Free speech

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.

The Court as a Political Actor

When Obama criticized the Supreme Court’s holding in Citizens United, and the Supreme Court per Alito audibly responded, conservatives and liberals alike reacted with horror, albeit to different parts of the story. For we liberals, it’s terrible and a breach of decorum for Alito to talk back to the President; for conservatives, it’s terrible that Obama lit into the Court in the first place.

We’re both wrong. Well, we, liberals are actually right, but our simple case doesn’t present the whole story. Alito’s outburst was a breach of decorum, sure, but one he was privileged to make if we were wrong in the first place. So let’s get to that question.

Chief Justice Roberts, again speaking yesterday, regards it as impolitic for Obama to even address the Court in his speech. That surely overstates the case.  It would be wrong for Obama to attack individual Justices, or at least tacky, but the Supreme Court is a coordinate and equal branch of government, with a significant but not absolute role in the making of substantive law. The President can properly build an agenda, and Congress can properly legislate, to abrogate Supreme Court decisions or limit their effects. The Court is not a proxy for the Constitution; as the years since Roe should have proved, a constitutional holding is the beginning, not the end, of a dialogue about the document’s meaning. Presidents are entitled to input on that question, especially when that input is phrased not as an attack on the Court’s legal reasoning, but as clear concern for the holding’s effects. This, in fact, is exactly the path Obama charted:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

Roberts’ counterargument must rest on the theory that the Supreme Court is an utterly neutral body, immune and oblivious to politics, and simply engaged in a dialectic on the Platonic meaning of The Constitution, of which they are the sole arbiters.

This is a polite fiction that we occasionally tolerate, but in which we’ve never truly believed. Since the birth of the strong Supreme Court, it has been a political body. Marbury v. Madison emerged from an acknowledged political staredown between the Court and newly-elected President Jefferson, and it was the Court, not Jefferson, that performed Kruschev’s miracle: it blinked, while appearing not to. Since then, men we call heroes have taken it upon themselves to question the Court, and wound up on the right side of history for it. Lincoln campaigned against Scott v. Sanford and secured its reversal by war; Roosevelt came the closest to true impropriety by threatening the Court not with legislative reversal, but with irrelevance through dilution.

And, lest we forget, the modern conservative movement was built on attacking judicial power. Virulently. First for Brown, then for Roe (see, e.g., right), then for the principle of their existence (“activist judges!”). Conservatives can’t — or shouldn’t be allowed to — have it both ways, raising the Court’s mystique and grandeur as a defense only when it suits them.

Roberts is right to the extent that it’s better for our political culture if politicians do treat the Court’s reasoning as inviolate, even as they freely question their policy. After all, policy is not their core competency. But that’s not a commandment Obama broke, especially considering the profound policy implications, and blatant policy motivations, behind the Roberts Court’s entire campaign finance jurisprudence.* If Roberts is troubled by controversy, well, to paraphrase his most famous dicta to date, the easiest way to avoid being criticized for questionable decisions is to stop issuing questionable decisions.

* = As a favorite professor of mine says, there are two ways to read FEC v. Wisconsin Right to Life — either Roberts knows something we don’t, and doesn’t say it, or he’s making things up.

Something Controversial

Common readers of this site will know all too well that I’m a fierce partisan for the cause of gay equality — and that I don’t have a lot of patience for those who couch their arguments to the contrary in simple animus.

That makes it fairly hard to say what I’m about to say. Yesterday, the Supreme Court elected to hear oral arguments in Snyder v. Phelps (yes, that Phelps), which presents the case of whether Fred Phelps’ outrageously offensive picketing of soldiers’ funerals (“God Hates Fags”; “God Hates Soldiers”; “Thank God for IEDs”) can, of its own force, constitute intentional infliction of emotional distress, or an invasion of privacy. The district court found in the affirmative; the Fourth Circuit reversed.

The circuit court is probably right.

There’re a lot of reasons why, and they’re better treated elsewhere. Basically, the First Amendment is a fierce creature that makes no apology for sacrificing quality in favor of quantity of dialogue. Sometimes that’s a good idea, even if it breaks down in the context of modern media, but combined with this country’s almost insurmountably high standard for privacy torts (libel/slander/invasion of privacy), and a general presumption against intentional infliction of emotional distress claims, the family of Lance Corporal Matthew Snyder are set to lose on the law what they’d win under any moral rubric. Their son died in service of his country; at the least, he deserves from us a respectful service. But this is the price the First Amendment exacts.

Interestingly, in another context, there’s ample room for the opposite conclusion. It’s not immediately clear that a law or a district court injunction restricting political activity at a cemetery, while it’s being used for a memorial service, would be invalid for unduly burdening the right to free speech. The case for our side is stronger if it’s a public cemetery, but it works in the private context too. In Grayned v. City of Rockford, 408 U.S. 104 (1972), the Supreme Court upheld regulations limiting noise near schools, on the theory that the noise affects the government’s interest in the related building; similarly, “reasonable time, place, and manner” restrictions on picketing in front of residences are constitutional to protect the inhabitant’s privacy and interest in having a home. See Frisby v. Shultz, 487 U.S. 474 (1988).

Not surprisingly, this comes up a lot in the context of abortion protesters, because those types are about one step removed from Fred Phelps as it stands. Truly, there’s a commonality between them — preying on the emotionally vulnerable with viscerally offensive images to express disapproval of a decision they have no interest in — that can’t be ignored. Anyways, the Supreme Court has repeatedly approved of “buffer zones” around individual women, and around the premises of family planning clinics, where otherwise protected speech acts are forbidden.  See Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) and Hill v. Colorado, 530 U.S. 703 (2000). The key is that where private speech, even political speech, crosses the line to personal abuse, the legislatures and the federal courts ought not be powerless to protect the blameless citizens, by law or by injunction.

This leads inexorably to the horrifying conclusion that Lance Corporal Snyder’s family should’ve had the presence of mind to file for an injunction against Phelps… before grieving for their fallen son.

That’s a goddamn tragedy. I don’t care what your politics are — the conclusion would be the same if the culprits were antiwar protesters, or anything else for that matter — at the point where a family can’t say goodbye to their son in private, something has gone wrong in this country. Someone should write a bill, and I dare the Supreme Court to strike it down. * Continue reading »