Category: Culture

The Big Deal in Mahmoud et al. v. Taylor is The First Amendment

first amendment

The U.S. Supreme Court last week heard oral arguments in Mahmoud et al. v. Taylor—a case brought by three families petitioning, on First Amendment Free Exercise grounds, to have their young children opt out of class time involving age-appropriate books that depict homosexual characters. The families—one Muslim, the other two Catholic—are not seeking to ban the books or to amend the Maryland elementary school curriculum. Instead, they are suing to overcome the school board’s refusal to allow an opt-out in this circumstance.

Opting out might appear to be a modest request, and Amy Howe’s Scotusblog summary of oral arguments describes the conservative majority of the Court as sympathetic to the parents’ petition. “What’s the big deal about allowing them to opt out of this?” asked Justice Alito. Although an unsurprising comment from Alito, the big deal raises conflicts the Court may be inclined to ignore—but it should not.

The Petitioners Misrepresent the Facts

The first big deal is that by allowing the petitioners to opt out on First Amendment Free Exercise grounds, this would make doctrine from an improper reading of the facts before the Court. In order to object to the books on the basis of the Exercise right, the parents should be required to show that the books promote an ethical or moral viewpoint that is not only anathema to their beliefs but also show how mandatory classroom exposure to that viewpoint is an abridgement of their right of Exercise.

But that bar cannot be met based on the content of the books at issue. “One book describes the story of a girl attending her uncle’s same-sex wedding, for example, while another book, Pride Puppy, tells the story of a puppy that gets lost during a Pride parade,” writes Howe. It may be the case that in the minds of the petitioners, the books imply or impose a moral position on homosexuality, but in fact, the books at issue simply depict the world as it is—a world that includes gay people.

If the books “promote” any viewpoint at all, it is tolerance in general, and it is extraordinary for these families to ask the Court to find that tolerance is tantamount to abridgement of religious exercise. It is clear that many religious people feel this way, but if the Court sanctions this view, it will erode the Framers’ purpose in writing the Exercise and Establishment clauses—namely that religious tolerance in a nation as complexly diversified as the United States is necessary for ensuring domestic tranquility.

So, if mere tolerance is unacceptable for certain families, it is unreasonable for those families to expect the public school to accommodate this view—let alone find that failure to make that accommodation is an abridgement of the Exercise right. The American public school has a responsibility to provide curricula and materials in literature, science, and history that reflect the world as it is—indeed failure to do so would violate the meaning of education—and the world includes gay people. It is, therefore, not the job of teachers or administrators at a public school to help certain parents shield their children from this fact any more than they would shield a child from a book depicting a prosperous Black character because some family sincerely believes that non-White people are subordinates in the “eyes of God.”

An Atheistic Hypothetical Makes the Point

Although my atheism is not conditioned on the fact that I find many religious people to be morally objectionable, I nevertheless sincerely believe that many religious people are morally objectionable. In fact, I could cite centuries of history to support that view in contrast to the dearth of evidence the petitioners in Mahmoud might bring to show a similar pattern among associations of gay people. Regardless, if the Court decides in favor of these families, would it likewise find that my secular child may opt out of a lesson in which a storybook merely depicts a family going to church?

If this hypothetical children’s book does not preach, for instance, that churchgoers are morally superior to non-churchgoers, then the book simply depicts the world as it is—a world in which some families go to church. In this case, would the Court find, as it should, that I am overreacting by seeking an exemption for my child on the false interpretation that the book’s mere depiction of churchgoing is implying that her secular family is morally wrong?

If the Court would rule against me in this hypothetical, then its finding should be no different for the plaintiffs in Mahmoud. Further, if my child gleans from the storybook that she is expected to tolerate, if not agree with, the religious kids in her class, that is both a sound lesson and one that is conducive to the atmosphere necessary for teaching a roomful of young children. This is especially true where young children come from a diverse range of families, including the likelihood that one may be the child of same-sex parents.

We Cannot Each Be a Law Unto Ourselves

Although opting out of a kindergarten class is a small matter—indeed, the parents could have done so without literally making a federal case out of it—asking the Court to grant the exemption on the basis that compliance with the public-school curriculum is an abridgement of Exercise conflicts with precedent, and possibly in a new and dangerous way. As the court held in Reynolds v. United States (1878), and Justice Scalia restated in Employment Division v. Smith (1990), the Free Exercise Clause is not “a system in which each conscience is a law unto itself.”

Reynolds and Smith address matters of state abridgement of specific exercise (polygamy in the first instance, and peyote ritual in the second) as a question of balance with “generally applicable law.” In response to Smith, Congress and President Clinton passed the Religious Freedom Restoration Act (RFRA) to reset judicial review and reverse Scalia’s holding in that case. RFRA was subsequently key in 2014 to then Judge Gorsuch’s 10th Circuit holding that Hobby Lobby, a privately held company owned by devout Christians, may be exempted from certain birth control mandates in the Affordable Care Act.

