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.

The Times’ Tucker Carlson series is a triumph of explanatory journalism

Tucker Carlson. Photo (cc) 2020 by Gage Skidmore.

Yes, I read The New York Times’ massive deep dive into Tucker Carlson, whose Fox News program was dubbed — accurately — as “what may be the most racist show in the history of cable news.”

Something as lengthy and detailed as this defies summary. If you don’t have the time or the inclination to slog through the whole thing, the “key takeaways” sidebar is quite good. I also recommend that you interact with the digital version of part three, in which you’ll hear Carlson’s own words, taken from more than 1,100 episodes.

Times reporter Nicholas Confessore has done a remarkable job of combing through Carlson’s past and present in an attempt to explain his rise from stylish but obscure magazine writer and failed television host to the most powerful force in cable. And Confessore offers partial answers, at least, to some aspects of the Carlson phenomenon. For instance:

Did Carlson change? Or has he always been this way and we just didn’t see it? Several years ago I wrote a piece for GBH News in which I recounted my own long-ago experience with Carlson, who came across as a charming raconteur with mainstream conservative-libertarian views.

Confessore’s answer, I think, is that Carlson really did change, although the seeds of his transformation were always there. His childhood sounds like it was truly miserable. And, in looking back, I have to say that my only personal experience with him was in how he interacted with a fellow white man. It doesn’t sound like he’s spent much time at all with people of color.

Does he really believe the terrible things he says? Or is it all an act? This comes up in conversation with friends and associates all the time — again, mainly because he seemed to be someone entirely different a generation ago. Confessore’s answer: it’s a little of both.

I thought Confessore was especially strong in his explanation of Carlson’s attempt to reinvent himself after his failed stints at CNN and MSNBC by launching The Daily Caller, a conservative news outlet that moved increasingly to the fringe right. Carlson comes across as someone who embraced extremism partly out of conviction and partly as a way to amuse himself. He does not seem like someone who ever gives much thought to the consequences of what he writes and says.

He is also portrayed as really, really wanting to make it in television, and he was probably willing to do just about anything to make his Fox gig a success. The late Fox impresario Roger Ailes reportedly once said that Fox was Carlson’s “last chance.” So Carlson’s shtick could be seen as a poisonous combination of his own flirtation with extremist ideas; delight at provoking the “elites” whom he hates; and desperate ambition.

What’s next? Would Carlson run for president? Confessore doesn’t get into that, even though he portrays Carlson as the logical successor to Trump — “Trumpism without Trump,” as he puts it. I don’t see why Carlson would take the next step given the riches and fame that have already come his way. But we don’t know whether he lusts for power, just as we didn’t know that Trump would aspire to authoritarian rule once he got past the novelty stage of what started out as a celebrity candidacy in 2015.

Confessore also does a good job of explaining how Fox has overcome the problems with advertisers that Carlson has experienced, and the role played by Lachlan Murdoch, who is far more ideological and extreme than his cynical, greed-crazed father, Rupert. The Times has produced a triumph of explanatory journalism.

Exploring the limits of free speech in nonprofit editorial sections

Photo (cc) 2015 by Edgar Zuniga Jr.

Lately I’ve been trying to figure out the where the line is for free speech in the editorial sections of nonprofit news organizations. I know they can’t endorse political candidates lest they lose their nonprofit status, the result of a law rammed through the Senate by Lyndon Johnson back in the 1950s. And a few people have told me that nonprofits can’t endorse specific legislation, either.

But what else? When Ellen Clegg and I asked Art Cullen, editor of Iowa’s Storm Lake Times, on the “What Works” podcast if he’d considered taking the Times nonprofit, he said he hadn’t because he was afraid he wouldn’t be able to write editorials. Cullen won the Pulitzer Prize for editorial writing in 2017.

Well, here’s a concrete example. The Salt Lake Tribune — the first major daily newspaper in the U.S. to become a nonprofit — recently ran a tough editorial holding state leaders to account for their failures in responding to COVID-19. It began:

That wan fluttering noise you hear coming from the direction of the Capitol building is the sound of the state of Utah waving the white flag of surrender in the battle against the COVID-19 pandemic.

It’s tragic. It’s disgraceful. And there is lots of blame to go around.

Naturally, the editorial led to death threats, as Erik Wemple reports in The Washington Post. Although the threats came after Fox News host Sean Hannity denounced the Tribune for advocating vaccine mandates, what Hannity said, in Wemple’s recounting, wasn’t even remotely a call for violence or threats. It’s just America in 2022.

