E-Pluribus | May 1, 2024
When "mostly" isn't; where Europe really stands on free speech; and even bad speech should be free.
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Chris Stirewalt: A ‘Mostly’ Misleading Partisan Press
Media critics often accuse news organizations of trying to get certain candidates elected. Chris Stirewalt at The Dispatch says the media is really after bigger audiences. But, he argues, Republicans and Democrats alike must realize that telling people what they want to hear instead of the truth is a dead end.
Partisan news outlets aren’t partisan in the sense that they are trying to help their preferred party win. They are partisan in the sense that they seek to, ahem, seize the viewers, listeners, or readers of one side. To get a partisan audience, an outlet not only has to tell its members what they want to hear, it has to keep telling them. This crowds out unhappy or inconvenient stories which might make partisans more open to circumspection and moderation. If you exist in an alternate reality, you will not be much interested in pragmatic considerations.
Right-wing news organizations didn’t and don’t parrot Trump conspiracy theories to help Trump or Republicans. They do so to get a piece of Trump’s audience for themselves.
Imagine that you heard on your most trusted news outlet that Hot Pockets are the cornerstone of a nutritious diet, and that the only people who criticize Hot Pockets are lying to try to advance the nefarious schemes of the produce industry. What would you say when your friend at work suggests fresh salads for the office lunch? Have fun serving up a tray full of Buffalo Blasted Crust at the client meeting.
What’s happening now with anti-Israel protests across the country should feel very familiar to Democrats. In the summer of 2020, the partisan press served up mountains of Hot Pockets about “peaceful” protests and denounced “claims by some that protests associated with the Black Lives Matter movement are spawning violence and destruction of property.”
A report that 93 percent of the racial justice protests were “peaceful and nondestructive” was held up as not just proof that violence was limited, but that complaints about the chaos of that summer were illegitimate. The protests were mostly peaceful, ergo, people who say otherwise are either lying or misinformed, ergo, we do not need to change.
A lot of bad things are mostly good. Like the guy who fell off the roof of the Empire State building said halfway down, “So far, so good.”
Encouraging Democrats to believe that the pavement wasn’t down there in 2020 almost cost Joe Biden the election. Progressive voters became so enchanted with the idea of a massive reordering of the criminal justice system that they were very willing to ignore the obvious political consequences of that kind of happy talk, and became receptive to truly preposterous ideas. Indeed, had Trump been less of a bumbler when it came to his response to the unrest, anxieties over the summer uprisings might have been sufficient to win him a second term. And this time around, he’s not being judged for his response. That’s all on Biden.
Democrats are in for a bad time this summer at their Chicago convention, but it will be appealing for rank-and-file members of the party to believe what the partisan media tells them about the pro-Palestinian protests. And that will only make things worse.
Read the whole thing.
Jacob Mchangama: Should Free Speech Pessimists Look to Europe?
The grass is always greener on the other side of the fence, the old saying goes. Is free speech on the other side of the Atlantic really greener as some in this country seem to think? Jacob Mchangama has a reality check at Reason.
"Free Speech Is Killing Us," read a 2019 op-ed in The New York Times. Recently, an article in The New York Times Magazine concluded, "It's time to ask whether the American way of protecting free speech is actually keeping us free." George Washington University Law School professor Mary Anne Franks has written two books arguing that the First Amendment is "deadly" and "eroding our democracy."
This First Amendment rejection is often combined with envious praise for European-style speech regulations—rules seen as mature democracies taking proactive steps to shield themselves from the deluge of hate speech and disinformation that is a consequence of the unchecked right to free speech.
The allure of European regulation is understandable—they claim to protect democracies from the supposed harms of unregulated speech. After all, who can look at the world of the past decade or so and claim that free speech does not entail serious risks and even occasional harm?
However, this narrative overlooks the critical freedoms that American free speech protections provide. Furthermore, this pessimism is particularly dangerous at a time when the federal government is banning major platforms like TikTok, states are cracking down on pro-Palestinian protests, and online platforms are being forced to comply with vague hate speech laws.
[. . .]
