Risky Business: Predicting The Likelihood Of Success — Or Failure — At The Onset Of A Presidential Administration

In the waning days of the first month of the Biden Administration, the NY Times' Viper (Michelle Goldberg) surveys the beginnings of presidential administrations in US history with a positive conclusion. If this is (fair & balanced) comparison of US presidents at the beginning of their administrations, so be it.

PS: The source of this blog's noms de stylo serpent reference to the three women on the NY Fishwrap's Op-Ed staff began with this 2001 essay by The Cobra (Maureen Dowd) who's been joined by her distaff colleagues: The Krait (Gail Collins), and — most recently — The Viper (Michelle Goldberg).

[x NY Fishwrap]
The First Post-Reagan Presidency
By The Viper (Michelle Goldberg)

TagCrowd Cloud provides a visual summary of the blog post below

administration adviser American begin Bernie Bernstein Biden changed country deficits democratic economic Emanuel era establishment fear federal figure financial fit government Hawley helping history inflation leaders legislation moderation moment national Obama order party payments politics possible president presidential Reagan reconstructive regime Republicans Sanders seemed sense Skowronek think told took Trump

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During Donald Trump’s presidency, I sometimes took comfort in the Yale political scientist Stephen Skowronek’s concept of “political time.”

In Skowronek’s formulation, presidential history moves in 40- to 60-year cycles, or “regimes.” Each is inaugurated by transformative, “reconstructive” leaders [PDF] who define the boundaries of political possibility for their successors.

Franklin Delano Roosevelt was such a figure. For decades following his presidency, Republicans and Democrats alike accepted many of the basic assumptions of the New Deal. Ronald Reagan was another. After him, even Democrats like Bill Clinton and Barack Obama feared deficit spending, inflation and anything that smacked of “big government.”

I found Skowronek’s schema reassuring because of where Trump seemed to fit into it. Skowronek thought Trump was a “late regime affiliate” — a category that includes Jimmy Carter and Herbert Hoover. Such figures, he’s written, are outsiders from the party of a dominant but decrepit regime.

They use the “internal disarray and festering weakness of the establishment” to “seize the initiative.” Promising to save a faltering political order, they end up imploding and bringing the old regime down with them. No such leader, he wrote, has ever been re-elected.

During Trump’s reign, Skowronek’s ideas gained some popular currency, offering a way to make sense of a presidency that seemed anomalous and bizarre. “We are still in the middle of Trump’s rendition of the type,” he wrote in an updated edition of his book Presidential Leadership in Political Time (2011), “but we have seen this movie before, and it has always ended the same way.”

Skowronek doesn’t present his theory as a skeleton key to history. It’s a way of understanding historical dynamics, not predicting the future. Still, if Trump represented the last gasps of Reaganism instead of the birth of something new, then after him, Skowronek suggests, a fresh regime could begin.

When Joe Biden became the Democratic nominee, it seemed that the coming of a new era had been delayed. Reconstructive leaders, in Skowronek’s formulation, repudiate the doctrines of an establishment that no longer has answers for the existential challenges the country faces. Biden, Skowronek told me, is “a guy who’s made his way up through establishment Democratic politics.” Nothing about him seemed trailblazing.

Yet as Biden’s administration begins, there are signs that a new politics is coalescing. When, in his inauguration speech, Biden touted “unity,” he framed it as a national rejection of the dark forces unleashed by his discredited predecessor, not stale Gang of Eight bipartisanship. He takes power at a time when what was once conventional wisdom about deficits, inflation and the proper size of government has fallen apart. That means Biden, who has been in national office since before Reagan’s presidency, has the potential to be our first truly post-Reagan president.

“Biden has a huge opportunity to finally get our nation past the Reagan narrative that has still lingered,” said Representative Ro Khanna [R-CA], who was a national co-chair of Bernie Sanders’s presidential campaign. “And the opportunity is to show that government, by getting the shots in every person’s arm of the vaccines, and building infrastructure, and helping working families, is going to be a force for good.”

A number of the officials Biden has selected — like Rohit Chopra for the Consumer Financial Protection Bureau, Gary Gensler for the Securities and Exchange Commission and Bharat Ramamurti for the National Economic Council — would have fit easily into an Elizabeth Warren administration. Biden has signed executive orders increasing food stamp benefits, took steps to institute a $15-an-hour minimum wage for federal employees and contractors, and announced plans to replace the federal fleet with electric vehicles. His administration is working on a child tax credit that would send monthly payments to most American parents.

Skowronek told me he’s grown more hopeful about Biden just in the last few weeks: “The old Reagan formulas have lost their purchase, there is new urgency in the moment, and the president has an insurgent left at his back.”

This is the second Democratic administration in a row to inherit a country wrecked by its predecessor. But Biden’s plans to take on the Coronavirus Pandemic and the attendant economic disaster have been a departure from Obama’s approach to the 2008 financial crisis. The difference isn’t just in the scale of the emergencies, but in the politics guiding the administrations’ responses.

In A Promised Land (2020), the first volume of his presidential memoir, Obama described a meeting just before he took office, when the economic data looked increasingly bleak. After an aide proposed a trillion-dollar rescue package, Rahm Emanuel, Obama’s chief of staff, began “to sputter like a cartoon character spitting out a bad meal.” Emanuel, according to Obama, said the figure would be a nonstarter with many Democrats, never mind Republicans. In Obama’s telling, Biden, then vice president, nodded his head in agreement.

