A New Book Reveals Facebook’s Problems Started Way Before the 2016 Election

“It remains uncertain whether anything that happened on Facebook made a significant difference in the 2016 election,” Steven Levy writes in his introduction to Facebook: The Inside Story. This is a sentence the reader has to keep in mind throughout Levy’s new book, which documents how the seeds of what has gone wrong for the company were planted years before 2016 in a series of heedless or needlessly aggressive decisions that are deeply rooted in the history and culture of the company itself. 

When it comes to what we actually can prove about the 2016 votes in the United Kingdom (which resulted in Brexit) and in the United States (which gave us President Donald Trump), it’s never been demonstrated that Facebook and its ad policies made any difference. Even so, it’s now indisputable that various political actors (including Russia) have tried to use Facebook that way, and that the company made it easy for them to try. 

Levy’s introductory chapter is designed to show both the reputational heights Facebook founder Mark Zuckerberg and his company briefly reached and the depths to which they’ve both now fallen. The author draws a brisk line between Zuckerberg’s triumphant surprise visit to Lagos, Nigeria, in August 2016—where he meets a range of programmers and would-be startup entrepreneurs as well as top government officials—and the unexpected outcome of the American election in November that year. The latter inspired a gathering storm of critics to point directly at Facebook as the source of that outcome’s unexpectedness. 

This juxtaposition works to draw readers into the thematic heart of the book but also suggests, a bit misleadingly, that Facebook’s massive loss of public regard starting in 2016 was an abrupt, unexpected one. But what the author documents in his introductory chapter and throughout the book is that Facebook’s unforced errors have amounted to a car crash more of the slow-motion variety; you can’t look away, but also it never seems to end.

Nothing in Levy’s narrative arc for Facebook and its principal founder will come as a surprise to anyone who has followed the company’s fortunes over the 15 years. You could fill a specialty bookstore with nothing but Facebook-related books published in the last decade or so, starting with Ben Mezrich’s The Accidental Billionaires, later adapted by Aaron Sorkin for the David Fincher-directed movie The Social Network. Mezrich’s book, and almost all of the books published about Facebook since then, fall into two broad categories: (1) Look At The Great Things These Geniuses Have Done, or (2) Look At All The Pathological Things These Twisted Guys Have Done. With the exception of David Kirkpatrick’s The Facebook Effect (a book on the company’s early years that Levy credits by name in his acknowledgments), the authors of most of these other books typically have tried to distill the story of Facebook into lessons—either what not to do or what must be done—regarding social media and big tech-company successes. One way or another, they’ve almost all had axes to grind.

That was never going to be the kind of story Levy—whose 2011 book on Google, In The Plex, is the best journalistic account of that company’s history and its impact on the tech world—would write about Facebook. Levy’s books and his admirably accessible body of tech journalism for journals from Newsweek to MacWorld to Wired consistently demonstrate how he’s driven by the facts rather than by any philosophical or political agenda. And that’s exactly why, once Levy has layered on so many new facts about Facebook, its principals, and its various lapses and betrayals, piling on the details from hundreds of interviews, putting all the pieces of every part of Facebook’s story into one place, his most even-handed conclusions are still damning:

“The troubled post-election version of Facebook was by no means a different company from the one it was before, but instead very much a continuation of what started in Mark Zuckerberg’s dorm room 15 years earlier. It is a company that benefits from and struggles with the legacy of its origin, its hunger for growth, and its idealistic and terrifying mission. Its audaciousness—and that of its leader—led it to be so successful. And that same audaciousness came with a punishing price.”

And what was that price? Per Levy, “Facebook now admits that the damage [from the company’s decisions to promote rapid growth over everything else] turned out far more extensive than expected, and is not easily repaired. All the while Mark Zuckerberg and his team insist, despite the scandals, that Facebook is still overwhelmingly a force for good in the world.”

Even now—even after reading Levy’s increasingly unhappy account of Facebook’s growth in size and profitability on the one hand and its growth in scandalously negligent or callous treatment of users and their data on the other—I’m still inclined to agree that Facebook is a force for good. I’m biased: Were it not for our ability to stay in touch on Facebook while half a world apart, the woman who became my wife in 2017 and I would not be married today. But, just as important, I’ve seen so many instances in which individual users and communities have found constructive uses for Facebook’s many features, ranging from the broadly political to the deeply personal. I’ve been a defender of some of Facebook’s approaches to real problems, such as its Internet.org project (later known as Free Basics) and its (apparent) commitment to end-to-end encryption.

But again and again in Levy’s book I stumble across things like Facebook’s deployment of a mobile app called Onavo Protect, which purported to provide VPN (virtual private network) services for one’s phone, but whose real purpose was to gather user data about how they used other apps. For a year or two I had that Onavo app on my own damned phone! As Levy writes, “it takes a certain amount of chutzpah to present people with a privacy tool whose purpose was to gain their data.”

Far more common in the Facebook story than perverse examples like Onavo Protect are the occasions in which the company failed to anticipate problems that would arise from the markets it pushed itself into with little awareness of how its services might be misused—especially in the absence of Facebook personnel who spoke the dominant languages in those markets and who might at least theoretically identify content that violated Facebook’s content policies or other problematic uses. Take Myanmar, for example. Levy shows that Facebook learned in 2014 about how its services were being used maliciously in Myanmar, a country where large-scale mobile-phone internet access was just taking off. 

I learned about Facebook’s impact in Myanmar at roughly the same time through my contacts in Burmese civil society, and my first reaction was just as brain-dead as Facebook’s turned out to be. When I was told that incidents of civil violence were being reported on Facebook, my first thought was that this was positive—that the increasing ubiquity of smartphones with cameras was making rogue government officials and factions more accountable. What I didn’t immediately grasp (my Burmese friends politely schooled me), and what Facebook took far longer to grasp, was that false reports of crime and sexual assaults were being used to stir up violence against innocents, with a growing genocidal focus on the country’s oppressed and persecuted Rohingya minority. Levy then outlines how Facebook’s property WhatsApp, with its end-to-end encryption features and its built-in ability to amplify messages, including pro-violence messages, exacerbated the civil-discord problem in Myanmar (just as it eventually was shown to have done in the Philippines and in Brazil):

“Facebook contracted with a firm called BSR to investigate its activity in Myanmar. It found that Facebook rushed into a country where digital illiteracy was rampant: most Internet users did not know how to open a browser or set up an email account or assess online content. Yet their phones were preinstalled with Facebook. The report said that the hate speech and misinformation on Facebook suppressed the expression of Myanmar’s most vulnerable users. And worse: ‘Facebook has become a useful platform for those seeking to incite violence and cause offline harm.’ A UN report had reached a similar conclusion.” 

It’s fair to note, as Facebook’s defenders (who sometimes have included me) have noted, that all new communications technologies are destined to be misused by somebody. But Facebook’s reckless stress on its grow-first-fix-problems-later strategy more or less guaranteed that the most harmful aspects of the misuses of these new media would be exacerbated rather than mitigated. By 2018, the company began to realize it was at the bottom of a reputational hole and needed to stop digging; when Zuckerberg testified before the U.S. Senate in 2018, he responded to Sen. Patrick Leahy’s (D–Vt.) question about Myanmar by saying “what’s happening in Myanmar is a terrible tragedy, and we need to do more.”

