• Tag Archives 1st Amendment

  • California’s Bill Restricting Speech Is Authoritarian

    Posted on by Azrael 1 Comment

    California is one step away from going down the unconstitutional road of government-mandated censorship of Internet speech. The California Senate and State Assembly recently passed S.B. 1424, the “Internet: social media: advisory group” act. This fake news advisory act is now on the desk of Governor Jerry Brown for his signature.

    According to Section 3085 of the legislation:

    The Attorney General shall, subject to the limitations of subdivision (d), establish an advisory group consisting of at least one member of the Department of Justice, Internet-based social media providers, civil liberties advocates, and First Amendment scholars, to do both of the following:

    (a) Study the problem of the spread of false information through Internet-based social media platforms.

    (b) Draft a model strategic plan for Internet-based social media platforms to use to mitigate the spread of false information through their platforms.

    It’s hard to imagine those voting for the bill were motivated by good intentions. In any case, good intentions are not enough. Is it hard to imagine the results of the law will be censorship of views that politicians disagree with and views critical of politicians?

    Most likely, Californians are not concerned about “fact-checking” content like “a mile is 5290 feet” or an appeal to form a flat Earth Facebook group; such content poses no threat to entrenched interests. Instead, “fact-checking” will be deployed against those who express doubt, for example, about climate change, vaccine safety, or “educating” children about gender dysphoria.

    In a world where most scientific studies can’t be replicated, a consensus should not be confused with an immutable fact.

    If you doubt that censorship is the aim of the bill, consider the even more draconian measures that an earlier version of the bill required. Social media sites would have needed to develop “a plan to mitigate the spread of false information through news stories, the utilization of fact-checkers to verify news stories, providing outreach to social media users, and placing a warning on a news story containing false information.”

    The First Amendment makes no provisions for government judging the validity of speech either directly or through mandated “fact-checking.” In legitimate cases of defamation, legal remedies are available, but the bar for a successful lawsuit is high.

    Concern over “fake news” is not new. Elbridge Gerry, who became the fifth vice president of the United States, despaired at the Constitutional Convention about the impact of “false reports”:

    The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience, that they are daily misled into the most baneful measures and opinions, by the false reports circulated by designing men, and which no one on the spot can refute.

    There have always been “false reports,” but Thomas Jefferson believed in the wisdom of the public to discern the difference:

    It is so difficult to draw a clear line of separation between the abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, rather than the magistrate, with the discrimination between truth and falsehood. And hitherto the public judgment has performed that office with wonderful correctness.

    What Jefferson observed in his time is no less true today. It is impossible to “fact-check” the limitless amount of Internet speech. It is no more possible to “fact-check” than it is to centrally plan; in either case, the power of reason is not able to deal with the unforeseeable complexity one would encounter. Knowledge, by its nature, is vast and decentralized.

    In Conjectures and Refutations, philosopher Karl Popper observed: “There are no ultimate sources of knowledge. Every source, every suggestion, is welcome; and every source, every suggestion, is open to critical examination.”

    In contrast, California’s politicians seem to believe only some ideas are welcome—if those ideas have been “fact-checked” by the heavy hand of government-sponsored boards.

    In his new discussion paper, “The Mirage of Democratic Socialism,” economist Kristian Niemietz of the Institute of Economic Affairs counts “more than two dozen attempts (not counting the very short-lived ones) to build a socialist society.”

    “They all,” Niemietz writes, “led to varying degrees of economic failure.” With that economic failure always came “varying degrees of repression and political authoritarianism,” as well as severe limitations on “freedom of choice and personal autonomy in the economic sphere.”

    Authoritarians, including so-called “democratic socialists,” must always suppress speech. Why? Human beings have boundless preferences and competing goals. These preferences and goals are sorted out by either socialist planners or impersonal market processes.

    As central planning fails, a scapegoat must be found. If only the people were united and working towards the same goals, our plans would succeed, reason the planners. Thus, observes Niemietz, all socialist regimes seek to enforce compliance with their plans:

    One of the most persistent features of socialism is the paranoia about imaginary saboteurs, wreckers, hoarders, speculators, traitors, spies and stooges of hostile foreign powers. These phantoms are always accused of ‘undermining’ the economy (although it never quite becomes clear how exactly they do that), which would otherwise work just fine. More generally, the oppressive character of socialist societies was generally linked to the economic requirements of a centrally planned economy. Socialist states did not oppress people for the sake of it. They did so in ways that enforced compliance with the aims of the social planners.

    In a future dystopian “democratic socialist” California, the search for “false information” could be weaponized against those arguing for free markets. After Google provides a censored search engine in China, they can no doubt use their new expertise in California to keep up with the latest laws.

    The Founders saw the press as an absolute necessity to keep government in check. In 1765, John Adams wrote that the people have “an indisputable, unalienable, indefeasible, divine right” to “knowledge… of the characters and conduct of their rulers.” Adams explained why such knowledge is crucial:

    Rulers are no more than attorneys, agents, and trustees for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees.

    What are the sources of crucial information about our “rulers”?

    None of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America, than the press. Care has been taken that the art of printing should be encouraged, and that it should be easy and cheap and safe for any person to communicate his thoughts to the public.

    What if the news was “speculative” and unproven? No matter. Adams praised newspaper publishers, and to them he wrote:

    [W]hatever the tyrants of the earth may say of your paper, [you] have done important service to your country by your readiness and freedom in publishing the speculations of the curious. The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

    Yet, as president, Adams couldn’t resist the human temptation to silence his critics. In 1798, Adams sang a different tune about the press as he signed the Alien and Seditions Acts, criminalizing the speech of his opponents, including Ben Franklin’s grandson.