Now Emanuel, hated by progressives, has been frozen out of Biden’s administration, and the new president has come out of the gate with a $1.9 trillion proposal. In addition to $1,400 checks to most Americans and an increase in federal unemployment aid to $400 a week, it includes a national $15-an-hour minimum wage, something dismissed as utopian when Bernie Sanders ran on it in 2016.

What has changed is not just the politics but the economic consensus. Recently I spoke to Jared Bernstein, a member of Biden’s Council of Economic Advisers, on “The Argument,” the Times podcast I co-host. When Biden was vice president, Bernstein was his chief economic adviser, and he said the meetings he’s in now are very different from those he was in during the last economic crisis.

Back then, Bernstein said, there was a widespread fear that too much government borrowing would crowd out private borrowing, raising interest rates. That thinking, he said, has changed. As Biden told reporters this month, “Every major economist thinks we should be investing in deficit spending in order to generate economic growth.”

It’s not just that the Democratic Party has moved left — the old Reaganite consensus in the Republican Party has collapsed. There’s nothing new about Republicans ignoring deficits — deficits almost never matter to Republicans when they’re in power. What is new is the forthright rejection of laissez-faire economics among populist nationalists like Senator Josh Hawley of Missouri [R-MO], who joined with Sanders to demand higher stimulus payments to individuals in the last round of COVID relief.

That doesn’t mean we should be optimistic about people like Hawley, who wouldn’t even admit that Biden won the election, helping the new administration pass important legislation. But Republicans are going to have an increasingly difficult time making a coherent case against economic mercy for the beleaguered populace.

“This idea that the inflation hawks will come back — I just think they’re living in an era that has disappeared,” Elizabeth Warren told me.

However popular it is, Biden’s agenda will be possible only if Democrats find a way to legislate in the face of Republican nihilism. They’ll have to either convince moderates to finally jettison the filibuster, or pass economic legislation through reconciliation, a process that requires only a majority vote. Where Congress is stalemated, Biden will have to make aggressive use of executive orders and other types of administrative action. But he has at least the potential to be the grandfather of a more socially democratic America.

A moderate president, says Skowronek, can also be a transformative one. “It’s a mistake to think that moderation is a weakness in the politics of reconstruction,” he said, noting that both Abraham Lincoln and Roosevelt were “viciously” attacked from the left. “Moderation can stand as an asset if it’s firmly grounded in a repudiation of the manifest failure and bankruptcy of the old order. In that sense, moderation is not a compromise or a middle ground. It’s the establishment of a new common sense.”

There is, of course, no guarantee that Biden will fully rise to the moment. Skowronek has always expected that eventually American politics will change so much that the patterns he identified will no longer apply. “All I can say is that so many of the elements, the constellation of elements that you would associate with a pivot point, are in place,” he said. In this national nadir, we can only hope that history repeats itself. ###

[Michelle Goldberg has been an Opinion columnist at this newspaper since 2017. She is the author of several books about politics, religion and women’s rights, and was part of a team that won a Pulitzer Prize for public service in 2018 for reporting on workplace sexual harassment issues. She received a BA (English) from the State University of New York (SUNY) at Buffalo and an MS (journalism) from the University of California at Berkeley.]

Copyright © 2021 The New York Times Company


This work is licensed under a Creative Commons Attribution 4.0 International License..

Copyright © 2021 Sapper's (Fair & Balanced) Rants & Raves

Counterpoint — Yale Law Professor Emily Bazelon Provides A Discussion Of The Internet Freedom Of Speech Controversy Without Ideological Bias

Not without trepidation, this blogger posted an essay yesterday that examined the Internet freedom of speech controversy with a right-of-center orientation. Yesterday's essay was Point and today's essay (below) is Counterpoint. If this is (fair & balanced) adhereance to free and open discussion of an issue in a democracy, so be it.

[x NY Fishwrap 'Zine]
Why Is Big Tech Policing Speech? Because The Government Isn’t
By Emily Bazelon

TagCrowd Cloud provides a visual summary of the blog post below

account Amazon Amendment American assault Capitol chief coming companies content court criticized decision democracy democratic deplatforming election executive Facebook free freedom government groups ideas including law leaders lies Matze media news newspaper Parler platforms posts power private public rules social speech spread States suspending tech Trump Twitter users work York

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In the months leading up to the November election, the social media platform Parler attracted millions of new users by promising something competitors, increasingly, did not: unfettered free speech. “If you can say it on the streets of New York,” promised the company’s chief executive, John Matze, in a June CNBC interview, “you can say it on Parler.”

The giants of social media — Facebook, Twitter, YouTube, Instagram — had more stringent rules. And while they still amplified huge amounts of far-right content, they had started using warning labels and deletions to clamp down on misinformation about COVID-19 and false claims of electoral fraud, including in posts by President Trump. Conservative figures, including Senator Ted Cruz, Eric Trump and Sean Hannity, grew increasingly critical of the sites and beckoned followers to join them on Parler, whose investors include the right-wing activist and heiress Rebekah Mercer. The format was like Twitter’s, but with only two clear rules: no criminal activity and no spam or bots. On Parler, you could say what you wanted without being, as conservatives complained, “silenced.”

After the election, as Trump sought to overturn his defeat with a barrage of false claims, Matze made a classic First Amendment argument for letting the disinformation stand: More speech is better. Let the marketplace of ideas run without interference. “If you don’t censor, if you don’t — you just let him do what he wants, then the public can judge for themselves,” Matze said of Trump’s Twitter account on the New York Times podcast “Sway.” “Just sit there and say: ‘Hey, that’s what he said. What do you guys think?’”