That last line is a theme that appears again and again in the final third of the book, uttered by different top executives at Facebook. “We know we have more work to do,” an exec responded when reporters revealed that Facebook’s AI-fueled self-service ad product created the targeted category “Jew haters.”

Writes Levy: “Investigative reporters at ProPublica found 2,274 potential users identified by Facebook as fitting that category, one of more than 26,000 provided by Facebook, which apparently never vetted the [category] list itself.” When Facebook Chief Operating Officer Sheryl Sandberg, a Google veteran, met with the Congressional Black Caucus, she didn’t have a particularly strong defense for Facebook’s having (in Levy’s words) “hosted Russian propaganda that fueled white prejudice against black people” or violating civil-rights laws “because it allowed advertisers to discriminate against African-Americans.” Sandberg was reduced to “repeating, almost like a mantra, ‘We will do better.'” Sandberg later told Levy that “I walked out of there saying we, and I, have a lot of work to do.” This has become the paradigmatic Facebook response when any new scandal emerges from the company’s shortsighted strategic choices to privilege growth over due diligence. 

If there is one major exception to the company’s institutional willingness to plunge ahead into new markets and new opportunities to reap revenue, it is its cautiousness in dealing with American conservatives, primarily driven by Facebook’s head of global policy, Joel Kaplan. Levy writes that

“for years right-wing conservatives had been complaining that Facebook—run by those liberals in Silicon Valley—discriminated against them by down-ranking their posts. The claim was unsupported by data, and by many measures conservative content was overrepresented on Facebook. Fox News routinely headed the list of most-shared posts on the service, and even smaller right-wing sites like the Daily Wire were punching above their weight.” 

Facebook’s intense desire to be perceived as lacking political bias seems to have led to policies and outreach efforts—including a big powwow in Menlo Park where Zuckerberg and Sandberg personally attempted to mollify prominent conspiracy theorists like Rush Limbaugh and Glenn Beck–that added up to white-glove treatment for American conservatives. Beck, at least, told Levy he was impressed with Zuckerberg’s sincerity: “I sat across the table from him to try to gauge him [and he] was a little enigmatic, but I thought he was trying to do the right thing.” Even so, Levy writes, “after leaving Menlo Park the conservatives returned to complaining about Facebook’s treatment of them—while piling up millions of views because of their skill in exploiting Facebook’s algorithms.”

The attempts to accommodate conservative critics, occurring simultaneously with Facebook’s promises to “do better” on other content moderation issues, illustrate the bind in which the company now finds itself. It’s voicing its commitment to be more proactive in moderating malicious content and disinformation while simultaneously reassuring the squeakiest political wheels that, no, their content and policies won’t be subjected to any Facebook-imposed test of factuality or truth. In other words, it’s promising both to police more content and to police content less. Facebook’s laboring now to create a “content oversight board,” a kind of “Supreme Court” where Facebook content decisions can be appealed.

I’m skeptical of that whole oversight-board project—not least because it seems largely to sidestep the other big bucket of problems for Facebook, which is its handling of user data. I’m also skeptical about broad claims that Facebook’s content algorithms and ads truly manipulate us—in the sense of robbing us of ordinary human independence and agency—but that skepticism has no bearing on the ethical question of whether Facebook should allow malign actors to exploit user data in efforts to manipulate us (e.g., by suppressing voter turnout). Whether those efforts are effective or not isn’t relevant to the ethical questions, just as when a drunk in a bar misses when he swings at you has no bearing on whether he can be charged with attempted assault. 

Finally, I’m most skeptical as to whether anything Facebook tries to do on its own is going to either restore Facebook’s public reputation or blunt the impulse of government policymakers, both in the United States and elsewhere, to impose hobbling and even punitive regulation on the entire social-media industry (and on the tech industry generally). 

It’s clear that one reason Zuckerberg and Sandberg have been scrambling to find an accommodation that works—first and foremost with the U.S. government but also with the European Union (E.U.) and with non-E.U. nations—is that they know they need to get out of the crosshairs, especially as more of their company’s story continues to come to light. Their problem now is that Steven Levy’s Facebook: The Inside Story has instantly become the indispensable single-volume resource for all policymakers everywhere when it comes to Facebook—not because it sets out to take the company down, but because the facts it reports leave readers with no choice but to recognize how the company’s indisputable successes have been undermined by its indisputable systemic deficiencies. 

My takeaway is that Facebook could still manage a win out of all this—if it seizes this moment as an opportunity to embrace an ethical framework that’s designed for something bigger than just solving Facebook problems. I don’t believe the company’s bad behavior (or negligence—there’s plenty of both) can tell us what to think of this whole sector of the internet economy and what industry-level regulation or law should look like. As I’ve argued in my own book, I believe a new ethical framework has to be built and shared, industry-wide (affecting more companies than just Facebook). It needs to be informed by all stakeholders, including users, governments, and civil society as well as the companies themselves—and it needs to privilege fiduciary obligations to users and the general public even over any commitment to growth and profitability. Part of these obligations will entail, yes, a commitment to fighting disinformation, treating it as a cybersecurity problem—even when political stakeholders complain. 

That’s just my view—other critics will argue for different approaches, some of which will center on more regulation or laws or other government interventions, while others will argue for fewer but better-crafted ones. But what all Facebook’s critics, and the tech industry’s critics, will have in common is this: going forward, we all will be citing stuff we learned from Levy’s Facebook: The Inside Story.

from Latest – Reason.com https://ift.tt/2T3f5DM
via IFTTT

Is Trump Deliberately Sandbagging New York’s Landmark Transportation Policy?

New York’s plan to impose a congestion toll on drivers entering the lower parts of Manhattan has hit a bump in the road, with New York Gov. Andrew Cuomo (D) repeatedly claiming that federal officials are slow-walking needed approval of the policy.

“The federal approval, frankly, we just assumed it was going to be almost pro forma. They’re now using that opportunity to stop congestion pricing,” Cuomo told reporters on Monday, according to The New York Times.

The governor made the same claim last week according to the New York Post, saying in another press conference “Will [the Trump administration] hold congestion pricing hostage? Yes. That’s how they do business.”

New York’s congestion pricing plan was passed in April 2019 as part of the state’s budget. It would impose a toll on all drivers entering Manhattan streets below 60th Street, save for motorists who drive only on the island’s West Side Highway or FDR Drive.

The plan requires that some 80 percent of the revenue from these congestion tolls be spent on the city’s subway, with another 10 percent being dedicated to regional rail services.

The plan calls for having the tolls in place by January 2021, but there are still a number of details to be worked out, including how high congestion tolls should be, and who should get credits or exemptions.

That requires difficult political wrangling with powerful constituencies, from cops to truckers, who all have argued they deserve a carve-out. It also requires New York to get permission from the federal government.

Currently, there exists a general prohibition on states and localities adding tolls to roads that were funded in part by the federal government. The Federal Highway Administration (FHWA) does administer a couple of programs that make exceptions to this ban. That includes the Value Pricing Pilot Program (VPPP), through which the federal government can approve pilot congestion pricing programs to reduce congestion on existing roads.

