Category: reason

On Monday, the Trump administration formally requested that the Federal Communications Commission (FCC) look into whether social media companies are running afoul of Section 230, the federal law that allows these companies to moderate content without facing legal peril and says providers and users of any “interactive computer service” are only responsible for their own speech, not the speech of every single user on a given platform.

Conservatives don’t like Section 230 because it means Twitter, YouTube, and similar entities have the discretion to delete offensive tweets and suspend any accounts they deem to be violating their terms of service. Progressive don’t like Section 230 because it means that only the perpetrators of crimes like harassment, non-consensual sharing of photos (a.k.a. “revenge porn”), or forced prostitution can be charged or sued over theses actions, not whatever digital tool or service they happened to use in service of their bad acts.

Both sides insist that tweaking or abolishing Section 230 will solve their pet problems—that is, doing so would somehow lead to both more and less speech permitted online. In actuality, it would just give the federal and state governments—as well as deep-pocketed entities wielding civil suits—more control over what the average person can say without punishment and what content private companies can allow.

Thankfully, the folks at the FCC seem to realize this. In June, when President Donald Trump first issued an executive order on social media—a day after Twitter affixed a fact-checking note to one of Trump’s tweets—current and former commissioners were already skeptical.

“An Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer,” said Commissioner Jessica Rosenworcel.

FCC Chairman Ajit Pai said that “the Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce”—a subtle comment that the agency doesn’t take its orders from Trump and Trump can’t grant it new authorities.

Re draft #ExecutiveOrder making @FCC police online #speech: As a matter of law, a @POTUS cannot confer on FCC, an independent agency, new legal powers. W/ online platforms being speakers under #FirstAmendment like TV channels & newspapers, this speech control is #unconstitutional https://t.co/1wTT8gvdui

— Robert M. McDowell (@McDowellTweet) May 28, 2020

Trump’s June order instructed the FCC to determine the conditions under which moderating social media content can be classified as “the result of inadequate notice, the product of unreasoned explanation, or having been undertaken without a meaningful opportunity to be heard.”

As I pointed out last month, it’s a strange request, since there’s nothing in Section 230 that conditions its protections on entities giving adequate notice about suspended posts or providing users with a reasonable explanation. Section 230 is about who creates content, not how a company chooses to display or suppress that content or how they communicate these decisions.

The end goal may be for Republicans in Congress to somehow use the FCC’s recommendations in proposing a future amendment to Section 230, but that’s a lot of steps away and would face some serious hurdles. The idea may also simply be to provide courts with new guidance on interpreting Section 230 cases (for instance, if the FCC decides that providing inadequate notice of moderation decisions is a sign of not acting in “good faith,” as the law requires, plaintiffs could bring these things up as evidence when asking judges to rule on Section 230-related claims).

Regardless, the administration is moving ahead with recruiting the FCC into Trump’s beef with Twitter. On Monday, the Commerce Department’s National Telecommunications and Information Administration filed a petition with the FCC formally asking it to clarify the things mentioned in Trump’s order.

FCC Commissioner Brendan Carr put out a statement yesterday saying “I look forward to reviewing and acting expeditiously on the petition.” Rosenworcel was less enthused.

“The FCC shouldn’t take this bait,” she said in a statement. “While social media can be frustrating, turning this agency into the President’s speech police is not the answer. If we honor the Constitution, we will reject this petition immediately.”

Right on cue last night, Trump began posting angrily about Twitter’s trend recommendations, an algorithmically determined selection of popular hashtags and words tailored to each individual Twitter user’s habits. This leads to individuals seeing different trends—that is, if a user sees a lot of a certain type of trending topic, it’s related to both what other users are clicking on and their own previous activity on the network. None of it is determined by the individuals working at Twitter or the preferences of the company’s leaders.

The president either doesn’t understand this or is pretending he doesn’t understand.