The death threats notwithstanding, the Tribune’s editorial is an indication that nonprofits can in fact take a strong editorial stand on matters of public interest, including governmental actions, without risking their tax-exempt status. They should be able to endorse candidates and advocate for legislation if they so choose. But at least they are not entirely prohibited from exercising their freedom of speech.

A terrific biopic about Hearst overlooks his most dangerous successor

William Randolph Hearst. Photo via the Library of Congress.

I recently had a chance to see “Citizen Hearst” on PBS’s “American Experience.” It was extraordinarily well done. Despite clocking in at nearly four hours, with much of the time given over to talking heads, my attention never flagged. Partly it’s because there was so much high-quality archival footage. Partly it was because the subject, the newspaper mogul William Randolph Hearst, is just so compelling.

There was only one aspect of Hearst’s career that I thought got short shrift. Years ago I read William Andrew Swanberg’s 1961 biography of Hearst. (Confusingly enough, Swanberg’s book was also called “Citizen Hearst,” but the documentary is based on a different book — “The Chief: The Life of William Randolph Hearst,” by David Nasaw, who appears in the film.) I distinctly recall that Hearst’s papers were sympathetic to Germany during the early years of World War I,  so he faced a crisis when the U.S. entered the war. His solution: adding the name “American” to many of his papers.

Another omission from the documentary is more conceptual than factual. The film seems to take it for granted that we’ll never see another media figure who wields power the way Hearst did. Well, what about Rupert Murdoch? If anything, Murdoch has more power and is more dangerous. His Fox News Channel has become the single most important force driving the crisis of democracy that we’re contending with at the moment.

In that sense, “Citizen Hearst” is not just a well-made film about a historical figure. It’s a cautionary tale.

Why the Jan. 6 panel should tread carefully in seeking Sean Hannity’s testimony

Photo (cc) 2015 by Gage Skidmore

The Jan. 6 select committee’s decision to ask Sean Hannity to testify carries with it a few nettlesome details.

The Fox News star’s lawyer, Jay Sekulow, has already invoked the First Amendment. But there is, in fact, no constitutional protection for journalists who are called to testify in court or, in this case, before a congressional committee. The problem, as the Supreme Court explained in its 1972 Branzburg v. Hayes decision, is that granting such a privilege requires defining who’s a journalist and who isn’t. And the First Amendment belongs to everyone.

That said, the government is generally loath to force journalists to testify because of the chilling effect it would have on the ability of news organizations to operate as independent monitors of power. It would be well within bounds for the committee to decide that Hannity is not a journalist. He was a close confidant of Donald Trump when Trump was president, was a featured speaker at a Trump rally and, in his communications with the White House, made it clear that he was a member of Team Trump.

But this brings us back to one of the central dilemmas of the Trump years. Hannity’s behavior was so over the top that it’s easy to say he’s not a journalist. Still, you can be sure that Trump’s defenders will point to far more ambiguous situations and say, “What about?” Ben Bradlee’s friendship with President John F. Kennedy comes to mind, as does Walter Lippmann, the ultimate insider.

The problem facing members of the select committee is that if they subpoena Hannity and other Fox News personalities, they would do so in the certain knowledge that Republicans will claim a precedent has been set and abuse it as soon as they’re in a position to do so. I have little doubt, for instance, that New York Times executive editor Dean Baquet and former Washington Post executive editor Marty Baron would be forced to testify about their papers’ coverage of the Russia scandal.

Which is why the select committee is hoping that Hannity will accept its invitation to testify voluntarily. If he refuses (as he almost certainly will), then it will have to decide whether to issue a subpoena — a move that could have far-reaching consequences.

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Trump’s semi-departure fuels decline in news consumption

Photo (cc) by Seth Anderson

It was obvious to just about everyone that the media were going to face a challenging year after losing the artificial stimulant provided by the Trump presidency. “Will audience and revenue resume the downward track they had been on for years before Trump demanded everyone’s unwavering attention?” I asked last January.

The answer: Yes, indeed.

David Bauder of The Associated Press has pulled together the numbers. The situation is especially grim on cable news, where weekday prime-time viewership was down 38% at CNN, 34% at Fox News and 25% at MSNBC. (Fox still has by far the largest audience of the three.)

I’m not shedding any tears, crocodile or otherwise. Cable news is bad for you. The formula at all three consists of keeping you riled up and angry so that you don’t change the channel. Fox adds weaponized right-wing propaganda about COVID, the Jan. 6 insurrection, critical race theory and more. So please, touch that dial.

