Boston College Law School, Tuesday afternoon.
The late New York Times journalist Anthony Lewis, whose writings on the First Amendment are essential to understanding free speech and freedom of the press, wrote that the legal standard for incitement to violence may have swung too far in the direction of allowing just about anything. I wonder what he would have to say about the toxic right-wing stew in which the Buffalo shooter immersed himself — 4chan, according to reports, but reinforced by broader cultural developments in which Fox News and Trumper politicians have embraced virulent forms of racism.
In 1969, the Supreme Court ruled in Brandenburg v. Ohio that a Ku Klux Klan leader demanding “revengeance” against Black people and Jews did not engage in incitement because his threat was non-specific. That is, he didn’t urge the mob he was addressing to march down the street and attack the first African American they came across. The idea was that the threat had to be “directed at inciting or producing imminent lawless action” is “likely to incite or produce such action” in order for it to rise to the level of incitement.
Did the court go too far? In his 2007 book “Freedom for the Thought That We Hate: A Biography of the First Amendment,” Lewis surveyed the landscape of the early 2000s and wrote this:
In an age when words have inspired acts of mass murder and terrorism, it is not as easy for me as it once was to believe that the only remedy for evil counsels, in Brandeis’s phrase, should be good ones. The law of the American Constitution allows suppression only when violence or violation of law are intended by speakers and are likely to take place imminently. But perhaps judges, and the rest of us, will be more on guard now for the rare act of expression — not the burning of a flag or the racist slang of an undergraduate — that is genuinely dangerous. I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging. That is imminence enough.
The Brandenburg standard came into being only after many decades of evolution toward a less stringent understanding of incitement, beginning with Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. articulated the “clear and present danger” test. The decision, which includes Holmes’ famous admonition that you can’t falsely shout “fire” in a crowded theater, is widely reviled today, but it represented a step forward: It was the first time the court suggested that speech couldn’t be punished unless it presented such a danger.
If Schenck didn’t go far enough, perhaps Brandenburg, as Lewis writes, went too far. How can we redefine incitement in the age of social media? Breaking the connection between speech and action would have the effect of outlawing hate speech, which is currently regarded as coming under the protections of the First Amendment. Should we go down that road? Can we trust the current Supreme Court to do it in a way that addresses the problem without creating collateral damage? What unintended consequences would there be?
We have a horrendous mess on our hands. Hate speech on the internet presents dangers unlike anything we have dealt with before. As someone who’s pretty close to being a free-speech absolutist, I have real problems with any new government restrictions. But I do find it interesting that no less a friend of the First Amendment than Anthony Lewis had reservations about incitement. And Lewis was writing before social media and the dark web had gotten much traction.
We need a national conversation. Sadly, we are at a moment when we are ill-equipped for such an exercise.
Correction: An earlier version of this post identified 4chan’s hosting service. In fact, it was a porn site that uses the name 4chan but is otherwise unrelated.
Our thoughts at this time need to be with the Black community of Buffalo — and everywhere — as we process the horror of one of the worst mass murders of recent years. We need to do something substantive about guns, racism and white supremacy. What actually happened, and what we can do to prevent such horrific events from happening again, must be at the top of our agenda.
This blog, though, is primarily about the media and often about free speech. So let me address some of the secondary issues. The shootings intersect with notions of hate speech, social media and the role of Fox News in mainstreaming dangerous racist ideologies such as so-called replacement theory, which holds that the left is trying to push out white people in favor of non-white immigrants in order to obtain an electoral advantage.
First, keep in mind that hate speech is legal. The New York Times today says this about New York Gov. Kathy Hochul:
When pressed on how she planned to confront such hate speech online, without impinging on First Amendment rights, Ms. Hochul noted that “hate speech is not protected” and said she would soon be calling meetings with social media companies.
Hochul is wrong, and the Times shouldn’t have used “noted,” which implies that she knows what she’s talking about. If hate speech were illegal, Tucker Carlson would have been kicked off Fox long ago.
What’s illegal is incitement to violence, and you might think whipping up racist hatred would qualify. In fact, it does not — and the very Supreme Court case that made that clear was about a speaker at a rally who whipped up racist hatred. Brandenburg v. Ohio (1969) held that a ranting Ku Klux Klan thug demanding “revengeance” against Jews and Black people had not engaged in incitement because his threats were non-specific.
Hochul can cajole and threaten. And she should. But it’s going to be difficult to do much more than that.