Matze was speaking to the host of “Sway,” Kara Swisher, on January 7 — the day after Trump told supporters to march on the US Capitol and fight congressional certification of the Electoral College vote. In the chaos that followed Trump’s speech, the American marketplace of ideas clearly failed. Protecting democracy, for Trump loyalists, had become a cry to subvert and even destroy it. And while Americans’ freedoms of speech and the press were vital to exposing this assault, they were also among its causes. Right-wing media helped seed destabilizing lies; elected officials helped them grow; and the democratizing power of social media spread them, steadily, from one node to the next.

Social media sites effectively function as the public square where people debate the issues of the day. But the platforms are actually more like privately owned malls: They make and enforce rules to keep their spaces tolerable, and unlike the government, they’re not obligated to provide all the freedom of speech offered by the First Amendment. Like the bouncers at a bar, they are free to boot anyone or anything they consider disruptive. In the days after January 6, they swiftly cracked down on whole channels and accounts associated with the violence. Reddit removed the r/DonaldTrump subreddit. YouTube tightened its policy on posting videos that called the outcome of the election into doubt. TikTok took down posts with hashtags like #stormthecapitol. Facebook indefinitely suspended Trump’s account, and Twitter — which, like Facebook, had spent years making some exceptions to its rules for the president — took his account away permanently.

Parler, true to its stated principles, did none of this. But it had a weak point: It was dependent on other private companies to operate. In the days after the Capitol assault, Apple and Google removed Parler from their app stores. Then Amazon Web Services stopped hosting Parler, effectively cutting off its plumbing. Parler sued, but it had agreed, in its contract, not to host content that “may be harmful to others”; having promised the streets of New York, it was actually bound by the rules of a kindergarten playground. In a court filing, Amazon provided samples of about 100 posts it had notified Parler were in violation of its contract in the weeks before the Capitol assault. “Fry ’em up,” one said, with a list of targets that included Nancy Pelosi and Chuck Schumer. “We are coming for you and you will know it.” On January 21, a judge denied Parler’s demand [PDF] to reinstate Amazon’s services.

It’s unlikely the volume of incendiary content on Parler could rival that of Twitter or Facebook, where groups had openly planned for January 6. But Parler is the one that went dark. A platform built to challenge the oligopoly of its giant rivals was deplatformed by other giants, in a demonstration of how easily they, too, could block speech at will.

Over all, the deplatforming after January 6 had the feeling of an emergency response to a wave of lies nearly drowning our democracy. For years, many tech companies had invoked the American ethos of free speech while letting disinformation and incitement spread abroad, even when it led to terrible violence. Now they leapt to action as if, with America in trouble, American ideals no longer applied. Parler eventually turned to overseas web-hosting services to get back online.

“We couldn’t beat you in the war of ideas and discourse, so we’re pulling your mic” — that’s how Archon Fung, a professor at Harvard’s Kennedy School of Government, put it, in expressing ambivalence about the moves. It seemed curiously easier to take on Trump and his allies in the wake of Democrats’ victories in the Senate runoffs in Georgia, giving them control of both chambers of Congress along with the White House. (Press officers for Twitter and Facebook said no election outcome influenced the companies’ decision.) And in setting an example that might be applied to the speech of the other groups — foreign dissidents, sex-worker activists, Black Lives Matter organizers — the deplatforming takes on an ominous cast.

Fadi Quran, a campaign director for the global human rights group Avaaz, told me he, too, found the precedent worrying. “Although the steps may have been necessary to protect American lives against violence,” he said, “they are a reminder of the power big tech has over our information infrastructure. This infrastructure should be governed by deliberative democratic processes.”

But what would those democratic processes be? Americans have a deep and abiding suspicion of letting the state regulate speech. At the moment, tech companies are filling the vacuum created by that fear. But do we really want to trust a handful of chief executives with policing spaces that have become essential parts of democratic discourse? We are uncomfortable with government doing it; we are uncomfortable with Silicon Valley doing it. But we are also uncomfortable with nobody doing it at all. This is a hard place to be — or, perhaps, two rocks and a hard place.

When Twitter banned Trump, he found a seemingly unlikely defender: Chancellor Angela Merkel of Germany, who criticized the decision as a “problematic” breach of the right to free speech. This wasn’t necessarily because Merkel considered the content of Trump’s speech defensible. The deplatforming troubled her because it came from a private company; instead, she said through a spokesman, the United States should have a law restricting online incitement, like the one Germany passed in 2017 to prevent the dissemination of hate speech and fake news stories.

Among democracies, the United States stands out for its faith that free speech is the right from which all other freedoms flow. European countries are more apt to fight destabilizing lies by balancing free speech with other rights. It’s an approach informed by the history of fascism and the memory of how propaganda, lies and the scapegoating of minorities can sweep authoritarian leaders to power. Many nations shield themselves from such anti-pluralistic ideas. In Canada, it’s a criminal offense to publicly incite hatred “against any identifiable group.” South Africa prosecutes people for uttering certain racial slurs. A number of countries in Europe treat Nazism as a unique evil, making it a crime to deny the Holocaust.

In the United States, laws like these surely wouldn’t survive Supreme Court review, given the current understanding of the First Amendment — an understanding that comes out of our country’s history and our own brushes with suppressing dissent. The First Amendment did not prevent the administration of John Adams from prosecuting more than a dozen newspaper editors for seditious libel or the Socialist and labor leader Eugene V. Debs from being convicted of sedition over a speech, before a peaceful crowd, opposing involvement in World War I. In 1951, the Supreme Court upheld the convictions of Communist Party leaders for “conspiring” to advocate the overthrow of the government, though the evidence showed only that they had met to discuss their ideological beliefs.

