11 December 2016

R.I.P., The First Amendment?

In 1787, there was significant opposition to ratifying the draft constitution because convention delegates feared it gave too much power to the Executive Department and could lead to a monarchy. Specifically, the draft did not spell out the rights reserved to the citizens against the government, and the draft was adopted and ratified only because of the Founders' assurances that appropriate amendments would promptly be drafted and offered up for adoption and ratification. James Madison, et al, were good to their word and two years later, we had the Bill of Rights. First things first, and The Amendment directs that Congress (later all government entities, state and federal) shall “make no law abridging the freedom of speech… .’’ The aim was to protect the citizens’ rights to criticize the government.

Despite the apparently clear language barring any abridgement of speech (“make no law”), the language does not mean what it says, it means only what the Court, on any given day, says it means, and our judiciary has consistently ruled the government may indeed abridge freedom of speech by some laws, e.g., those barring libel, threats, incitement, criminal conspiracy, criminal contempt, child porn, -- the list is long. Over the years, the Supreme Court has tinkered with the definition, and the result has been a contraction or expansion of The Amendment in accordance with prevailing political winds.

But today’s challenge is perhaps beyond any we have faced before. There may not be any more rubber in the rubber band.

The guiding principle in the Supreme Court’s to-and-fro decisions has always been to appraise the value of the speech to our democracy. The Court has consistently ruled that a full and unrestrained exchange of views is a vital part of our republican scheme. Criticism of the government and its policies is good. Criticism of each other is good. Criticism of products is good. All of the above is good because the exchange of views enlarges our fund of knowledge and enhances our decision making, even if the language used is harsh and makes people angry. On the other hand, speech such as threats, child porn, defamation (i.e, false statements), incitement, etc., add nothing of value to our small-r republican society, and are therefore not protected. Indeed, false information is unredeemingly valueless, and may be civilly punishable in some circumstances (libel, false advertising, etc.), and criminally punishable in other circumstances, (e.g., perjury.)

Fake news is especially harmful when national and international affairs are involved. History is full of examples of its devastating impact: the Gulf of Tonkin Resolution (the Congressional authorization for our involvement in the Vietnam War) was based on a false report, the internment of Japanese-American U.S. citizens was confirmed by our Supreme Court based upon misinformation supplied to it by our government, the Iraq War resolution was based on false reports of WMDs, false Nazi propaganda lead to the Holocaust, Serbian myths and deception led to the assassination of Archduke Franz Ferdinand and the inception of WWI, -- the list is long.

We are now afflicted with “social media” that spew “fake news” with the efficiency of the Ebola virus, and a substantial segment of our population is infected. Much of the fake news generation is malicious; it is either knowingly false or transmitted with reckless abandon. Some of it is profitable to its originators, all of it is insidious. What is the value to our democracy of viral reports that the Pope endorsed Donald Trump, or that Hillary Clinton was involved a child abduction ring in a local pizza parlor, or that two million illegal voters cast ballots in California?  We have always had a fringe of conspiracy theorists in the country, but this is different. It is not only more substantial, more threatening to the function of our society, it is also standing the First Amendment on its head because much of this fake news is not from citizens criticizing the government, but is fake news originating from within our government, or being endorsed by it, and disseminated by it. (Or perhaps even fabricated by another government and then endorsed and distributed by our government?) When Trump issued his totally fabricated tweet about two million illegal votes, House Speaker Paul Ryan (second in line to Presidential succession) said the lie “didn’t matter” to him. And was it Vice President-elect Pence or the designated Chief of Staff Priebus, who justified the Trump fake-news tweet by saying, “Well, it’s possible.”  And it must be okay, because Kellyanne Conway basically said, “Well, he is the President-elect, and if he did it, it’s “Presidential.”

This is immediately after an apparently otherwise sane person traveled from North Carolina to Washington, D.C, went into the above-mentioned pizza parlor with a semi-automatic rifle and discharged the weapon it while looking for the children “abducted” by the Clintons. When accosted, he was only willing to go so far as to say something to the effect that there were no abducted children there at that time, and "perhaps the intel was bad." And the son of the President-elect’s designated National Security Advisor, who was working with his father on the Trump transition team, said that the abduction claim would remain a story until the pizza parlor proved it was false!

Is truth really now old-fashioned? Out of style? Irrelevant?  What does that do to First Amendment jurisprudence, indeed to our form of government, for which truth is the bedrock foundation? 


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Any notion that we must tolerate this plague because of First Amendment values is, to me, comparable to the suggestion that the First Amendment confers immunity upon al Qaeda’s publication of recipes for pressure cooker bombs so its readers could kill and maim our citizenry.  I suggest neither has any social value and neither is entitled to the immunity from state action conferred by The Amendment.

 Ahh, more London overheated rhetoric, you say? Is it a hyperbolic rant to compare the dangers of fake news to terrorist propaganda? Well maybe, maybe not. The terrorist statements lead to scores, and perhaps hundreds of deaths and injuries; fake-news plagues have lead to worse.

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