Incitement, Anthony Lewis and the toxic stew that inflamed the Buffalo shooter

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.

The Buffalo horror raises thorny issues about hate speech and the media

Image via Today’s Front Pages at FreedomForum.org.

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 too 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.

In Colorado, a crisis is averted over the First Amendment and prior restraint

A Colorado judge and the state attorney general’s office have backed down from an attempt to prevent The Denver Gazette from reporting on secret grand jury documents that a court employee had accidentally handed over to them.

Under settled First Amendment doctrine, the government may not engage in prior restraint except under the narrowest of circumstances — a serious breach of national security, obscenity or incitement to violence.

Colorado media watcher Corey Hutchins has the story.

What The New York Times gets wrong — and right — in its editorial about free speech

Photo (cc) 2007 by Hossam el-Hamalawy

Whenever The New York Times takes on as large and amorphous an idea as freedom of expression, it quickly escalates into a war of words about the Times itself. That was certainly the case with a nearly 3,000-word editorial it posted last Friday under the headline “America Has a Free Speech Problem.”

The piece launched a thousand hot takes, many of them dripping with mockery and sarcasm. I certainly don’t agree with everything in the editorial, and I find a lot of what the critics are complaining about — especially the paper’s patented “both-sides-ism” — to be right on target. But in the spirit of contrarianism, and in recognition that this is a Major Statement by our leading newspaper, I’m at least going to take it seriously.

Read the rest at GBH News.

A bogus libel suit raises some interesting questions about the limits of Section 230

Local internet good guy Ron Newman has prevailed in a libel and copyright-infringement suit brought by a plaintiff who claimed Newman had effectively published libelous claims about him by moving the Davis Square Community forum from one hosting service to another.

Adam Gaffin of Universal Hub has all the details, which I’m not going to repeat here. The copyright claim is so ridiculous that I’m going to pass over it entirely. What I do find interesting in the suit, filed by Jonathan Monsarrat, is his allegation that Newman was not protected by Section 230 of the Communications Decency Act because, in switching platforms from LiveJournal to Dreamwidth, he had to copy all the content into the new forum.

Section 230 holds online publishers harmless for any content posted online by third parties, which protects everyone from a small community newspaper whose website has a comments section to tech giants like Facebook and Twitter. The question is whether Newman, by copying content from one platform to another, thereby became the publisher of that content, which could open him to a libel claim. The U.S. Court of Appeals for the First Circuit said no, and put it this way:

Newman copied the allegedly defamatory posts from LiveJournal to Dreamwidth verbatim. He did not encourage or compel the original authors to produce the libelous information. And, in the manner and form of republishing the posts, he neither offered nor implied any view of his own about the posts. In short, Newman did nothing to contribute to the posts unlawfulness beyond displaying them on the new Dreamwidth website.

There’s no question that the court ruled correctly, and I hope that Monsarrat, who has been using the legal system to harass Newman for years, brings his ill-considered crusade to an end.

Nevertheless, the idea that a publisher could lose Section 230 protections might be more broadly relevant. Several years ago I wrote for GBH News that Congress ought to consider ending such protections for content that is promoted by algorithms. If Facebook wants to take a hands-off approach to what its users publish and let everything scroll by in reverse chronological order, then 230 would apply. But Facebook’s practice of using algorithms to drive engagement, putting divisive and anger-inducing content in front of its users in order to keep them logged in and looking at advertising, ought not to be rewarded with legal protections.

The futility of Monsarrat’s argument aside, his case raises the question of how much publishers may intervene in third-party content before they lose Section 230 protections. Maybe legislation isn’t necessary. Maybe the courts could decide that Facebook and other platforms that use algorithms become legally responsible publishers of content when they promote it and make it more likely to be seen than it would otherwise.

And congratulations to Ron Newman, a friend to many of us in the local online community. I got to know Ron way back in 1996, when he stepped forward and volunteered to add links to the online version of a story I wrote for The Boston Phoenix on the Church of Scientology and its critics. Ron harks back to the early, idealistic days of the internet. The digital realm would be a better place if there were more people like him.

Muzzle follow-up: Rhode Island Supreme Court strikes down ‘civil death’ law

Peter Neronha

A Rhode Island law that was the subject of a 2021 GBH News Muzzle Award has been struck down by that state’s Supreme Court.

The Associated Press reports that Rhode Island’s “civil death” law, under which anyone serving a life sentence was regarded as dead with respect to having access to the justice system, “deprives those persons imprisoned at the ACI for life of their right to bring civil actions in our state courts.” (The ACI is the Adult Correctional Institutions.) The bizarre law stated:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.

Last July I awarded a New England Muzzle to Rhode Island’s attorney general, Peter Neronha, a Democrat, for his overzealous defense of a law that didn’t exist in any other state. Among other things, Neronha argued that life in prison — or, for that matter, the death penalty — are more severe punishments than civil death yet pose no constitutional issues.

In fact, as the Rhode Island ACLU pointed out, there are punishments that many would regard as worse than life in prison, or even death. As the ACLU’s state executive director, Steven Brown, explained, civil death means that “an inmate … serving a life sentence could be waterboarded, beaten mercilessly by guards, or held in a cell and denied all food and water, but have no access to our state courts to challenge these egregious violations of his constitutional rights.”