“So disgusting to watch Twitter’s so-called ‘Trending,’ where sooo many trends are about me, and never a good one,” Trump tweeted mid-evening on Monday. “They look for anything they can find, make it as bad as possible, and blow it up, trying to make it a trend. Really ridiculous, illegal, and, of course, very unfair!”

Trump’s nonsensical comments dovetail nicely with the narrative about social media that he and other prominent conservatives have trying to spread: that it’s deliberately biased against them. But—again—Twitter trends are simply determined by what content is trendy among users, according to the number of people tweeting about, clicking on, and sharing said content.

Trump’s comments are actually a pretty glorious self-own, since him never seeing “a good” story about himself trending simply means that good content about Trump isn’t popular among Twitter users, bad content about Trump is popular, and Trump himself is frequently checking in on trends about himself without grasping that this affects his trending-topic results.

Whether other prominent conservatives are similarly confused about how the internet and social media work, or just like having another excuse to cry victimhood, many have lobbed on to the president’s current claim or made similarly asinine allegations in the past.

Last week, for instance, Rod Dreher of The American Conservative insisted Google had briefly de-indexed his blog so it wouldn’t show up in search results. But whatever Dreher was doing to convince himself of this, his blog actually remained perfectly visible in search results, as plenty of people who checked up on his story pointed out. Nonetheless, Dreher tweeted at Sen. Josh Hawley (R–Mo.) asking the senator to open an investigation into what was going on.

I hope @HawleyMO will dig into what happened. This is a chilling sign of how quickly a company as powerful as Google can effectively silence dissenting voices. #LiveNotByLies

— Rod Dreher (@roddreher) July 21, 2020

Alas, this is where conservatives’ combination of tech panic and paranoid victim mentality has gotten us: demanding congressional hearings and federal agency investigations into why Rod Dreher can’t find his own blog posts and why Americans like sharing bad stories about Trump.

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QUICK HITS

The president is tweeting a viral video in which the person speaking says a drug the fda rescinded emergency use for is what people need to combat Covid, not masks or lockdowns. It’s the real other side of the coin to some WH officials saying he understands the severity now.

— Maggie Haberman (@maggieNYT) July 28, 2020

• Decriminalize Sex Work has put out an excellent video explaining the problems with the EARN IT Act and why it’s “a wolf in sheep’s clothing.”

• RIP Garrett Foster.

• Democratic presidential candidate Joe Biden released his “Agenda for Women” yesterday.

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Cancel culture has often been compared to Sen. Joseph McCarthy’s (R–Wisc.) hunt for communists in the 1950s. That’s not a bad parallel, so far as it goes. But I think a more useful analog is found in more distant history: Cancellation is remarkably similar in spirit to the outlawry of medieval England.

If Robin Hood and his men were as merry as is widely reported and secure in their Sherwood haunts, they were the exception among outlaws. To be made an outlaw was, quite literally, to be put outside the law—which is to say, to lose its protection of your life.

That’s not all the outlaw lost. “Outlawry required forfeiture of goods to the king and liability to be killed with impunity,” explains historian Melissa Sartore in Outlawry, Governance, and Law in Medieval England. “An outlaw was stripped of any property and was essentially a ‘friendless’ and ‘lawless’ man. He had no more rights than a hunted animal.” An outlaw could not use his home, perform his work, or see his family without the risk of violent death.

Outlawry was a favored punishment in a justice system with much less information and power than ours. It was frequently assigned by justices in eyre, who were judges traveling a circuit and holding court in various villages as they went. Because these courts weren’t continuously in session and rural communities’ ability to jail people was limited, it wasn’t uncommon for those accused of serious crimes to hide or run when a justice arrived.

“The court’s response to the absconding felon was to proclaim him an outlaw,” writes Susan Stewart in Outlaws in Medieval and Early Modern England. If he did not appear at one of five subsequent court sessions to which he was summoned, the outlaw’s status was confirmed and publicized along with his alleged guilt. (Kings could also outlaw people for treason, and abuse of the royal outlaw power is addressed in the Magna Carta.)