It wasn’t until the 1960s that the Supreme Court enduringly embraced the vision of the First Amendment expressed, decades earlier, in a dissent by Justice Oliver Wendell Holmes Jr.: “The ultimate good desired is better reached by free trade in ideas.” In Brandenburg v. Ohio, that meant protecting the speech of a Ku Klux Klan leader at a 1964 rally, setting a high bar for punishing inflammatory words. Brandenburg “wildly overprotects free speech from any logical standpoint,” the University of Chicago law professor Geoffrey R. Stone points out. “But the court learned from experience to guard against a worse evil: the government using its power to silence its enemies.”

This era’s concept of free speech still differed from today’s in one crucial way: The court was willing to press private entities to ensure they allowed different voices to be heard. As another University of Chicago law professor, Genevieve Lakier, wrote in a law-review article last year [PDF], a hallmark of the 1960s was the court’s “sensitivity to the threat that economic, social and political inequality posed” to public debate. As a result, the court sometimes required private property owners, like TV broadcasters, to grant access to speakers they wanted to keep out.

But the court shifted again, Lakier says, toward interpreting the First Amendment “as a grant of almost total freedom” for private owners to decide who could speak through their outlets. In 1974, it struck down a Florida law requiring newspapers that criticized the character of political candidates to offer them space to reply. Chief Justice Warren Burger, in his opinion for the majority, recognized that barriers to entry in the newspaper market meant this placed the power to shape public opinion “in few hands.” But in his view, there was little the government could do about it.

Traditionally, conservatives have favored that libertarian approach: Let owners decide how their property is used. That’s changing now that they find their speech running afoul of tech-company rules. “Listen to me, America, we were wiped out,” the right-wing podcaster Dan Bongino, an investor in Parler, said in a Fox News interview after Amazon pulled its services. “And to all the geniuses out there, too, saying this is a private company, it’s not a First Amendment fight — really, it’s not?” The law that prevents the government from censoring speech should still apply, he said, because “these companies are more powerful than a de facto government.” You needn’t sympathize with him to see the hit Parler took as the modern equivalent of, in Burger’s terms, disliking one newspaper and taking the trouble to start your own, only to find no one will sell you ink to print it.

One problem with private companies’ holding the ability to deplatform any speaker is that they’re in no way insulated from politics — from accusations of bias to advertiser boycotts to employee walkouts. Facebook is a business, driven by profit and with no legal obligation to explain its decisions the way a court or regulatory body would. Why, for example, hasn’t Facebook suspended the accounts of other leaders who have used the platform to spread lies and bolster their power, like the president of the Philippines, Rodrigo Duterte? A spokesman said suspending Trump was “a response to a specific situation based on risk” — but so is every decision, and the risks can be just as high overseas.

“It’s really media and public pressure that is the difference between Trump coming down and Duterte staying up,” says Evelyn Douek, a lecturer at Harvard Law School. “But the winds of public opinion are a terrible basis for free-speech decisions! Maybe it seems like it’s working right now. But in the longer run, how do you think unpopular dissidents and minorities will fare?”

Deplatforming works, at least in the short term. There are indications that in the weeks after the platforms cleaned house — with Twitter suspending not just Trump but some 70,000 accounts, including many QAnon influencers — conversations about election fraud decreased significantly across several sites. After Facebook reintroduced a scoring system to promote news sources based on its judgment of their quality, the list of top performers, usually filled by hyperpartisan sources, featured CNN, NPR and local news outlets.

But there’s no reason to think the healthier information climate will last. The very features that make social media so potent work both to the benefit and the detriment of democracy. YouTube, for instance, changed its recommendation algorithm in 2019, after researchers and reporters (including Kevin Roose at The New York Times) showed how it pushed some users toward radicalizing content. It’s also telling that, since the election, Facebook has stopped recommending civic groups for people to join. After January 6, the researcher Aric Toler at Bellingcat surfaced a cheery video, automatically created by Facebook to promote its groups, which imposed the tagline “community means a lot” over images of a militia brandishing weapons and a photo of Robert Gieswein, who has since been charged in the assault on the Capitol. “I’m afraid that the technology has upended the possibility of a well-functioning, responsible speech environment,” the Harvard law professor Jack Goldsmith says. “It used to be we had masses of speech in a reasonable range, and some extreme speech we could tolerate. Now we have a lot more extreme speech coming from lots of outlets and mouthpieces, and it’s more injurious and harder to regulate.”

For decades, tech companies mostly responded to such criticism with proud free-speech absolutism. But external pressures, and the absence of any other force to contain users, gradually dragged them into the expensive and burdensome role of policing their domains. Facebook, for one, now has legions of low-paid workers reviewing posts flagged as harmful, a task gruesome enough that the company has agreed to pay $52 million in mental-health compensation to settle a lawsuit by more than 10,000 moderators.

Perhaps because it’s so easy to question their motives, some executives have taken to begging for mercy. “We are facing something that feels impossible,” said Jack Dorsey, Twitter’s chief executive, while being grilled by Congress last year. And Facebook’s founder and chief executive, Mark Zuckerberg, has agreed with lawmakers that the company has too much power over speech. Two weeks after suspending Trump, Facebook said its new oversight board, an independent group of 20 international experts, would review the decision, with the power to make a binding ruling.

