Category: Politics

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]

Sen. Cruz Brief Wrongly Portrays Section 230 as a Neutrality Law

Among the briefs filed in Gonzalez v. Google asking the Supreme Court to properly read Section 230 of the Communications Decency Act is one filed by Sen. Ted Cruz, Rep. Mike Johnson, and fifteen other Republican Members of Congress. Presenting similar textual arguments as the brief filed by Cyber Civil Rights Initiative (CCRI), highlighted here in a recent post, Sen. Cruz et al. petition the Court to address a matter that has nothing to do with Section 230—a politically motivated complaint summarized as follows:

Confident in their ability to dodge liability, platforms have not been shy about restricting access and removing content based on the politics of the speaker, an issue that has persistently arisen as Big Tech companies censor and remove content espousing conservative political views, despite the lack of immunity for such actions in the text of §230.

Allegations of viewpoint bias are inaptly raised in Gonzalez, or indeed any case addressing Section 230. Even if it could be shown that a social platform actively engages in true political bias (i.e., moderating ideas and speakers rather than extremism), this is not a Section 230 issue because neither political nor any other form of bias necessarily implicates civil liability for an online platform any more than it does for a newspaper or TV network.

The First Amendment protects bias, and Section 230 does not alter this fact. Hence, the Cruz brief strays far from the purpose of the Court’s review in Gonzalez by erroneously implying that bias is inherently grounds for litigation when it alleges that the overbroad interpretation of Section 230 immunity causes or sustains politically motivated censorship. But Section 230 is not and never has been a viewpoint neutrality law. Cruz et al. are asking the Court for a misreading that has lived in the PR of the platforms and the rhetoric of tech-utopianism, but is nowhere in the statute.

Specifically, the Cruz brief alleges that the platforms have been shielded in censorious conduct by a poor statutory reading of their right to “good faith” removal of material that is “otherwise objectionable.” The amici argue that those words must be read in balance with the preceding words in the statute providing immunity where platforms remove or restrict access to third-party content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The brief then asserts (a bit wryly) that “…conservative viewpoints on social and political matters do not rise to the level of being ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’”

Notably, the brief both elides a definition of “conservative” in context to its argument and asks the Court to read Section 230 as a mandate that platforms leave all material online that does not meet a very narrow, statutory definition of “objectionable.” This is false. Section 230 was written to encourage platforms to adopt and enforce their own community standards (i.e., decide what is objectionable), which does not disturb the general right to host a platform which may be politically biased in any direction. A proper reading of 230 simply means that platforms shall not be unconditionally immunized against potential liability for hosting content that results in some form of harm which may be remedied through civil litigation.

The Cruz brief does not distinguish between amici’s political bona fides and the broad spectrum of hate-speech and violence-inciting material that some Americans now call “conservative,” and which is indeed problematic for platforms. For instance, as the Alex Jones verdicts or the January 6th convictions make clear, material that certain people are willing to label “conservative” may, as a matter of law, be libel, defamation, or disinformation that results in individuals being harassed and threatened, or which leads to violence—or even an insurrection. And it is precisely in this context (i.e., blurring the line between political views and actionable conduct) that the complaint in the Cruz brief is so inaptly raised in Gonzalez.

Petitioner Gonzalez alleges that Google’s “recommendation” algorithms contributed to fostering terrorist activity by promoting ISIS recruiting videos in a manner that predictably roused a latent terrorist, who then acted on those emotional triggers. Regardless of whether that complaint prevails in context to the anti-terrorism statutes at issue, the general allegation about the platform’s role in Gonzalez is indistinguishable from an algorithm detecting that a user likes InfoWars and, therefore, “recommends” QAnon videos or some other tinfoil-hat material with the foreseeable result that some domestic terrorist will assault a family in Sandy Hook, ransack the Capitol, conspire to kidnap a sitting governor, etc.

Thus, if the Court agrees that Google is not shielded from litigation in Gonzalez, the allegations of liability presented, even if they do not prevail in that instance, are directly analogous to an Alex Jones or an election-denier issue for a platform moderation team. Even if Google is ultimately not found to be liable for the ISIS-related killing of Nohemi Gonzalez, allowing the case to proceed past the Section 230 veil will demonstrate that there is a plausible, common-sense nexus between amplification of certain material and harmful conduct.