As for the media themselves, that’s a morass, and it’s to early to start sorting this out. But the shooter reportedly fell down the 4chan hole during the pandemic, immersing himself in the racism and hate that permeate the dark corners of the internet. There are a lot of moving parts here, but it seems unlikely that a young mass murder-in-the-making was sitting around watching Fox, even if some of his rants paralleled Carlson’s rhetoric. Fox’s role is to mainstream such hatred for its frightened, elderly viewers. The radicalization itself happens elsewhere.
So, are we going to ban 4chan? How would that even work? If the government tried to shut them down, they could just go somewhere else. I’m sure Vladimir Putin would be happy to play host.
4chan represents the bottom of this toxic food chain; Fox News is at the top. In the middle are the mainstream social media platforms — Facebook, Twitter, Twitch (which allowed the shooter to livestream his rampage for nearly two minutes before taking it down) and the like. It’s too early to say what, if anything, will happen on that front. But it’s probably not a good time to be a billionaire who wants to buy Twitter so that there will be less moderation on the platform than there is currently.
As it turns out, that billionaire, Elon Musk, may be backing away.
The latest edition of the “Beat the Press” podcast takes a look at how Ukrainian President Volodomyr Zelenskyy’s brilliant use of social media has helped rally the world to his country’s side. Other topics include the Biden administration’s botched rollout of a disinformation governance board and The New York Times’ massive dive into Tucker Carlson — and more, including our Rants & Raves.
Emily Rooney is in the anchor chair, joined by Lylah Alphonse, Jon Keller and me. Please subscribe and give us a listen.
Like COVID or an overdue tax bill, the debut issue of The Transcript & Journal made its unwelcome appearance in our home earlier today. The weekly paper is a mash-up of Gannett’s Medford Transcript and Somerville Journal, a move that was announced earlier this year as part of the chain’s decision to eliminate 19 Massachusetts weeklies and merge nine others into four.
Last week’s final issue of the Medford Transcript had local news on the front page — a story about a debate among city council members on whether they should continue to meet weekly or switch to every other week and a report on efforts to build a replacement for (or substantially renovate) Medford High School.
But the front of The Transcript & Journal, as promised, replaces all that with regional news such as the Fair Share proposal to implement a statewide tax on millionaires and the opening of new restaurants in far-flung locales such as Brighton and Kingston. Meanwhile, there’s nothing on a story reported by The Boston Globe earlier this week on a civil-rights complaint filed against the Medford Police Department in which two Black residents say they were unlawfully stopped.
There is one Medford article on the front — a feature on a 10-year-old walking loop that recognizes the city’s historic landmarks. It’s a good story about something I wasn’t familiar with. It was also written by a journalism student at Endicott College. Now, journalism students are some of my favorite people. But we see what’s going on here, right?
And that’s it for the A section other than press releases, obituaries and a story about restaurants at the Burlington Mall. The B section, devoted to local sports, seems pretty much unchanged, but it was thin to begin with.
At a webinar earlier this week organized by the Shorenstein Center at the Harvard Kennedy School, Mizell Stewart III, vice president of news performance, talent and partnerships for Gannett and the USA Today Network, described the move as an attempt to drive digital subscriptions and to focus on local news that has a greater impact on people’s lives.
“Covering local news continues to be very labor intensive and very expensive,” Stewart said. The idea is to take “a more regional approach” and focus on “commonalities and trends.” But isn’t that why we have regional media like The Boston Globe, public radio and local TV newscasts?
This will not end well.
The new “What Works” podcast features Jonathan Dotan, founding director of The Starling Lab for Data Integrity at Stanford University. The lab focuses on tools to help historians, legal experts and journalists protect images, text and other data from bad actors who want to manipulate that data to create deep fakes or expunge it altogether.
He has founded and led a number of digital startups, he worked at the Motion Picture Association of America, and he was a writer and producer for the HBO series “Silicon Valley.” While he was working on “Silicon Valley,” a character invented a new technology that got him thinking: What if everyday users could keep hold of their own data without having to store it in a cloud, where it is open to hackers or the government or other bad actors? That, at least in part, is what blockchain technology is all about, and it’s a subject about which Dotan has become a leading expert.
Dotan also shares a link to a valuable resource for anyone who wants to gain a deeper understanding of Web3.
You can listen to our conversation here and subscribe through your favorite podcast app.