Receiving authorization through VPPP also requires proposals to go through environmental reviews mandated by the National Environmental Policy Act (NEPA). How long that will take all depends on what level of NEPA review federal officials deem appropriate.

If New York were lucky, it would receive a categorical exemption from NEPA. More likely it will have to prepare an Environmental Assessment (an intermediate level of review) or worse, an Environmental Impact Statement (EIS). Those run an average of 670 pages and can take years to complete.

Right now, the FHWA is in the middle of determining which level of NEPA New York’s congestion pricing scheme requires. That determination will tell New York officials what information they’ll have to prepare for the feds.

Officials with the New York City government and the Metropolitan Transportation Authority (MTA)—the state agency that runs buses and trains in New York City—say they’ve been trying to get an answer from the feds about what kind of report they need to prepare since April 2019.

An FHWA spokesperson told Reason that the agency didn’t receive the supplemental information it needed to make a NEPA determination until January 2020, and it’s that delay, not Cuomo’s claimed political interference, that’s dictating the pace of federal review.

As recently as February 8, Cuomo told the Wall Street Journal that he wasn’t concerned about the potential for the Trump administration to hold things up for political reasons.

The governor could be doing a lot more to speed things along in the face of federal delays, argues Manhattan Institute transportation scholar Nicole Gelinas, who wrote in the New York Post:

[Cuomo could] have directed the MTA to take a more aggressive posture. The MTA could have prepared a short “environmental assessment,” hiring consultants to say the scheme will help the environment by discouraging people from driving. The MTA could start preparing the longer document, just in case. It requires public hearings, which are a pain, but the city completed its environmental-impact statement for its four-borough jails from start to finish in 14 months, meaning the MTA would be almost done now.

The fact that Cuomo hasn’t done those things, says Gelinas, suggests that he’s already gotten all the political mileage out of congestion pricing he can, and sees only liabilities in actually implementing the policy.

Cuomo risks pissing off motorists who will now have to pay for something they used to enjoy for free. This dynamic isn’t made better by the specific design of New York’s congestion pricing scheme, says Baruch Feigenbaum of the Reason Foundation, the nonprofit that publishes Reason.

“I think the concern is that very little of the money from the congestion price is going to improve roadways,” he said, adding that the proposed toll levels seem to have more to do with hitting revenue targets for funding transit than with easing congestion.

Feigenbaum notes that Trump isn’t above petty retribution when it comes to New York, noting his administration’s brazenly political decision to bar residents from that state from participating in Trusted Traveller programs that allow quicker passage through airport security.

Still, Feigenbaum says he hasn’t seen any evidence that this is the case with congestion pricing. Indeed, Trump has proposed reforms that would speed up NEPA reviews of projects, and limit the use of EIS.

Congestion pricing as a concept has a lot to offer a place like New York City, says Feigenbaum. There’s a lot of demand for driving on the roads, but very little space for adding new road capacity. As with most major reforms, it’s the politics of implementation that are slowing things down.

from Latest – Reason.com https://ift.tt/3af3ZRZ
via IFTTT

A New Book Reveals Facebook’s Problems Started Way Before the 2016 Election

“It remains uncertain whether anything that happened on Facebook made a significant difference in the 2016 election,” Steven Levy writes in his introduction to Facebook: The Inside Story. This is a sentence the reader has to keep in mind throughout Levy’s new book, which documents how the seeds of what has gone wrong for the company were planted years before 2016 in a series of heedless or needlessly aggressive decisions that are deeply rooted in the history and culture of the company itself. 

When it comes to what we actually can prove about the 2016 votes in the United Kingdom (which resulted in Brexit) and in the United States (which gave us President Donald Trump), it’s never been demonstrated that Facebook and its ad policies made any difference. Even so, it’s now indisputable that various political actors (including Russia) have tried to use Facebook that way, and that the company made it easy for them to try. 

Levy’s introductory chapter is designed to show both the reputational heights Facebook founder Mark Zuckerberg and his company briefly reached and the depths to which they’ve both now fallen. The author draws a brisk line between Zuckerberg’s triumphant surprise visit to Lagos, Nigeria, in August 2016—where he meets a range of programmers and would-be startup entrepreneurs as well as top government officials—and the unexpected outcome of the American election in November that year. The latter inspired a gathering storm of critics to point directly at Facebook as the source of that outcome’s unexpectedness. 

This juxtaposition works to draw readers into the thematic heart of the book but also suggests, a bit misleadingly, that Facebook’s massive loss of public regard starting in 2016 was an abrupt, unexpected one. But what the author documents in his introductory chapter and throughout the book is that Facebook’s unforced errors have amounted to a car crash more of the slow-motion variety; you can’t look away, but also it never seems to end.

Nothing in Levy’s narrative arc for Facebook and its principal founder will come as a surprise to anyone who has followed the company’s fortunes over the 15 years. You could fill a specialty bookstore with nothing but Facebook-related books published in the last decade or so, starting with Ben Mezrich’s The Accidental Billionaires, later adapted by Aaron Sorkin for the David Fincher-directed movie The Social Network. Mezrich’s book, and almost all of the books published about Facebook since then, fall into two broad categories: (1) Look At The Great Things These Geniuses Have Done, or (2) Look At All The Pathological Things These Twisted Guys Have Done. With the exception of David Kirkpatrick’s The Facebook Effect (a book on the company’s early years that Levy credits by name in his acknowledgments), the authors of most of these other books typically have tried to distill the story of Facebook into lessons—either what not to do or what must be done—regarding social media and big tech-company successes. One way or another, they’ve almost all had axes to grind.

That was never going to be the kind of story Levy—whose 2011 book on Google, In The Plex, is the best journalistic account of that company’s history and its impact on the tech world—would write about Facebook. Levy’s books and his admirably accessible body of tech journalism for journals from Newsweek to MacWorld to Wired consistently demonstrate how he’s driven by the facts rather than by any philosophical or political agenda. And that’s exactly why, once Levy has layered on so many new facts about Facebook, its principals, and its various lapses and betrayals, piling on the details from hundreds of interviews, putting all the pieces of every part of Facebook’s story into one place, his most even-handed conclusions are still damning:

“The troubled post-election version of Facebook was by no means a different company from the one it was before, but instead very much a continuation of what started in Mark Zuckerberg’s dorm room 15 years earlier. It is a company that benefits from and struggles with the legacy of its origin, its hunger for growth, and its idealistic and terrifying mission. Its audaciousness—and that of its leader—led it to be so successful. And that same audaciousness came with a punishing price.”

And what was that price? Per Levy, “Facebook now admits that the damage [from the company’s decisions to promote rapid growth over everything else] turned out far more extensive than expected, and is not easily repaired. All the while Mark Zuckerberg and his team insist, despite the scandals, that Facebook is still overwhelmingly a force for good in the world.”

Even now—even after reading Levy’s increasingly unhappy account of Facebook’s growth in size and profitability on the one hand and its growth in scandalously negligent or callous treatment of users and their data on the other—I’m still inclined to agree that Facebook is a force for good. I’m biased: Were it not for our ability to stay in touch on Facebook while half a world apart, the woman who became my wife in 2017 and I would not be married today. But, just as important, I’ve seen so many instances in which individual users and communities have found constructive uses for Facebook’s many features, ranging from the broadly political to the deeply personal. I’ve been a defender of some of Facebook’s approaches to real problems, such as its Internet.org project (later known as Free Basics) and its (apparent) commitment to end-to-end encryption.

