Tag: Supreme Court

A quarter-century after its passage, Section 230 is up for grabs

On By Dan KennedyIn First Amendment, Technology4 Comments

A quarter-century after Congress decided to hold publishers harmless for third-party content posted on their websites, we are headed for a legal and constitutional showdown over Section 230, part of the Communications Decency Act of 1996.

Before the law was passed, publishers worried that if they removed some harmful content they might be held liable for failing to take down other content, which gave them a legal incentive to leave libel, obscenity, hate speech and misinformation in place. Section 230 solved that by including a so-called Good Samaritan provision that allowed publishers to pick and choose without incurring liability.

Back in those early days, of course, we weren’t dealing with behemoths like Facebook, YouTube and Twitter, which use algorithms to boost content that keeps their users engaged — which, in turn, usually means speech that makes them angry or upset. In the mid-1990s, the publishers that were seeking protection were generally newspapers that had opened up online comments and nascent online services like Prodigy and AOL. Publishers are fully liable for any content over which they have direct control, including news stories, advertisements and letters to the editor. Congress understood that the flood of content being posted online raised different issues.

But after Twitter booted Donald Trump off its service and Facebook suspended him for inciting violence during and after the attempted insurrection of Jan. 6, 2021, Trump-aligned Republicans began agitating against what they called censorship by the tech giants. The idea that private companies are even legally capable of engaging in censorship is something that can be disputed, but it’s gained some traction in legal circles, as we shall see.

Meanwhile, Democrats and liberals argued that the platforms weren’t acting aggressively enough to remove dangerous and harmful posts, especially those promoting disinformation around COVID-19 such as anti-masking and anti-vaccine propaganda.

A lot of this comes down to whether the platforms are common carriers or true publishers. Common carriers are legally forbidden from discriminating against any type of user or traffic. Providers of telephone service would be one example. Another example would be the broader internet of which the platforms are a part. Alex Jones was thoroughly deplatformed in recent years — you can’t find him on Facebook, Twitter or anywhere else. But you can find his infamous InfoWars site on the web, and, according to SimilarWeb, it received some 9.4 million visits in July of this year. You can’t kick Jones off the internet; at most, you can pressure his hosting service to drop him. But even if they did, he’d just move on to the next service, which, by the way, needn’t be based in the U.S.

True publishers, by the way, enjoy near-absolute leeway over what they choose to publish or not publish. A landmark case in this regard is Miami Herald v. Tornillo (1974), in which the Supreme Court ruled that a Florida law requiring newspapers to publish responses from political figures who’d been criticized was unconstitutional. Should platforms be treated as publishers? Certainly it seems ludicrous to hold them fully responsible for the millions of pieces of content that their users post on their sites. Yet the use of algorithms to promote some content in order to sell more advertising and earn more profits involves editorial discretion, even if those editors are robots. In that regard, they start to look more like publishers.

Maybe it’s time to move past the old categories altogether. In a recent appearance on WBUR Radio’s “On Point,” University of Minnesota law professor Alan Rozenshtein said that platforms have some qualities of common carriers and some qualities of publishers. What we really need, he said, is a new paradigm that recognizes we’re dealing with something unlike anything we’ve seen before.

Which brings me to two legal cases, both of which are hurtling toward a collision.

Recently the U.S. Court of Appeals for the 5th Circuit upheld a Texas law that, among other things, forbids platforms from removing any third-party speech that’s based on viewpoint. Many legal observers had believed the law would be decisively overturned since it interferes with the ability of private companies to conduct their business as they see fit, and to exercise their own First Amendment right to delete content they regard as harmful. But the court didn’t see it that way, with Judge Andrew Oldham writing: “Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.” This is a view of the platforms as common carriers.

As Rozenshtein said, the case is almost certainly headed for the Supreme Court because it clashes with an opinion by the 11th Circuit, which overturned a similar law in Florida, and because it’s unimaginable that any part of the internet can be regulated on a state-by-state basis. Such regulations need to be hashed out by Congress and apply to all 50 states, Rozenshtein said.

Meanwhile, the Supreme Court has agreed to hear a case coming from the opposite direction. The case, brought by the family of a 23-year-old student who was killed in an ISIS attack in Paris in 2014, argues that YouTube, owned by Google, should be held liable for using algorithms to boost terrorist videos, thus helping to incite the attack. “Videos that users viewed on YouTube were the central manner in which ISIS enlisted support and recruits from areas outside the portions of Syria and Iraq which it controlled,” according to the lawsuit.