But between Reynolds and Hobby Lobby, in addition to the shift from natural persons to corporations engaging in “religious exercise,” we also see a contrast between direct prohibition of specific conduct (polygamy) to a more nuanced concept of abridgement (compliance with federal insurance law). But even Hobby Lobby is narrow in contrast to the implicitly broad exemption being sought in Mahmoud.

It is clearly the view of many religious Americans—especially American Christians—that mere toleration of fellow citizens outside their orthodoxy is perceived as an infringement of their Exercise rights. Or as The Authors Guild states in its amicus brief in this case, “Petitioners argue that the mere exposure to books that represent this community violates their free exercise rights under the First Amendment….we are now at an especially fraught moment in our history, as book removal initiatives—couched as attempts to shield children and young adults from harmful subjects and dangerous ideas—are wreaking havoc on school districts and public libraries across the country.”

The Court should refuse to endorse this agenda with a poor reading of the Exercise clause. Not only would it be bad law, but it invites pedagogical chaos in public education and animates viewpoint extremism in general. After all, what are the boundaries for public-school parents to opt out, grade-by-grade, topic-by-topic, belief-by-belief—in a society increasingly belabored by subjective truths? The family who clings to the geocentric model of the universe, for instance, is at liberty to home-school or find a parochial option that fits their beliefs, but the First Amendment does not permit them to demand that the public school accommodate their personal brand of scientific ignorance.

Thus, if we look beyond kindergarten and the Court finds for the plaintiffs in Mahmoud, the disarray it prefaces in public schools may only be resolved by an unconstitutional cabining of the opinion as an exception for certain religious exercise—perhaps just the three Abrahamic religions?—which would be in conflict with the Establishment clause. And quite possibly, that is the underlying intent of this lawsuit: to frame tolerance of diverse beliefs as intolerance of a few preferred beliefs until the latter overwhelms the former.

In that regard, intolerance itself is, of course, part of the world as it is, and as children mature, the literature they read often deals directly with various forms of intolerance in books that some Americans have tried to censor. Any sincerely held belief, whether religious or irreligious, will eventually breed some measure of intolerance for the heterodox view. Some Christians believe that I am an emissary of the devil, and, in turn, I believe those people are howling-at-the-moon insane.[1] There is no reconciling our views of one another, and so, the constitutional Framers, keenly aware that such antagonisms tear nations apart, wrote the Establishment and Exercise clauses with the hope of fostering comity in the new nation. So, the big deal in this case is that at the very least, the Court should honor history and tradition by supporting public school teachers working to foster comity in the classroom.

[1] Expression by Aaron Sorkin, The West Wing.

Photo by Peopleimages

Chamber of Progress Says Tariffs Are an Excuse to Infringe Copyrights

tariff

Politico reported yesterday that the astroturf organization called Chamber of Progress stated that because Trump’s tariffs will be a “gut punch” to Silicon Valley stock prices, California legislators should decline to aggravate matters by passing a law that would require transparency among AI developers using copyrighted works in model training. Granted, the tone was more circumspect, but that’s what the argument boils down to:  Tariffs are going to screw our stock values, so we need to screw creators to offset the harm.

According to Chamber of Progress economist Kaitlyn Harger, the cost of compliance with AB 412, sponsored by Assembly Member Rebecca Bauer-Kahan, would cause a dip in stock values that “…could carve $381 million out of California’s tax haul from the four tech giants, all key players in the generative AI boom,” Politico reports.

I won’t comment on the numbers, especially because they are speculative, but I will note the amount of SOP fluff being used to package this argument against the transparency bill. Adam Eisgrau, senior director of AI, creativity, and copyright policy at Chamber of Progress states that founding this anti-AB 412 argument in the tariff controversy is “not opportunistic,” when of course it is. He states, “It is fair to call tariffs a tax, and I think it’s fair to call this bill an innovation tax.”

Kudos for dinging tariffs and taxes and promoting innovation in one sentence, but Eisgrau is parroting a longstanding practice of Silicon Valley, calling any price it would pay for necessary materials a “tax” on progress. While compliance with AB 412’s transparency provisions would naturally cost the tech giants something, why is that cost, let alone the effect of tariffs, a basis for ignoring the creators’ whose works are being mined for AI training?

Assuming tariffs will hit every sector and increase prices across multiple supply chains, that universal condition is not a rationale for tech giants getting a supply of copyrighted works for free. The creators who make those works aren’t getting their supplies for free—and most creators barely make a living wage if they’re lucky. Meanwhile, if the California Assembly is looking broadly at the state’s economy in this North v. South narrative, even a cursory review of the numbers shows that motion picture production supports more jobs than the tech giants.

“Bauer-Kahan’s proposal has the backing of Hollywood labor groups,” Politico states, “including the powerful actors’ guild SAG-AFTRA and the National Association of Voice Actors. But it’s been side-eyed by tech industry critics who say it would upend fair-use protections and turn AI training into a lawsuit in waiting.”