Zuckerberg and Dorsey have also suggested openness to government regulation that would hold platforms to external standards. That might include, for example, requiring rules for slowing the spread of disinformation from known offenders. European lawmakers, with their more skeptical free-speech tradition (and lack of allegiance to American tech companies), have proposed requiring platforms to show how their recommendations work and giving users more control over them, as has been done in the realm of privacy. Steps like these seem better suited to combating misinformation than eliminating, as is often suggested, the immunity platforms currently enjoy from lawsuits, which directly affects only a narrow range of cases, mostly involving defamation.

There is no consensus on a path forward, but there is precedent for some intervention. When radio and television radically altered the information landscape, Congress passed laws to foster competition, local control and public broadcasting. From the 1930s until the 1980s, anyone with a broadcast license had to operate in the “public interest” — and starting in 1949, that explicitly included exposing audiences to multiple points of view in policy debates. The court let the elected branches balance the rights of private ownership with the collective good of pluralism.

This model coincided with relatively high levels of trust in media and low levels of political polarization. That arrangement has been rare in American history. It’s hard to imagine a return to it. But it’s worth remembering that radio and TV also induced fear and concern, and our democracy adapted and thrived. The First Amendment of the era aided us. The guarantee of free speech is for democracy; it is worth little, in the end, apart from it. ###

[Emily Bazelon is a staff writer for The New York Times Magazine and a former senior editor at Slate. Bazelon also is a senior research scholar in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School. Her 2019 book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, won the Los Angeles Times Book Prize in the current-interest category. And before that, Bazelon wrote Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy (2013). She is a graduate of Yale College (BA, English) and Yale Law School (JD) and was an editor of the Yale Law Journal.]

Copyright © 2021 The New York Times Company


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Read Carefully — Beware Of Right-Wing Bias In This Essay

As this blogger burrowed deeper into today's essay for this blog, he discovered that the essay author, law professor Genevieve Lakier, used the descriptive term, conservative in a very loose and inaccurate way. For example, The Loser (of the 2020 election) is not a conservative; he has no respect for the norms and traditions of our government. He is a radical white supremacist and outspoken bigot — he wants to conserve nothing in e pluribus unum or anything that offends his racist sensibilities. Similarly, The Loser's minions are willing to destroy this country in order to save it (voiced by the US military in Vietnam, 1964-1973). If this is a (fair & balanced) renunciation of murky political labels, so be it.

[x The Atlantic]
The Great Free-Speech Reversal
By Genevieve Lakier

TagCrowd Cloud provides a visual summary of the blog post below

Amendment American argued argument ban companies conservatives corporations court debate decision deplatforming duties example exclude expressive Facebook free free-speech freedom idea important impose justices laws liberals limit Marsh media nondiscrimination platforms policies political power president private property protect public radio recent rights social social-media speech Supreme today Trump Twitter violated

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There is a rich historical irony to the fact that today, conservatives are the ones who argue most forcefully that the decisions by private companies to “deplatform” certain speakers threaten what President Donald Trump described in 2020 as the “bedrock” American right to freedom of speech. Until very recently, this was an argument made almost exclusively by those on the left.

The decision by Twitter, Facebook, and a host of other social-media outlets to ban Trump from their platforms after the January 6 attack on the Capitol intensified conservatives’ long-standing concerns that the powerful tech industry is violating their free-speech rights. Trump encouraged and amplified these arguments when he issued a (largely symbolic) executive order in May 2020 declaring that “free speech is the bedrock of American democracy,” and insisted that “in a country that has long cherished the freedom of expression, we cannot allow a limited number of online platforms to hand pick the speech that Americans may access and convey.”

The deplatforming of the president appeared to many conservatives to offer vivid proof that these companies are just as dangerous to freedom of speech as Trump had claimed. Steve Daines, a Republican senator from Montana, took to Twitter to attack “Big Tech” for “censoring [Trump] and the free speech of American citizens.” Trump’s trade adviser, Peter Navarro, claimed that the platforms’ decision to restrict speech “threatened our democracy.” And on the floor of the Capitol building, newly sworn-in Representative Marjorie Taylor Greene of Georgia wore a mask bearing a single word—censored—in stark white letters. Many liberals, meanwhile, insisted that the decision to deplatform the president had nothing to do with freedom of speech, at least not as protected by the First Amendment.

This is something of a reversal. Indeed, the idea that private actors, not just government officials, might threaten the freedom of speech guaranteed by the First Amendment, as well as the other rights protected by the Constitution, was first suggested by big-government liberals, whom contemporary conservatives love to hate. In the early 20^th century, progressive legal scholars such as Felix Cohen and Robert Hale argued against the notion that the Constitution protects rights including freedom of speech from only government action. Private corporations wield tremendous power over individuals’ lives and fortunes, and to overlook that power when interpreting the meaning of constitutionally protected rights, Cohen and Hale believed, would make no sense.

This argument eventually found favor with progressive justices on the Supreme Court during the New Deal and led the court to conclude—as it did in the 1946 decision Marsh v. Alabama, for example—that the First Amendment could prevent private corporations from excluding speakers from property they owned and controlled when doing so was necessary to ensure that “the channels of communication remain free.” In later decades, although the Court struggled to define exactly when and under what circumstances the First Amendment applied to private actors, it continued to insist that it did sometimes apply. In 1968, for example, the great liberal lion, Justice Thurgood Marshall, wrote an opinion that held that a shopping mall’s private owner could not exclude protesters from the mall’s passageways without violating their First Amendment rights. Only after President Richard Nixon appointed four pro-business conservative justices did the Supreme Court reject this view of the First Amendment, and insist that private corporations have no constitutional obligation to grant access to their property to speakers they dislike, no matter how powerful those corporations might be.