Thus we may be heading toward a constitutionally untenable situation whereby tech companies could be held liable for content that the Texas law has forbidden them to remove.

The ISIS case is especially interesting because it’s the use of algorithms to boost speech that are at issue — again, something that was, at most, in its embryonic stages at the time that Section 230 was enacted. Eric Goldman, a law professor at Santa Clara University, put it this way in an interview with The Washington Post: “The question presented creates a false dichotomy that recommending content is not part of the traditional editorial functions. The question presented goes to the very heart of Section 230 and that makes it a very risky case for the internet.”

I’ve suggested that one way to reform Section 230 might be to remove protections for any algorithmically boosted speech, which might actually be where we’re heading.

All of this comes at a time when the Supreme Court’s turn to the right has called its legitimacy into question. Two of the justices, Clarence Thomas and Neil Gorsuch, have even suggested that the libel protections afforded the press under the landmark Times v. Sulllivan decision be overturned or scaled back. After 26 years, it may well be time for some changes to Section 230. But can we trust the Supremes to get it right? I guess we’ll just have to wait and see.

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Minority rule is destroying the country. Here are some ideas on how to change that.

On By Dan KennedyIn Politics6 Comments

There’s something about writing a proposed constitutional amendment that has the whiff of nuttery about it — some guy sitting at home in his underwear (hey, that’s me!) raving about something that has no chance of influencing anyone.

But, having complained quite a bit about our slide into undemocratic minority rule — a consequence of small, Republican states having a disproportionate advantage in the Electoral College and the Senate — I thought I’d lay out one possible solution. Or solutions.

We could move to a parliamentary system, and that would certainly be an improvement on what we have now. But I thought it would be interesting to see what it would look like if we tried something less radical, but still comprehensive. So here we go.

The presidency

  • This one is simple. Abolish the Electoral College. Elect the president by popular vote. One person, one vote should be our lodestar. Let’s end the absurdity of voters in tiny Wyoming having nearly four times as much power as Californians.

Congress

  • The Senate is unfixable because of its two-senators-per state requirement. That makes it far worse than even the Electoral College. Let’s make the Senate a mostly honorary body whose members are appointed by the states. I would restrict the senators’ powers to choosing the wine at weekly social gatherings they would be required to attend.
  • House members should be elected to four-year terms in presidential-election years. No more midterms. House districts would be drawn by nonpartisan commissions. States would be free to set up multi-member districts if they choose. (Actually, they are free to do so now, but no one does.) For instance, Massachusetts could have three House districts instead of nine, and each district would elect three members.

The Supreme Court

  • The nine members would each be appointed to a single 16-year term. Each president would be guaranteed two appointments per term. Proposals to curtail the justices’ power ought to be considered as well, but I’m not going to address that here.

Elections

  • All federal elections would require a majority winner. If the first-place finisher in a multi-candidate field receives less than 50% of the vote, a runoff would be held.
  • Attempts to regulate campaign spending would be deemed not to be in violation of the First Amendment.
  • Needless to say, attempts to restrict the vote of the sort that a number of red states have adopted would be taken out with the trash and burned.

Problem solved! Two hundred thirty-four years of accommodating the former slave states are enough.

A sickening gun decision that increases the danger to all of us

On By Dan KennedyIn Politics1 Comment
Photo (cc) 2014 by Thomas Hawk

Early in my career, the police chief of a smallish town and I were shooting the breeze one morning. He told me that a police groupie I was familiar with — somewhat mentally disturbed — would come in several times a year and ask for a handgun license.

Police chiefs in Massachusetts have an enormous amount of discretion in deciding who gets a handgun license, and the chief said there was no way he was going to approve one for this guy. There is no question in my mind that the chief was making the right call. This was not the sort of person you wanted to see walking around town with a gun. But presumably it’s now going to be a lot harder for local police departments to say no.

Today’s U.S. Supreme Court ruling to overturn a gun-control law in New York State has increased the danger of falling victim to gun violence. It’s a sickening decision, and the justices should be ashamed of themselves.

Why the pending destruction of Roe is a failure of our outmoded Constitution

On By Dan KennedyIn Politics6 Comments
Constitution Hall in Philadelphia. Photo (cc) 2016 by Dan Kennedy.

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.

Could Sarah Palin, of all people, be the catalyst who tears down libel protections for the press?

