Strictly speaking, there is nothing actually wrong in James Fallows’ 4,000-word takedown of the political press, which has been the talk of liberal Twitter since it was published by The Atlantic earlier this month.
But to argue, as Fallows does, that we’re doing it all over again, and that Joe Biden is falling victim to the same irresponsible coverage that befell Clinton four years ago, is to misunderstand the moment.
What if President Trump actually had the power to do something about journalism that he doesn’t like? Unfortunately, we already know the answer. A number of media organizations operate under government auspices, and until recently they’ve enjoyed a well-deserved reputation for independence and truth-telling. Now, though, they are in danger of being dismantled or turned into organs of Trumpist propaganda.
This Ross Douthat column gets at something I’ve found myself wondering: How many lives could have been saved in the United States if a normal president had been in the White House?
A Columbia study showed that 36,000 people would not have died if the shutdown had started a week earlier, and 54,000 if it had started two weeks earlier. But might they have died later on during the summer surge?
The real problem has been Trump’s complete lack of seriousness and empathy. Maybe the death toll wouldn’t be all that different. But we wouldn’t feel completely abandoned.
Jeffrey Goldberg of The Atlantic posted a blockbuster Thursday evening, reporting that President Donald Trump has repeatedly disparaged those who died in war as “losers” and “suckers.”
But the story probably won’t have the devastating effect that it should because Goldberg’s sources refused to go on the record. I’m outraged, as I have been many times over the past four years, at the gutlessness of these insiders and former insiders, who privately express their disgust with Trump while acting as his enablers.
Yes, attaching their names to this report would subject them to withering criticism and possibly even place them in danger. But the country is in danger, too. It’s time to step up.
If those sources claim to be patriots it's time to step out from the shadows. Otherwise they will be complicit if Trump steals the election https://t.co/qQladBguVp
The revelations are highly entertaining, but think about it: Mary Trump secretly recorded her aunt, Maryanne Barry, and gave the audio to The Washington Post. What kind of a person does that? There is nothing in the story to suggest that Mary has a beef with Maryanne, or that she considers her part of the plot to deprive her of her inheritance. There’s no such thing as a good Trump.
For those keeping track of the various ways by which President Donald Trump is trampling on the Constitution, move this to the top of your list: his former lawyer Michael Cohen was sent back to prison earlier this month to prevent him from writing a tell-all book about Trump.
Cohen, serving a federal sentence related to various corrupt acts on behalf of the president, was allowed to go home when the COVID-19 pandemic hit. But he was locked up again after he refused to promise not to publish his Trump book, “Disloyal,” before the November election. Cohen was sprung for a second time by U.S. District Judge Alvin Hellerstein, who ruled last week that federal authorities had violated Cohen’s First Amendment rights.
“How can I take any other inference than that it’s retaliatory?” Hellerstein asked prosecutors, according to The Associated Press, adding: “Why would the Bureau of Prisons ask for something like this … unless there was a retaliatory purpose?”
The Justice Department’s short-lived effort to silence Cohen by imprisoning him was egregious even by the thuggish standards of the Trump era — but it was also just the third recent move by the president and his minions to prevent critics from publishing books about him. The others:
• Former national security adviser John Bolton’s book, “The Room Where It Happened,” was held up for months while undergoing review for the ostensible purpose of ensuring that Bolton did not reveal any classified information. That, at least, was a legitimate reason. But Bolton and his publisher, Simon & Schuster, ultimately chose to defy the White House after it became clear that the process was being drawn out for reasons of politics rather than protocol.
In allowing the book to proceed, federal judge Royce Lamberth wrote that Bolton may very well have been improperly revealing secrets — but that the First Amendment remedy for all but the most dangerous breaches of national security is to punish the perpetrator after publication, not to prevent publication ahead of time. According to NPR, Lamberth wrote that Bolton had “gambled with the national security of the United States,” but that “the government has failed to establish that an injunction will prevent irreparable harm.”
• Trump, through his brother Robert, sought to prevent the release of his niece Mary L. Trump’s devastating book about the president, “Too Much and Never Enough,” by claiming that she was violating a nondisclosure agreement she had signed many years earlier.