Outlawry could be undone by royal pardon or demonstration of innocence, but most outlaws didn’t wait around for that slim possibility of restoration to normal life. They typically fled, Stewart says, believing “their safest route was to escape to the depths of the forest, and then possibly to emerge at some later date to a vill or better still a town where their face and history were unknown.”

Outlawry fell out of use as imprisonment became more widely practiced. Though a few belated writs of outlawry (or its close cousin, exile) were issued in the United Kingdom as recently as the 19th century, by the time it was officially abolished in 1938, contemporary commentary described the shift as “sweep[ing] away some legal deadwood.” In cancel culture, however, we find a sort of outlawry revived.

Cancel culture is slippery in the taxonomist’s hands, but I think something like columnist Ross Douthat’s definition is about right: “Cancellation, properly understood, refers to an attack on someone’s employment and reputation by a determined collective of critics, based on an opinion or an action that is alleged to be disgraceful and disqualifying.”

This description highlights the differences of function between medieval outlawry and cancel culture today: Outlawry was a formal, legal punishment backed by the threat of violence and usually intended to punish people accused of felony crimes like murder, arson, or conspiracy. Cancel culture has no such legal force. It’s a movement of social censure, and in its quintessential cases—e.g. Justine Sacco or, more recently, David Shor or the woman from The Washington Post Halloween party story—there’s no criminal allegation or, many times, even a lean outside the Overton Window. (The “Central Park Karen,” somewhat unusually among high-profile cancellation stories, is being prosecuted.)

Beyond these distinctions, however, outlawry and cancel culture have much in common: They grow out of the same human impulse of ostracism, the desire to exclude offenders from “respectable” society. They give the broader community permission to attack their targets, whether with physical violence (as in outlawry) or via verbal abuse, doxxing, or threats (as in cancel culture). They oust offenders from their social class (today, typically the professional-managerial class) and deprive them of their normal means of livelihood.

That last similarity is what first led me to make this comparison. “[Racist p]eople who go to college end up becoming racist lawyers and doctors. I don’t want people like that to keep getting jobs,” a teenager from Long Island recently told The New York Times in defense of her operation of a call-out account on Instagram. “Many students believe the only consequence their peers will take seriously is having their college admissions letter rescinded,” the Times report says, quoting a second teenager similarly eager to stop future “racist lawyers or doctors” from “advancing.” Ending targets’ professional lives (here, before they begin) is the feature, not a bug.

But there’s one more important difference between cancel culture and the outlawry of yore: As Douthat notes, “under the rule of the internet there’s no leaving the village” or running to the forest deep. 

Cancel culture normally won’t kill you—though stories like that of Geoffrey Corbis or Wilson Gavin should caution us against dismissing that risk too lightly—but it can certainly kill your career. It may be possible to change your name and start a new life, but this is no longer as simple as popping up in some unfamiliar hamlet to ply your trade anew. Our modern writ of outlawry is always just a Google away.

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I recently criticized a Ninth Circuit judge who corrected a press report in a judicial decision. In effect, her opinion was a letter to the editor. She would have been better suited to simply write a letter to the newspaper, in her private capacity, seeking a correction. Instead, she chose to do so in the federal reporter.

I was reminded of the Case of the Speluncean Explorers. One of the judges, Justice Keen, includes in his opinion a personal plea to the Chief Executive seeking clemency for the explorers. Another judge responds, “I may remark, incidentally, that the advice of Private Citizen Keen will appear in the reports of this court printed at taxpayers’ expense.”

There is some precedent for federal judges to defend their decisions in the press. In 1819, Chief Justice Marshall wrote pseudonymous editorials after McCulloch v. Maryland. And in 1968, Justice Stewart wrote a letter to the editor of the WSJ after Jones v. Alfred H. Mayer Company.