On By Dan KennedyIn First Amendment, Media3 Comments
Sarah Palin. Photo (cc) 2021 by Gage Skidmore.

Previously published at GBH News.

For the past several years, a few conservative judges have been saying they’re ready to do what was once unthinkable: reverse the libel protections that the press has enjoyed since the 1964 New York Times v. Sullivan decision.

The threat began with Supreme Court Justice Clarence Thomas, who wrote in 2019 that he believed it was time to return libel jurisdiction to the states. It accelerated in early 2021, when Laurence Silberman, an influential judge on the U.S. Court of Appeals for the District of Columbia, called Times v. Sullivan “a profound mistake.” And it reached a crescendo of sorts last fall, when Supreme Court Justice Neil Gorsuch said that he, too, thought the time had come to revisit what has been settled law for nearly 60 years.

Soon an opportunity may arrive for Thomas and Gorsuch to act on their words — and it comes in the unlikely person of Sarah Palin, the former Alaska governor and Republican vice presidential candidate whose caustic attacks on “the lamestream media” presaged the Age of Trump.

Palin is suing The New York Times for libel, claiming that a 2017 editorial tying her incendiary rhetoric to the 2011 shooting of then-congresswoman Gabrielle Giffords — a crime that also claimed the lives of six people — was false and defamatory. Jury selection in the long-delayed trial had been set to begin this past Monday in U.S. District Court. Then we learned that Palin had tested positive for COVID-19. “She is of course unvaccinated,” said Judge Jed Rakoff. Yes, of course. And the proceedings have been delayed until Feb. 3.

There is no question that there were mistakes in the Times editorial, published after a gunman shot and injured several members of Congress, including U.S. Rep. Stephen Scalise. The Times compared the event to the Giffords shootings and noted that Palin’s political action committee had published a map on Facebook with gunsights over the districts of several members of Congress it hoped to defeat — including Giffords.

After that, things went awry. First, the editorial originally stated that the map targeted “electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.” In fact, the map targeted only the districts, not the members themselves. More consequentially, the editorial tied the map to the shootings, stating: “In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear.” (You can read the original Times editorial here, at the Internet Archive; the revised and corrected version is here. You can see the map here.)

There’s an old saying that bad cases make bad law, and this may prove to be a bad case. Palin may be an unsympathetic figure, but the Times is the epitome of an arrogant, out-of-touch institution — the very symbol of the liberal establishment. Worse, its editorial really did falsely claim that the Palin map led directly to the Giffords shootings. In fact, there is no evidence that Loughner, the mentally ill gunman, ever even knew about Palin’s ad.

So why does this matter? Under the Times v. Sullivan standard, Palin, as a public figure, can’t win her suit unless she is able to show that the Times acted with “actual malice” — that is, that it knew what it had published was false or strongly suspected it was false, a standard known as “reckless disregard for the truth.”

In fact, as Bill Grueskin wrote in an in-depth overview of the case for the Columbia Journalism Review last fall, there is more than ample evidence that the Times acted out of sloppiness, not venality. The then-editorial page editor, James Bennet, added the errors while he was editing the piece, apparently oblivious to the actual facts. (Bennet’s tenure came to an end in 2020 after he ran an op-ed by U.S. Sen. Tom Cotton calling for military force against Black Lives Matter protesters. It turned out that Bennet hadn’t even stirred himself to read Cotton’s screed before publication.)

The whole point of the Times v. Sullivan decision is to protect the media from libel actions brought by public officials and public figures on the basis of inadvertent or careless mistakes, which is what seems to be at issue in the Palin case. But will a jury see it that way?

A couple more points about the Palin case.

First, I haven’t seen much emphasis in pretrial coverage on the Times’ original description of the gunsights on Palin’s map as being over the members of Congress (suggesting that photos of them were used) rather than over their districts. It will be interesting to see how much Palin’s lawyers make of that once the trial begins.

Second, and more substantively, is that in order for a libel suit to succeed, the plaintiff must prove what was published about them was false and defamatory. And here’s where I find myself wondering how strong a case Palin actually has. The most significant falsehood in the Times editorial had nothing to do with anything that Palin or her PAC said or did; rather, it was the assertion that Loughner was incited to violence by the Palin map.

