Category: Free Speech

Black History Month in 2023

“Black history is American history.”

There is more than one way to read (or use) that phrase. On its face, it affirms that no honest or thorough narrative about the United States can possibly exclude the Black story. But from there, one might say, as Morgan Freeman suggested in a 2005 interview with Mike Wallace, that to distinguish or compartmentalize Black history as a subject can also perpetuate racial divisions and tensions. Thus, the statement is paradoxical, pitting the moral or intellectual obligation to engage with the uniqueness of the Black experience against the idealism of a color-blind society.

Of course, we are not a color-blind society in the ways we should be (i.e., the playing field is not level), but even if that ambition were achieved, it is a fallacy to think that color blindness as a matter of justice is synonymous with colorlessness in cultural or intellectual pursuits. As I have said many times, I defend copyright rights because, in principle, they empower the individual to express herself as she chooses and then empower the public to make of that expression what it will. And the result is a diversity of works.

Despite critics’ implications to the contrary, copyright rights fundamentally reject state authority to approve or deny the production of creative works—a critical distinction between American copyright law and its common law antecedents in England.[1] Sadly, however, neither copyright nor the First Amendment can entirely prevent state actors from engaging in censorship through other legal mechanisms, which brings us to a more cunning use of that phrase, as when Florida Gov. Ron DeSantis proclaimed to the TV press that “Black history is American history” in defense of his opposition to part of the curriculum in the African American AP Course.

As the putative leader of a culture war determined to make enemies of neighbors, DeSantis and his ilk exploit the opportunity to tell as many Americans who will listen that to confront (or even hear) certain aspects of the Black story is inherently divisive and tantamount to insisting that White Americans should feel a sense of self-loathing. One cannot deny that there are individuals (Black and White) willing to add fuel to that fire or that there is both good and bad scholarship on every topic, including Black history. But these nuanced distinctions are not what DeSantis’s “anti-woke” political tactic is about, and neither could it be.

It is not possible or appropriate for elected officials to concern themselves with every citizen’s social conduct or every teacher/student engagement or to attempt ad hoc review of every scrap of cultural and academic material. Nobody in DeSantis’s Back to Sleep party has the time, let alone the intelligence, to judge the qualities of every book, essay, or curriculum it hopes to mute because the subject matter threatens the colorless myth of American exceptionalism.

In 1965, when James Baldwin famously debated William F. Buckley, Jr. at Cambridge University, the topic presented was “The American Dream is at the expense of the American Negro.” Baldwin received a standing ovation and won the debate 540 votes to 160. But did Buckley swoon like so many of today’s featherweight conservatives and declare the question itself off limits—too offensive to American idealism to confront? Or when he referred in that debate to Baldwin’s essay The Fire Next Time, can we safely assume that Buckley had read the book rather than make a cowardly proposal to ban it?

Nearly sixty years since that historic joust and almost thirty years after the so-called information revolution, and the progress (to which Buckley alluded in his rebuttal) is a mixed report nationally and a catastrophe in some regions. Columnist Stephanie Hayes, writing for The Tampa Bay Times, remarks on the maturity and deftness of high school students in Pinellas County who last week petitioned their school board to reverse its ban of The Bluest Eye, the first novel written by Nobel Laureate Toni Morrison. Kudos to the students, but seriously?

It is hard not to indulge in gallows humor when a novel published in 1970 is swept into a pathetic, rhetorical war against “wokeness” in 2023. Is there a Woke section in the library or bookstore? Not unless the curator of either is being ironic. Is “woke” the latest reason to shun Baldwin’s 1963 novel Giovanni’s Room? Or what about John Irving’s In One Person in which the protagonist’s coming of age as a homosexual is intertwined with literary discovery and, therefore, confronts Giovanni’s Room through that character’s experience? Is the dialog between Baldwin in 1963 and Irving in 2012 a prime example of “wokeness,” or is it just American literature?

Or, finally, returning to the phrase with which I started this post, is the uniqueness of Baldwin’s experience, in contrast to Irving’s, a reason to celebrate Black History Month? I think so. Not because it is popular to think so, but because although it is true that Black history is American history, it is a subtle but important distinction to say that it is also Black American history. And that story is so complex and distinctive in the world that it is little wonder there are so many extraordinary Black American authors of extraordinary works.

