Tag: free speech

Trump Jr. Blasting Silicon Valley Is Unhelpful

In an op-ed for The Hill published on September 30, Donald Trump, Jr. rails against the power of the major internet platforms, saying that “free speech is under attack” by Big Tech.  His complaint, of course, is that the big internet platforms are censoring what he calls conservative voices, blaming “the technology giants that deplatform people at the behest of liberals and then justify the action as ‘combating hate.’” 

Don Jr.’s call to “break up” Big Tech is, ironically enough, a call for the industry to return to its pre-2016 policy of zero platform responsibility, to accepting revenue from any source while making little effort to mitigate hateful, violent, or illegal content—even if it happens to be paid for in Rubles.  Because of course without the babbling chaos that social media created in the first place, there would be no reality in which a patently incompetent and indecent man like Donald Trump becomes President of the United States.  Most real conservatives know this to be true and, I suspect, will be saying so in the relatively near future.

Seeking to align Trumpism with original patriotism, The Donald 2.0 extolls the virtues of a Reddit mob blasting Beto O’Rourke as if this kind of engagement were exemplary of the American Framers’ fondest ambitions for free speech and a free press. He writes …

“The free press that the founders envisioned looked a lot more like the Reddit users who roasted [Beto] O’Rourke than New York Times writers who misrepresent basic tenets of free speech and demand censorship to protect their friends from “online harassment.”  

There is nothing surprising about a Trump making a hash of history.  While Junior is perhaps correct to remind Americans that living in a society with free speech “…can be edgy, brutal, irreverent, and sometimes downright offensive,” he misrepresents the sensibilities of the Framers in a significant and telling way.  Even a digest version of the reading material makes one thing very clear about America’s key architects:  to a man, they were intellectual elitists who harbored few illusions about the hazards of democracy and the consequences of succumbing to the tyranny of the mob. Not even Jefferson, in his most Jacobean zeal, would likely view the average social-media skirmish with anything but contempt for the general abandonment of evidence-based reason in these discourses that so often devolve to threats and harassment. As scholar Mary Anne Franks writes in the abstract of her paper “Fearless Speech” …

“The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.”

Perhaps most relevant to Don Jr.’s twisted premise is that the Framers who were especially apprehensive about the too-passionate mob, men like Hamilton, are the progenitors of the American conservative tradition.  Those stuffy, patrician, and, yes, arrogant authors of the United States, who tended to display a bit too much anglophilia for the tastes of many of their contemporaries, also served as intellectual ballast in a nation that was born volatile and restless.  The men who wrote the Constitution were students of the Enlightenment, not an angry, pitchfork-wielding rabble.  That was the French Revolution.

The principle that the rule of law is a foundation of liberty spawned a conservatism grounded in reason, truth, and a moral context that was at least definable, if not universal enough to embrace America’s inevitable diversity.  In short, there is no historic or doctrinal link between the Federalists and the straightjacket ravings of someone like Alex Jones.  The Founders never hoped that the speech right would foster a circus, where evidence rooted in science would be trampled by popular consensus—let alone the kind of algorithmic sabotage at work in our politics of the moment.

As surely as MTV made Madonna, Twitter made President Trump—albeit not intentionally.  Where else, other than the miasma of the Twitterverse could a man whose political bona fides began with a racist conspiracy theory attain the highest office in the land?  Big Tech’s folly is not that some of its operators finally had the sense to remove an Alex Jones or a Daily Stormer from their servers, but that they initially promoted a doctrine of internet non-governance, which fostered the only medium in which neo-Nazis and sociopaths were somehow invited into tent of conservatism.  That anyone would tolerate, let alone defend, the President’s recent tweets about “civil war” (a literal incitement to violence and treason), is the apotheosis of Big Tech’s misguided ideologies and a grotesque aberration of the Federalist cause.  

Responding as a member of an unofficial society of Big Tech critics, I find Junior’s rationale for “breaking up” Google, Facebook, et al profoundly dysfunctional and unhelpful in a policy discussion that is already difficult to have.  While many of us are advocating platform responsibility, he wants to goad those platforms to resume hosting all material without restraint, to reinvigorate Barlow’s too-idealistic notion of a world where laws do not apply.  But of course that’s what he would do.  How else could the United States suborn a President who flaunts his contempt for the rule of law and unironically asserts “alternative facts”?  That is the internet ethos in spades, and Trump’s presidency is the Golem that Silicon Valley brought to life. 