It remains an undeniable fact that Palin’s PAC published a map with gunsights over the districts of the 20 Democrats, accompanied by such belligerent rhetoric as: “We’ll aim for these races and many others. This is just the first salvo in a fight to elect people across the nation who will bring common sense to Washington. Please go to sarahpac.com and join me in the fight.”

Given that, how can Palin claim that the Times published anything false about her? What she did was mind-bogglingly irresponsible, and I’m not sure why it matters that her actions did not lead to any actual violence.

I put the question to a couple of First Amendment experts. One, Boston lawyer Harvey Silverglate, said that the Times’ (mostly) truthful description of Palin’s actions should cut against Palin’s libel claims. “Since the Times accurately described what Palin did,” Silverglate told me by email, “it would not matter whether it actually incited violence.

Taking a different view was Justin Silverman, a lawyer who is executive director of the New England First Amendment Coalition. “Just because Loughner didn’t use the map as motivation, [that] doesn’t mean that readers of the NYT weren’t told that he did — which arguably is the same as being told that Palin incited the violence and is responsible for that violence by publishing her map,” he said in an email. Silverman added: “By incorrectly saying that Loughner was motivated by the map, isn’t the NYT also incorrectly saying that Palin incited Loughner by publishing it?”

Nevertheless, Silverman said the Times should prevail if it is able to prove that its errors resulted from “sloppy journalism” rather than actual malice.

Which brings us back to where we started. Regardless of whether Palin wins her case, it seems likely that it will begin to wend its way through the appeals process — and perhaps to the Supreme Court.

Historically, conservative as well as liberal justices have supported strong First Amendment protections. But now we have two justices who appear ready to modify or overturn a vitally important precedent. And we are already seeing signs that the six conservative justices may be willing to overturn longstanding precedents such as Roe v. Wade, the 1972 case that guarantees the right to an abortion.

Powerful institutions are held to account by a powerful press. Without Times v. Sullivan, news organizations are likely to shy away from investigative reporting for fear of losing libel cases because of carelessness or unavoidable mistakes.

It would be a bitter irony if Sarah Palin, of all people, proves to be the vehicle through which the media are taken down.

How new threats to libel protections could weaken Times v. Sullivan

On By Dan KennedyIn First Amendment1 Comment
Is this Devin Nunes’ cow? Photo via Wikimedia Commons.

Trouble has been bubbling for the past several years regarding libel protections for the press.

In 2019, U.S. Supreme Court Justice Clarence Thomas wrote that it was time to reconsider the landmark 1964 ruling of New York Times v. Sullivan, which decreed that public officials can’t bring a successful libel suit unless they can prove that false, defamatory material about them was published in the knowledge that it was false or with reckless disregard for the truth. (That standard was later extended to public figures as well.)

Then, as I wrote earlier this year, Thomas was joined by Justice Neil Gorsuch in an opinion so slick you could slip on it and get hurt.

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Next week, the court will consider whether to hear two libel cases that would give them an opportunity to weaken the Times v. Sullivan protections. Thomas and Gorsuch may prove to be outliers, but given the court’s new supercharged conservative majority, we shouldn’t take anything for granted. First Amendment lawyer Floyd Abrams writes in The New York Times:

Should the court agree to hear one or both of the libel cases does not mean, of course, that either or both would be overruled…. But it is troubling that two of the court’s nine justices have criticized Sullivan and seem ready to overrule it. Only four votes are required for the full court to take up cases, and if it does so, a fifth would be needed for any ruling.

And that’s not the only sign of trouble on the libel front. Erik Wemple of The Washington Post details a bizarre case involving U.S. Rep. Devin Nunes, a California Republican who is so litigious that he once sued a Twitter account called “Devin Nunes’ Cow.”

I’m not going to go deep into the details; Wemple’s got that nailed down for you. But the outline of it is that Nunes sued the journalist Ryan Lizza over an article he wrote for Esquire. Nunes’ libel claim appears to be hanging by a thread — again, because it seems unlikely that Nunes will be able to meet the Times v. Sullivan standard. But at some point after he filed his lawsuit, Lizza tweeted out a link to the article. Nunes, of course, claimed that was libelous as well.

Rather than tossing the Twitter claim, the U.S. Court of Appeals for the Eighth Circuit have kept it alive for further consideration, “even though” as Wemple writes, “other courts have ruled that just linking to a long-standing story doesn’t constitute ‘republication.'” The court ruled that because Nunes’ suit put Lizza on notice that his story might contain falsehoods, then he should have refrained from tweeting it out (never mind that Lizza insists his story was true). But Wemple quotes Jeffrey Pyle, a Boston-based First Amendment lawyer at Prince Lobel Tye:

Until now, the courts have been unanimous that hyperlinks, retweets, and other references to allegedly defamatory articles are not “republications.” The Eighth Circuit departs from this consensus without much, if any, explanation why.

