, it has to end. It’s possible and necessary to engage a faith positively, from a different perspective, and from one of respect, while not also participating in the faith. That’s all artists do when they draw Mohammed, and, like dancing in the company of a Baptist, that should be fine. If participation in a foreign faith is a prerequisite to interfaith dialogue, the dialogue is already lost, because at that point, respect is only flowing in one direction, and beneficial mutuality is thereby destroyed. Just so, when typing “Mohammed” or “the Prophet” in this post — or in the papers I wrote on Islam in college, e.g., — I do not and did not add “blessings and peace be upon his name” after every instance. Not out of disrespect, but because while Islam is a faith I care for, it’s not my faith.

Therefore I support those who would use today to draw Mohammed, but decline to do so myself, partly because I’m not convinced the actual act adds anything to the debate, and might detract from it, and because many who will set pen to paper over this will do so for the wrong reasons, perhaps to relish and feel superior to the outpouring of criticism. To the rest of you, good for you for taking a stand, but be cautious of the means to your end. Mainstream Islam is our ally, and where the method of opposing radical Islam risks pushing those allies away, we fail doubly.

In Animal Cruelty, a Bizarre Reaffirmation of Separation of Powers Doctrine

The Roberts Court just can’t help but make ridiculously unpopular decisions — most recently, overturning the conviction of a man jailed for violating a federal statute banning the depiction of animal cruelty. U.S. v. Stevens, No. 08-769 (Apr. 20, 2010) (pdf). Tragically, the decision is probably right — the right to criminalize conduct needn’t always include the right to ban its depiction. Child pornography is a noted exception to the rule, because the wrong (exploitation) merges with the depiction and resale of the content, but absent such a compelling reason, the argument is hard to make. Too bad, in this case, but here we are.

Still, despite the loathsome result, there’s a silver lining here for which we should actually be grateful. Stevens stands as a fairly ringing reaffirmation of one of the most vital First Amendment doctrines, and one that rarely wins conservative support: “overbreadth.” The notion here is simple: if a statute fails to give notice of the conduct it prohibits (“vagueness”), or in the process of banning “bad speech,” bans “good speech” (“overbreadth”), regardless of whether an individual defendant could be convicted under a properly drawn statute, the statute is unconstitutional, and the defendant goes free. It’s harsh medicine, yes, but for a good cause: judicial overreactions to overbreadth, and its cousin vagueness, ensure that legislatures draw statutes narrowly when attempting to circumscribe speech rights.

The doctrines also validate the separation of powers. Courts generally cure a confusing statute by issuing an authoritative limiting construction — i.e., “we assume the legislature meant this; ergo, in this and all future cases, that’s what we’ll say they meant.” This type of decision avoids the need to invalidate a statute, thus promoting efficiency, but risks upsetting carefully drawn compromises, and, therefore, risks grabbing the legislature’s power. When core rights are affected, then — like speech rights –judicial reconstruction becomes inappropriate, leaving the judiciary no choice but to return the bill to the legislature.

And, in the case of criminal statutes voided for vagueness, the judiciary effectively penalizes the legislature for attempting to improperly delegate its authority to peace officers (the executive branch). After all, what is a vague criminal statute, but an invitation for the police to issue their own authoritative construction on a case-by-case basis? Such a possibility ought to be troubling.

In the short term, the Stevens case is a defeat for the animal rights community. But the law isn’t a short game. Congress can repass the bill in such a way as to cure the defect and, more importantly, the next time the Roberts Court strains to give Congress a pass when limiting speech rights, they’ll have to surmount their own words.