Although a lower-court judge granted Robert Trump a temporary restraining order, that order was overturned by Judge Hal Greenwald of the Supreme Court of New York. In a nice turn of phrase, The Washington Post reported, Greenwald wrote the Constitution “trumps contracts.”
Though the circumstances of Cohen’s, Bolton’s and Mary Trump’s books couldn’t be more different, there is a common thread: the First Amendment demands that publication not be prohibited, and that if the authors are to be subjected to any legal penalties, those penalties must come later.
The principle that prior restraint is the worst and most indefensible of assaults on free expression goes all the way back to the English poet John Milton, who in his 1644 tract “Areopagitica” argued against the requirement that printers obtain licenses on the grounds that everyone should be free to print what they wished without government interference.
In stirring language, Milton wrote that “though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”
Milton also anticipated modern First Amendment law by arguing in favor of unimpeded publication first, punishment (if warranted) after — though his ideas about what constituted proper punishment were suffused with a distinct 17th-century sensibility, writing that “the fire and the executioner will be the timeliest and the most effectuall remedy.”
In the 20th century, the U.S. Supreme Court ruled in two landmark cases that, with very few exceptions, punishment should come only after publication.
In Near v. Minnesota (1931), the court ruled that prior restraint could be invoked only in cases involving a serious violation of national security, obscenity or incitement to violence. Thus was a Minneapolis-based scandal sheet allowed to resume publication even though every previous issue had contained outrageous libels.
In New York Times Co. v. United States (1971), the court upheld the Near precedent and ruled that publication of the Pentagon Papers could resume because the national-security implications were not serious enough to warrant censorship — although a majority suggested that they might be serious to justify post-publication prosecution, as my friend and occasional collaborator Harvey Silverglate has shown.
In Trumpworld, the revelations of Michael Cohen, John Bolton and Mary Trump are so horrifying that they justify being repressed even more than the Pentagon Papers, the government’s secret history of the Vietnam War. Yet as President Richard Nixon argued at the time, the Pentagon Papers really did undermine the war effort. Today’s revelations have resulted only in embarrassment to the president.
And it continues. Last week The New York Times reported that Immigration and Customs Enforcement was blocking the release of a Netflix documentary that depicts the agency’s abuse and mockery of immigrants. The filmmakers, Shaul Schwarz and Christina Clusiau, said they’d been told that objections to their work extended “all the way to the top.”
Unfortunately, Schwarz and Clusiau had signed an agreement granting approval rights to ICE. And though that agreement supposedly included “strong protections for their journalistic independence,” as the Times put it, it’s now being wielded as yet one more way to protect Trump from scrutiny and criticism.
There is a school of thought that Trump’s ranting about the media — calling them “Enemies of the People,” threatening to loosen libel protections and the like — is little more than bluster. His two Supreme Court justices, regardless of what else you might say about them, appear to be as dedicated to protecting the First Amendment as their colleagues. And Trump rarely follows through on his threats.
But there is a connection between his rhetoric and his actions: anyone who speaks against him must be silenced and punished — even jailed and put at risk of death, as with Michael Cohen.
With federal troops cracking down on mostly nonviolent protesters against the wishes of governors and mayors, the scent of authoritarianism is in the air. Will we pay attention? Or will we simply move on to the next outrage, as we have so many times in the past three and a half years?
Now that a temporary restraining order stopping President Donald Trump’s niece from publishing her tell-all book has been overturned, I want to briefly touch on why we all ought to be worried that the order was issued in the first place.
According to The Daily Beast, Hal Greenwald, a New York State judge, “ordered Mary Trump and Simon & Schuster to appear before him on July 10 — and barred them from disseminating her book,” titled “Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.”
But under longstanding precedent first set forth in the Supreme Court case of Near v. Minnesota (1931), prior restraint can be invoked only if publication would result in a serious breach of national security (a hurdle the government was not able to meet even in the Pentagon Papers case), or if the material in question meets the legal definition of obscenity or would incite violence.
This is not to say that the First Amendment offers Mary Trump blanket protection. It’s very possible that she could be found to have violated a binding non-disclosure agreement, as the president argues. But in order not to run afoul of the First Amendment, legal remedies would have to come after publication.
By acting as he did, Judge Greenwald elevated a family dispute to the level of revealing the movement of troops during wartime (one of the scenarios envisioned in the Near decision) or publishing instructions on how to build a nuclear bomb (the subject of another famous court battle over prior restraint).