[1] Copyright critics like to point to the fact that proto-copyright regimes in England were intertwined with first the royal prerogative and then then the government’s authority to license the production of certain works, but the U.S. did not retain the power of censorship in even its earliest copyright laws.

James Baldwin photo: Library of Congress, Prints & Photographs Division, Carl Van Vechten Collection, [reproduction number, e.g., LC-USZ62-54231]

DMCA Section 1201 Still Constitutional Says Circuit Court

The Electronic Frontier Foundation (EFF) was dealt a significant (possibly fatal) blow in its longstanding endeavor to have the courts abolish the entirety of DMCA Section 1201 as an unconstitutional violation of the First Amendment. The case Matthew D. Green, et al. v. United States Department of Justice was filed in July of 2016, and on December 6, the DC Circuit Court of Appeals affirmed the lower court’s denial of a preliminary injunction against enforcement of 1201 on behalf of plaintiffs Matthew Green and Andrew Huang.

Section 1201 is the provision within the Copyright Act that enables rightsholders to use computer code for the purpose of digital rights management (DRM) with two primary purposes: 1) to control access to works; and 2) to prohibit unauthorized copying of works. These purposes naturally work in tandem. For instance, Netflix requires a subscription for access and allows an account holder to download a file for offline viewing, but different code prevents copying that file for transmission to some other party. The 1201 statute prohibits unauthorized circumvention of DRM and/or trafficking in technology that enables unauthorized circumvention or copying, either of which may result in civil or criminal action.

Simply put, without DRM, the digital, on-demand market for most media would not exist, and the central purpose of 1201 to foster and sustain this market is a settled matter—both in Congress and the courts. Nevertheless, the EFF has vowed to see 1201 abolished in our lifetimes. In 2018, in a blatant appeal for donations, Cory Doctorow wrote a blog for EFF touting its “Apollo 1201 Project [which] aims to kill all the DRM in the world inside of a decade.” No mention of the fact that, at that point, the EFF’s original endeavor to “kill” DRM with the Constitution was already about twenty years old. And as of last week, it is fair to say that if DRM is to die circa 2026-28, it will not be at the clumsy hand of the EFF and its flawed arguments on behalf of inapt plaintiffs.

In the case of Mr. Green, he was seeking a preliminary injunction as a prophylactic shield in advance of publishing a book which explains (in both English and computer code) how circumvention is achieved. But the appellate court states:

Because Green intends to provide code able to circumvent technological protection measures, he believes the book would likely violate the antitrafficking provision. At oral argument, however, government counsel made quite clear that in its view, Green’s proposed course of conduct would not run afoul of the DMCA…. The government’s concession ends any “credible threat of prosecution” against Green, leaving him without standing to obtain a preliminary injunction.

As my friend Devlin Hartline mentioned during a call to discuss this case, “It was surprising to see the government concede that ground here, but even if it had not, Green’s argument for a preliminary injunction would have lost on the merits.” Writing a book about circumvention is protected speech that does not implicate 1201’s anti-trafficking provision, and the extent to which said book might be construed as a How-To manual for circumvention, that would be a fact-intensive inquiry which would still be tough to argue is a violation of the statute. This may explain why the government shrugged at it in this case.

As for Andrew Huang, he sought an injunction for intended activity that goes to the heart of 1201. Hoping to sell a DRM circumvention device called NeTVCR, along with published code so the device can be updated, Huang (the EFF) argued that computer code, even for circumvention, is protected speech. To this, the circuit court essentially said “no kidding” and notes that the government never challenged the premise that code itself is speech under the First Amendment. But as the opinion states, “We turn then to whether the DMCA ‘target[s] speech based on its communicative content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.’”

Separating Expression from Function

“The Supreme Court’s recent free speech case, City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022), is virtually dispositive,” the DC Circuit opinion states. At issue in Austin, and the relevant caselaw, is the distinction between state sign regulations that are content-neutral (and likely not in conflict with the First Amendment) versus regulations that may be content-focused (and likely to conflict with the First Amendment). The City of Austin’s rules pertain to off-premise signs, which may advertise, promote, or inform readers about something unrelated to the location of the sign; and on-premise signs, which may advertise, promote, or inform readers about something specific to the location of the sign.