But again and again in Levy’s book I stumble across things like Facebook’s deployment of a mobile app called Onavo Protect, which purported to provide VPN (virtual private network) services for one’s phone, but whose real purpose was to gather user data about how they used other apps. For a year or two I had that Onavo app on my own damned phone! As Levy writes, “it takes a certain amount of chutzpah to present people with a privacy tool whose purpose was to gain their data.”

Far more common in the Facebook story than perverse examples like Onavo Protect are the occasions in which the company failed to anticipate problems that would arise from the markets it pushed itself into with little awareness of how its services might be misused—especially in the absence of Facebook personnel who spoke the dominant languages in those markets and who might at least theoretically identify content that violated Facebook’s content policies or other problematic uses. Take Myanmar, for example. Levy shows that Facebook learned in 2014 about how its services were being used maliciously in Myanmar, a country where large-scale mobile-phone internet access was just taking off. 

I learned about Facebook’s impact in Myanmar at roughly the same time through my contacts in Burmese civil society, and my first reaction was just as brain-dead as Facebook’s turned out to be. When I was told that incidents of civil violence were being reported on Facebook, my first thought was that this was positive—that the increasing ubiquity of smartphones with cameras was making rogue government officials and factions more accountable. What I didn’t immediately grasp (my Burmese friends politely schooled me), and what Facebook took far longer to grasp, was that false reports of crime and sexual assaults were being used to stir up violence against innocents, with a growing genocidal focus on the country’s oppressed and persecuted Rohingya minority. Levy then outlines how Facebook’s property WhatsApp, with its end-to-end encryption features and its built-in ability to amplify messages, including pro-violence messages, exacerbated the civil-discord problem in Myanmar (just as it eventually was shown to have done in the Philippines and in Brazil):

“Facebook contracted with a firm called BSR to investigate its activity in Myanmar. It found that Facebook rushed into a country where digital illiteracy was rampant: most Internet users did not know how to open a browser or set up an email account or assess online content. Yet their phones were preinstalled with Facebook. The report said that the hate speech and misinformation on Facebook suppressed the expression of Myanmar’s most vulnerable users. And worse: ‘Facebook has become a useful platform for those seeking to incite violence and cause offline harm.’ A UN report had reached a similar conclusion.” 

It’s fair to note, as Facebook’s defenders (who sometimes have included me) have noted, that all new communications technologies are destined to be misused by somebody. But Facebook’s reckless stress on its grow-first-fix-problems-later strategy more or less guaranteed that the most harmful aspects of the misuses of these new media would be exacerbated rather than mitigated. By 2018, the company began to realize it was at the bottom of a reputational hole and needed to stop digging; when Zuckerberg testified before the U.S. Senate in 2018, he responded to Sen. Patrick Leahy’s (D–Vt.) question about Myanmar by saying “what’s happening in Myanmar is a terrible tragedy, and we need to do more.”

That last line is a theme that appears again and again in the final third of the book, uttered by different top executives at Facebook. “We know we have more work to do,” an exec responded when reporters revealed that Facebook’s AI-fueled self-service ad product created the targeted category “Jew haters.”

Writes Levy: “Investigative reporters at ProPublica found 2,274 potential users identified by Facebook as fitting that category, one of more than 26,000 provided by Facebook, which apparently never vetted the [category] list itself.” When Facebook Chief Operating Officer Sheryl Sandberg, a Google veteran, met with the Congressional Black Caucus, she didn’t have a particularly strong defense for Facebook’s having (in Levy’s words) “hosted Russian propaganda that fueled white prejudice against black people” or violating civil-rights laws “because it allowed advertisers to discriminate against African-Americans.” Sandberg was reduced to “repeating, almost like a mantra, ‘We will do better.'” Sandberg later told Levy that “I walked out of there saying we, and I, have a lot of work to do.” This has become the paradigmatic Facebook response when any new scandal emerges from the company’s shortsighted strategic choices to privilege growth over due diligence. 

If there is one major exception to the company’s institutional willingness to plunge ahead into new markets and new opportunities to reap revenue, it is its cautiousness in dealing with American conservatives, primarily driven by Facebook’s head of global policy, Joel Kaplan. Levy writes that

“for years right-wing conservatives had been complaining that Facebook—run by those liberals in Silicon Valley—discriminated against them by down-ranking their posts. The claim was unsupported by data, and by many measures conservative content was overrepresented on Facebook. Fox News routinely headed the list of most-shared posts on the service, and even smaller right-wing sites like the Daily Wire were punching above their weight.” 

Facebook’s intense desire to be perceived as lacking political bias seems to have led to policies and outreach efforts—including a big powwow in Menlo Park where Zuckerberg and Sandberg personally attempted to mollify prominent conspiracy theorists like Rush Limbaugh and Glenn Beck–that added up to white-glove treatment for American conservatives. Beck, at least, told Levy he was impressed with Zuckerberg’s sincerity: “I sat across the table from him to try to gauge him [and he] was a little enigmatic, but I thought he was trying to do the right thing.” Even so, Levy writes, “after leaving Menlo Park the conservatives returned to complaining about Facebook’s treatment of them—while piling up millions of views because of their skill in exploiting Facebook’s algorithms.”

The attempts to accommodate conservative critics, occurring simultaneously with Facebook’s promises to “do better” on other content moderation issues, illustrate the bind in which the company now finds itself. It’s voicing its commitment to be more proactive in moderating malicious content and disinformation while simultaneously reassuring the squeakiest political wheels that, no, their content and policies won’t be subjected to any Facebook-imposed test of factuality or truth. In other words, it’s promising both to police more content and to police content less. Facebook’s laboring now to create a “content oversight board,” a kind of “Supreme Court” where Facebook content decisions can be appealed.

I’m skeptical of that whole oversight-board project—not least because it seems largely to sidestep the other big bucket of problems for Facebook, which is its handling of user data. I’m also skeptical about broad claims that Facebook’s content algorithms and ads truly manipulate us—in the sense of robbing us of ordinary human independence and agency—but that skepticism has no bearing on the ethical question of whether Facebook should allow malign actors to exploit user data in efforts to manipulate us (e.g., by suppressing voter turnout). Whether those efforts are effective or not isn’t relevant to the ethical questions, just as when a drunk in a bar misses when he swings at you has no bearing on whether he can be charged with attempted assault. 

Finally, I’m most skeptical as to whether anything Facebook tries to do on its own is going to either restore Facebook’s public reputation or blunt the impulse of government policymakers, both in the United States and elsewhere, to impose hobbling and even punitive regulation on the entire social-media industry (and on the tech industry generally). 

It’s clear that one reason Zuckerberg and Sandberg have been scrambling to find an accommodation that works—first and foremost with the U.S. government but also with the European Union (E.U.) and with non-E.U. nations—is that they know they need to get out of the crosshairs, especially as more of their company’s story continues to come to light. Their problem now is that Steven Levy’s Facebook: The Inside Story has instantly become the indispensable single-volume resource for all policymakers everywhere when it comes to Facebook—not because it sets out to take the company down, but because the facts it reports leave readers with no choice but to recognize how the company’s indisputable successes have been undermined by its indisputable systemic deficiencies. 

