Category: Politics & Current Events

83

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies

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American journalists and pundits rely upon vigorous free speech, but are not reliable supporters of it. They both instruct and reflect their fickle audience.

It's easy to spot overt calls for censorship from the commentariat. Those have become more common in the wake of both tumultuous events (like the violence questionably attributed to the "Innocence of Muslims" video, or Pamela Geller's "Draw Muhammad" contest) and mundane ones (like fraternity brothers recorded indulging in racist chants).

But it's harder to detect the subtle pro-censorship assumptions and rhetorical devices that permeate media coverage of free speech controversies. In discussing our First Amendment rights, the media routinely begs the question — it adopts stock phrases and concepts that presume that censorship is desirable or constitutional, and then tries to pass the result off as neutral analysis. This promotes civic ignorance and empowers deliberate censors.

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?

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46

Ville de Granby Takes The Lead In Protecting Endangered Official Feels

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[AP: Ville de Granby, Québec, Canada] Shouting their slogan Je suis important, vous ne pouvez pas irriter mon cul délicate, public employees celebrated a legal victory over internet abuse this week in Granby, a town in southern Quebec.

That victory came when the Granby municipal council unanimously passed an amendment to expand Article 17 of the municipal code. For years that code has forbidden the populace to "provoke, insult, revile, blaspheme or harass" police officers or municipal employees in the course of their duties. Last week's amended explicitly expanded the ban to prohibit insults online or in social media.

"This measure patches a gaping hole in our protection," said Robert Riel, deputy mayor of Granby. "People felt free to insult public employees online. Now they know they can't." Riel — occasionally pausing to collect himself — described how his ability to do his job had been ruthlessly disrupted by citizens criticizing his competence, his policy choices, and his 2010 arrest for attempting sexual intercourse with an award-winning snowman in Granby's public square during the town's Winterlude festival.

"That snowperson was extremely realistic and provocative," Riel added. "But my feelings are just as real."

Though it had strong support from elected officials, local police were the driving force behind the recent amendment. For two years, Granby law enforcement has been the target of relentless criticism, questioning, and even satire by the Facebook group Les policiers zélé de Granby, without any regarding to their rights as public officials and Canadians to be protected from offense. Some of the unflattering commentary was not even in French. Marco Beauregard, directeur of the department, recounted the toll that insults have taken. "My officers are out there ever day, putting themselves on the line," he said. "I owe it to them, and to their families, to do everything I can to make sure they come home at the end of the shift with their feelings intact."

Officers have reported being upset, disquieted, and even hurt by social media comments. "How can a public officer do his or her job," Beauregard demanded, "when people feel free to question the way they do it — and even to mock them? What makes them think they can talk about whatever they want?"

"My journey of improvement on anger-management issues is not an appropriate topic of public conversation, especially after last September," argued Beauregard, referencing an incident that led to the partial destruction of a traffic barrier, two police cars and the lobby of a local Tim Hortons.

"Being Canadian means standing up for your rights," said municipal council member M. Pascal Bonin. "That's all we are doing — using our authority to stand up for our right not to be insulted. It's a fundamental right, and it shouldn't yield to anything."

Bonin himself has been the target of rude jokes regarding his name, despite his repeated and patient explanations that it is pronounced Bon – eeen. "If citizens can say what they want about civic employees, you're going to see the whole culture of public life change," he said. "Before you know it, the only sort of people who will run for office or take a public job are the hardened sort that can just shrug off criticism as part of their job, or who think that they are only there to serve the public."

"And what would that look like," Bonin asked, shuddering.

57

Two Stories About The Criminal Justice System And Consequences

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Dateline, Washington D.C.: The Drug Enforcement Administration, pressed by Congress for answers about its treatment of Andrew Chong, has no answers to give.

I wrote about Andrew Chong before. He's the young man the DEA arrested in San Diego when they caught him smoking dope at a friend's house during a raid. DEA agents handcuffed him, locked him into a room, and left him there five days without food or water. He drank his own urine, eventually attempted suicide, and was close to death when he was discovered. He suffers from post traumatic stress disorder, not surprisingly. DEA agents claimed that he was left there through an oversight and that nobody could hear him shouting for help. An investigation determined that you could very clearly hear someone shouting for help from that room.