In a press release, the Rhode Island ACLU hailed Wednesday’s decision as “an important victory for the principle that the courts should be open to all for redress.”

Mayor Wu takes a few cautious steps toward limiting neighborhood protests

Boston Mayor Michelle Wu. Photo by Lex Weaver / The Scope

Loud, angry protests outside the homes of elected officials have become a staple of the uncivil times in which we live. And Boston Mayor Michelle Wu is taking a few cautious steps toward doing something about it.

As my GBH News colleague Adam Reilly reports, Wu has filed an ordinance that would ban protests outside individual residences between 9 p.m. and 9 a.m. — four fewer hours than the current law allows, which runs from 11 p.m. to 7 a.m. Under the new hours, Wu would have left for work before the anti-vaccine, anti-mask protesters could arrive outside her Roslindale home, where they have been harassing her family and her neighbors.

“We are putting reasonable parameters around the time of day,” Reilly quoted Wu as saying, “because this is where it really comes up against quality of life, and ensuring that we are supporting residents in our neighborhoods to be able to have the health and well-being of getting sleep at night and in the morning.”

I fully support the First Amendment right to protest, and this is a troublesome issue. It seems to me that the protesters ought to have the decency to picket at her public appearances rather than at her home, but decency has little to do with it. Loud, obnoxious protests outside Gov. Charlie Baker’s home in Swampscott may even have played a role in his decision not to seek re-election, though Baker himself has not said one way or the other if that’s the case.

As Adam notes, another, more draconian restriction is being considered on Beacon Hill. State Rep. Steven Howitt, a Seekonk Republican, has proposed that protesters be banned from doing there thing less than 100 yards from an elected official’s home.

Over the weekend, Baker told Jon Keller of WBZ-TV (Channel 4) that the 100-yard limit might be a good idea. “We have neighbors,” Baker said. “For our neighbors who never ran for office, never got elected to anything, this was a nightmare.” (And what’s up with The Boston Globe, which credited an interview that Wu gave to WBUR’s “Radio Boston” program but dismissively described Baker’s appearance on “Keller at Large” as “a television interview”?)

As I wrote recently, Mayor Wu has faced two First Amendment tests in her brief time in the corner office. Fortunately, she and her staff appeared to back off from “media guidelines” that were intended to keep the press at a distance as city workers cleared the homeless encampment at Massachusetts Avenue and Melnea Cass Boulevard.

The protest issue, though, is a knottier one. I think she’s wise to take this in small steps. If the 9-to-9 ordinance helps, great. If not, then more drastic measures may be called for.

Why dark money in the Sarah Palin libel case could distort justice

Peter Thiel. Photo (cc) 2012 by Hubert Burda Media.

Jack Shafer asks an important question: Who is funding Sarah Palin’s legal battle against The New York Times? As Shafer observes in his new Politico Magazine piece, Palin’s legal team overlaps with the lawyers who represented Hulk Hogan in his lawsuit against Gawker. That effort turned out to be funded by Facebook billionaire Peter Thiel, who was aggrieved at having been outed by a Gawker-owned website. Shafer writes:

Nobody can criticize Palin for passing the hat to finance her case — if that’s what she did. Lawsuits are expensive and crowdfunding them without naming the funders is a time-honored practice — civil liberties groups do it routinely — and the practice is especially praiseworthy when the litigation is of the “impact” variety, designed to change the law and protect rights. But as the Gawker case demonstrated, such lawsuits can also be seen as punitive exercises, financed by a third party as payback.

The problem is that when lawsuits are funded by vast sums of dark money, they can have a distorting effect. Hogan’s invasion-of-privacy suit after Gawker published video of him having sex without his permission was certainly worthy of pursuing. But in the ordinary course of such matters, it would have been settled and life would have gone on. Instead, Hogan’s lawyers used secret Thiel money to push the suit all the way to its conclusion, with Gawker ultimately going bankrupt and shutting down. (The site has since been relaunched under new ownership.)

Unlike Hogan’s case, Palin’s libel suit against the Times is entirely lacking in merit. The Times published an editorial falsely tying Palin’s rhetoric to the 2011 shooting of then-congresswoman Gabby Giffords and the killings of six others. But there was zero evidence that the Times acted with “actual malice” (knowing falsehood or reckless disregard for the truth), which is the standard for public officials and public figures.

Palin’s suit shouldn’t have gotten as far as it did, and the devastating defeat she suffered this week ought to put an end to it. But if she’s backed by an endless stream of screw-you money, she can keep pushing, and perhaps get her case eventually heard by the U.S. Supreme Court — where Justices Clarence Thomas and Neil Gorsuch have indicated they’re prepared to overturn or pare back the libel standards that have protected the press since the landmark 1964 Times v. Sullivan decision.

A resounding double defeat for Sarah Palin may make it difficult to undo libel protections for the press

Sarah Palin. Photo (cc) 2017 by Gage Skidmore.

Previously published at GBH News.

