E-Pluribus | March 20, 2024
Finally, police worth defunding; colleges can't keep their heads in the sand; and the case for government speech.
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Chris Stirewalt: Defund the Speech Police
"The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help," quipped Ronald Reagan in 1986. The Supreme Court is currently considering when government attempts to “help” actually amount to First Amendment violations. At The Dispatch, Chris Stirewalt is generally skeptical of government’s efforts to save the public from itself where speech is concerned.
The Supreme Court on Monday heard arguments in two separate cases, both related to the use of government power to influence political speech.
NRA v. Vullo involves a letter the New York Department of Financial Services sent to insurers in the state warning them against doing business with the National Rifle Association in the wake of the 2018 school shooting in Parkland, Florida. The NRA, not surprisingly, sued. Its lawyers argued that the state was interfering with the group’s ability to advocate for gun rights. Even NRA foes allow that New York’s move was “foolish.”
But the other, bigger case, Murthy v. Missouri, is tricky. At issue are the efforts made by the federal government during the COVID pandemic and the 2020 election and its aftermath to battle what officials believed to be false claims posted on social media.
It’s tricky because it’s sometimes hard to find the line between reasonable cooperation among government officials and the private-sector media to inform the public on pressing matters and “jawboning,” the use of direct or implied threats to manipulate speech. One is an extension of the same kind of work reporters and editors are always doing. The other is stealth censorship.
In the traditional media world, we would think of jawboning this way: If a government official notified a news organization of statements she or he believed to be false, no problem. If the official then said that such claims might trigger, say, an FCC license review, we’ve crossed over into “abridging the freedom of speech, or of the press.”
It’s notable here that the tricky Supreme Court case in question did not come from the social media companies that were perhaps jawboned into compliance, but from a pair of Republican attorneys general who say that their constituents were harmed by having their posts removed as a result of government pressure. Justices sounded unimpressed with the idea that state officials could sue the federal government for second-hand, maybe-maybe-not First Amendment violations that the media companies themselves are not suing over.
The same First Amendment keeps those same attorneys general from effectively suing the companies, since the platforms can’t be compelled to publish things they don’t want to publish. This, of course, infuriates many on the right who believe that social media platforms should be treated as public utilities, like telephone carriers, and not permitted to police the views offered thereon.
[. . .]
Misinformation and disinformation are very much like right-wing claims of bias. Some of it is very obvious, but much of it is subjective and contextual. Sorting that out is fine work for individuals to do. Same for publishers, news outlets, and social media platforms. But when we bring the government into the game, we are inviting terrible trouble.
It’s good for the government to put the facts out about Trump’s bogus election claims—to talk to the press, to make facts readily available to the public, to make use of social media. That is especially true at the state level where elections are actually administered.
But suppressing disinformation is not just problematic for free speech rights, it doesn’t work. What could make an idea or a claim more appealing to cranks and kooks than to hear that it was banned?
Read it all here.
Megan McArdle: Colleges are realizing they can’t ignore the truth, even if it hurts
“You can’t handle the truth!” Megan McArdle writes at The Washington Post of colleges and standardized tests. Actually, McArdle urges colleges to deal with the realities posed in evaluating students for admission despite the uncomfortable issues that may arise.
[A]cademic ability is unequally distributed. Some people are better at math, some people are better at English and some people aren’t terrific at either. And with that information [provided by standardized tests] came an even more painful fact: Many of those differences mirror other inequalities in our society, including the most pernicious ones. Very generally: Rich kids do better than poor kids. White and Asian kids do better than Black and Hispanic kids. On the math sections, boys perform better than girls.
Despite decades of attempts to narrow those gaps, they’ve stubbornly refused to close. Eventually, people decided that the problem was the tests themselves. A sizeable cottage industry sprung up to provide critics with dubious research supposedly showing that the tests don’t predict college performance very well.
[. . .]