The consequences? Four written reprimands, a five-day suspension, and a seven-day suspension.

If I seize someone, handcuff them, lock them in a room, and leave them to die, I will suffer severe consequences. I will lose my job, especially if I acted while performing my duties. I will go to jail. I will suffer catastrophic personal financial losses. My name will be broadcast far and wide.

That's the difference between me and a federal employee.

The DEA agents who arrested Andrew Chong for smoking dope and left him to die got reprimands or suspensions that were shorter than my last tension headache. You and I — the taxpayers — paid Andrew Chong the $4.1 million settlement he secured; the agents did not. They are not named in any of the articles about the incident. They will not go to jail. They will not lose their jobs.

Free of significant consequence, they will continue to exercise their armed authority to inflict consequences on other people who break the law.

Dateline, Texas:

In 2013, Judge Susan Criss presided over the trial of Alisha Marie Drake, who stood accused of the horrific crime of videotaping the rape of a 14-month-old child. During jury selection, a Jehovah's Witness in the jury pool told Judge Criss that he would not view child pornography and that his religion did not allow him to judge others (an issue familiar to anyone who has ever encountered a Jehovah's Witness in a jury pool). Judge Criss berated the juror and belittled his religious beliefs:

So if it grosses you out, then you can take it out on the person in punishment because it can’t possibly gross you out more than it grossed out that child. So that’s what my God tells me.

Eventually Judge Criss ordered the prospective juror arrested:

Juror No. 48: Your Honor, I’m one of Jehovah’s Witnesses and I believe that Jehovah God is a Supreme Judge and it is not in my place to judge anyone else or to have, for that matter, for them to be – –

The Court: All right. I understand that. We have Jehovah’s Witnesses all the time. But you know what? If you get picked on this jury, you get picked on this jury, and Jehovah can visit you in the jail.

Juror No. 48: Okay. Then – –

The Court: Have a seat, sir.

Juror No. 48: I guess they have to visit me.

The Court: All right. Arrest him. Take him into custody. Take him into custody right now. I’m not playing. See you later.

Judge Criss later explained to the thoroughly cowed jury pool that her experience as a sex crimes prosecutor — which she related in detail — taught her it was difficult to find willing jurors in sex crimes cases, and that she would not be excusing people. "And I'm not playing, and I don't care if anybody likes it or not."

Yesterday the Court of Appeals overturned the conviction. Even though Drake's appointed attorney did not bother to object to Judge Criss' actions, the court found that her comments about the case improperly conveyed her opinion of Drake's guilt, and that her arrest of the prospective juror deprived Drake of an impartial jury by intimidating jurors from confessing possible biases.

But the public opinion by the Court of Appeals did not name Judge Susan Criss. That's a matter of tradition and professional courtesy. You'd have to figure out her name by Googling the case, or by getting it from court records or from someone who knows.

Susan Criss is now in private practice, although she enjoys a public life commenting on her past cases. Criss is defiant about her actions in the Drake case. She won't face any State Bar proceeding. She won't face any consequences at all for her conduct.

These stories are not the exception. They are the rule. The rule is this: citizens generally face consequences for breaking the law and violating the rights of others, but those with the power to administer those laws and impose those consequences rarely face any themselves.

That's the justice system.

72

"Safe Spaces" And The Mote In America's Eye

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My three kids are sarcastic and irreverent. This isn't a shock to anyone who knows me. Their mouthiness can be irritating, but usually I manage to remember that I don't set much of an example of rhetorical decorum.

Maybe I should start giving the same consideration to other people's kids.

For some time I've been mean to university students who feel entitled to a "safe space" — by which they seem to mean a space where they are insulated from ideas they don't like.

I call these young people out for valuing illusory and subjective safety over liberty. I accuse them of accepting that speech is "harmful" without logic or proof. I mock them for not grasping that universities are supposed to be places of open inquiry. I condemn them for not being critical about the difference between nasty speech and nasty actions, and for thinking they have a right not to be offended. I belittle them for abandoning fundamental American values.

But recently a question occurred to me: where, exactly, do I think these young people should have learned the values that I expect them to uphold?

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19

Why Are Nevada State Senators Trying To Eviscerate The State's Anti-SLAPP Statute?