McCulloch v. Maryland

McCulloch v. Maryland (1819) proved to be very unpopular. Critics charged that Marshall had read the Necessary and Proper Clause as to give Congress boundless authority. In response, Chief Justice Marshall published two essays in the Philadelphia Union and nine essays in the Alexandria Gazette.  The latter essays responded to a particularly vituperative criticism authored by Virginia Supreme Court Justice Spencer Roane, who used the pseudonym “Hampden.” Specifically, Marshall rejected the notion that McCulloch gave Congress an unlimited power. Here is an excerpt, which Randy and I include in our casebook:

I say, without fear of contradiction, that the general principles maintained by the supreme court are, that the constitution may be construed as if the clause which has been so much discussed, had been entirely omitted. That the powers of congress are expressed in terms which, without its aid, enable and require the legislature to execute them, and of course, to take means for their execution. That the choice of these means devolve on the legislature, whose right, and whose duty it is, to adopt those which are most advantageous to the people, provided they be within the limits of the constitution. Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of a given power.

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.”

Modern defenders of federal power have ignored some of the important, limiting langauge from McCulloch. For example, the quoted sentence emphasized above. Randy and I think that Marshall’s defense of McCulloch is useful to understand the scope of that decision.

Jones v. Alfred H. Mayer Company

In the second case, a Justice defended his decision in a signed letter to the editor.

On June 17, 1968, the Supreme Court decided Jones v. Alfred H. Mayer Company. This case held that 42 U.S.C. 1982 prohibits racial discrimination in the sale of real estate. (Then-Judge Harry Blackmun wrote the panel decision for the Eighth Circuit.) The Court split 7-2. Justice Stewart wrote the majority opinion. Justice Harlan dissented, joined by Justice White. Harlan was especially critical of the majority in light of the recently-enacted Fair Housing Act of 1968. Harlan thought the case should have been DIG’d:

Moreover, the political processes of our own era have, since the date of oral argument in this case, given birth to a civil rights statute embodying “fair housing” provisions  which would, at the end of this year, make available to others, though apparently not to the petitioners themselves, the type of relief which the petitioners now seek. It seems to me that this latter factor so diminishes the public importance of this case that by far the wisest course would be for this Court to refrain from decision and to dismiss the writ as improvidently granted.

The case was argued on April 1, and the FHA was signed into law on April 11. Alfred H. Mayer was decided on June 17.

On June 20, the Wall Street Journal published an editorial titled, The Alternate Legislature. The editorial charged that the Court engaged in “judicial legislation,” and for going far beyond the recently-enacted Fair Housing Act. Here is an excerpt from “The Alternate Legislature,” Wall Street Journal, June 20, 1968:

The question to ask about the Supreme Court’s sweeping proscription of housing discrimination is not whether the effects of the decision are just and wise, but whether the Court sees any limit to its role as an alternate legislature.

For the Court decision goes far beyond the fair-housing law Congress recently passed. Congress outlawed racial discrimination in housing, but provided some exceptions such as a homeowner selling has house without use of a real estate broker. The Court in effect wiped out such exceptions and also made fair housing effective immediately rather than in the stages Congress had provided. ….

The activist majority on the Court needs to start thinking about the limits of its legislative role. Before the Justices set out to write law on their own, they at least ought to hesitate long enough to give the real legislature first chance.

I found a copy of the editorial in the June 24, 1968 edition of the Congressional Record (p. 13 of this PDF). Senator Robert Byrd of West Virginia entered it into the record; he said “the activist majority of the court needs to start thinking about the limits of its legislative role.”

On July 3, 1968, Potter Stewart–who authored the majority opinion in Jones–wrote a letter to the editor. Here is the response. “Letters to the Editor: Justice Stewart Dissents,” Wall Street Journal, July 3, 1968.

I have read with interest the editorial of June 20, “The Alternate Legislature.” In the case to which you refer, a man was refused the purchase of a house solely because he was a Negro. He eventually brought his case to the Supreme Court, relying upon a law, 42 U.S.C. 1982, written and passed by Congress that says:

“All citizens of the United States shall have the same right, in every state and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

The Supreme Court held (1) that this law means what it says, and (2) that Congress had constitutional power to pass it. You say this made the Court a “legislature.”