Should Bot Disclosure Be Required by Law?

Recently, California legislators introduced the B.O.T. Act of 2018, which, as the Electronic Frontier Foundation summarizes, “would make it unlawful for any person to use a social bot to communicate or interact with natural persons online without disclosing that the bot is not a natural person.” The EFF describes the proposed bill as an understandable but over-broad response to Russia’s use of bots to influence the 2016 election as well as the use of spambots to commit online fraud. While it is tempting to accuse the EFF of defending bot rights, they haven’t quite taken that position, though they do come close.

As would be expected, the EFF alleges that the California bill can “chill the use of bots for protected speech activities,” and although the post written by Jamie Williams alludes to some interesting areas to explore vis-a-vis bots and speech, one important flaw in her summary of the bill is that it leaves off an important condition that says, “with the intention of misleading.” There may be circumstances in which intentionally misleading consumers, constituents, fans, voters, etc. can be considered protected speech, but it seems reasonable to assume that most actors who intentionally mislead are doing something harmful, and probably illegal.

It is characteristic of the EFF to trivialize a legitimate problem by imagining hypothetical negative consequences of the legislation proposed to address that problem. Even the couple of Twitter-feed examples Williams cites* as speech that may be chilled do not appear to be bot uses that would necessarily run afoul of the California law.

The first of theses is @soft_focuses, which is essentially a bot-generated version of fridge-magnet poetry. The second, rather interesting, example is @censusAmericans, which interprets anodyne census data and turns lines of information into “real” people. So, a typical tweet says, “I live with my father. He works. I speak German at home. I have never been married.”

If indeed both of these examples are protected speech, neither appears to “intentionally mislead” anyone. To the contrary, both the bot-generated poetry and the bot-generated census characters seem to be a) obviously the “speech” of bots; and/or b) harmless to the rare viewer who might somehow mistake either as the expression of a natural person. Correspondingly, even if either feed were required to more explicitly “label” its use of bots, the speech in question would not be in anyway diminished.

Do Bots Have Free Speech Rights?

I certainly hope we never come to the conclusion that they do. But a distinction I would make between the two examples presented by EFF is that the poetry Twitter account, although owned by a human (or humans), does not appear to communicate much protectable speech at the direction of that human. It simply produces random combinations of words that sound kinda like poetry.

Assuming that is correct, each tweet is a an example of purely bot-generated content, which should not be protected because machines do not have natural rights. One could argue that the human’s decision to present the whole twitter feed constitutes an artistic statement in itself, though not a very original one and not one that would likely differ in character from another feed doing exactly the same thing. Hence, the amount of protected speech would seem to be very thin and, therefore, not likely to be infringed by the California proposal. (This dovetails with the discussion of AI’s owning copyrights.)

By contrast, although each tweet in the census example may be partly the result of data-interpretation by a bot, the output is not random words. In fact, human authors have clearly set certain rules like the imposition of the pronoun “I” to generate first person statements as well as the basic subject-verb-object structure of English sentences. The cumulative result is a mosaic of fictional characters that represents real Americans in a Twitter-only narrative, not unlike the way in which characters in a movie or play represent real people. Thus, the owner of @censusAmericans is the natural person exercising a free speech right by presenting this collage to the public, which constitutes creative and politically-substantive speech.

Bot Speech is the Least of Our Worries

Beyond sci-fi wish-fulfillment, I’m not sure why it is necessary or beneficial, in many cases, to want bots to behave more like humans in the first place. Granted, I’m not bringing a smart device into my home like an Alexa or a Duplex because I’ve read my Huxley, Orwell, and Bradbury; but if I did own such a device, I’d want a giant wall of separation between me and the machine, lest I find myself locked out of the house one day and the thing telling me why it can’t “afford to jeopardize the mission.” (It’s bad enough when the toast pops up too late.)