My takeaway is that Facebook could still manage a win out of all this—if it seizes this moment as an opportunity to embrace an ethical framework that’s designed for something bigger than just solving Facebook problems. I don’t believe the company’s bad behavior (or negligence—there’s plenty of both) can tell us what to think of this whole sector of the internet economy and what industry-level regulation or law should look like. As I’ve argued in my own book, I believe a new ethical framework has to be built and shared, industry-wide (affecting more companies than just Facebook). It needs to be informed by all stakeholders, including users, governments, and civil society as well as the companies themselves—and it needs to privilege fiduciary obligations to users and the general public even over any commitment to growth and profitability. Part of these obligations will entail, yes, a commitment to fighting disinformation, treating it as a cybersecurity problem—even when political stakeholders complain. 

That’s just my view—other critics will argue for different approaches, some of which will center on more regulation or laws or other government interventions, while others will argue for fewer but better-crafted ones. But what all Facebook’s critics, and the tech industry’s critics, will have in common is this: going forward, we all will be citing stuff we learned from Levy’s Facebook: The Inside Story.

from Latest – Reason.com https://ift.tt/2T3f5DM
via IFTTT

Is Trump Deliberately Sandbagging New York’s Landmark Transportation Policy?

New York’s plan to impose a congestion toll on drivers entering the lower parts of Manhattan has hit a bump in the road, with New York Gov. Andrew Cuomo (D) repeatedly claiming that federal officials are slow-walking needed approval of the policy.

“The federal approval, frankly, we just assumed it was going to be almost pro forma. They’re now using that opportunity to stop congestion pricing,” Cuomo told reporters on Monday, according to The New York Times.

The governor made the same claim last week according to the New York Post, saying in another press conference “Will [the Trump administration] hold congestion pricing hostage? Yes. That’s how they do business.”

New York’s congestion pricing plan was passed in April 2019 as part of the state’s budget. It would impose a toll on all drivers entering Manhattan streets below 60th Street, save for motorists who drive only on the island’s West Side Highway or FDR Drive.

The plan requires that some 80 percent of the revenue from these congestion tolls be spent on the city’s subway, with another 10 percent being dedicated to regional rail services.

The plan calls for having the tolls in place by January 2021, but there are still a number of details to be worked out, including how high congestion tolls should be, and who should get credits or exemptions.

That requires difficult political wrangling with powerful constituencies, from cops to truckers, who all have argued they deserve a carve-out. It also requires New York to get permission from the federal government.

Currently, there exists a general prohibition on states and localities adding tolls to roads that were funded in part by the federal government. The Federal Highway Administration (FHWA) does administer a couple of programs that make exceptions to this ban. That includes the Value Pricing Pilot Program (VPPP), through which the federal government can approve pilot congestion pricing programs to reduce congestion on existing roads.

Receiving authorization through VPPP also requires proposals to go through environmental reviews mandated by the National Environmental Policy Act (NEPA). How long that will take all depends on what level of NEPA review federal officials deem appropriate.

If New York were lucky, it would receive a categorical exemption from NEPA. More likely it will have to prepare an Environmental Assessment (an intermediate level of review) or worse, an Environmental Impact Statement (EIS). Those run an average of 670 pages and can take years to complete.

Right now, the FHWA is in the middle of determining which level of NEPA New York’s congestion pricing scheme requires. That determination will tell New York officials what information they’ll have to prepare for the feds.

Officials with the New York City government and the Metropolitan Transportation Authority (MTA)—the state agency that runs buses and trains in New York City—say they’ve been trying to get an answer from the feds about what kind of report they need to prepare since April 2019.

An FHWA spokesperson told Reason that the agency didn’t receive the supplemental information it needed to make a NEPA determination until January 2020, and it’s that delay, not Cuomo’s claimed political interference, that’s dictating the pace of federal review.

As recently as February 8, Cuomo told the Wall Street Journal that he wasn’t concerned about the potential for the Trump administration to hold things up for political reasons.

The governor could be doing a lot more to speed things along in the face of federal delays, argues Manhattan Institute transportation scholar Nicole Gelinas, who wrote in the New York Post:

[Cuomo could] have directed the MTA to take a more aggressive posture. The MTA could have prepared a short “environmental assessment,” hiring consultants to say the scheme will help the environment by discouraging people from driving. The MTA could start preparing the longer document, just in case. It requires public hearings, which are a pain, but the city completed its environmental-impact statement for its four-borough jails from start to finish in 14 months, meaning the MTA would be almost done now.

The fact that Cuomo hasn’t done those things, says Gelinas, suggests that he’s already gotten all the political mileage out of congestion pricing he can, and sees only liabilities in actually implementing the policy.

Cuomo risks pissing off motorists who will now have to pay for something they used to enjoy for free. This dynamic isn’t made better by the specific design of New York’s congestion pricing scheme, says Baruch Feigenbaum of the Reason Foundation, the nonprofit that publishes Reason.

“I think the concern is that very little of the money from the congestion price is going to improve roadways,” he said, adding that the proposed toll levels seem to have more to do with hitting revenue targets for funding transit than with easing congestion.

Feigenbaum notes that Trump isn’t above petty retribution when it comes to New York, noting his administration’s brazenly political decision to bar residents from that state from participating in Trusted Traveller programs that allow quicker passage through airport security.

Still, Feigenbaum says he hasn’t seen any evidence that this is the case with congestion pricing. Indeed, Trump has proposed reforms that would speed up NEPA reviews of projects, and limit the use of EIS.

Congestion pricing as a concept has a lot to offer a place like New York City, says Feigenbaum. There’s a lot of demand for driving on the roads, but very little space for adding new road capacity. As with most major reforms, it’s the politics of implementation that are slowing things down.

from Latest – Reason.com https://ift.tt/3af3ZRZ
via IFTTT

Elizabeth Warren Adopts Cory Booker’s Plan for a Better Presidential Clemency System

Sen. Cory Booker (D–N.J.) failed to make much of an impact in his Democratic presidential campaign, but he did have a really good plan to deal with clemency if he were elected. Now Sen. Elizabeth Warren (D–Mass.) is adopting his plan into her own criminal justice reform proposal.

Last summer, Booker proposed making it easier and quicker for nonviolent federal drug offenders to seek clemency by shifting the process from the Department of Justice to the White House and creating a clemency panel to oversee the process. In particular, Booker’s plan would reduce the power of federal prosecutors to determine which clemency applications make it to the president’s desk and whether they arrive with a recommendation for denial or approval.

Warren is also supporting Booker’s plan to prioritize clemency for older inmates incarcerated for longer terms, and his proposal to quickly identify and focus on prisoners who would have benefited retroactively from sentencing changes under the First Step Act and other reforms. This second aspect is important because legislative changes to statutory sentencing practices do not automatically apply to prisoners currently serving time. The Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine, is a prime example of a good reform that unfortunately lacked retroactive language.