Then again, everything’s down, not just cable news. Viewership of the three network evening newscasts — higher quality than their cable brethren — declined 12% to 14%. Unique monthly visitors to the websites of The New York Times and The Washington Post dropped — although paid digital subscriptions to the Times are up, and that’s the metric that really matters. The Post, on the other hand, reportedly dropped from about 3 million to 2.7 million digital subscriptions toward the end of the year.

None of these numbers is inherently bad. We were glued to the news to an unhealthy extent during Trump’s presidency, as we all wondered what demented action he was going to take next. Then, in 2020, we had COVID to deal with as well.

There is still plenty of news taking place. COVID remains with us, the Republican Party has gone full-bore authoritarian and Trump has never really gone away. But things are a bit calmer, if not necessarily calm.

With national news commanding fewer eyeballs, will some of that attention be diverted to local journalism? I’d like to hope so. But with hedge funds and corporate chains hollowing out hundreds of community newspapers, in a lot of places there just isn’t enough to command attention.

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Fox News loses its last fig leaf as Chris Wallace leaves for a gig at CNN

Chris Wallace. U.S. Army photo (cc) 2010 by Staff Sgt. Jim Greenhill.

Chris Wallace has finally stopped providing undeserved cover for Fox News, announcing at the end of his show today that he was leaving. He’ll host a show on CNN’s new streaming service.

Wallace deserves some credit for remaining a bastion of sanity on a network that’s embraced the hardcore Trumpist right and all of its lies and fantasies. But he’s 74 and has made a lot of money at Fox; let’s not get carried away.

Questions remain after the fall of the House of Cuomo

I’ve heard three questions come up since CNN suspended, then fired, Chris Cuomo for his inappropriate involvement in his brother Andrew’s defense against charges that he’d sexually harassed and assaulted women. I don’t know the answers to any of them. But they’re worth framing as we think about the extraordinary events of the past week.

1. Why did it take so long for CNN to act? The original bad actor in all of this was CNN head Jeff Zucker, who allowed Chris to host Andrew on his show when Andrew, as governor of New York, was winning widespread praise for how he had handled the early stages of the COVID pandemic.

It may have struck many people at the time as a harmless diversion during a very dark period. You may recall that Chris himself contracted the virus. But it was unethical, and in the months to come we learned just how unethical. Remember, Andrew ended up being accused not just of groping women but of grossly mismanaging the pandemic as well.

Then the drip, drip, drip started, as we learned that Chris had advised his brother and taken part in meetings as the sexual-misconduct scandal became increasingly serious. Zucker may have worried that suspending or firing one of his stars would have only called attention to his own role, so he let it go.

The revelations that were reported last week, though, weren’t just more but were also different. They showed that Chris had abused his position by, for instance, trying to find out what stories other journalists were working on. This went way beyond anything Zucker could have reasonably foreseen, and thus may have given him the freedom he needed to do what he should have done earlier.

No doubt Zucker’s hand was strengthened further when Chris Cuomo was hit during the past few days with a sexual misconduct allegation of his own — his second.

2. What about Sean Hannity? I’ve heard a number of people ask why Chris Cuomo has to go when Fox News did nothing about Hannity’s close relationship with Donald Trump. To which I can only respond that Fox, notwithstanding good work by a few of its journalists, is not really a news operation. It’s a propaganda outlet whose stock in trade is lies and ginned-up culture-war stories about issues such as race and the evils of vaccinations.

CNN is not what it used to be, and I’m not a fan of its prime-time line-up of opinionated talk shows. But it’s good to see that management still cares enough about the network’s reputation that it’s not going to stand for a host who breaks all journalistic boundaries — even if he didn’t do much journalism on the air. To imagine that Fox News would take similar action is to believe that Fox and CNN are in the same business. They’re not.

And wouldn’t it be great if CNN ultimately decides to replace Cuomo’s 9 p.m. talk show with an actual newscast? I’m not holding my breath.

3. What about Jeffrey Toobin? You may recall that CNN suspended Toobin as its legal analyst after he was caught pleasuring himself during a Zoom meeting. Many observers were surprised when the network took him back eight months later.

I’m not sure what that was about except to note that the incident took place during a New Yorker staff meeting, where Toobin was a writer. The New Yorker fired Toobin and shows no signs of being willing to take him back. CNN may have figured that it would be unfair to banish Toobin permanently for something he did for another employer. Still, it’s hard to watch Toobin without going “ewww.” And I say that as someone who liked his work both at The New Yorker and on CNN.