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In 2013 Nevada passed the strongest anti-SLAPP statutes in the United States. This statute was muscular. Not only did it cover a wide array of speech, and require substantial proof of the potential validity of a claim, it had frills like a potential $10,000 penalty on top of attorney fees for SLAPPers and a private cause of action so targets of SLAPP suits could sue their tormentors. My friend and colleague Marc Randazza, First Amendment badass, helped frame it, which is why it was so strong. It's already proven effective in Nevada's courts. It's an excellent tool to protect free speech from meritless lawsuits.

So who in the Nevada Senate Judiciary Committee is trying to kill it, and why?

The Nevada Senate Judiciary Committee proposed Senate Bill 444, and the senate just voted unanimously to approve it. Now it's up to the Assembly, and the Governor. I hope they stop it, because it's a complete disaster. Senate Bill 444 takes Nevada's superior anti-SLAPP statute and renders it very substantially less effective:

  • The statute previously applied to the broadest possible array of speech, meaning it could be used to defend all sorts of defamation (and other speech-targeted) claims on matters of public interest.  SB 444 narrows the protection to speech on an "issue of public concern," meaning "any topic that concerns not only the speaker and the speaker's audience, but the general public, and is not merely a subject of curiosity or general interest."  If you have no idea what that actually means, you're not alone.  There's a real danger it will deprive defendants of anti-SLAPP protection when they've written about some relatively obscure hobby or issue or concern.  There's also a danger that it will be used to exclude consumer reviews on Yelp and similar sites from the protection of the statute.
  • SB 444 dramatically changes the deadlines for an anti-SLAPP motion.  The existing law — as in most states — allows a motion within 60 days of service of the SLAPP suit.  SB 444 reduces that to 20 days — a very short period to find a lawyer and have that lawyer brief a potentially complex issue.
  • Under the existing statute, if a defendant shows that a lawsuit is aimed at speech covered by the statute, the burden shifts to the plaintiff to establish that they can prevail on the claim by submitting evidence.  Though the statute refers to "clear and convincing" evidence, cases have interpreted it to mean only specific and non-speculative evidence.   SB 444 changes the language, requiring the plaintiff to make only a "prima facie case."  To non-lawyers, that means simply offering any evidence which, if accepted at face value, could support a claim.  It's not clear how the Nevada courts will interpret the meaning of that change, and how a plaintiff's burden will be reduced.  Moreover, SB 444 specifically excuses the plaintiff from offering any evidence of "subjective intent or knowledge of the defendant."  In other words, the plaintiff doesn't have to have any evidence suggesting that the defendant knew or should have known a statement was false.  This dramatically reduces the plaintiff's burden in opposing an anti-SLAPP motion.
  • Under existing law, a prevailing defendant is entitled to fees.  If the motion is denied, the plaintiff is entitled to fees if the court finds that the motion is frivolous or vexatious.  SB 444 changes that to require a fee award to a plaintiff who defeats an anti-SLAPP motion if the court finds that the motion was filed "in bad faith" or without "reasonable basis."  That inquiry is much cloudier and unpredictable than an inquiry into frivolousness, and will deter defendants from filing close-call motions.
  •   SB 444 eliminates the court's ability to award up to $10,000 penalty on top of attorney fees, and eliminates the cause of action against someone who files a SLAPP suit.  That substantially reduces the deterrent effect of the statute.

If you were a lawyer representing defamation plaintiffs — from businesses suing Yelp reviewers to aggrieved subjects of social criticism — this would be the bill you'd draft to undermine Nevada's anti-SLAPP statute. Is that what happened? Which specific Nevada State Senator introduced the bill, and whose water was that senator carrying? Why are the senators trying to reduce free speech protections so dramatically in Nevada?

I don't know. But if anyone knows Nevada politics and politicians, I'd like to find out, so I can write about it. If you care about effective anti-SLAPP statutes, you might write to Nevada State Senators asking why they killed the anti-SLAPP statute, or write to the Assembly members asking them to stop it.

81

Garry Trudeau Punches Down

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Last week cartoonist Garry Trudeau received the George Polk award for journalism. It's an award named in memory of a journalist murdered while covering a war. Trudeau used the opportunity to say that while murdering journalists is sub-optimal, journalists need to rethink offending people:

What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism.