What would the Court have been if it had held (1) that the law does not mean what it says, or (2) that Congress did not have the power to pass it?

I add only that Congress, having enacted 42 U.S.C. 1982, remains free to amend it at any time.

Potter Stewart

Associate Justices, U.S. Supreme Court

Stewart’s response is very weak. He insists the majority’s reading of the statute is the only possible meaning of the statute. He repeats the standard line that he was merely interpreting Section 1982, and Congress can change it if it doesn’t like the decision. (His certainty has a Gorsuch vibe to it, doesn’t it?).

Judges should not try to defend their work; let the decision speak for itself.

I am grateful to Professor Steve Wasby who flagged this exchange. He wrote about Stewart’s letter in Stephen L. Wasby, Anthony D’Amato, and Rosemary Metrailer, Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies (Southern Illinois University Press, 1977).

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7/28/1880: San Francisco prohibits operation of laundires in wood buildings, “without having first obtained the consent of the board of supervisors.” The Supreme Court found this ordinance unconstitutional in Yick Wo v. Hopkins (1886).

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Commander Kyle Gordon, of London’s Metropolitan Police, is defending officers who arrested a 12-year-old boy for playing with a BB gun. The officers, accompanied by police dogs, raided the home of the boy’s family after someone reported seeing a black male with a gun. The gun was a pistol with a blue slider to show it wasn’t a real gun. “The reporting member of the public was right to call us and we would encourage others who see similar weapons to do the same,” Gordon said. “We are committed to bearing down on violence, and we rely on our communities to help us do this.”

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Our interview this week focuses on section 230 of the Communications Decency Act and features Lauren Willard, counsel to the Attorney General and a moving force behind the well-received Justice Department report on section 230 reform. Among the surprises: Just how strong the case is for FCC rule-making jurisdiction over section 230.

In the news, David Kris and Paul Rosenzweig talk through the fallout from Schrems II, the Court of Justice decision that may yet cut off all data flows across the Atlantic.

Paul and I speculate on the new election interference threat being raised by House Democrats. We also pause to praise the Masterpiece Theatre of intelligence reports on Russian cyber-attacks.

Nick Weaver draws our attention to a remarkable lawsuit against Apple. Actually, it’s not the lawsuit, it’s the conduct by Apple that is remarkable, and not in a good way. Apple gift cards are being used to cash out scams that defraud consumers in the US, and Apple’s position is that, gee, it sucks to be a scam victim but that’s not Apple’s problem, even though Apple is in a position to stop these scams and actually keeps 30% of the proceeds. I point out that Western Union – on better facts than Apple’s– ended up paying hundreds of millions of dollars in an FTC enforcement action—– and still facing harsh criminal sanctions.

Paul and David talk us through the 2021 National Defense Authorization Act, which is shaping up to make a lot of cyber-security law, particularly law recommended by the Cyber Solarium Commission. On one of its recommendations – legislatively creating a White House cyber coordinator – we all end up lukewarm at best.

David analyzes the latest criminal indictment of Chinese hackers, and I try to popularize the concept of crony cyberespionage.

Paul does a post-mortem on the Twitter hack. And speaking only for myself, I can’t wait for Twitter to start charging for subscriptions to the service, for reasons you can probably guess.

David digs into the story that gives this episode its title – an academic study claiming that face recognition systems can be subverted by poisoning the training data with undetectable bits of cloaking data that wreck the AI model behind the system. How long, I wonder, before Facebook and Instagram start a “poisoned for your protection” service on their platforms?

In quick takes, I ask Nick to comment on the claim that US researchers will soon be building an “unhackable” quantum Internet. Remarkably his response is both pithy and printable.

And more!                                                                                                                 

Download the 326th Episode (mp3)

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