When Trump and other conservatives complain that the decision to remove the president from popular platforms violates his freedom of speech, they place themselves in strange company. They acknowledge, albeit only implicitly and perhaps opportunistically, that early-20^th-century progressives were correct to worry about private power’s threat to constitutionally protected liberties.

This recognition is welcome, if overdue. For decades now, nearly all of the important forums of mass communication in the United States (radio and television stations, newspapers and magazines, movies and, yes, social-media platforms) have been privately owned. Given this state of affairs, private companies’ decisions about what speech to allow or exclude from their property obviously have the capacity to limit the free and open debate that sustains American democracy. The difficult thing is figuring out what to do about it.

In recent weeks, some conservatives have suggested that courts should impose the same First Amendment duties on today’s social-media companies that the Marsh v. Alabama Court imposed on a private owner of a company town. In principle, this approach makes a lot of sense. Just like the company town in Marsh, Twitter and Facebook today provide an important forum for public conversation and debate. They represent, as Senator John Cornyn [R-TX] has argued, the new “public squares” of the internet age.

In practice, however, extending the rule from Marsh to social media would effectively make the nine justices on the Supreme Court (many of whom have, by all appearances, a poor grasp of the basic mechanisms of digital technology) the final arbiters of freedom of speech on social media for 330 million Americans. One might doubt whether the Court is best positioned to assess how free-speech principles translate to this new technological environment. Even if one doesn’t doubt that, the Supreme Court has evinced no desire to extend its holding in Marsh to new kinds of private property. If anything, the opposite.

Rather than imposing First Amendment duties on the powerful private companies that operate today’s virtual public squares, some on the left have argued, the best option for preserving freedom of speech on social media is to allow the companies to self-regulate, by creating internal speech policies that limit their ability to pick and choose what speech to allow on the platform. This is an idea that, unlike the probably doomed idea of reviving Marsh, is already being put into practice.

Over the past few years, social-media companies have expended considerable effort developing internal policies that they claim are designed to ensure that “all people can participate in the public conversation [on the platforms] freely and safely.” Instead of exercising the unbounded freedom that post-Nixon First Amendment cases give them to exclude whomever they like from their platforms, companies such as Twitter and Facebook have declared themselves bound by a principled, though not legally mandated, duty to promote freedom of speech on their platforms, and have developed policies that allow speech to be removed, flagged, or hidden only when it satisfies certain conditions. These policies also provide limited due-process rights to those regulated by them.

When they banned Trump, the platforms took care to justify the decision by reference to these policies. Twitter, for example, provided a detailed explanation of why Trump’s speech violated its policy against glorifying violence and therefore could be removed despite the company’s general preference for “the public [to] hear from elected officials and world leaders directly.” Mark Zuckerberg made a similar argument to explain why Facebook was banning Trump until the end of his presidency, and just recently Facebook asked its court-like Oversight Board, established a few months ago to provide independent oversight of its speech-regulating decisions, to evaluate whether the ban violated the company’s policies.

These efforts to justify Trump’s deplatforming by reference to social-media companies’ internal speech policies—and in particular, Facebook’s willingness to have that decision reviewed by an independent, quasi-judicial Oversight Board—suggest that the project of platform self-regulation is gaining traction. The important question facing internet users in the United States and around the world is whether the platforms’ self-regulation will be sufficient to protect the important democratic and expressive freedoms that the American free-speech tradition cares about.

There are reasons to be skeptical that self-regulation will be enough. Perhaps the primary reason is the fact that, notwithstanding their presumably sincere commitment to freedom of speech, social-media companies are, in the end, for-profit entities that offer a forum for speech in order to make money. Will they protect expressive freedom even when it conflicts with corporate profits? Conversely, outside the extraordinary circumstances of the Capitol invasion, will they take down genuinely harmful speech that brings readers to their platforms? Past history suggests that the answer to both of these questions will be no. Certainly the often–ad hoc and inconsistent decision making that the platforms demonstrated during the 2020 election campaign is alone concerning.

Given all of this, it is worth considering a third option that has been used in the past, and could once again be used, to protect expressive freedom from private power: laws requiring that the private media companies governing the mass public sphere abide by basic nondiscrimination and, often, due-process obligations. Even when the First Amendment intruded further into the private sphere than it does today, statutory nondiscrimination and due-process requirements were lawmakers’ primary tools to ensure that the private companies that controlled the telegraph and telephone wires, the radio and television airwaves, and the cable networks did not use their power to discriminate in favor of certain political viewpoints, or otherwise undermine the vitality of public debate. The most famous, and controversial, example of these laws was the Fairness Doctrine, which imposed extensive, if vague, nondiscrimination duties on radio and television broadcasters, and to an extent, cable-television companies, from the 1930s until the late ’80s, when Ronald Reagan’s FCC repealed it. But the Fairness Doctrine is only one example of a much wider array of media nondiscrimination laws, many of which continue to ensure, to this day, that, as one senator put it in 1926, the “few men” who control the “great publicity vehicles” of radio and television [sic, broadcast TV began in 1947] do not limit the range of ideas and viewpoints that the public can hear.

In this context as well, a significant shift in political attitudes has occurred. For much of the 20^th century, conservatives were the ones who railed against the constraints that federal laws like the Fairness Doctrine imposed on private media companies, and liberals and progressives defended these policies against attack. Today, however, many conservatives argue for the need to impose statutory nondiscrimination duties on social-media companies, while many liberals express alarm about the constraints such bills would impose on the freedom of private companies.