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40

DEA Orchestrates Disinformation Campaign To Conceal Surveillance Powers

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In Neal Stephenson's brilliant Cryptonomicon, a protagonist works for a shadowy Allied unit called "Detachment 2702." Detachment 2702 creates elaborate fake evidence to offer explanations of how the Allies learned of German movements, thus concealing that the Allies had cracked the Enigma code. Though fictional, the Detachment is based on actual World War II tactics. The Allies did things like send spotter planes to places they knew German ships would be to fortuitously "spot" them, and reportedly sent a fake radio message of congratulations to a non-existent spy to suggest a source for other intelligence.

You expect the government to use secret surveillance and disinformation campaigns against a wartime enemy. You probably don't expect the government to use secret surveillance and disinformation campaigns in court against its own citizens.

You should.

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123

Ten Short Rants About #PizzaMemories

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This is the second in a new series, Ten Short Rants.

Memories Pizza, a modest shop in a small town in Indiana, has experienced a reversal of fortune. Plucked from obscurity, it became a symbol of intolerance: to some, a symbol of anti-gay intolerance, to others, a symbol of religious or viewpoint intolerance. Then, after death threats and a barrage of fake orders and denunciations, it closed down, and then got ludicrously rich.

You already have a strong viewpoint, most likely. So do I.

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39

Nobody, Including Tom Cotton, Knows What Tom Cotton Is Saying About "Corruption of the Blood"

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Senator Tom Cotton (R-AR) is in the news this month. For reasons that passeth understanding he's been offered up as a spokesperson for the 47 Republicans who wrote a letter to Iran.1 Today I noticed a number of links to 2013 reports asserting that Sen. Tom Cotton offered an amendment to a bill that would allow imprisonment without due process of the relatives of the targets or Iranian sanctions. The Huffington Post's Zach Carter may be Patient Zero on this idea:

WASHINGTON — Rep. Tom Cotton (R-Ark.) on Wednesday offered legislative language that would "automatically" punish family members of people who violate U.S. sanctions against Iran, levying sentences of up to 20 years in prison.

. . .

Article III of the Constitution explicitly bans Congress from punishing treason based on "corruption of blood" — meaning that relatives of those convicted of treason cannot be punished based only on a familial tie.

That story is getting more play this week because of the controversy over the Republicans' Iran letter, and the phrase "corruption of the blood" is on many a lip.

The proposed language, as described, struck me as an unusual thing for a Senator to do, even if the Senator graduated from Harvard Law School and therefore is not entirely responsible for his actions. Is this real? Or is this another case of journalistic malpractice on legal matters?2

The answer appears to be that nobody in this story understands what's being talked about.

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85

The Upward Surge of Mankind

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Well, ladies and gentlemen, we're not here to indulge in fantasy, but in political and economic reality. America, America has become a second-rate power. Its trade deficit and its fiscal deficit are at nightmare proportions. Now, in the days of the Founders, there was accountability to the citizen. The Jeffersons, the Washingtons, the men that built this great republic, made sure of it because it was their own liberty at stake. Today, politicians has no stake in the nation!

All together, these men and women sitting up here represent less than 0.0000001 percent of the country.

You own the country. That's right — you, the citizen.

And you are all being royally screwed over by these, these bureaucrats, with their steak lunches, their hunting and fishing trips, their private jets and golden parachutes.

The United States has 33 different agency heads, each earning over two hundred thousand dollars a year. Now, I have spent the last two months analyzing what all these guys do, and I still can't figure it out. One thing I do know is that our country lost one hundred and ten billion dollars last year, and I'll bet that half of that was spent in all the paperwork going back and forth between all these agency heads. The new law of evolution in American seems to be survival of the unfittest. Well, in my book you either do it right or you get eliminated.

I am not a destroyer of countries. I am a liberator of them!

The point is, ladies and gentleman, that revolution — for lack of a better word — is good.

Revolution is right.

Revolution works.

Revolution clarifies, cuts through, and captures the essence of the evolutionary spirit.

Revolution, in all of its forms — revolution for liberty, for money, for love, knowledge — has marked the upward surge of mankind.

And revolution — you mark my words — will save the malfunctioning nation called the U̶n̶i̶t̶e̶d̶ States of America.

Thank you very much.

(with apologies to Gordon Gecko)