    Ironically, in the process of criminalizing speech, Adams proved his earlier writings were correct: freedom of the press is always to be zealously guarded.

    California is on the verge of going down the slippery slope of placing authoritarian restrictions on speech. Whether Governor Brown signs the bill or not, a mindset—inimical to a free society—is on full display for the rest of America to see and, hopefully, reject.

    Source: California’s Bill Restricting Speech Is Authoritarian – Foundation for Economic Education



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  • NSA Internet Surveillance Under Section 702 Violates the First Amendment

    Posted on by Azrael Comment

    The First Amendment is too often overlooked in discussions of the National Security Agency’s vast surveillance authorities. But as Congress considers whether to reauthorize Section 702 of FISA this winter, we must remember that it’s not just our Fourth Amendment rights to privacy that are in the crosshairs, but also our First Amendment rights. These rights to anonymously speak, associate, access information, and engage in political activism are the bedrock of our democracy, and they’re endangered by the NSA’s pervasive surveillance.

    The NSA uses Section 702 to justify ongoing programs to siphon off copies of vast amounts of our communications directly from the Internet backbone as well as require system-wide searches across the information collected by major Internet companies like Google, Facebook, and Apple.

    So how does the First Amendment come to apply to mass surveillance? To understand this, we need to begin with a little history of the civil rights movement.

    As part of the backlash to the Supreme Court’s ruling striking down segregation in schools, the Attorney General of Alabama, John Patterson, brought a lawsuit against a leading civil rights organization, the National Association for the Advancement of Colored People (NAACP). The lawsuit alleged that the NAACP violated a state law requiring “foreign corporations” to file certain paperwork and get approval before practicing business in Alabama. The NAACP is a nonprofit membership organization; it didn’t file the paperwork because it believed it was exempt. While the NAACP fought the suit, the state issued a subpoena demanding detailed records from the NAACP, including membership lists and bank records. The NAACP refused to surrender its membership lists, fearing retaliatory consequences for its members. Because of this refusal, the court fined the NAACP $10,000, which after five days was raised to $100,000. The NAACP continued to fight the order for two years until the Supreme Court took up the issue, never surrendering its membership lists.

    Ultimately the NAACP was vindicated. The Supreme Court recognized that the First Amendment protected the associational privacy interests of NAACP members. It directly recognized that freely associating for advocacy or other purposes is a fundamental right. It noted that state invasions of privacy could infringe on that right: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech… Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

    The Supreme Court found that the “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

    In short, we all have the right to engage in associate with one another and to join and communicate with political and religious groups free from government surveillance.

    As our society has moved online, our associations have become digital in nature. Signing up for a membership or learning about an advocacy group often happens over a website or app. Members of modern political groups coordinate donations, activities, and information over social networks, email, and websites. When the NSA—either by itself or by working with corporate “partners”—collects the digital communications and browsing history of countless individuals, it’s also obtaining records of innocent Americans visiting activism websites, becoming members of advocacy groups, and coordinating social movements. EFF also raised this argument in our case against the mass telephone records collection by the NSA (substantially narrowed in 2015) First Unitarian Church of Los Angeles v NSA.

    The surveillance of our communications systems, and thereby the surveillance of our communications, infringes on the very rights of private association upheld by the Supreme Court in 1958.

    So while the Fourth Amendment concerns about 702 and mass surveillance are important, they are not the only problem created by the law. And as Alex Abdo, an attorney at the Knight First Amendment Institute at Columbia University, argues that when it comes to confronting government surveillance, we shouldn’t expect the Fourth Amendment alone to protect our First Amendment interests. He recently wrote that “The Fourth Amendment, unlike the First, is blind to the cumulative effects of invasions of privacy that are small in isolation but substantial in combination.”

    Those cumulative effects are especially felt when it comes to the right to publish and access information freely. While the government may be forbidden from censoring online speakers and readers, the cumulative impact of pervasive digital surveillance has a chilling effect on online communities. The specter of government surveillance quells engagement in online forums, social networks, and blogs that discuss controversial, political, or unpopular positions. Knowing that the government is keeping a digital dossier of comments we leave online and articles we digitally share creates an environment in which speakers hesitate to engage in online political advocacy.

    Readers also hesitate to visit websites that may be seen as out of favor with the government, whether that’s Al Jazeera or CNN or EFF’s own site, knowing that their visit may be recorded in a government database for years to come.

    The NSA’s digital surveillance of countless law-abiding Americans also indirectly affects another key First Amendment right: our right to assembly. Today’s modern protest movements are often organized and fueled by social media and digital communication, where activists coordinate across a wide range of physical locations. The NSA’s pervasive digital surveillance challenges our values as a society that respects and safeguards the right to plan and participate in protests and other political activity, rights which are themselves baked into the First Amendment.

    The pervasive digital surveillance programs of the NSA chip away at the First Amendment protections that underpin our democracy. As Congress considers whether to reauthorize or reform Section 702 surveillance in the coming weeks, we urge them to remember that their choice will not just impact the privacy of Americans, it will have a profound impact on freedom of speech, association, and assembly protected by the First Amendment and ultimately, upon our democracy itself.

    Contact Congress today to speak out against NSA surveillance.

    Source: NSA Internet Surveillance Under Section 702 Violates the First Amendment | Electronic Frontier Foundation



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