Journalists are able to do the work they do because they don’t have to worry about frivolous lawsuits. That has now come under question, and we all need to keep a close eye on what happens next.

The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

On By Dan KennedyIn Politics6 Comments
Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

How FCC ownership regulations helped shape the Boston media landscape

On By Dan KennedyIn Media
Photo (cc) 2008 by Dan Kennedy

The U.S. Supreme Court on Thursday unanimously upheld a 2017 ruling by the FCC to loosen media ownership regulations, including an end to the so-called cross-ownership ban. That ban prohibits one entity from owning a newspaper and a TV or radio station in the same market.

The FCC’s long, tortured history on cross-ownership shaped the Boston media scene from the 1950s through the ’80s. Although the ban wasn’t formalized until 1975, the FCC had much to say about the issue well before that. No one told the story better than John Aloysius Farrell in his 2001 book “Tip O’Neill and the Democratic Century,” which I wrote about for The Boston Phoenix.

It’s a pretty amazing tale, and it’s crucial if you want to understand how the dynamic between The Boston Globe and the Boston Herald played out over the course of those decades. The very short version: the Boston Herald Traveler, with the support of the Kennedys, obtained the license to Channel 5 in the 1950s through corrupt means. The Globe, with the help of O’Neill, then a young congressman, exposed that corruption. That, in turn, led to the Herald’s losing the license to Channel 5 in the early 1970s, thus cementing the Globe’s status as the city’s dominant daily newspaper.

The final act played out in the late 1980s when Rupert Murdoch, who then owned the Herald, bought Channel 25 and sought a waiver from the FCC that would have allowed him to keep both. Sen. Ted Kennedy slipped an amendment into a bill that made it virtually impossible for the FCC to grant such a waiver. Several years later Murdoch sold the Herald to Pat Purcell, a longtime lieutenant. Although the Herald enjoyed a few years of prosperity under Purcell, it eventually entered a long, slow decline, ending in bankruptcy and the sale to the hedge fund Alden Global Capital in 2018.

So now that the cross-ownership ban is gone, what’s next? A number of organizations, including the media-reform group Free Press, opposed the FCC’s move, arguing that it will make it more difficult for local groups, including those representing women and people of color, to acquire media outlets. I agree, although there’s also a case to be made that newspapers and, to some extent, broadcast media are so moribund that ownership regulations are more about the last century than this one.

It does seem likely to me that we’re going to see newsrooms that combine newspaper and broadcast operations in an attempt to save money. We’ll see less diversity and less coverage as a result. But given that virtually all media have shifted to the unregulated internet, the ultimate effect of such consolidation is yet to be determined.

Beyond ‘court packing’: Repairing the Supreme Court in an era of minority rule

On By Dan KennedyIn Media, Politics
Photo (cc) 2020 by Geoff Livingston.

Previously published at GBH News.

Last spring I warned that the media might seek out dubious issues to even things up if former Vice President Joe Biden built a substantial lead over President Donald Trump. So far we haven’t seen much of that. But Biden’s reluctance to say whether he would try to expand the size of the Supreme Court has proved to be something of a speed bump for the Biden-Harris campaign.

“Harris Dodges Questions on Support for Supreme Court Packing at Debate,” said CBS News following Sen. Kamala Harris’ encounter with Vice President Mike Pence. “Biden and Harris Need an Answer on Court Packing,” proclaimed The Atlantic. And they were hardly alone. (Thanks to Eric Boehlert’s newsletter, Press Run, for rounding up the headlines.)

The problem with this focus on “court packing” isn’t that it’s not a legitimate issue. We would all like to know if a Biden administration would seek to add seats. What’s really at issue, though, are matters of language and context.

“Court packing” sounds like an abuse of power rather than something the president and Congress can do as a matter of law. The context, of course, is that the Republicans, under Senate Majority Leader Mitch McConnell, stole one court seat by refusing to consider Judge Merrick Garland, President Barack Obama’s choice to replace Justice Antonin Scalia, even though the nomination came months before the 2016 election. And now McConnell is on the verge of stealing a second seat by ramming through the nomination of Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg even as ballots in the presidential election are already being cast. Yet it is Biden who is facing questions.