Warren’s updated plan notes:

Research shows that people tend to age out of crime and are substantially less likely to recidivate, but today thousands of elderly people remain behind bars. And those serving sentences equivalent to life in prison are disproportionately black and brown, many serving time for nonviolent crimes or crimes committed as juveniles. We are not any safer as a nation for their incarceration, nor is equal justice being served.

It’s a change criminal justice reformers have been recommending for some time and one with bipartisan appeal. President Donald Trump’s administration is considering something similar.

from Latest – Reason.com https://ift.tt/32z5CqX
via IFTTT

Would a Presidential Pardon for Roger Stone Be Unconstitutional?

President Donald Trump has suggested he might pardon Roger Stone, a longtime crony who last week was sentenced to 40 months in federal prison for obstructing a congressional investigation, lying to a congressional committee, and tampering with a witness.

Not so fast, says Corey Brettschneider, a professor of political science at Brown University. Brettschneider argues that Trump does not have the power to save Stone from prison.

It’s a bold claim, given the president’s sweeping clemency powers under the Constitution. But Brettschneider notes that the “power to grant reprieves and pardons for offences against the United States” does not apply “in cases of impeachment.” That exception, he argues in a Politico essay published today, rules out a pardon for Stone. It is hard to see how.

Brettschneider suggests that “cases of impeachment” include criminal cases against people who conspired with the president in the commission of “high crimes and misdemeanors” for which the president was impeached. Many legal scholars disagree.

During the Watergate investigation, New York Times reporter John Crewdson looked into the question of whether Richard Nixon could pardon himself to avoid criminal prosecution after he resigned or was removed from office. Based on his interviews with “constitutional experts,” Crewdson flatly stated: “The exception [for ‘cases of impeachment’] means that [the president] cannot restore the standing of a Federal officer who has been impeached and removed from his position; it does not mean that a President cannot pardon himself before his own impeachment.”

After Bill Clinton was impeached, Slate considered the same issue and summarized the opinions of several experts. “The simplest interpretation,” it said, “is that the president can pardon any federal criminal offense, including his own, but cannot pardon an impeachment. In other words, Clinton is free to immunize himself from criminal prosecution, but has no power over Congress.”

If a president who has been impeached can avoid federal prosecution by pre-emptively pardoning himself, it seems clear that he also can pardon someone who was convicted of crimes related to that impeachment. But even assuming Brettschneider is right about that issue, there is another obvious problem with his argument: Stone’s crimes had nothing to do with the abuse of power described in the articles of impeachment against Trump, which alleged that he sought to discredit a political rival by pressuring the Ukrainian government to announce an investigation of him.

Stone, by contrast, was convicted of lying to a congressional committee about his attempts to help elect Trump by contacting WikiLeaks, which had obtained emails that Russian hackers stole from the Democratic National Committee and Hillary Clinton’s campaign chairman. He was convicted of witness tampering because he persistently pressured one of his WikiLeaks intermediaries to refrain from contradicting those lies.

“It is true that the Stone investigation concerned Russian involvement in the election and that the House charges focused on the more recent Ukraine accusation,” Brettschneider writes. “But the articles of impeachment focused on the accusation of ‘abuse of power,’ and it is that general high crime at play in Ukraine and elsewhere that links the impeachment and Stone.”

That is quite a stretch. By Brettschneider’s logic, any criminal case that arguably relates to a presidential abuse of power would count as a “case of impeachment,” regardless of whether the president actually was impeached for that abuse of power.

Nor is it clear how Stone’s crimes are even arguably related to crimes by Trump. There was nothing illegal about the actions Stone tried to conceal. Trying to assist the Trump campaign by seeking information about the purloined emails was not a crime, although it was potentially embarrassing for a president who has steadfastly denied that Russia helped him win the election. And Special Counsel Robert Mueller found no persuasive evidence that the Trump campaign illegally conspired with Russia in any way.

Trump has claimed many powers he does not actually have, including the power to “open up our libel laws,” the power to punish TV stations that irk him by revoking their broadcast licenses, the power to unilaterally ban firearm accessories, and the power to build a border wall that Congress never approved. But the list of Trump’s imaginary powers does not include the power to pardon Roger Stone.

from Latest – Reason.com https://ift.tt/3agSfhT
via IFTTT

Elizabeth Warren Adopts Cory Booker’s Plan for a Better Presidential Clemency System

Sen. Cory Booker (D–N.J.) failed to make much of an impact in his Democratic presidential campaign, but he did have a really good plan to deal with clemency if he were elected. Now Sen. Elizabeth Warren (D–Mass.) is adopting his plan into her own criminal justice reform proposal.

Last summer, Booker proposed making it easier and quicker for nonviolent federal drug offenders to seek clemency by shifting the process from the Department of Justice to the White House and creating a clemency panel to oversee the process. In particular, Booker’s plan would reduce the power of federal prosecutors to determine which clemency applications make it to the president’s desk and whether they arrive with a recommendation for denial or approval.

Warren is also supporting Booker’s plan to prioritize clemency for older inmates incarcerated for longer terms, and his proposal to quickly identify and focus on prisoners who would have benefited retroactively from sentencing changes under the First Step Act and other reforms. This second aspect is important because legislative changes to statutory sentencing practices do not automatically apply to prisoners currently serving time. The Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine, is a prime example of a good reform that unfortunately lacked retroactive language.

Warren’s updated plan notes:

Research shows that people tend to age out of crime and are substantially less likely to recidivate, but today thousands of elderly people remain behind bars. And those serving sentences equivalent to life in prison are disproportionately black and brown, many serving time for nonviolent crimes or crimes committed as juveniles. We are not any safer as a nation for their incarceration, nor is equal justice being served.

It’s a change criminal justice reformers have been recommending for some time and one with bipartisan appeal. President Donald Trump’s administration is considering something similar.

from Latest – Reason.com https://ift.tt/32z5CqX
via IFTTT

Would a Presidential Pardon for Roger Stone Be Unconstitutional?

President Donald Trump has suggested he might pardon Roger Stone, a longtime crony who last week was sentenced to 40 months in federal prison for obstructing a congressional investigation, lying to a congressional committee, and tampering with a witness.

Not so fast, says Corey Brettschneider, a professor of political science at Brown University. Brettschneider argues that Trump does not have the power to save Stone from prison.

It’s a bold claim, given the president’s sweeping clemency powers under the Constitution. But Brettschneider notes that the “power to grant reprieves and pardons for offences against the United States” does not apply “in cases of impeachment.” That exception, he argues in a Politico essay published today, rules out a pardon for Stone. It is hard to see how.

Brettschneider suggests that “cases of impeachment” include criminal cases against people who conspired with the president in the commission of “high crimes and misdemeanors” for which the president was impeached. Many legal scholars disagree.

During the Watergate investigation, New York Times reporter John Crewdson looked into the question of whether Richard Nixon could pardon himself to avoid criminal prosecution after he resigned or was removed from office. Based on his interviews with “constitutional experts,” Crewdson flatly stated: “The exception [for ‘cases of impeachment’] means that [the president] cannot restore the standing of a Federal officer who has been impeached and removed from his position; it does not mean that a President cannot pardon himself before his own impeachment.”