If the pandemic gave grateful admissions offices the excuse they needed to go test-optional, the court’s gutting of affirmative action gave them every reason to stay that way — or ditch the tests entirely. After the decision was handed down in June, I heard a lot of surprisingly glum conservatives predict that it wouldn’t matter, because colleges would just keep practicing affirmative action under another name, and vanishing test requirements would make it hard to draw the direct comparisons among groups that could unmask what admissions offices were doing.
But MIT bucked the trend in 2022 by announcing its return to mandatory testing. Last month, Dartmouth followed suit, becoming the first Ivy League school to do so. Yale and Brown soon followed. On Monday, the University of Texas at Austin became the latest to join the parade. . .
[. . .]
We can’t know whether this is exactly what other schools were seeing, but we can suspect. And if we’re honest, everyone should have suspected it even before we got this data. The SAT is not a measurement of innate human value, but it is a measurement of whether a person can do the kinds of things people have to do in college courses, from performing basic mathematical operations to quickly gleaning meaning from written passages. It would be shocking if results on this test weren’t correlated with college performance.
It’s a major problem that, as things stand, the acquisition of those skills is also correlated with factors such as race and parental wealth. But we cannot fix that problem by simply throwing away the messages that reality is sending us.
Read it all.
Jennifer Jones: Free-speech cases shouldn’t neuter critical power of the government’s voice
As in our first item above (Chris Stirewalt at The Dispatch), Jennifer Jones writes for CNN about the current cases before the Supreme Court dealing with free speech. Jones, however, is inclined to give the government more leeway in responding to potentially harmful information to protect the public without violating First Amendment principles.
On Monday, the Supreme Court heard arguments in two free-speech cases that could have broad implications for the way the government participates in public discourse. Both cases involve private parties who claim that the government violated the First Amendment by coercing others to censor their speech. And both cases involve government officials who claim that they have a right to attempt to sway public opinion through their own speech.
What’s hard about these cases is that both sides have merit. The First Amendment forbids the government from coercing others to engage in censorship on its behalf, but it permits the government to urge action and participate in public debate, even vigorously. The second half of this equation has been understated in the discussion of these two cases, but if the Supreme Court fails to account for it our democracy could suffer.
[. . .]
In 1963, when the Supreme Court decided the case that made clear that the government may not coerce intermediaries (like the platforms) into censoring speech, it also made clear that the government can advise private parties and the public of the government’s views. Lower courts have since drawn a line between coercion (which is unconstitutional) and advice or persuasion (which is constitutional). That line is a crucial one, because it recognizes the right of the public to hear from their government and it recognizes that, to govern, officials must have the ability to attempt to sway public opinion through persuasion.
[. . .]
Whether or not you agree with the [Biden] administration’s views on these questions, they were plainly efforts at persuasion, not coercion. In Vullo, the NRA points to New York officials’ public condemnation of the group as part of a coercive campaign targeting its speech. While the NRA is right that Vullo can’t coerce others into silencing the NRA’s speech, public officials are free to condemn the NRA and even to urge others to dissociate from it.
Fortunately, the line of questioning during Monday’s hearing suggests that the Supreme Court is sensitive to the importance of the government being able to express its views to private parties and persuade them to act. A number of justices asked questions that indicate they understand the value of government communications with private actors. In some instances, they reasoned, the government may have exclusive access to valuable information. In others, the government may have a strong interest in preventing harm and protecting public health and safety.
It’s important, then, that in allowing these suits to go forward the Supreme Court reaffirms the important role of the government in being allowed to advocate for its views.
Read the whole thing.
Around Twitter (X)
Reason’s Emma Camp responds to a New York Times essay we featured yesterday about making journalism school free:
Here’s former Harvard President Larry Summers (via Steve McGuire) with a telling observation:
And finally, Canada’s Jeffrey Sachs seems less than bowled over by Jacobin Magazine’s plan for rescuing journalism: