Thursday, December 8, 2016

A post-truth society cannot survive.

Sid Miller, Texas's Secretary of Agriculture, called a public radio show to basically say he feels no shame in peddling lies and bullshit to his supporters.
“I’m not a news organization,” Miller told reporter Nathan Bernier. “Y’all are holding me to the same standards as you would a news organization, and it’s just Facebook.” On his Facebook page, according to the Tribune article, Miller has warned that terrorists are preparing "for their jihad against the state and our nation” in a compound outside Houston. Another post claimed President Obama had held up a T-shirt printed with a likeness of the Marxist revolutionary Che Guevara during a trip to Cuba. He said much of what he posted on Facebook was “satire, or comedy” and that his Facebook page wasn’t a reliable source for “factual news.” “I shouldn’t be held to that standard,” he said. “It’s like Fox News: I report, you decide if it’s true or not.”

Okay, I'm now convinced: there needs to be a restriction on freedom of speech.

To explain, let me give a quick synopsis on why bad precedents make bad law.

Schenck v. United States (1919) is the source of the famous "fire in a crowded theater" line. It was also the source for the standard that speech can be made illegal when it poses a clear and present danger. This was overturned for the most part in Brandenburg v. Ohio (1969), which set the standard that speech can only be illegal when it calls for direct and immediate action to break the law, and even then only when the speaker has a reasonable expectation that he or she will be obeyed. (This test was severely weakened by Holder v. Humanitarian Law Project (2010), which held that free speech in the form of money and advocacy could be criminalized without any intent to break the law or harm others, so long as it might have the effect of supporting those who do break the law or harm others.)

And by the way, I'm of the opinion that all three of the cases mentioned in the above paragraph were wrongly decided.

The thing is, in those cases, and in all the cases that form the chain of judicial thought linking them, the primary concern of the government was whether or not the speech would be a link in a chain of some other criminal activity- blocking a national draft from being enforced, inciting violence against non-white races, committing terrorist acts, organized crime, etc. etc. etc.

The courts have focused entirely on the wrong thing.

Oliver Wendell Holmes himself believed that true speech intended to present a political argument to other people was sacrosanct. His test for whether or not speech could be criminalized had two components. "Clear and present danger" was only half of it.

The full quote I'm referring to is this:

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

The emphasis is mine.

For Holmes, it wasn't sufficient that speech bring about danger. It had to be FALSE speech. Statements of true and accurate facts, presented in good faith, were in his mind given absolute protection by the First Amendment. Congress had no right to regulate such speech, period.

Lies? Speech intended to deceive? Falsehoods created to inspire hatred, violence and insurrection? All fair game for regulation. (Remember, Holmes was an officer in the American Civil War. He'd seen firsthand what lies could do.)

But pretty much no court, no judge of note since Holmes died has upheld his theory. It's taken for granted today that in the United States you can lie all you want, gin up hatred based on falsehoods and conspiracy theories all you want, and it's perfectly legal, no matter the consequences.

If I've learned anything from 2016, it's this: that precedent, that assumption, needs to be changed.

Schenck v. United States was decided wrongly (with Holmes writing the unanimous opinion) because there was no lie involved. Schenck's calls to resist the draft were based on an honest belief that national conscription was involuntary servitude- read slavery- and thus not only unconstitutional but a direct threat to American liberty.

Brandenburg v. Ohio was decided wrongly because Mr. Brandenburg was spreading lies- lies of racial inferiority, lies that blacks sought to conquer whites, etc.- for the purpose of winning popular support for a race war to exterminate non-whites in America. (Since then, his spiritual descendants in the alt-right have softened their tone, but not their actual meaning or their final plans, and the lies continue to be spread.)

When people seeking power deliberately muddy the truth, spread false information, and perpetuate bigoted lies for the purpose of advancing their political agenda, they commit fraud. The thing is, if they were bilking people out of money, there's a small chance they might be prosecuted. For bilking people out of their guaranteed rights, out of their government, out of democracy altogether, there is no punishment whatever.

And now those who do this have become totally shameless about it- and Donald Trump is only one among a legion.

It must become illegal to pull confidence schemes on voters.

My proposal: "Falsehoods presented, deliberately or with obvious carelessness for the truth, as factual and accurate to the people, shall not be regarded as protected speech under the First Amendment to the Constitution of the United States; and Congress and the states shall have power to regulate such speech and to pass laws for the enforcement of such regulations."

Any thoughts?

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