Without getting into the weeds on various state sign regulations, suffice to say, the SCOTUS majority in Austin held that the city’s regulations at issue are content neutral, rejecting the petitioner’s argument (and the dissent) that because enforcement necessitated reading the signs, the regulations are fundamentally content based. The majority held, “Underlying these cases and others is a rejection of the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on ‘the topic discussed or the idea or message expressed’ that are content based.” Making a comparison to Austin, court in Green states:

The same logic applies here. Although the DMCA requires reading computer code to determine what digital act the code carries out, it is nonetheless content neutral because, in the words of City of Austin, it cares about the expressive message in the code “only to the extent that it informs” the code’s function.

The court further states that the DMCA question presented is easier than Austin because that case concerned the regulation of speech as speech, while Section 1201 is only concerned with the functional aspect(s) of computer code. As any copyright nerd is aware, the copyrightability of code is acutely concerned with reconciling the expressive (protectable) from the functional (non-protectable) aspects of the work. And here, as elsewhere, that which is copyrightable (expression) happens to be the part of computer code that would be protected speech. The EFF wants to call locks and keys forms of expression just because they are made of code instead of steel. But, of course, the locks are made of code — because so are the works they protect against theft.

Devlin Hartline, writing about this case for Copyright Alliance in September of 2021, discussed EFF’s alternate (reverse engineered?) route to a First Amendment challenge to 1201—namely that DRM is a prior restraint on potentially non-infringing conduct. The organization has argued many times, for instance, that if the intended use of the copyrighted work may be a fair use, then 1201 prohibits this otherwise legal conduct, which is itself protected by the First Amendment. But, as Hartline plainly observes, “The First Amendment does not allow you to pick the lock on the front door of a library in the middle of the night in order to break in and make fair use of the copyrighted books in the stacks.”

One does not need to be a constitutional scholar or a computer programmer to grasp the common sense understanding that the provisions of 1201 address solely functional aspects of code. In plain terms, 1201 is silent as to what code may be used for DRM, and it is likewise silent as to what code may be written that could pick the proverbial lock. It simply states that the act of picking the lock or trafficking in lock picks is against the law for the same reasons that bootlegging was illegal in the days before digital.

To work at the EFF, it seems that one must swear a blood oath to the core belief that copyright is inherently in conflict with the speech right. And orthodoxy mixed with righteousness (and more than a little self-interest) will invariably produce convoluted logic. Since 2001, the organization and its likeminded amici have failed to find any purchase in the courts with a constitutional challenge to DMCA Section 1201. As opined in an older post about this case, if EFF et al. really cared about specific burdens on certain parties, it would put more energy into advocating relevant permanent exemptions via the Copyright Office rulemaking process. Why it persists in this boondoggle of endless, ill-fated litigation can best be explained, I think, by the “Donate Now” button.

Bittertweet Symphony

One of my first mantras when I started this blog was I hate Twitter, but that was shorthand for the broader view that social media is a trainwreck. Of course, the existential difficulty presented by these platforms is that while they can be highly toxic, as long as the market remains, one must have a presence if one has a business or anything else to promote. Leaving Twitter or the Meta or Google properties is not an option unless they dwindle to ghost towns. And people keep predicting Twitter is about to do just that, but is it?

Unlike the typically reclusive tech bosses, Elon Musk is all over Twitter all day long. It’s hard to miss his tweets, many of which proclaim to be defending the speech right, including on behalf of the former president, who attempted to overthrow the constitutional order of the Republic. Whether Musk even contemplates that paradox is unknown just as it is unclear whether he believes his own bullshit about the speech right or simply thinks the rhetoric will be good for business. When he complains that an advertiser exercising its speech right is anti-speech, is he really that obtuse, or is he using “speech” as a lever, hoping the market will pressure the advertiser to re-invest in Twitter?

On the other hand, if Zeeshan Aleem writing for MSNBC is correct, Musk is actively willing to lose one market in favor of another. On the subject of reinstating Trump’s account following a poll conducted by Twitter, Aleem writes, “In his presentation of his faux referendum as a win for ‘the people,’ Musk appears to be trying on right-wing populism for size. And it’s only the latest sign that he views Twitter as a platform for advancing his political agenda as he develops increasingly pronounced far-right views.”