Finally: What an extraordinary downfall for the House of Cuomo. I revered their father, Mario; long before 2020, though, I was aware of Andrew’s thuggish reputation as governor. Chris struck me as an amiable lightweight. Scandals like this have a human dimension that can’t be overlooked. Andrew and Chris got what they deserved — but I feel bad for their mother, Matilda, who, at 90, is still very much with us.

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AT&T’s sponsorship of right-wing One America News and the perverse incentives of cable TV

Photo (cc) 2004 by the autowitch

Previously published at GBH News.

At the heart of a bombshell report showing that AT&T nurtured and enriched the far-right One America News cable network is a larger, more ominous issue: a broken media system that forces all of us to subsidize content we don’t want — and that, in this case, is actually undermining democracy.

Last week Reuters uncorked the results of a massive investigation into the tangled relationship between the two companies. Reporter John Shiffman, delving deep into court records, showed that OAN’s 2013 launch came at AT&T’s instigation and that the telecom giant’s continuing patronage is responsible for some 90% of OAN’s revenues.

“They told us they wanted a conservative network,” OAN founder Robert Herring Sr. said of AT&T executives during a 2019 deposition. “They only had one, which was Fox News, and they had seven others on the other side. When they said that, I jumped to it and built one.”

OAN first came to prominence last fall, after Fox (briefly) refused to lend credence to Donald Trump’s claims of election fraud. OAN and another far-right cable net, Newsmax, soared in the ratings by embracing Trump’s falsehoods. Today both networks, along with Fox, have positioned themselves as firehoses of misinformation and disinformation about the election, the Jan. 6 insurrection and COVID-19.

At a time when the reach of even small media outlets can greatly exceed their core audience through amplification on Facebook and other social networks, what OAN tells its audience matters a great deal.

“OAN’s television reach may not be vast: Most Americans won’t encounter it when they turn on their TV,” writes Washington Post media columnist Margaret Sullivan. “But its website’s offerings very well may show up in their social media feeds.”

But why would a major corporation like AT&T subsidize a shady operation like OAN? After all, high-powered business executives tend to be conservative in the old-fashioned sense of the word — they don’t like taxes or regulations, but they do like stability. The second to last thing a company like AT&T wants is for a Confederate flag-waving mob to storm the Capitol. And the last thing it wants is to be associated with a media outlet that revels in such anarchy.

The answer may lie in our perverse cable television system, which forces us to pay for channels we don’t want and which in turn depends on favors from the government in order to keep the money spigot flowing.

According to Shiffman’s reporting, in 2014 AT&T was attempting to acquire the satellite service DirecTV, and its executives were concerned about whether they might run afoul of regulators. OAN and another network owned by the Herrings, WealthTV, were already running on U-verse, a smaller outlet that AT&T owned. So AT&T suggested that it run both channels on DirecTV as well.

By doing so, court documents suggest, AT&T could allay worries that the acquisition would make it more difficult for independent networks to be carried by major cable providers. The optics of reaching out to carry a conservative network may have been helpful even though Barack Obama was president at the time.

“What we seem to see here,” writes Josh Marshall at Talking Points Memo, “is that regardless of personal politics AT&T was operating in and expanding in one of the most regulatory-dependent industry spaces — telecom, cable TV, internet service, content — and they wanted more conservative programming because that helps get regulatory help.”

Now, it’s also true that AT&T is a fading player in the cable wars, and that OAN is carried by other providers. So it’s not necessarily a slam dunk that AT&T enabled OAN for the sole purpose of obtaining regulatory goodies from the FCC. But if Marshall’s theorizing is correct, then it’s a good illustration of how our media system works on behalf of giant corporations and against the rest of us.

There is a simple solution to this, which I’ve written about before: breaking the connection between cable services (and, in the case of DirecTV, satellite) and programming. Beyond basic local channels, require that cable companies offer additional channels on an à la carte basis. If you want the Food Channel but don’t want HGTV, you shouldn’t have to pay for both. You could pay only for the news channels you want as well.

Of course, all of this comes at a time when we can see that cable TV will eventually go away as more and more people cut the cord and get all their video programming through the internet. So the problem I describe is one that will eventually be solved on its own.

Yet technologies can take a long time to die. AM radio is still with us, as are print newspapers. Similarly, we may assume that cable TV will be with us for years to come, even as its audience shrinks and ages.

Given that, it makes sense to let us pay only for the channels we want. Such a move would be pro-consumer and pro-democracy. And it would remove incentives for corporations like AT&T to promote dangerous propaganda for the sole purpose of appeasing their regulatory overlords.