Under a correct reading of 230 (i.e., no unconditional immunity for platforms), the platforms may be more effective in addressing inciting material—a goal that should have bipartisan support from lawmakers interested in both a proper reading of the statute and the general welfare of the nation. Unfortunately, this political monkey wrench in the Section 230 issue is part of a broader narrative in which social platforms have allegedly tilted the scales—but in favor of extreme right-wing material calling itself “conservative.” For instance, in February 2021, BuzzFeed reported:

Internal documents obtained by BuzzFeed News and interviews with 14 current and former employees show how the company’s policy team — guided by [Republican lobbyist and conspiracy promoter] Joel Kaplan, the vice president of global public policy, and Zuckerberg’s whims — has exerted outsize influence while obstructing content moderation decisions, stymieing product rollouts, and intervening on behalf of popular conservative figures who have violated Facebook’s rules.

This and other reports, including testimony before Congress, reveal a pattern of (if anything) pro right-wing bias at Facebook and other platforms, including evidence that the “anti-conservative” story itself is a fiction promoted by individuals like Kaplan. More specifically, Zuckerberg’s apparent resistance to remove Alex Jones from the platform demonstrates how the chronic misreading of Section 230 would only benefit a Trumpianized GOP that embraces every extremist willing to wear a red hat.

A correct reading of 230 opens the possibility that Facebook could be liable for hosting or “recommending” InfoWars, while an incorrect reading forecloses that possibility at summary judgment. Only one of these interpretations benefits those elements of the GOP who choose to align themselves more closely with that brand of “conservatism.” Thus, consistent with the Trumpian tactic of weaponizing alleged victimhood, the comparatively mild complaint of viewpoint bias in the Cruz brief is political theater—blaming social media platforms for actions that a) they have not taken; b) they have a constitutional right to take, if they want to; c) are unrelated to Section 230 immunity; and d) detract from an important legal question for real victims barred from pursuing relief by misreading the statute.

Cruz and his fellow amici have heard or read testimony from witnesses like whistleblower Frances Haugen, who explained to the Senate Commerce Committee how Facebook consistently put profits ahead of safety, adding, “The result has been a system that amplifies division, extremism, and polarization — and undermining societies around the world. In some cases, this dangerous online talk has led to actual violence that harms and even kills people.” Specifically, Haugen and other former insiders have repeated the theme that extremism has been good for social platforms—that angry users are active users, and active users translates to profit for these companies.

A proper reading of Section 230 will not solve every problem fostered by social platforms, but it can have the effect of forcing platform operators to identify when speech is reasonably linked to harmful conduct and to acknowledge a nexus between addictive algorithm design and illegal activity—from terrorism to “revenge porn.” Very real harms have been shielded and exacerbated by misreading Section 230, and it is this error of law which the Court should resolve. In the process, it should decline to address the subject of viewpoint neutrality as the inappropriate, political side show it is.

Fair Use and Politics: Trump Denied Dismissal in Suit with Eddy Grant

This week, the SDNY denied the motion to dismiss requested by Donald J. Trump et al in the copyright suit filed by singer/songwriter Eddy Grant. The complaint stems from the unlicensed use of Grant’s song “Electric Avenue” which was synched with an animated, political video satirizing then candidate Joe Biden in 2020. The video was distributed via social media, including on Trump’s own Twitter account on August 12th. The defendants based their petition for dismissal on the grounds that use of the song was a fair use.

It is difficult in general to win a dismissal of a copyright claim based on a fair use defense. But that procedural standard notwithstanding, the fair use argument presented in this case is well-trod territory and, therefore, short work for a court in the Second Circuit, which is replete with copyright precedent. Specifically, Trump et al employed a familiar tactic by arguing a too-broad interpretation of what it means to “use a work for a different purpose” than its original purpose at creation. This argument is made under the first prong of the fair use test, which considers the purpose of the use, including whether the use is transformative. Here, the SDNY was clear:

While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation’s use of Grant’s song. As the Second Circuit Court of Appeals recently stated: ‘where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use’ is insufficient to render a work transformative.’

So, as I say, the court is not breaking any new ground in finding that the fair use test would most likely favor Grant in this case and that it must, therefore, deny the motion to dismiss. If this litigation proceeds, I believe Trump et al will continue to find that there is no precedent on which its fair use defense can survive; and considering the much darker legal clouds gathering around Trump’s world, I would not be surprised if this little civil dispute with one musician is settled in the coming weeks or months.

Is Political Speech a Little Different?

What can be tricky for many observers with this kind of case—and the court here alludes to the matter—is that political satire is a “rich part of our First Amendment tradition.’” The the anti-Biden video was satirical in general and produced by a third party, albeit as an endorsement of Trump for President. But the reason the transformative test fails is that no comment upon “Electric Avenue” itself is present in the use. The fact that the overall message of a work may be satirical does not favor a fair use any more than if the overall message is deadly serious. The essential ingredient that must exist under prong one of the fair use test is some comment upon the work being used without license. But what if a political video is satirical overall and achieves parody of a work being used?