Although some of the bills that have been proposed to rein in social-media companies’ power are certainly poorly drafted and could easily be abused by self-interested politicians, advocates on the left should not give up on the possibility of using regulation to protect freedom of speech on the platforms. Designing nondiscrimination rules that can work effectively in social media’s new technological environment will be no easy feat. But that does not mean it cannot be done. There is no reason Congress could not impose minimum procedural requirements on the platforms when they act to remove their users’ speech.

All of which is to say that the debate about free speech on social media should not be viewed primarily as a debate about whether the social-media companies violated Trump’s freedom of speech when they banned him, or whether they violate anyone else’s freedom of speech when they make thousands of similar decisions every day. Instead, it should be viewed primarily as a debate about what freedom of speech means on social media, and, perhaps most importantly, about who gets to decide—courts, corporations, or legislatures. That liberals and conservatives have switched perspectives on these questions in recent years reflects the extraordinary political fluidity, and perhaps possibility, of the current moment.

However the political alignments work out, Trump’s deplatforming illuminated a basic insight worth keeping in mind: Private companies not only participate in the marketplace of ideas but also determine to a significant extent who else can participate in it. We should not take comfort in the fact that the speech-regulating decisions by Big Tech companies do not and cannot violate the First Amendment as it is currently understood. Conservatives are correct to be worried about the threat that the private platforms pose to freedom of speech, even if this makes them more like big-government liberals than they might be willing to acknowledge. Those big-government liberals should realize as much, and act accordingly. ###

[Genevieve Lakier is an assistant professor of law and a Herbert and Marjorie Fried Teaching Scholar at the School of Law of the University of Chicago (IL). Her research explores the connections between culture and law. She is currently engaged in a long-term project exploring the cultural history of the First Amendment, and another project exploring the changing role of the state in the regulation of sex. Between 2006 and 2008, she was an Academy Scholar at the Weatherhead Center for International and Area Studies at Harvard University (MA). She also clerked for Judge Leonard B. Sand of the Southern District of New York and Judge Martha C. Daughtrey of the Sixth Circuit Court of Appeals. Lakier received an AB (anthropology) from Princeton University (NJ), an MA and PhD (anthropology) from the University of Chicago, and a JD from the New York University School of Law (NYC).]

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Thomas Jefferson Declared That The Admission Of Missouri In 1820 Filled Him With The Terror Of Hearing A Firebell In The Night — When You Think Of The January 6, 2021 Capitol Riot, Do You Hear A Loud, Clanging Sound?

If you thought 2020 was a bad year in terms of dangerous threats to every man, woman, and child in the United States, January 6, 2021 demonstrated that the horrors were with us still. The awfulness and terrible choices loom even larger as January 2021 draws to a close. If this is a (fair & balanced) suggestion that we are facing another Worst Hard Time on an endless loop, so be it.

[x The New Yorker]
Biden’s Vital But Fraught Battle Against Domestic Terrorism
By David Rohde

TagCrowd Cloud provides a visual summary of the blog post below

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President Joe Biden, in his Inaugural Address, made a vow of a kind that few Presidents have in American history. He warned of “a rise of political extremism, white supremacy, domestic terrorism,” which, he pledged, “we must confront and we will defeat.” On Friday, his third day in office, Biden ordered US intelligence officials, the FBI, and the Department of Homeland Security to assess the threat posed by violent domestic extremists and to develop ways to counter them. “The rise of domestic violent extremism is a serious and growing national threat,” Jen Psaki, the White House press secretary, said. “The Biden Administration will confront this threat with the necessary resources and resolve.”

That mission is likely to be one of the most vital, complex, and fraught in the history of American law enforcement. As the second impeachment trial of Donald Trump approaches, federal officials are monitoring online chatter about assassinating members of Congress or attacking them outside the Capitol. Intelligence officials are concerned about online coördination between white supremacists in this country and in Germany. Over all, terrorist attacks and plots have risen sharply in the United States since 2013, and the majority of them were carried out by homegrown right-wing extremists. Democrats blame Trump for legitimizing, emboldening, and failing to crack down on far-right groups such as the Proud Boys throughout his Presidency. They maintain that his monthslong disinformation campaign about the election results incited the January 6^th insurrection at the US Capitol. Democrats in Congress who experienced the attack are demanding that Biden act.

Some members of Biden’s team have investigated domestic terrorism in the past, notably Merrick Garland, his nominee for Attorney General, who led the prosecution of Timothy McVeigh, an anti-government militia member who killed more than a hundred and fifty people in the 1995 Oklahoma City bombing. The new Secretary of Defense, Lloyd Austin, vowed in his confirmation hearing to “rid our ranks of racists and extremists.” And military and law-enforcement officials are investigating the role of active and former military members and police officers in the Capitol attack. An NPR analysis of court records found that one out of every five people criminally charged so far in the assault had served or is currently serving in the military, yet veterans make up just seven per cent of the population. (Last year, a Military Times poll found that a third of active-duty members had seen “signs of white supremacist or racist ideology in the ranks.”)

Trump supporters immediately dismissed the Biden Administration’s effort as an attempt to smear and silence them. Adopting the same narrative of grievance and conspiracy that Trump rode to power, Senator Rand Paul [R-KY], a likely 2024 Presidential candidate, said that Biden had slandered conservatives in his Inaugural Address: “If you read his speech and listen to it carefully, much of it is thinly veiled innuendo, calling us white supremacists, calling us racists, calling us every name in the book.” The Fox News host Tucker Carlson declared that Biden, intelligence officials, and Big Tech companies were unleashing a “new war on terror,” that is “focussed inward on the people of this country.”