After Bill Clinton was impeached, Slate considered the same issue and summarized the opinions of several experts. “The simplest interpretation,” it said, “is that the president can pardon any federal criminal offense, including his own, but cannot pardon an impeachment. In other words, Clinton is free to immunize himself from criminal prosecution, but has no power over Congress.”

If a president who has been impeached can avoid federal prosecution by pre-emptively pardoning himself, it seems clear that he also can pardon someone who was convicted of crimes related to that impeachment. But even assuming Brettschneider is right about that issue, there is another obvious problem with his argument: Stone’s crimes had nothing to do with the abuse of power described in the articles of impeachment against Trump, which alleged that he sought to discredit a political rival by pressuring the Ukrainian government to announce an investigation of him.

Stone, by contrast, was convicted of lying to a congressional committee about his attempts to help elect Trump by contacting WikiLeaks, which had obtained emails that Russian hackers stole from the Democratic National Committee and Hillary Clinton’s campaign chairman. He was convicted of witness tampering because he persistently pressured one of his WikiLeaks intermediaries to refrain from contradicting those lies.

“It is true that the Stone investigation concerned Russian involvement in the election and that the House charges focused on the more recent Ukraine accusation,” Brettschneider writes. “But the articles of impeachment focused on the accusation of ‘abuse of power,’ and it is that general high crime at play in Ukraine and elsewhere that links the impeachment and Stone.”

That is quite a stretch. By Brettschneider’s logic, any criminal case that arguably relates to a presidential abuse of power would count as a “case of impeachment,” regardless of whether the president actually was impeached for that abuse of power.

Nor is it clear how Stone’s crimes are even arguably related to crimes by Trump. There was nothing illegal about the actions Stone tried to conceal. Trying to assist the Trump campaign by seeking information about the purloined emails was not a crime, although it was potentially embarrassing for a president who has steadfastly denied that Russia helped him win the election. And Special Counsel Robert Mueller found no persuasive evidence that the Trump campaign illegally conspired with Russia in any way.

Trump has claimed many powers he does not actually have, including the power to “open up our libel laws,” the power to punish TV stations that irk him by revoking their broadcast licenses, the power to unilaterally ban firearm accessories, and the power to build a border wall that Congress never approved. But the list of Trump’s imaginary powers does not include the power to pardon Roger Stone.

from Latest – Reason.com https://ift.tt/3agSfhT
via IFTTT

Sineneng-Smith and Outlawing Solicitation of Legal Conduct

United States v. Sineneng-Smith, which was just argued Tuesday, deals with, among other things, the “speech integral to criminal conduct” exception to the First Amendment (though perhaps it might best be viewed as an overarching principle that guides the Court in recognizing certain exceptions). Under that exception, some speech can be criminalized if it is sufficiently closely linked to a nonspeech crime, or a crime that involves already unprotected speech, such as distribution of child pornography. How close the link has to be is an important and not fully settled question; but the broader doctrine does exist, e.g.:

  1. The Court has held, in United States v. Williams (2008), that speech closely related to specific criminal behavior is punishable as a special case of “speech integral to criminal conduct.” “Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” the Court held, citing Giboney v. Empire Storage & Ice Co. (the granddaddy of the “speech integral to criminal conduct” exception).
  2. In Williams, the Court concluded that “laws against conspiracy, incitement, and solicitation” should be treated the same way. The Government relies on the “speech integral to criminal conduct” principle in Sineneng-Smith (see pp. 31-32 of its brief).
  3. Threats of illegal behavior have historically been used as a classic example of speech integral to such behavior. (See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978), citing a labor threat case, NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), as an example of the speech-integral-to-conduct doctrine.)
  4. Fighting words, which are restricted because of a danger that they can provoke criminal retaliation, have also at times been folded within this doctrine: Cox v. Louisiana, for instance, cites Chaplinsky v. New Hampshire (the leading fighting words case) alongside Giboney as an example of a situation where “conduct mixed with speech may be regulated or prohibited.”

As a post-Williams Seventh Circuit opinion put it, citing Williams, “Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside [the First Amendment’s] protection.” United States v. White (7th Cir. 2010).

Likewise, the Court has also treated some speech as civilly actionable when it is integral to civilly actionable conduct. That was true in some of the threats cases, and the Court reaffirmed it in Rumsfeld v. FAIR, 547 U.S. 47, 62 (2006), suggesting that threats of public accommodation discrimination can themselves be made actionable under laws banning such discrimination. (For more all this, see my 2016 Cornell article that’s all about this exception.)

But, I argued in my Sineneng-Smith amicus brief, this principle can only justify treating solicitation as akin to the solicited conduct. Solicitation of civilly punishable conduct ought not be criminalizable consistently with the First Amendment, because that would go beyond treat­ing the solicitation as “integral to criminal conduct.” As Justice Gorsuch noted in the Sineneng-Smith oral argument,

Normally, in the criminal law … to avoid [First Amendment problems], we … don’t allow punishment for speech greater than the underlying conduct itself. That would seem to be a basic First Amendment value.

Likewise, as Justice Breyer noted, for “a solicitation of a crime statute is constitutional, … the first condition and most important is that what you are soliciting is a crime.” I would add that civil liability for solicitation would be constitutional if it focuses on soliciting conduct that is itself civilly actionable.

Now this position naturally leads to some difficult hypotheticals. For instance, Justice Alito asked in Sineneng-Smith,

There’s a teenager … who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I’m thinking of killing myself. And the person on the other end of the line says, you’ve said this before, I’m tired of hearing this from you, you never follow through, you’re a coward, why don’t you just do it, I encourage you to pull the trigger. Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.

Here’s my thinking: If such speech is constitutionally unprotected, it must be unprotected under some other theory. Speech integral to the commission of suicide can be many things, but it can’t be speech integral to criminal conduct, precisely because suicide isn’t criminal conduct. Likewise, it can’t be solicitation of crime, when there’s no crime being solicited. (Perhaps one can argue that restricting such speech in some situations is the very rare sort of content-based restriction that passes strict scrutiny, on the grounds that it is narrowly tailored to a compelling government interest; but that’s a different argument.)

Indeed, the Minnesota Supreme Court in State v. Melchert-Dinkel (2014) discussed this very scenario, in striking down a ban on encouraging suicide (but upholding, under strict scrutiny, a ban on speech that aids suicide):

Thus, the major challenge with applying the “speech integral to criminal conduct” exception is that suicide is not illegal in any of the jurisdictions at issue. The holding in Giboney specifically stated that the exception was for speech integral to conduct “in violation of a valid criminal statute,” and there is no valid statute criminalizing suicide here. Giboney (emphasis added). It is true, as the court of appeals noted, that “suicide, despite no longer being illegal in Minnesota, remains harmful conduct that the state opposes as a matter of public policy.” But the Supreme Court has never recognized an exception to the First Amendment for speech that is integral to merely harmful conduct, as opposed to illegal conduct.

Likewise, Justice Alito asked: What if a state decriminalizes some behavior (say, alcohol consumption) by people who are in a “vulnerable position”—for instance, because they are minors or have “diminished capacity”—but wants to criminalize encouraging such behavior? Well, sometimes, as Sineneng-Smith’s lawyer pointed out, the behavior remains criminal for one of the participants, for instance if the law doesn’t criminally punish children for buying alcohol or drugs, but criminally punishes sellers, or doesn’t criminally punish prostitutes but criminally punishes those who employ or patronize them. Specifically encouraging a child to transport drugs, for instance, is still integrally related to some responsible adult’s criminal drug transportation scheme.