The day after The Boston Globe was named a Pulitzer finalist in editorial writing, the paper has announced that it’s hired a new editorial page editor — James Dao, a senior editor at The New York Times. The announcement, reported in the Globe this afternoon, was made by chief executive Linda Henry.
Dao replaces Bina Venkataraman, who stepped down several months ago and is now a Globe editor at large. Venkataraman was involved in the launch of The Emancipator, the racial-justice website the Globe publishes jointly with Boston University.
I don’t know much about Dao except that, according to the Globe, he had a role in the Times’ decision to publish an op-ed piece by Sen. Tom Cotton in 2020 arguing that military force should be used against violent Black Lives Matter protesters. The episode led to the departure of editorial page editor James Bennet after it was revealed he had not read the Cotton op-ed before it was published. Dao stepped down as deputy opinion editor and took a high-ranking editing job in the newsroom.
Also of significance is that Dao is 64. I’m not saying that’s old (hey, he’s younger than I am), but he’s at an age where he probably wouldn’t be seeking to settle in for a lengthy stint. Perhaps Henry is hoping that he’ll identify and mentor a possible replacement. Henry’s full statement, forwarded to me by a trusted source, follows.
I am thrilled to announce that James Dao will be the Globe’s next editorial page editor, effective on July 5.
Jim brings great perspective to the Globe from his vast leadership experience across three decades and multiple news desks at The New York Times. Most recently, as the Metro editor, he oversaw coverage of one of the most consequential mayoral races in New York City’s history while leading a team of over 60 journalists in covering the ongoing challenges of the pandemic on the nation’s largest city. Previously, he oversaw the paper’s Op-Ed section and has served roles in leadership and in the trenches as an editor on the National desk, as the Times’s Albany bureau chief, a Washington correspondent, national correspondent and military affairs writer.
He is an award-winning journalist and has a passion for pushing the envelope on multimedia storytelling, an area in which we too, are deeply investing in as we aim to reach new audiences and amplify our powerful journalism in new media. Jim’s 2011 multimedia series, “A Year at War,” about the yearlong deployment of an Army battalion in Afghanistan, won numerous awards — including an Emmy — and he also was executive producer on the Netflix documentary, “Father Solider [sic] Son,” which was based on the life of an Amy sergeant first profiled in his series.
I’ve had the great honor of diving deep into conversation with Jim, and in that time, he has shared that his priorities in this role are bringing new approaches — from newsletters to podcasts — to an already outstanding opinion report. He plans for our editorial page to be at the forefront of sharing the groundbreaking ideas and innovation unfolding in our region, while continuing to hold our leaders accountable to the high standards that we expect.
As a proud Editorial Board member, I see first-hand the thoughtful dedication and passion our board has for the work that it does each day and the impact it has all across our region. In the last two years alone, Globe Opinion writers Alan Wirzbicki & Shelly Cohen and Abdallah Fayyad have been recognized as Pulitzer Prize finalists in Editorial Writing – truly remarkable accomplishments, and a testament to the talent and incredible contributions at all levels on this team.
I am grateful to Bina Venkataraman for her bold approach and leadership in this role over the last two years. Globe Opinion has grown and strengthened the editorial board, launched The Emancipator with BU, and has drawn national attention to further the impact of our content and voices. Thank you to the entire team for their commitment and patience while we conducted this thoughtful process to find the next leader who will steer Globe Opinion forward in new and exciting ways. Everyone stepped up, but I would like to particularly thank Marjorie Pritchard and Alan Wirzbicki for their leadership and extra effort to keep Opinion sharp and relevant.
Jim will now lead the charge in this exciting new chapter for the board, and we are so excited to have him get started in early July. He is copied on this note, so please join me in welcoming him to the Globe; he would welcome local bike route suggestions.
A great editorial should persuade and effect change. But what if there is little or no chance that urgently needed reforms will be enacted? That was the challenge facing The Boston Globe editorial board last year when it published a series of essays arguing that the loopholes enabling Donald Trump’s corruption as president need to be closed so that nothing like it can happen again.
The editorials, by board member Abdallah Fayyad, were recognized Monday with a Pulitzer Prize finalist’s citation for “a persuasive editorial series arguing that the president of the United States could be prosecuted for crimes committed in office.” It was the closest that the Globe came to winning a 2022 Pulitzer. As Fayyad wrote:
Presidents in a democratic system of government are not meant to be able to extract personal profits from government service — or hand out pardons to imprisoned buddies, pervert justice, or foment an insurrection. That’s the promise of democracy: that it will be superior to these authoritarian tendencies of tyrants and kings. When these laws and norms are violated, they should be backed up by severe consequences if that democracy is to maintain its integrity. But right now, as it stands after Trump’s four years in office, American presidents can, in fact, commit all those abuses — and suffer little more than losing their Twitter account.