“What makes this so especially bizarre,” writes Boston College history professor Heather Cox Richardson in her newsletter, Letters from an American, “is that it is Republicans, not Democrats, who have made the courts the centerpiece of their agenda and have packed them with judges who adhere to an extremist ideology.”

Once Barrett has been confirmed, and there is little doubt about that, Trump will have named three of the nine justices under the most undemocratic, unrepresentative circumstances imaginable.

As we all know, Trump lost the popular vote to Democratic nominee Hillary Clinton by 48% to 46%, a margin of more than 2.8 million. What’s less well known is that Republican senators represent fewer people than Democratic senators even though they hold the majority.

During the 2017-’08 session, for instance, when Justices Neil Gorsuch and Brett Kavanaugh were confirmed by slim margins, (54-45 and 50-48, respectively), the Senate’s 50 to 52 Republicans (the number changed several times) represented about 44% of the country’s population. Democrats and independents who caucus with them represented 56%. The 53 Republicans who will decide Barrett’s fate represent less than 47% of the country. (Click here for a chart breaking down the numbers. The 2017-’18 figures are based on 50 Republican senators.)

If you’re thinking this is not how we ought to conduct business in a democracy, well, you’re right. And yet there is reason to doubt that modern Republicans even support the idea that the majority ought to rule. Last week, for instance, U.S. Sen. Mike Lee, R-Utah, tweeted a message right out of the authoritarian playbook: “Democracy isn’t the objective; liberty, peace, and prospefity [sic] are. We want the human condition to flourish. Rank democracy can thwart that.”

And sure enough, new research by psychology professor Bob Altemeyer and Nixon administration alumnus John Dean shows that Trump supporters are increasingly eschewing elections in favor of the strongman system of government, according to The Washington Post. For instance, about half of Trump supporters agreed that “once our government leaders and the authorities condemn the dangerous elements in our society, it will be the duty of every patriotic citizen to help stomp out the rot that is poisoning our country from within.”

Which brings me back to where I started. A president who lost the popular vote will have nominated three Supreme Court justices, confirmed by a Senate controlled by a party that represents millions fewer Americans than the opposition Democrats. Two of those three justices, Gorsuch and Barrett, will owe their presence to Republican norm-shattering. And Republican support for democracy in general appears to be waning.

Given all that, the possibility that Biden may seek to enlarge the size of the court sounds like a good move.

Several years ago I offered a few ideas on how to fix the court — to repair the damage done by McConnell and restore its image as a trusted institution. The court is still in drastic need of fixing. So let me offer a few more — none original with me, but proposals I’ve gleaned following the death of Justice Ginsburg. More than anything, the court has become too important. The following steps would make every vacancy less a matter of life and death than it is now.

First, if Barrett is confirmed, Biden is elected president and the Senate flips to blue, Democrats should expand the court by two members. Some progressives have argued for four new seats, but that would be an overreach. Two new seats would restore the ideological balance of the court that existed before Justice Scalia’s death. Perhaps the number could move back to nine over time.

Second, justices should be subjected to term limits. Eighteen years sounds about right.

Third, each president ought to get the same number of picks per term. Two? If a president is re-elected, then yes, they’d get four picks, which is a lot. But the problem now is that there isn’t enough turnover, and what little there is takes place mainly because of death.

I’ll leave it to better minds than mine to figure out how to square two picks per term with an odd-numbered court of either nine or 11 members.

Our system is profoundly broken. The challenges we face don’t lend themselves to easy solutions. Applying the one-person, one-vote rule that is at the heart of democratic governance, for example, would require major constitutional changes in the form of abolishing the Electoral College and changing the way we choose senators. That’s not going to happen any time soon.

So let’s move beyond the gotcha issue of whether Joe Biden wants to “pack” the Supreme Court. We can reform the court by turning down the temperature and moving it out of its current central role in our political culture. Expanding the size of the court, perhaps temporarily, as well as imposing term limits and guaranteeing a regular rotation of justices, might return us to the days when all but the most extreme nominees were confirmed with consensus support.

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Why Justice Stevens’ fraught relationship with the First Amendment still reverberates

On By Dan KennedyIn First Amendment
Justice Stevens

Previously published at WGBHNews.org.