According to a number of recent national polls, Joe Biden has moved out to a sizable lead over President Trump — so sizable that, if the election were held now, Biden would probably win the presidency by a substantial margin, since his lead is large enough to overcome Trump’s structural advantage in the Electoral College.
What I want to address here is the assumption some observers are making that Biden wouldn’t be ahead by nearly as much (or even at all) if it weren’t for COVID-19, the resultant economic catastrophe and the Black Lives Matter protests.
Yes, those would be huge challenges for any president. But with COVID, in particular, a compassionate, reasonably competent response wouldn’t have necessarily hurt Trump and might have even helped him. Look at Massachusetts Gov. Charlie Baker, who continues to receive high marks for his response to the pandemic, according to a new Suffolk University poll.
Likewise, the reason that the Black Lives Matter protests represent such an existential threat to Trump is that he’s a stone-cold racist who’s responded by advocating violence and embracing Confederate symbols — and no one outside his base wants to hear that anymore.
The reality is that any president’s re-election campaign is a referendum on the incumbent. And Trump has been historically unpopular from his first days in office. Biden’s lead merely tracks Trump’s approval/disapproval rating. It’s currently at 41% approve/55% disapprove, according to the FiveThirtyEight averages, and that’s right in line with most of his presidency.
Biden may be uninspiring to many, but he’s a consensus figure who’s bound to attract nearly all of the voters who disapprove of Trump. It’s not like anyone is going to hold their nose and vote for Trump because Biden scares them. If you look at the FiveThirtyEight graph, you’ll see that Biden would have been far ahead of Trump at almost any point in the past three and a half years.
The triple threat of COVID, the economy and protests against racism have made Trump’s re-election that much harder. But the dynamic is the same as it ever was.
The pandemic was spread not just by germs but by politics. The virus would have killed many Americans in any case. But a demagogue occupied the White House, and measures that could have reduced the number of victims — a ban on large gatherings, for instance, as well as an honest reckoning with the public — were discouraged at the highest levels. In the end, a tragedy that was the result of natural forces was made immeasurably worse by human failure.
You may think I’m describing President Donald Trump’s response to COVID-19. In fact, I’m referring to Woodrow Wilson and the influenza pandemic of 1918. According to John M. Barry’s 2005 book “The Great Influenza: The Story of the Deadliest Pandemic in History,” a considerable amount of suffering and death could have been prevented were it not for Wilson’s messianic mobilization for war.
“America had never been and would never be so informed by the will of its chief executive, not during the Civil War with the suspension of habeas corpus, not during Korea and the McCarthy period, not even during World War II,” Barry writes. “He would turn the nation into a weapon, an explosive device.
“As an unintended consequence, the nation became a tinderbox for epidemic disease as well.”
One example of how Wilson’s embrace of total war worsened the pandemic will suffice. In Philadelphia, the inept public health director, Wilmer Krusen, refused to take action even after the flu began to rip through the city — spread, as was so often the case, by troops being shipped around the country.
At the same time, Wilson’s propaganda chief, George Creel, exerted enormous pressure on Americans to buy Liberty Bonds in order to pay for the war effort — an outgrowth of Creel’s chilling mantra, “100% Americanism.” The newspapers didn’t dare question the official line, which was that the flu was no big deal. And so Philadelphia went ahead with a parade to promote Liberty Bonds, an event that turned out to be a major vector in the spread of the disease.
All told, about 20,000 people died in the Philadelphia outbreak — and, as described by Barry, death from the 1918 flu was gruesome, with victims turning deep blue as their lungs became unable to process oxygen and with blood pouring out of every orifice.
In all, about 675,000 people in the U.S. died from the 1918 flu (the equivalent of nearly 2 million today), and perhaps as many as 50 million worldwide.
By failing to level with the public, according to Barry, Wilson made a bad situation much worse. Barry writes that “as horrific as the disease itself was, public officials and the media helped create that terror — not by exaggerating the disease but by minimizing it, by trying to reassure…. In 1918 the lies of officials and of the press never allowed the terror to condense into the concrete. The public could trust nothing and so they knew nothing. Society is, ultimately, based on trust; as trust broke down, people became alienated not only from those in authority, but from each other.”