In fact, this is close to what occurred in Henley v. DeVore in which Don Henley’s songs were used for political purposes, and about which the court in Grant writes, “In Henley, the defendants changed some of the lyrics to the copyrighted songs and even provided their own vocals. And because the defendants there used the songs as vehicles for their political messaging, in one instance to poke fun at Henley himself for his political affiliations, the court found that the secondary works were satire and parody, respectively.”

The Grant court notes that the fair use test still failed due to the amount of Henley’s work used for the purpose, but I underline the example to make the point that a political advertisement could conceivably be parody of a work and a satire at the same time and, therefore, be held a fair use of a protected work at issue. But might this raise an acute tension with the First Amendment?

It is considered self-evident that political speech is a paradigmatic subject of the speech right, but if this is so, then compelled political speech is a paradigmatic infringement of the speech right. Thus, when a copyrighted work is used without license in a political message, the use has greater potential to result in an especially egregious form of compelled speech. This principle is exacerbated in the current climate, where political divisions are sharp and hostile, but also in the digital landscape, where the distinction between the political satirist and the political operative is almost invisible.

Any smartass with a smartphone can, and does, make potentially very persuasive political commentary and distribute same via social media. And, of course, the low-cost tools of production and distribution are available to the many PACs and other third parties who are not in the satire business like South Park or The Daily Show, but are instead in the professional campaign business. Meanwhile, as viewers, we do not pay much attention to the sources of all the memes and videos that shape or reinforce our views and opinions—even where that information is available at all.

In principle, a court looking at a satirical video, whether it is produced by a PAC or SNL, should consider fair use in the same manner. As the court in Grant notes, “…denying the defendants’ fair use defense in this case—especially at this early stage in the litigation—will not chill legitimate political satire. Creators of satirical videos like the one at issue here must simply conform any use of copyrighted music with copyright law….” On the one hand, it is sensible that a court view the Biden satire video as it would any other “legitimate political satire” with regard to the fair use analysis; but on the other hand, it strikes me that if the creator of a political satire is a political operative with a clear political purpose (e.g. to win an election or advance a specific policy), that the speech rights of the copyright owner should perhaps weigh more heavily against a finding of fair use than might be considered in a use that does not have such a clear political purpose.

While it is true that the unlicensed use of a work to promote a brand or a message may feel to the copyright owner like a form of compelled speech (and may even violate his right of publicity), these private sector infringements lack the state action  necessary to implicate the First Amendment. And even though a work of political satire may be produced by a party like a PAC, which is in the private sector, when the satire’s purpose is arguably an extension of a political campaign—especially of an incumbent office-holder—the copyright owner may justifiably feel a more acute form of compelled speech than with a typical commercial infringement.

Specifically, when a sitting President uses his social platform to distribute a video endorsing his reelection, and the video is enhanced by an unlicensed copyrighted work, the compelled contribution by the rightsholder to that message may consider the experience awfully close to a constitutional, as well as a personal, violation of his speech rights. This may be true even with an incumbent who is more disciplined than Donald Trump when it comes to the distinctions between the office and the individual. The fact that this form of compelled speech will generally skirt a constitutional violation is a technicality mired in the tangles of campaign finance rules and the role of PACs, but the bottom line for the copyright owner is likely something like this: “The sitting President just used my voice to support his reelection, and I don’t support him.” But should that violation be allowed, if the use also succeeds in commenting upon the work at issue within the same political message? Perhaps, but alas …

Sadly, we no longer live in a world in which political theater plays a fractional role within a broader competition of ideas. Instead, our political process is too often nothing more than theater. No politician in modern history both exploited and exemplified this circus atmosphere more than Donald Trump, and no platform has ever amplified the cacophony like social media. It is simply too easy today to cobble together pictures and sounds into political performances that go viral; and at the very least, the authors of the works being used should be accorded the right to allow or disallow the exploitation of their creative expressions for those purposes.

The underlying principles of the fair use exception in copyright law are high-minded in theory. The exception supports the speech right—especially the right to comment upon protected works—and this, in turn, animates the foundation of copyright to promote more expression. But when considering fair use in regard to using unlicensed works for political speech, perhaps the identity of the user and the precise nature of his political intent should be considered under factor one—the purpose of the use—in deference to the copyright owner’s speech rights.

Photo source by: melis82