If Musk is a right-wing populist in the mode of Trump, then his free speech rhetoric is on target—courting a base that has swapped all comprehension of American civics for a politics of fear, victimhood, and conspiracy mongering. It takes a practiced ignorance to kowtow to a putative authoritarian while arguing that he deserves a platform under the principles of the First Amendment; and I would say that one must be Trump-drunk to so thoroughly misunderstand the speech right, except that isn’t true, is it?

Elon Musk’s stewardship of Twitter is the logical extension of tech-utopianism just as Trump was a natural biproduct of it—because the erroneous defense that everything is free speech fosters that populist fallacy which alleges there are always two or more sides to every story. Not always. Not every story. For instance, Twitter will no longer enforce its COVID misinformation policy. So, when the market or a news editor or a platform rejects or ignores speech that is objectively false, grotesquely insane, or merely offensive, the speaker naturally colors himself a victim of censorship or “cancel culture.”

But as the new CEO of Twitter, Musk appears as a golem made from the dust and mud slung by the Electronic Frontier Foundation, Google, Facebook, Fight for the Future, PublicKnowledge, Techdirt, Reddit, Wikimedia Foundation, and every other organization or Big Tech business who preached the gospel that every tittle and jot posted online is fundamentally speech worthy of protection. Yes, Musk is a particular kind of asshole, but the speech nonsense he coughs up today is indistinguishable from anything the tech-utopian/Silicon Valley crowd have been spewing for twenty years.

From the anti-SOPA campaign to the TPP to the incoherent battle over net neutrality to SESTA/FOSTA to the bananas narrative about Section 230 during the Trump administration, the underlying false premise has been the same—that because social platforms are clearly forums for speech, we cannot distinguish, let alone moderate, speech that is harmful or even illegal in this brave new world. But even though that view waned significantly—and deservedly—after 2016, Musk thinks he’s being clever here:

In 2022, that headline is not remotely controversial. The evidence is in and overwhelming. By first allowing every syllable or image to flow freely and then treating it all as protected speech, internet platforms fueled mobs that bullied speakers—very often women with something to say—into silence. Cyber civil rights experts Danielle Citron and Hany Farid wrote earlier this month in Slate:

In 2009, Twitter banned only spam, impersonation, and copyright violations. Then, the lone safety employee, Del Harvey, recruited one of us (Citron) to write a memo about threats, cyberstalking, and harms suffered by people under assault. Harvey wanted to tackle those harms, but the C-suite resisted in the name of being the ‘free speech wing of the free speech party.’

It took many years and multiple shocks to the political system before certain individuals in Big Tech finally admitted that they had helped build insidious machines while platform operators with the help of “digital rights” groups swept every sin under the rug of free speech. Many of the individuals who finally spoke out were whistleblowers and defectors from Facebook, but Jack Dorsey actively sought to change Twitter. Again, Citron and Farid write:

[In 2015], Jack Dorsey returned as CEO and made trust and safety a priority. This was especially evident after the 2016 election. In response to the disinformation and hate speech that plagued the platform during the election season, Dorsey and Gadde gathered a small kitchen cabinet … to map a path forward to ensure that the platform would enhance public discourse rather than destroy it.

It is no longer news that Musk fired the trust and safety folks at the company and has allegedly reversed about a decade’s worth of initiatives designed to make Twitter safer and more accountable. And it is clear from his tweets that he is doubling down on an experiment in laissez-faire speech absolutism that has already failed. In fact, he wrote this spit-take inducing tweet just a few days ago:

Is he really that naïve? Just a tech bro Ozymandias presiding over a village about to become a wasteland? Or is he an ideologue weaponizing the rhetoric of democracy to soften the ground for another run at authoritarianism? Or maybe he’s just a guy with typically inconsistent views filtered through a billionaire’s ego? Whatever Musk envisions for Twitter—a return to the free-for-all that Dorsey et al started to clean up, or a competitor to Parler—for sure he does not have to lose the whole market in order to lose the whole business.

Hazmat suit photo by: Harbucks