This “upend fair use” claim, whether it comes from Eisgrau or any other tech representative, is standard parlor trick of that industry. First, they advocate a broad, generalized application of fair use (a doctrine that defies generalization) and then claim that any counterargument to their position would “upend” some standard that has been established. This is simply false.

AI training with protected works presents a novel set of facts to be weighed in context to fair use case law, and, thus, a finding that training is not fair use would not “upend” precedent. On the other hand, the rhetoric used by Big Tech in this regard asks for a “fair use” application so sweeping that it would be tantamount to a statutory carve-out for all machine learning now or in the future. That is asking to upend fair use.

The consensus appears to be that Trump’s tariff tactics can only sow chaos and drive up the cost of living for all Americans—including, by the way, creators of works protected by copyright. But despite the prospect of universal economic pain, the Chamber of Progress asks California lawmakers to shield a few of the wealthiest corporations on Earth from the rights and financial interests of the creators whose works those companies are exploiting. Wow.

Photo by Beebright

Maybe Now, Copyright Critics Know What Censorship Looks Like

censorship

Twelve years ago, when I first engaged in copyright advocacy, I was surprised to discover how many critics argued that copyright rights conflict with the speech right. Initially, I thought this had to be a fringe, internet thing—a vibe cooked up in the adolescent blogosphere that no legal scholar or expert took seriously. It would seem obviously contradictory to believe that any creative professional opposes the speech right. But no. It became clear that the main theme underlying the anti-copyright agenda—from academia to “digital rights” organizations to Techdirt et al.—was the premise that copyright rights are a means of censorship that should be minimally tolerated, if they are tolerated at all.

To support this view, and especially with regard to enforcing copyright rights online, it was apparently necessary to vilify creators as elitist, greedy, lazy, and even untalented individuals who expected society to pay for their “hobby.” Artists are used to this kind of criticism, historically from ultra-conservative voices, but the allegedly “democratizing” promise of the internet convinced many traditional liberals, and liberal organizations, to parrot this same anti-creator rhetoric.

Those familiar pejoratives are being recycled today by AI developers claiming that their products are just too damn important to let elitist, greedy, lazy creators stand in the way of machine learning. But let’s pause the AI skirmish a moment and back up. Because we should not lose sight of the fact that the original premise—that copyright rights conflict with speech was 1) bullshit; and 2) dangerous bullshit.

I lost count of how many posts, blogs, articles, and academic papers I read and/or rebutted trying to claim that copyright enforcement was making information, criticism, or important new expression disappear. None of those claims have been borne out by evidence, but more insidious was the fact that those who advocated the copyright-is-censorship theme were obscuring what real censorship looks like and, worse, feeding the very mechanisms by which true censors might come to power.

And come to power they have. As the Trump administration and likeminded state officials attack a wide spectrum of both creative and informative speech, will the anti-copyright crowd acknowledge how ridiculous their claims were that authors and publishers were ever the censors? No they will not. Will they acknowledge that the rights of authors are among the constitutional rights being trampled in Trump’s stampede toward national illiteracy? No they will not. Because it ain’t the authors and publishers trying to “memory hole” history. And it was ridiculous to suggest that they ever were.

But worse than the absurd premise that creators’ rights were a meaningful tool of censorship is that the anti-copyright narrative was promoted with substantial funding by the same companies whose technologies were destined to be exploited by the civil rights-infringing kakistocracy that now holds power. This was not just foreseeable; it was almost inevitable. As cited in my last post about the book Careless People, Sarah Wynn-Williams’s description of various authoritarians, including Trump, using the Facebook algorithm to micro-target disinformation is as unsurprising as it is shocking. What the hell did anyone imagine was really financing these “free information” machines? Goofy memes and mash-up videos?

Every time Mark Zuckerberg rebutted the idea of content moderation by saying, “We don’t want to be the arbiters of speech,” he was masking the truth that Facebook would take anybody’s money and guide them to effectively aim any misinformation at any parties for any purpose. It didn’t matter if the narrative was Brexit, the CCP spying on its own citizens, rallying Buddhists into murderous rage in Myanmar, or amplifying every delusional, unconstitutional syllable in Trump’s slow insurrection against the United States. The mantra of yellow journalism was If it bleeds, it leads, but the mantra of social media is If it pays, it stays.

Not that the anti-copyright crowd would ever admit they had anything to do with the damage Trump is doing to the Republic, but at least they might now concede that their claims about copyright making “information disappear” were as unworthy of attention as they were unfounded in fact. As Justice Sandra Day O’Connor famously wrote in Harper and Row v. Nation Enterprises, “The Framers intended copyright itself to be the engine of free expression.” And so it has been. Meanwhile, the tech industry that opposes those rights has proven to be an engine of so many calamities the Framers dearly hoped Americans would avoid.

Photo by Treephwood