To the extent that fading right-wing icon Sarah Palin had any strategy in pursuing her deeply flawed libel suit against The New York Times, it was this: to force a reconsideration of protections for the press that had stood for nearly 60 years, thus exacting vengeance against her tormenters in what she once infamously labeled “the lamestream media.”

It’s at least theoretically possible that could still happen. But the devastating manner in which she lost has made it less likely, not more, that the U.S. Supreme Court will eventually take her up on her invitation to weaken or overturn its landmark New York Times v. Sullivan decision.

First came U.S. District Judge Jed Rakoff’s move on Monday to throw out the case and rule in the Times’ favor.

Rakoff was troubled by the 2017 Times editorial at the heart of the case, which claimed — falsely — that Jared Loughner, who shot then-U.S. Rep. Gabby Giffords and killed six others in 2011, had been incited by a map put together by Palin’s political action committee that depicted gunsights over Giffords’ district and those of 19 other Democrats.

“I don’t mean to be misunderstood,” Rakoff said. “I think this is an example of very unfortunate editorializing on the part of the Times.” But Palin’s lawyers did not present any evidence that the error was anything other than a sloppy mistake by then-editorial page editor James Bennet, who was contrite and apologetic during his testimony.

Rakoff did not inform the jurors of his ruling, instead allowing them to move ahead with their deliberations in order to assemble a more complete record for the inevitable appeals. That only added to Palin’s humiliation, as all nine jurors voted against her when they announced their verdict on Tuesday.

“Your job was to decide the facts, my job is to decide the law,” Rakoff said. “As it turns out, they were in agreement in this case.”

Press advocates had worried that the case could substantially weaken Times v. Sullivan, a 1964 court ruling that public officials cannot win a libel suit unless they are able to show that a false, defamatory story about them was published or broadcast with “actual malice” — that is, with the knowledge that it was false, or with reckless disregard for the truth. That protection was later extended to public figures.

Palin is all of the above — a former Alaska governor and Republican vice presidential candidate who transformed herself into an all-purpose celebrity. A ruling in her favor would have rendered the actual-malice standard meaningless.

There are, of course, those who have railed against Times v. Sullivan for years. As a presidential candidate in 2016, Donald Trump vowed he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”

And as I’ve written previously, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, have said they would like to revisit Times v. Sullivan. But though Thomas appears ready to overturn the decision in its entirety and return libel law to the states, Gorsuch has indicated he would take a more subtle approach. Because the Palin verdicts are so clear-cut, it may be difficult for the justices to use them as a reason to sink their fangs into the Sullivan decision.

Rakoff’s unusual two-part approach presents an additional obstacle to Palin’s hopes for winning on appeal. As David Folkenflik reported for NPR, if an appeals court were to set aside Rakoff’s verdict, the jury’s verdict would still be in effect.

Finally, the case helped demonstrate the importance of First Amendment protections even for bad journalism — which the Times’ editorial surely was. Bennet inserted language into an editorial — “the link to political incitement was clear” — that was patently false and defamatory. There was no connection between Palin’s map and the shooting of Gabby Giffords and others. (Although it would not be surprising to learn that the jury considered the fact that Palin really did publish that grossly irresponsible map.)

But the media must have the freedom to report on matters of public importance without being subjected to crippling lawsuits because of inadvertent mistakes. As Justice William Brennan wrote in the Sullivan decision, “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’”

So Times v. Sullivan lives — for now. Whether Palin’s lawyers will somehow be able to transform their resounding defeat into a winner on appeal remains to be seen. But a federal judge and a jury of Palin’s peers saw through her bogus complaint. For now, that’s enough.

The Times should publish the Project Veritas documents and encourage copying

Sarah Palin’s bogus libel suit would appear to be enough First Amendment excitement involving The New York Times. But there’s been another important development. A New York state judge’s ruling that the Times could not publish documents it had obtained belonging to the right-wing undercover operation Project Veritas has been stayed by a state appeals court. Michael Grynbaum reports in the Times:

In a decision made public on Thursday, the appeals court said the order would not be enforced until a formal appeal could be heard. The decision means that, for now, The Times can publish certain documents and will not have to turn over or destroy any copies of the documents in its possession.

As I wrote recently, Judge Charles D. Wood had prevented the Times from publishing the documents on the grounds that Project Veritas is in the midst of suing the Times for libel, and that the documents were protected by attorney-client privilege. But the Times has contended that it obtained the documents as a result of its reporting, not from discovery in the legal case, and Veritas has presented no evidence to the contrary — as Wood himself conceded.

Wood’s stunning overreach should have been overturned within hours, and I’m shocked that it’s taken this long. The First Amendment principle that prior restraint should only be exercised in the rarest of circumstances. That’s why the Supreme Court allowed the Times and The Washington Post to publish the Pentagon Papers despite the Nixon administration’s claim that to do so was a serious violation of national security. Wood’s decision in the Project Veritas case reads like a parody.

Here’s what the Times should do next: publish all the documents. Today. And encourage widespread copying. It’s not enough just to push back at Wood. His defiance of constitutionally guaranteed protections for the press needs to be held up to widespread condemnation.

Support this free source of news and commentary by becoming a member of Media Nation for just $5 a month.