But say some law genuinely targets harmful but noncriminal behavior, for instance encouraging children or mentally handicapped people to engage in legal but dangerous behavior (e.g., swimming in a place that the encourager knows is beyond the encouraged person’s skills). Perhaps that should be punishable, under some specialized exception justified by the listener’s diminished capacity: For instance, laws that bar distributing sexually themed material to children, even if it’s protected for adults, are sometimes justified on the theory that “a child … is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Ginsberg v. New York (1968) (Stewart, J., concurring). The exception, though, should be specifically justified and delineated on that sort of theory—not because the speech is “solicitation” of legal conduct, or because it is “integral to criminal conduct” when there is no underlying criminal conduct.

In any case, that’s my idea about how this important but often opaque doctrine can be developed. We’ll see within a few months what the Court thinks.

from Latest – Reason.com https://ift.tt/3965xxp
via IFTTT

Sineneng-Smith and Outlawing Solicitation of Legal Conduct

United States v. Sineneng-Smith, which was just argued Tuesday, deals with, among other things, the “speech integral to criminal conduct” exception to the First Amendment (though perhaps it might best be viewed as an overarching principle that guides the Court in recognizing certain exceptions). Under that exception, some speech can be criminalized if it is sufficiently closely linked to a nonspeech crime, or a crime that involves already unprotected speech, such as distribution of child pornography. How close the link has to be is an important and not fully settled question; but the broader doctrine does exist, e.g.:

  1. The Court has held, in United States v. Williams (2008), that speech closely related to specific criminal behavior is punishable as a special case of “speech integral to criminal conduct.” “Offers to engage in illegal transactions are categorically excluded from First Amendment protection,” the Court held, citing Giboney v. Empire Storage & Ice Co. (the granddaddy of the “speech integral to criminal conduct” exception).
  2. In Williams, the Court concluded that “laws against conspiracy, incitement, and solicitation” should be treated the same way. The Government relies on the “speech integral to criminal conduct” principle in Sineneng-Smith (see pp. 31-32 of its brief).
  3. Threats of illegal behavior have historically been used as a classic example of speech integral to such behavior. (See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978), citing a labor threat case, NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), as an example of the speech-integral-to-conduct doctrine.)
  4. Fighting words, which are restricted because of a danger that they can provoke criminal retaliation, have also at times been folded within this doctrine: Cox v. Louisiana, for instance, cites Chaplinsky v. New Hampshire (the leading fighting words case) alongside Giboney as an example of a situation where “conduct mixed with speech may be regulated or prohibited.”

As a post-Williams Seventh Circuit opinion put it, citing Williams, “Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside [the First Amendment’s] protection.” United States v. White (7th Cir. 2010).

Likewise, the Court has also treated some speech as civilly actionable when it is integral to civilly actionable conduct. That was true in some of the threats cases, and the Court reaffirmed it in Rumsfeld v. FAIR, 547 U.S. 47, 62 (2006), suggesting that threats of public accommodation discrimination can themselves be made actionable under laws banning such discrimination. (For more all this, see my 2016 Cornell article that’s all about this exception.)

But, I argued in my Sineneng-Smith amicus brief, this principle can only justify treating solicitation as akin to the solicited conduct. Solicitation of civilly punishable conduct ought not be criminalizable consistently with the First Amendment, because that would go beyond treat­ing the solicitation as “integral to criminal conduct.” As Justice Gorsuch noted in the Sineneng-Smith oral argument,

Normally, in the criminal law … to avoid [First Amendment problems], we … don’t allow punishment for speech greater than the underlying conduct itself. That would seem to be a basic First Amendment value.

Likewise, as Justice Breyer noted, for “a solicitation of a crime statute is constitutional, … the first condition and most important is that what you are soliciting is a crime.” I would add that civil liability for solicitation would be constitutional if it focuses on soliciting conduct that is itself civilly actionable.

Now this position naturally leads to some difficult hypotheticals. For instance, Justice Alito asked in Sineneng-Smith,

There’s a teenager … who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I’m thinking of killing myself. And the person on the other end of the line says, you’ve said this before, I’m tired of hearing this from you, you never follow through, you’re a coward, why don’t you just do it, I encourage you to pull the trigger. Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.

Here’s my thinking: If such speech is constitutionally unprotected, it must be unprotected under some other theory. Speech integral to the commission of suicide can be many things, but it can’t be speech integral to criminal conduct, precisely because suicide isn’t criminal conduct. Likewise, it can’t be solicitation of crime, when there’s no crime being solicited. (Perhaps one can argue that restricting such speech in some situations is the very rare sort of content-based restriction that passes strict scrutiny, on the grounds that it is narrowly tailored to a compelling government interest; but that’s a different argument.)

Indeed, the Minnesota Supreme Court in State v. Melchert-Dinkel (2014) discussed this very scenario, in striking down a ban on encouraging suicide (but upholding, under strict scrutiny, a ban on speech that aids suicide):

Thus, the major challenge with applying the “speech integral to criminal conduct” exception is that suicide is not illegal in any of the jurisdictions at issue. The holding in Giboney specifically stated that the exception was for speech integral to conduct “in violation of a valid criminal statute,” and there is no valid statute criminalizing suicide here. Giboney (emphasis added). It is true, as the court of appeals noted, that “suicide, despite no longer being illegal in Minnesota, remains harmful conduct that the state opposes as a matter of public policy.” But the Supreme Court has never recognized an exception to the First Amendment for speech that is integral to merely harmful conduct, as opposed to illegal conduct.

Likewise, Justice Alito asked: What if a state decriminalizes some behavior (say, alcohol consumption) by people who are in a “vulnerable position”—for instance, because they are minors or have “diminished capacity”—but wants to criminalize encouraging such behavior? Well, sometimes, as Sineneng-Smith’s lawyer pointed out, the behavior remains criminal for one of the participants, for instance if the law doesn’t criminally punish children for buying alcohol or drugs, but criminally punishes sellers, or doesn’t criminally punish prostitutes but criminally punishes those who employ or patronize them. Specifically encouraging a child to transport drugs, for instance, is still integrally related to some responsible adult’s criminal drug transportation scheme.

But say some law genuinely targets harmful but noncriminal behavior, for instance encouraging children or mentally handicapped people to engage in legal but dangerous behavior (e.g., swimming in a place that the encourager knows is beyond the encouraged person’s skills). Perhaps that should be punishable, under some specialized exception justified by the listener’s diminished capacity: For instance, laws that bar distributing sexually themed material to children, even if it’s protected for adults, are sometimes justified on the theory that “a child … is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Ginsberg v. New York (1968) (Stewart, J., concurring). The exception, though, should be specifically justified and delineated on that sort of theory—not because the speech is “solicitation” of legal conduct, or because it is “integral to criminal conduct” when there is no underlying criminal conduct.

In any case, that’s my idea about how this important but often opaque doctrine can be developed. We’ll see within a few months what the Court thinks.

from Latest – Reason.com https://ift.tt/3965xxp
via IFTTT