Meanwhile, as the EFF opposes what amounts to a consumer-protection bill on highly-speculative free speech grounds, I have to say that, at present, I’m more concerned with humans behaving like bots than the other way around. Let’s face it, every time one of us clicks “Like” or shares a post or article based solely on the headline, we’re pretty much doing bot-work. The right keywords appear in front of our little sensors, and CLICK!—we pass it on to our circles of bots, who pass it on to their circles of bots.

And that doesn’t even account for the volume of ingrained misconception across the political spectrum on a wide range of issues boiled down to a few buzzwords. The folks at EFF are, in fact, expert at exploiting this phenomenon, at triggering Pavlovian responses to keyword conclusions on otherwise complex topics. Remember how the IP provisions in the TPP were going to chill speech on the internet? Is that claim any less absurd than the current administration’s rationale for pulling out of the most important trade deal in recent history? Stare at that Venn diagram for a while and try not to lose your mind.

My point is that we are already treading water in sea of externally and internally inflicted deceptions and obfuscations written by human beings. So, to the extent California’s bot “warning label” might diminish the amplification of all that noise, I think it’s a can’t hurt/might help proposition. At the same time, if, under very specific circumstances, this law could be invoked to chill someone’s speech, that’s for the court to address on a case-by-case basis.

The relatively narrow circumstances in which this law might be misapplied and also implicate speech does not make it “constitutionally flawed,” as the EFF claims. One can misapply a wide variety of laws we have right now to chill someone’s speech, which is why we appeal to courts to address such conflicts. Meanwhile, it seems reasonable to conclude that the intent to deceive, whether by bot or any other means, is rarely benign.

* The post cites three examples, but the third links to a dead URL.

Image by graphicwithart

On Cake, Creativity, & Religion in America

Today, the Supreme Court will hear oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, a.k.a. “the wedding cake case.”  In 2012, baker and cake designer Jack Phillips of Masterpiece Cakeshop in Lakewood, CO informed David Mullins and Charlie Craig, that he would not make a new cake for their wedding due to his Christian belief that same-sex marriage is a sin.  This circumstance will look to many like a 14th Amendment, equal-protection case—one fraught with emotion for the LGBT community and those of us who defend gay rights. But, this particular conflict may be a bit trickier than it appears.

It is my own view that the most important elements of the First Amendment—a true master stroke for the late 18th century—are the balancing forces of the exercise and establishment clauses.  In recognizing the slaughter-bench that religion had made of Europe for centuries leading up to the American experiment, the relative harmony achieved by simultaneously rejecting a national religion and protecting the free exercise (or no exercise) of a plurality of beliefs is central to the function of all other civil rights in the United States.  After all, if there were a state religion, or if we failed to protect a diversity of views, the rights of free speech or a free press would be utterly meaningless.

In this regard, the current trend that seeks to upset constitutional balance by asserting the exercise of one religion (Christianity) over secular laws like the 14th Amendment is toxic beyond the immediate issue of gay rights affirmed in Obergefell.  For instance, Rep. Labrador’s proposed First Amendment Defense Act (FADA) would be a legislative end-run around equal protection that would empower a landlord to refuse housing; an employer to refuse a job; or a doctor to refuse treatment to citizens in same-sex marriages.  But in addition to being a transparently bigoted proposal, it is more broadly an assertion that the Book of Leviticus supersedes the Constitution; and I would caution even the most ardent Christian Americans to be careful what they wish for.  Such views tore nations apart for much longer than U.S. has existed.

So, while I am personally adamant, to say the least, that secular law always prevails over religious “law,” it is precisely because of this principle that I wonder if Phillips’s argument in the “wedding cake” case may be more difficult than it appears.  My right as a secularist to publish this post is codependent with protecting Phillips’s right to speak (or not speak) in accordance with his views. The speech protection cannot discriminate based on the motives of the speaker, which brings us to the question of whether Phillips’s cakes can reasonably be called creative expressions.

How creative is a wedding cake?