Consider this hypothetical: A Republican-controlled Congress passes a set of laws to "strengthen the respect of republican values," permitting the federal government to issue decrees that designate and ban "extremist groups." Immediately, Congress bans Antifa and other far-left groups, arresting several members.
That may seem impossible to Americans, but in 2021, France's National Assembly passed a law aimed at reinforcing respect for "republican values" and combatting radical Islamic groups. However, this law was also used against more than 30 groups, including a collective of environmental activists.
Under a European framework, the next Biden administration wouldn't have to "jawbone" Big Tech to fight misinformation. Congress could simply pass a law that blocks online content deemed false or misleading and blacklists adversarial state-sponsored media outlets.
That sounds rife for abuses of power, but again, Europe led the way. In 2018, France implemented a law to combat the "manipulation of information," empowering courts to block false or misleading statements during election periods. Similarly, in 2022, the European Union suspended the broadcasting licenses of Russia Today and Sputnik. It also mandated that social media companies and search engines stop users from sharing broadcasts from these outlets in all 27 member states.
In this alternate America, states like California could go further in holding platforms legally accountable for user-generated hate speech while prosecuting residents with views deemed offensive on race, immigration, gender identity, or religion.
This is not a far-fetched dystopia. The 2017 German NetzDG law ordered social networks with over 2 million users to remove manifestly illegal content within 24 hours or face fines of up to 50 million euros. Predictably, a satirical magazine was one of the first casualties of the law.
Read it all.
Nathan Goetting: January 6 and America’s Slippery Slope on Free Speech
While January 6th is a very polarizing issue (as almost everything Trump-related is), Nathan Goetting at Discourse Magazine says that regardless of your feelings about Trump, free speech you find reprehensible is still free speech.
In Trump v. Anderson, decided last month, the U.S. Supreme Court ruled that only Congress, not the states, can enforce the provision of the Constitution that disqualifies oath-breaking insurrectionists from holding federal office. By doing so, the court overturned a Colorado Supreme Court decision that found that Donald Trump had incited an insurrection on Jan. 6, 2021, and could not appear on Colorado’s 2024 presidential ballot. The short-term political takeaway from the U.S. Supreme Court’s decision is that Trump’s chances of winning the presidency have gone up because he’s now likely to appear on every state’s ballot.
However, the court chose not to correct the Colorado Supreme Court’s determination that the First Amendment didn’t protect Trump’s Jan. 6 speech to supporters prior to the riot at the U.S. Capitol. The decision leaves us to wonder how committed the high court is to protecting our right to speak freely and publicly on the last election, the upcoming one or any other political issue.
If elected, our nation will likely survive another Trump administration. It will not survive, at least as we know it, if the constricted version of the First Amendment that the Colorado Supreme Court gave to Coloradans in this case—and that the highest court in our land chose not to repudiate—is nationalized.
[. . .]
If the ravings of a Klansman were protected by the First Amendment, Trump’s Jan. 6 speech is as well. The Justice Department, which has never been shy about targeting Trump, seems to be aware of this. While filing dozens of other criminal charges in Washington, D.C., and Florida, federal prosecutors have chosen not to indict Trump for inciting criminal conduct of any kind, let alone an insurrection.
However, state courts like Colorado’s are friendly forums for Trump’s political opponents. The procedural rights of the accused are weaker, and the accuser only needs to prove his charge to a preponderance of the evidence (or “more likely than not”) standard. By contrast, indicting Trump would have vested him with the full panoply of constitutional rights afforded criminal defendants and required prosecutors to prove that he intended to incite an insurrection beyond a reasonable doubt.
And that would have been only the beginning. If convicted, the case likely would have been reviewed multiple times by federal appellate courts comprised of unelected (and presumably less politicized) judges with lifetime appointments, duty-bound to apply the Brandenburg rule. Prosecutors knew they didn’t have a chance, so they didn’t bother to try.
Read it all here.
Around Twitter (X)
Here’s the Washington Post’s Megan McArdle with some thoughts on the trajectory of the current campus protests:"
Steve McGuire questions the sincerity and commitment of some Princeton faculty members regarding the occupation of a building on campus:
And finally, Zach Kessel reports on the consequences for protest encampment organizers at Northwestern University. That’ll teach ‘em!