On Sunday, Biden’s homeland-security adviser, Dr. Liz Sherwood-Randall, told me that the Administration’s policy would be measured and nonpartisan, and would respect citizens’ constitutional rights. “We’ve built a team that has deep experience in balancing the need to address national security threats with the need to protect civil rights and civil liberties, and our work will be informed by both the lessons of history and the challenges we face today.” Previous FBI campaigns to counter domestic threats have resulted, on a number of occasions, in civil-rights abuses. In the nineteen-sixties, the bureau’s director, J. Edgar Hoover, driven by bigotry and by a false claim that Dr. Martin Luther King, Jr., was a Communist, ordered agents to illegally surveil, smear, and harass him. Separately, the CIA spied on anti-Vietnam War activists. In the nineteen-nineties, a botched FBI raid on a religious cult in Waco, Texas, which killed dozens of members of the group, vastly expanded the ranks of far-right militias in the United States. After the 9/11 attacks, agents profiled Muslim Americans, conducted illegal surveillance of mosques, and, according to defense lawyers, used paid informants to entrap defendants and exaggerate the threat that they represented.

Current and former federal law-enforcement officials say that it is possible for the Justice Department and the FBI to aggressively enforce the law and deter further violence while avoiding the abuses of the past. They say that First Amendment free-speech protections that bar law-enforcement officials from investigating or surveilling Americans on the basis of their statements or their political beliefs must be honored, even when those statements or beliefs are blatantly racist or include talk of insurrection. “The key guidance is that investigations are only to be undertaken of groups advocating or engaging in violence—not simply for their speech or beliefs,” Tom Baker, a former FBI official, told me. “It may be tempting to ‘take the gloves off,’ but investigative attention has properly focussed on their actions, not on their speech.”

Yet experts on online radicalization say that law-enforcement approaches to domestic extremism are growing antiquated. American politics, laws, and technology firms have failed to recognize the power of instant communication in the digital age. Joan Donovan, an expert on disinformation at Harvard University’s Kennedy School of Government, says that the Trump era has shown that online disinformation can contribute to radicalization, and confronting that challenge is a core part of countering extremism. “The fact of the matter is that Trump can shape reality when he has access instantly to a hundred and fifty million people,” Donovan said. “These are not toys. The more we misunderstand the coördinating power of social media, the more we’re going to mistakenly frame it as simply a free-speech issue.” The insurrection, she noted, “was a command-and-control situation, where people thought they were part of an army going to save the Commander-in-Chief.”

The FBI Agents Association, which represents fourteen thousand current and former agents, supports updating federal law to create tough penalties for acts of domestic terrorism. Some former agents have also called for new laws that would allow the federal government to declare certain groups domestic terrorist organizations. But civil-liberties organizations, including the ACLU, oppose stronger laws, claiming that the FBI has the powers it needs to pursue far-right groups but has, instead, gone easy on them. Michael German, a former FBI agent and a fellow at the Brennan Center for Justice, opposes additional domestic-terrorism statutes, in part, he told me, because “the problem is not as complicated as the FBI pretends.” He added, “Law enforcement deprioritizes the investigation and prosecution of white supremacist and far-right violence through policy and practice, not a lack of authority.”

One point on which the experts I spoke to agreed was that the practices, rules, and norms currently used in criminal investigations and trials must be applied to cases of violent domestic extremism. Any hint of leniency, excess, secrecy, or political bias could play into conspiracy theories and fuel further extremism. David Laufman, a former senior official at the Justice Department who helped coördinate its responses to the 9/11 attacks, said that law-enforcement officials should “maximize the level of detail in the evidence that they have gathered showing that criminal acts occurred and that nothing about this is political.” He added that prosecutors should be “making it clear that these cases are about holding Americans to account who resorted to violent acts in subversion of our government and in violation of law.”

A current senior law-enforcement official told me that a mandate from Biden and Congress to crack down on domestic extremist violence is welcome. But the official, who asked not to be named, cautioned that federal and state law-enforcement officials have no legal authority—and little desire—to be drawn into targeting specific ideologies or types of speech. “Our concern is the violence. Our concern is the conduct. Remember, hate speech is protected speech,” the official said. “You don’t want law-enforcement overreach. We’ve learned the lesson.” The official added that elected leaders could play a central role in combatting domestic extremism: “A lot of this depends on our political leadership, if there’s an effort to bring down some of the temperature.”

Trump showed how easy it is to exploit First Amendment protections and the power of social media in order to mount politically effective disinformation campaigns. The question is what lesson American political leaders will take away from the Trump era. One path involves a prolonged, enormously complex, and politically sensitive effort to enact reforms that protect free speech but set guardrails for the digital age. The other involves the continued embrace of trafficking in disinformation and conspiracy theories for short-term political gain. The danger of the latter could not be clearer. ###

[David Rohde is an executive editor of the digital version of the magazine. He is a former reporter for Reuters, the New York Times, and the Christian Science Monitor. He was awarded a Pulitzer Prize for international reporting, in 1996, for stories that helped expose the Srebrenica massacre during the war in Bosnia, and, in 2009, he shared a Pulitzer Prize with a team of Times reporters for coverage of Afghanistan and Pakistan. He is the author of, most recently, In Deep: The FBI, the CIA, and the Truth about America’s ‘Deep State’ (2020). See his other books here. Rohde attended Bates College (ME) before transferring to Brown University (RI), where he received a BA (history).]

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