If I understand Phillips’s argument correctly, the issue in this case is far more subtle than a typical 14th Amendment conflict in which a proprietor outright refuses service to a customer based on some form of discrimination.  According to this account in Reuters, Phillips did not demand that Mullins and Craig leave his shop, and he offered them other products that had already been made.  What Phillips refused to do was to take up his creative brush, as it were, to make what he feels would have been a new artistic expression celebrating an event he cannot endorse. In short, what makes this case distinctive from, say, a mechanic refusing to fix the couple’s car, is that Phillips may be standing on fairly solid free speech ground if the service he refused to provide is held to be creative enough under the law.

Writing as someone who despises both bigots and “religious-freedom” laws but defends artists, copyright, and free speech, I have to admit that Phillips’s claim is not entirely dismissible simply because I reject his point of view.  Although a cake is too temporary a medium to qualify for enforceable protection under copyright law, copyright principles may still be instructive to a legal interpretation of his claim that his cakes are artistic expressions. This is because the design, painting, and arrangement of elements on the cakes could very likely meet the modicum of creativity standard required to call Phillips’s pictorial, sculptural, & graphic (PSG) work “original” in a copyright context. This may be relevant because a court, which has no business acting as cultural critic (i.e. deciding what conduct is or is not “artistic”), can look to copyright law for guidance as to what defines “creative expression” in a legal context.*

So, if it can be established that Phillips (or any baker with his level of skill) is engaged in creative expression while designing one of these cakes, then his free speech argument has merit, regardless of the discriminatory nature of the religious belief behind the speech. Under this analysis, the obvious problem with a holding against Phillips is that it would set a precedent whereby a different creative cake-maker could not refuse to make one of her expressions to celebrate a party for the Ku Klux Klan.  Or what if the medium is more permanent than a dessert?  What if the artist is a portrait painter or photographer?  Does the 14th Amendment require that the artist accept a commission to make a portrait of some figure who represents something he reviles? Certainly, most people would agree that equal protection for the customer, in this case, does not supersede the artist’s speech right to refuse to create the work. Like it or not, the rationale may be the same if the “canvas” is a cake.

Michelangelo hated painting the Sistine Chapel.  As beautiful as it is, there is an extent to which the entire undertaking is not his expression of choice, but rather an expression of his especially thorny relationship with the Medici and the Roman Church. His life exemplifies the precarious relationship many artists had with society and religion throughout most of western history. It was not until the late 19th century that art truly began to assert itself as something distinct from doctrines of morality; and one role copyright has played in that narrative is that it allowed the artist freedom to express herself without the constraints of patronage, religion, or government, which were usually intertwined.  But in order to protect this principle of artistic independence, we probably have to uphold the rights of all creators equally, whether their personal motives are secular or religious — or even unkind.

Laws designed to protect “religious freedom” like the FADA bill are extremely dangerous in my view because they upset the very delicate balance between exercise and establishment that I truly believe is the yin/yang of American civil liberties. But equally dangerous is any precedent that would coerce an individual to speak in a manner that he does not choose. Like religious-freedom laws, a victory against Phillips in this case could have some nasty, unintended consequences for creative expression.  So, as strenuously as I would use my speech right to defend the right of Mullins and Craig to enjoy equal protections, I am likewise sure that—if Phillips is held to be conducting creative expression—he cannot not be compelled to express himself for any reason.

Personally, I think people like Phillips who cherry-pick Leviticus as an excuse for discrimination are fundamentally mean-spirited and crazy (I mean have you read Leviticus?) And the kind of political figures and institutions who support this beatified baker are generally a threat to democratic principles (and some of them are pedophiles it turns out). I’d be happy to see these people lose.  But as a matter of dispassionate analysis, it may not be so easy, or even desirable, to define Phillips’s cakes as non-expressive; and it will be interesting to see what the Court makes of this argument.

ADDENDUM:  To look at this in another way, if copyright’s principles were to define Phillips’s cakes as creative expressions, then those same principles also provide boundaries that should prevent this case from serving as precedent for a broader range of “creative” services (e.g. floral arrangement).

*See this post about Star Athletica v Varisty and the subject of separability.  Based on Justice Ginsberg’s opinion, Phillips could theoretically register his designs with the USCO using another medium like paper prior to applying them to the cakes.

Photo by ivonnewierink