And here’s where the parallels to our current situation are especially telling. Trump wanted to minimize COVID in order to save the stock market — not, as Wilson would have it, to make the world safe for democracy. Nevertheless, both Wilson and Trump played down the seriousness of the invisible enemy that had invaded our shores. As reported by The Washington Post, Trump dithered for more than two months — a time when the threat was becoming increasingly clear, and when steps could have been taken to minimize COVID’s spread.
According to scientists at Columbia University, some 36,000 lives could have been saved in the U.S. if social-distancing had been put in place just a week earlier — on March 8 instead of March 15.
Moreover, although the press isn’t under the threat of censorship today as it was in 1918, Trump has what is essentially his own media outlet — Fox News — which has been spreading disinformation from the start of the pandemic and cheering on the mask-disdaining anti-shutdown protesters who invaded statehouses a few weeks ago. Pandemic disease has become just another manifestation of the partisan divide. The result: More than 110,000 Americans have died, one-quarter of the worldwide total.
The analogies between 1918 and 2020 aren’t perfect, of course. Despite Wilson’s many flaws, he probably couldn’t have avoided entering World War I. The response to the influenza could have been managed better, but there were limits to what could be done during wartime.
Trump, on the other hand, has been an active impediment to anti-COVID measures by spouting false information about drugs and (lest we forget) bleach, by refusing to wear a mask in public and by interfering with state efforts to obtain medical equipment and supplies.
Also unlike 1918, the media are reporting plenty of uncensored, reliable information. The problem today isn’t censorship; rather, it’s a parallel universe of right-wing media more dedicated to advancing Trump’s political prospects than to the truth.
Now we are in the midst of our darkest period in many years, as we deal not just with COVID and economic calamity but with the Black Lives Matter protest movement, a long-overdue response to racism following the police killing in Minneapolis of George Floyd, and of the deaths of numerous other Black men and women at the hands of police and racist vigilantes. As others have observed, we are simultaneously reliving the pandemic of 1918, the depression of the 1930s and the turmoil of 1968. A better, more just country may come out of this, but that doesn’t make the moment any easier to process.
One aspect of Barry’s book struck me as both unlike and yet resonant with the present crisis. At root, Barry tells a medical detective story, going into great detail about the lives of a small handful of scientists who attempted to find a vaccine and a cure for the flu. Modern medicine was in its infancy then. When a treatment for diphtheria was developed in 1891, it was the first time in history that any disease had been cured. A quarter-century later, the number of eminent scientists called to work on the 1918 influenza outbreak could be counted on two hands.
And they failed.
Today we know so much more — yet our experts have been groping for answers, too, changing their guidance on face masks and warning us that they may fall short in their frantic search for a vaccine and/or a cure.
Barry quotes one of the 1918 researchers, Victor Vaughan, as saying in disgust: “Doctors know no more about this flu than 14th-century Florentine doctors had known about the Black Death.”
It’s a lesson in humility and patience that we should keep in mind. After all, the flu pandemic eventually burned out of its own accord. COVID will, too. But coming up with solutions to racism, police brutality and economic injustice, the other unfinished business of 2020, is going to be up to all of us.
It’s probably not a good idea for us to talk about messing around with free speech on the internet at a moment when the reckless authoritarian in the White House is threatening to dismantle safeguards that have been in place for nearly a quarter of a century.
On the other hand, maybe there’s no time like right now. President Donald Trump is not wrong in claiming there are problems with Section 230 of the Telecommunications Act of 1996. Of course, he’s wrong about the particulars — that is, he’s wrong about its purpose, and he’s wrong about what would happen if it were repealed. But that shouldn’t stop us from thinking about the harmful effects of 230 and what we might do to lessen them.
Simply put, Section 230 says that online publishers can’t be held legally responsible for most third-party content. In just the past week Trump took to Twitter and falsely claimed that MSNBC host Joe Scarborough had murdered a woman who worked in his office and that violent protesters should be shot in the street. At least in theory, Trump, but not Twitter, could be held liable for both of those tweets — the first for libeling Scarborough, the second for inciting violence.
