On Free Speech, the First Amendment, Facebook and Twitter, etc.

There is a conflation that often occurs in free speech discussions, i.e., legal free speech protection vs. the value of free speech in general. This is central to the recent discussions of the rights and obligations of social media platforms like Twitter, reddit, youtube and Facebook to police the speech of those participating on the platform.

Let's start by noting that the first amendment (1A) does not compel these platforms to publish anything. These are private companies. The 1A protects a citizen's right to make statements and hold opinions, it does not compel any other entities to use their resources to support such statements. If anything, the 1A simply protects these companies from being compelled to support such statements on their sites.

Nonetheless, insofar as these platforms have become the de facto public square, people should be concerned about the extent to which such platforms police speech. The arguments for the importance and utility of the 1A for a thriving democracy apply to some extent to these major internet platforms. If a free and open exchange of ideas is important in the public square, there is some value to ensuring that a free and open exchange of ideas can occur in what has become the central place in which ideas can be exchanged. Furthermore, there is a legitimate concern in insisting or allowing that agents at a major company become the actual arbiters of what one can legitimately say in the public square.  This is not because the 1A compels them to allow any and all speech, but because we think that open exchange of ideas is useful and/or because we do not want people policing central speech platforms to be driven by obligations to shareholders rather than general democratic obligations.

These issues become conflated. So it is worth underscoring that appeals to free speech on social media platforms are not refuted by the simple observation that the 1A does not apply to them. One may want to minimize the policing of speech on social media platforms without believing or assuming that the 1A compels us to do so.

The simplest solution is to simply dig in our heels and argue that whatever is protected by the 1A should be allowed on these major platforms. But this does not work very well in practice for one simple reason, internet anonymity. Anonymity results in people making statements not necessarily because they believe they are true and stand behind them, but for a whole range of other reasons, personal vendettas, the thrill of generating a reaction, boredom or whatever. The reasons for supporting free speech don't clearly apply to anonymous speech. We support free speech, presumably, because we see value in keeping the parameters of discussion open so that we don't shut out useful and important ideas. But preserving anonymity does little to encourage the open exchange of ideas, it degrades discussion into personal attacks and outrageous unsupportable claims, most of which do almost nothing to keeping the parameters of discussion open and are more than likely actually antithetical to realizing this.

However, even setting anonymity aside, I do not think that these private companies should be compelled to allow all speech protected by the first amendment. It is fairly clear that blatant hate speech and utterly false claims are not useful contributions in the free and open exchange of ideas even if making them fully illegal is impractical or otherwise undesirable.  I suspect there are some things we can do to protect robust speech on these platforms without simply entrusting to Facebook the difficult task of dictating what people can legitimately say, a few guiding principles:

• Make the guidelines for legitimate speech on any platform clear and ensure they are consistently applied. If hate speech is illegal, all hate speech is illegal and articulate clear examples of what counts as hate speech, including a full range of edge cases. Publicize these, make it clear to people what kinds of speech they will not be hearing or articulating on the platform.
• Have independent arbiters make the decisions as to what does and does not count as legitimate speech. These should be truly independent arbiters, paid by some independent organization. How does this get funded? I don't know, possibly via taxes, but every attempt should be made that it's maximally independent from both the companies and government officials. 
• Allow for tighter or looser controls based on the degree of anonymity under which a user is operating and one's history of operating in good faith. A person putting their name and reputation on the line legitimately gets a lot more latitude in making offensive and controversial statements than does @Trump4Ever4550 with 3 followers and a one day old account.

Washington Post launches contradictory attacks on Sanders presidential run

The Washington Post reveals two distinct lines of attack running simultaneously on Sanders now that HRC is pushing the panic button (1) He's just telling voters what they want to hear but can't deliver (link)  (2) he's unelectable because his ideas are so radical that voters will find them repugnant. (link)

Those two lines of attack are obviously in some tension, although I guess, to be fair, the first is being applied to Democratic primary voters and the second to the general electorate. Still, the argument that his policies are shiny attractive baubles for the Democratic base and utterly repugnant to the portion of the electorate that would be in play for deciding the election strikes me as an implausible claim.

Mini Reviews

Some TV series and movies stuff I've watched recently w/ mini-reviews:

Goon: A slapstick hockey movie, not unlike "Slapshot". It was surprisingly good, imo, and not entirely farcical. Probably more interesting/fun to watch if you're Canadian and/or a hockey fan. (3.5/5)

The Drop: Great NY low level organized crime drama. Great late career performance from James Gandolfini, with some interesting twists. (4/5)

Making a Murderer: I was disappointed in this, (one of a very few, apparently), an okay documentary with some sensationalizing, but not great. I made it through 3 episodes and then just googled the rest of the story. (2.5/5)

The Following: It started out interesting, but too much killing and too implausible as a story about a psychopath, and there is such a thing as overdoing the surprising plot twists. That point comes when the viewer begins to assume that everyone is actually a bad guy.