Nothing has changed. And given Trump’s continued vice grip on the Republican Party, which exercises effective veto power over any reform Congress might try to enact, nothing is going to change — at least not anytime soon.
Still, it’s worth laying down some markers. It was undeniably a good thing for a major journalistic institution like the Globe to explain why Trump was able to get away with all of it, and what it would take to prevent a future president (perhaps Trump himself) from engaging in the same kind of misconduct.
In the Globe’s own coverage of Monday’s announcement, Fayyad said: “It was surreal seeing my name up there on the broadcast alongside such great journalists. But I knew the project was deserving of this recognition because it wasn’t just my work; it took a whole team to make the series what it was — an amazing team at that.”
By the way, it looks like even the minor slap on the wrist Trump received by having his Twitter account canceled was only a temporary setback. Elon Musk, who’s poised to buy Twitter, said earlier today that he would allow the former president back onto the platform.
Whenever I write about Gannett, our largest newspaper chain, it’s usually because they’re cuttings staff and closing papers. At the same time, though, the company has been a leader in rethinking how we cover law enforcement, which has emerged as a vitally important issue in the Black Lives Matter era. We know what the problems are:
- Until recently, it was routine practice at many news outlets, especially smaller ones, simply to run stuff from the police log and from press releases issued by law enforcement without doing any actual reporting. The idea was that it’s a public record, so let’s get it out there.
- A lack of follow-up: If charges were dropped or a suspect was acquitted, that often didn’t get reported.
- Now that everything is digital, it’s very easy to Google someone applying for a job or whatever and find that they’d been arrested for something. Given that Black men, in particular, are disproportionately charged with crimes, it had the racist effect of denying opportunities to people of color.
So what is Gannett doing? As part of the Knight-Lenfest Newsroom Initiative, the chain has come up with a Public Safety Mission Statement that tries to get at some of these issues. Four Gannett journalists recently wrote up what they’ve been doing in an essay for the American Press Association’s Better News website. Here are some of the ideas they offered:
- Gannett newspapers have stopped running mug shots, including mug-shot galleries, “recognizing instead that law enforcement pick and choose the crimes they announce and the mug shots they release, capturing people on their worst days in their worst moments, often in situations that may not reflect the full story.”
- At the Rochester Democrat and Chronicle in upstate New York, reporters stopped rewriting routine police press releases and are trying to include community voices in public safety stories.
- At The News Journal in Wilmington, Delaware, the staff is producing deeper stories on crime and policing that have led to more readers and new subscriptions. Examples of such stories include reporting on how a community was affected by a police standoff and how secrecy on the part of law enforcement prevents news outlets from reporting on allegations of excessive force.
These are all positive steps, and they follow earlier Gannett initiatives, such as making it possible for people to request that negative stories about them be removed from Google search. A number of other news outlets, including The Boston Globe, followed with similar programs.
This being Gannett, though, we should regard these initiatives with at least some degree of skepticism. Given the ongoing shrinkage of staff, it’s become increasingly difficult for the chain’s newspapers and websites to keep up with goings-on in muncipal government, public schools and public safety. Moving away from day-to-day police coverage and weighing in with an occasional piece that takes a look at broader issues may be good journalism — but it might be a money-saver as well. I say that not just theoretically but as the reader of a Gannett weekly (soon to be merged with another weekly) whose only full-time reporter is being moved to a regional beat.
So kudos to Gannett. But let’s keep an eye on what this looks like moving forward.
With the Supreme Court on the brink of overturning Roe v. Wade, it’s a good opportunity to remind ourselves of the extent to which our democracy has lurched off the rails.
Three of the five anti-Roe justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote and were confirmed by senators who represented far fewer Americans than those who voted against confirmation. Gorsuch occupies the stolen seat that should have gone to Merrick Garland. Barrett was rushed through at the last minute following the death of Ruth Bader Ginsburg.
This is not democracy. A few years ago, I laid it out at GBH News — and addressed the falsehood you’ll often hear that our system was designed to protect minority rights from majority rule. (The Bill of Rights is what protects the minority.) I hope you’ll give it a read. We are long overdue for a thorough-going update to our 18th-century constitution, which, quite simply, no longer works.