Ironically, without 230, Twitter no doubt would have taken Trump’s tweets down immediately rather than merely slapping warning labels on them, the action that provoked his childish rage. It’s only because of 230 that Trump is able to lie freely to his 24 million (not 80 million, as is often reported) followers without Twitter executives having to worry about getting sued.
As someone who’s been around since the earliest days of online culture, I have some insight into why we needed Section 230, and what’s gone wrong in the intervening years.
Back in the 1990s, the challenge that 230 was meant to address had as much to do with news websites as it did with early online services such as Prodigy and AOL. Print publications such as newspapers are legally responsible for everything they publish, including letters to the editor and advertisements. After all, the landmark 1964 libel case of New York Times v. Sullivan involved an ad, not the paper’s journalism.
But, in the digital world, holding publications strictly liable for their content proved to be impractical. Even in the era of dial-up modems, online comments poured in too rapidly to be monitored. Publishers worried that if they deleted some of the worst comments on their sites, that would mean they would be seen as exercising editorial control and were thus legally responsible for all comments.
The far-from-perfect solution: take a hands-off approach and not delete anything, not even the worst of the worst. At least to some extent, Section 230 solved that dilemma. Not only did it immunize publishers for third-party content, but it also contained what is called a “Good Samaritan” provision — publishers were now free to remove some bad content without making themselves liable for other, equally bad content that they might have missed.
Section 230 created an uneasy balance. Users could comment freely, which seemed to many of us in those more optimistic times like a step forward in allowing news consumers to be part of the conversation. (That’s where Jay Rosen’s phrase “the people formerly known as the audience” comes from.) But early hopes faded to pessimism and cynicism once we saw how terrible most of those comments were. So we ignored them.
That balance was disrupted by the rise of the platforms, especially Facebook and Twitter. And that’s because they had an incentive to keep users glued to their sites for as long as possible. By using computer algorithms to feed users more of what keeps them engaged, the platforms are able to show more advertising to them. And the way you keep them engaged is by showing them content that makes them angry and agitated, regardless of its truthfulness. The technologist Jaron Lanier, in his 2018 book “Ten Arguments for Deleting Your Social Media Accounts Right Now,” calls this “continuous behavior modification on a titanic scale.”
Which brings us to the tricky question of whether government should do something to remove these perverse incentives.
Earlier this year, Heidi Legg, then at Harvard’s Shorenstein Center on Media, Politics and Public Policy, published an op-ed in The Boston Globe arguing that Section 230 should be modified so that the platforms are held to the same legal standards as other publishers. “We should not allow the continued free-wheeling and profiteering of this attention economy to erode democracy through hyper-polarization,” she wrote.
Legg told me she hoped her piece would spark a conversation about what Section 230 reform might look like. “I do not have a solution,” she said in a text exchange on (what else?) Twitter, “but I have ideas and I am urging the nation and Congress to get ahead of this.”
Well, I’ve been thinking about it, too. And one possible approach might be to remove Section 230 protections from any online publisher that uses algorithms in order to drive up engagement. When 230 was enacted, third-party content flowed chronologically. By removing protections from algorithmic content, the law would recognize that digital media have fundamentally changed.
If Jack Dorsey of Twitter and Mark Zuckerberg of Facebook want to continue profiting from the divisiveness they’ve helped foster, then maybe they should have to pay for it by assuming the same legal liability for third-party content as print publishers. Dorsey would quickly find that his tentative half-steps are insufficient — and Zuckerberg would have to abandon his smug refusal to do anything about Trump’s vile comments.
But wouldn’t this amount to heavy-handed government regulation? Not at all. In fact, loosening Section 230 protections would push us in the opposite direction, toward deregulation. After all, holding publishers responsible for libel, invasions of privacy, threats of violence and the like is the default in our legal system. Section 230 was a regulatory gift, and it turns out that we were too generous.
Let me concede that I don’t know how practical my idea would be. Like Legg, I offer it out of a sense that we need to have a conversation about the harm that social media are doing to our democracy. I’m a staunch believer in the First Amendment, so I think it’s vital to address that harm in a way that doesn’t violate anyone’s free-speech rights. Ending special regulatory favors for certain types of toxic corporate behavior seems like one way of doing that with a relatively light touch.
And if that meant Trump could no longer use Twitter as a megaphone for hate speech, wild conspiracy theories and outright disinformation, well, so much the better.