Happy Valley: A really great BBC series about a frumpy strong but troubled police sergeant and a kidnapping. (4.5/5)

Thoughts on that clerk in Kentucky (oh, and that dentist who killed Cecil)

According to my Facebook and Twitter feed, this county clerk in Kentucky is the worst bigot to walk the earth in some time. Of course, just ten years ago, 60%+ of Americans shared her views on gay marriage. Obviously I don't agree at all with what this woman was/is doing but I find this worldwide sanctimonious pile on of one single person far more troubling than the actions that precipitated it. Same goes for all that (far less justifiable) demonization of the dentist who killed the lion a few weeks back.

The reactions are somewhat hypocritical and incredibly mean-spirited. If some low level clerk failed to carry out state or federal law on the death penalty or issue a permit for fracking or some such, I suspect that I and many of those demonizing this woman would be celebrating the acts of civil disobedience. At the very least we wouldn't be attacking the bureaucrat with personal attacks or digging into obscure details of her past or noting how unattractive she is or stupid crap like that. So, it's not as if we have some general principle that says, "government bureaucrats who refuse to carry out government policy despite personal objections don't deserve to be part of society and are beneath contempt." This is less about the evil of her not doing her job and more about her position on gay marriage. But her position on gay marriage is one that many of her opponents and large portions of society shared recently. It's a bit much to argue that taking a position that we seem to have been okay with for an awfully long time is now worthy of the most utmost contempt we can muster. I assume, after all, that the victims of her bigotry have recourse and will, I'm sure, be able to obtain a license fairly soon (even today, it seems). This isn't to trivialize her bigotry or her refusal to recognize the rights of those who want to marry - it must end and we can't let it stand -  so, throw her in jail if she's in contempt but enough with all the other bullshit.

(The hypocrisy in the case of the lion killer is far more pronounced and contemptible. How many of these lion lovers happily munch on veal or chicken or steak that involved subjecting animals to far more cruelty than that suffered by Cecil the lion? )

In the new social media age we seem to have found a way to very effectively, and capriciously, destroy lives for acts of this sort. I mean acts that weren't outrageously evil and utterly depraved compared to any number of acts committed anywhere in the world/country that day. However, for reasons having less to do with the morality of the act itself and much to do with the current zeitgest or capriciousness of the news cycles or other factors (lions are pretty!). they somehow caught the world's attention. These kinds of nasty vicious pile-ons really seem to me like something we expect to see in a novel about some dystopian Orwellian state, not an enlightened civilization encouraging diversity and freedom of thought and expression. We don't realize the pile-on power that Facebook and Twitter have to exaggerate and magnify and thereby destroy lives for screw ups or for taking unpopular positions or for failing to do one's job appropriately or even for being a total asshole. 

The Environmental Impact of the State Department's Keystone Environmental Impact Review

Last year the State Department completed a review of the Keystone pipeline proposal which made the dubious claim that the pipeline would have low environmental impact. (NY Times link) The basis for their argument was not that tar sands oil extraction is ecologically sound but that that oil is going to be extracted from the tar sands regardless of whether the pipeline exists or not. That strikes me as an incredibly tortured interpretation of what it means to do an environmental impact review. As an ethical justification this is like arguing that it's okay to drive the getaway car from a bank robbery because "hey, those bank robbers are going to rob that bank regardless of who's driving them away." Or try that as a response to a question of whether your participation in the getaway drive contributed negatively to the overall crime rate in the city. If your doing X facilitates the performance of P and that is the intention of X, then surely any rational agent concurs that assessing the impact of X must also involve assessing the impact of P.

In fact, this isn't just an abstract moral argument, but I think there's a very clear practical reason to worry that this very argument creates an incentive to extract oil that might not otherwise have been extracted.

Consider that the review is becoming relevant again because the the review writers acknowledged that there is a scenario in which their denial of impact foundered. If the price of oil is so low that it's not economical to extract unless there's a pipeline to transport it away, then even the State Department's denial of environmental impact falls apart. In that case the willingness to supply a pipeline becomes a prerequisite to the continued extraction and the refusal to create the pipeline has a hugely positive environmental impact. So, in that case, arguably the current state, not even the State Department can argue that Keystone has no environmental impact. It does, it makes the tar sands extraction economically viable and without it, they'd stop pumping.

But, let's consider the original argument again, i.e., that if we have reason to think the oil production would continue with or without Keystone then we can ignore the effects of oil production when assessing the impact of Keystone. Consider what effect that has. It provides an incentive for oil producers to continue extracting oil from the tar sands regardless of the price. If they do that, then even in a low price scenario the State Department can invoke the original argument and say that oil production will occur regardless, so now we're again justified in arguing that the Keystone has minimal environmental impact.  So, in effect, the State Department has removed an important economic disincentive to tar sands extraction. The State Department's report itself with its specious moral reasoning may well have or may have had a negative environmental impact by creating an incentive to continue pumping oil.

Investigation of Darren Wilson's shooting of Michael Brown

At one point during the Darren Wilson proceedings I was assured that I'd become convinced of Wilson's innocence as I learned more of the facts. Instead, the proceedings and emerging facts have raised all kinds of questions about fairness and legality of the investigation into Wilson's shooting of  Michael Brown. Here are a few of the issues:

• The handling of evidence immediately after the incident -- Wilson washed blood from his hands and packaged his own evidence. No measurements were taken at the scene. (link)
• There was a failure to record interviews with Wilson (link)
• During the grand jury, when they were allegedly showing the evidence that a crime had been committed, prosecutors failed to cross examine Wilson despite obvious tensions in his stories or questionable claims that he had made (link (see end of article), link 2). These inconsistencies included his claims that he was near death or being fully incapacitated after two punches while the hospital gave him a clean bill of health.  Wilson also used dehumanizing, and arguably racist, language in describing Brown, all without any sort of response or objection or concern from the alleged prosecutors. (link) 
• Lawyers were far more aggressive about chasing down prima facie tensions from witnesses presenting testimony damaging to Wilson, acting as Wilson's defense team rather than prosecutors (link, NY Times link, Vox link)
• An assistant DA distributed a copy of an obsolete and unconstitutional statute that indicated that police officers were justified in using any necessary force in preventing a suspect from fleeing during an arrest. (link (video)) This obsolete discarded law indicated that Wilson was justified in shooting Brown simply for attempting to flee. Of course, this wasn't true, but during Wilson's testimony the grand jury had reason to believe it was true and it's not clear to what extent that misunderstanding was cleared up.
• McCulloch, the prosecutor, abused the grand jury process. It was questionable whether a grand jury was the right avenue by which to pursue an indictment in this case, but worse than that, McCulloch seems to have been using the grand jury process not to establish whether there was reason to move forward with a trial but rather as an ill-suited process to establish Wilson's innocence. (link, Vox link) Note that grand juries almost never fail to indict when asked to do so by a prosecutor. (link) That they did so in this case may well have had more to do with a lack of clear set of options from the prosecutor and a deliberate (and inappropriate) attempt to provide exculpatory evidence. Note that McCulloch has a history of not prosecuting police officers involved in shootings despite many opportunities to do so. (link)
• Witnesses were nearly unanimous in their assertion that Brown's hands were up when he was shot (link) and yet the grand jury seems to have embraced Wilson's claim that they were not.
• That we've been consistently misled about Brown's distance from the police SUV when he died. (link) This matters because the (untrue but oft repeated) claim that Brown was only 35 feet from Wilson's SUV rather than 150 would be far more plausible in light of the claim that Brown was in some angry rage ready to attack. If he had run that far it seems more like he was attempting to flee and turning only to give up.
• Oh, and now it turns out that McCulloch intentionally allowed witnesses to testify even when he knew they were lying in violation of professional ethics and state law and, arguably, of suborning perjury. (link) (update added 2014/12/19)

Before Canadians hurt themselves patting each other on the back ...

A few things about the attacks in Canada this week underscored positive features or trends about Canadian society.  (i) Canada's CBC deserved commendation forits careful, balanced news coverage (link), (ii) Some news media attempted to deviate from the typical US news media's obsession with identifying and discussing personal details of the killer (link, Rex Murphy on youtube) and (iii) evidence of unwillingness to mistreat Muslims as a result of the attacks (links):

That said, there are important respects in which Canada's response has not only failed to exceed the standard set by the US but has been worse.  In particular, it seems significant free speech limitations are envisioned (link):

 “Sources suggest the government is likely to bring in new hate speech legislation that would make it illegal to claim terrorist acts are justified online.

The Prime Minister told the House of Commons on Thursday that Canada’s law and policing powers need to be strengthened in the areas of surveillance, detention and arrest. “

Amazing, we're going to make it illegal to voice an opinion (in addtion to increasing surveillance, detention and arrest?)?  Aside from this being just an obvious violations of the most basic forms of free speech protection that any democracy should embrace, there's a deeper problem. The whole notion of 'terrorism' is one that is often used to simply stifle debate or pave over any nuanced discussion of what may have motivated it. (see a recent article by Tomas Kapitan on this: link.). Furthermore, its sense isn't entirely clear. What should count as terrorism? In many instances it ends up being most anything done against one's own country while being defined in such a way so that the action of US (or Canadian) combatants cannot be terrorism, no matter on whom it is practiced.  Finally, the last thing to consider before praising ourselves for being so much more enlightened than Americans in responding to a perceived terrorist attack, note this particularly ominous quotation from Peter Mackay this week (link): 

"We're looking ... to see if there is a way in fact to improve or build on those elements of the criminal code that allow for pre-emptive actions. ...." [emphasis added]

Hey, Canada is going all Minority Report.  Remember the Precrime department?