The late Supreme Court Justice John Paul Stevens today is being hailed as a liberal beacon who took strong stands against the death penalty and in favor of gun control and limits on political spending.

But despite his well-deserved reputation as a judge who was motivated by decency and principle, his legacy with regard to the First Amendment is mixed.

For one thing, as Linda Greenhouse observed in The New York Times, Stevens in 1989 broke with his colleagues when they overturned a Texas law that banned flag-burning. “His patriotism was of the old-fashioned, unabashed variety,” wrote Greenhouse by way of explanation.

For another, on two important cases that pitted the right to privacy against freedom of the press, Stevens sided against the media. In one instance he was on the losing end. In the other, though, he wrote the majority opinion, limiting public access to government information in a decision that reverberates three decades later.

First, Stevens’ dissent. Starting with New York Times v. Sullivan in 1964, the Supreme Court began issuing a series of decisions that made it more difficult for plaintiffs to win libel suits. In the Times case, the court ruled that public officials suing for libel would have to show not only that false, defamatory material had been published about them, but that the publisher had acted with “actual malice” — that is, with the knowledge that it was false or with reckless disregard for the truth. That standard was later extended to public figures as well. Then, in Gertz v. Robert Welch Inc. (1974), the court ruled that even private figures would at least have to prove negligence in addition to falsehood and defamation.

These decisions greatly strengthened freedom of the press. Still to be settled, though, was the matter of proof. Traditionally, after a plaintiff sued for libel, it was up to the publisher to prove that the material in question was true. That changed with Philadelphia Newspapers Inc. v. Hepps (1986), in which the court ruled by a five-to-four margin that it should be up to the plaintiff to prove falsity.

Stevens was outraged. In his dissent, he wrote that “in order to comprehend the full ramifications of today’s decision, we should assume that the publisher knew that it would be impossible for a court to verify or discredit the story, and that it was published for no other purpose than to destroy the reputation of the plaintiff.” He added: “I simply do not understand … why a character assassin should be given an absolute license to defame by means of statements that can be neither verified nor disproved.”

Three years later, though, Stevens was on the winning side in ruling that public records may become private in some circumstances, and that the privacy rights of an individual can sometimes outweigh the public’s right to know.

The case, Department of Justice v. Reporters Committee for Freedom of the Press, was decided unanimously in 1989, but it had been many years in the making. Starting in 1978, Robert Schakne, a reporter for CBS News, had been seeking FBI rap sheets about the four Medico brothers, who were alleged organized crime figures with ties to a corrupt congressman named Daniel Flood. Schakne’s case, fought on his behalf by the Reporters Committee, was thrown out in 1985 at the district court level. But a federal appeals court ruled in his favor in 1987. By the time the matter reached the Supreme Court, only one of the Medico brothers was still living. That set the stage for Justice Stevens.

The rap sheets Schakne sought consisted entirely of public records that could be searched for at courthouses and other venues. Yet Stevens wrote that they had ceased to be public because they had been compiled and computerized by the FBI. Thus, the records were covered by the privacy exemption to the federal Freedom of Information Act, or FOIA.

As Stevens put it, there is a “distinction … between scattered disclosure of the bits of information contained in a rap-sheet and revelation of the rap-sheet as a whole. The very fact that federal funds have been spent to prepare, index, and maintain these criminal history files demonstrates that the individual items of information in the summaries would not otherwise be ‘freely available’ either to the officials who have access to the underlying files or to the general public. Indeed, if the summaries were ‘freely available,’ there would be no reason to invoke the FOIA to obtain access to the information they contain.”

But that was only part of the test. Under FOIA, records deemed private may still be released if there is a compelling public interest in doing so. The Reporters Committee argued that disclosure of the rap sheets was warranted because the Medico brothers had dealings with Flood. Again, Stevens ruled against the committee, writing that the documents would have provided information about the Medicos rather than the government.

Stevens wrote that “although there is undoubtedly some public interest in anyone’s criminal history, especially if the history is in some way related to the subject’s dealing with a public official or agency, the FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed.”

The decision was a blow against freedom of the press. Even though rap sheets by their nature are filled with falsehoods and rumors, it seemed (and still seems) absurd that government documents that could have provided information about the Medicos’ dealings with a congressman who had pled guilty to corruption charges were not made public. As Jane Kirtley, then the director of the Reporters Committee, put it at the time, the decision had “very serious implications for public access to government information. It says that today something may be a public document but tomorrow it’s not because it’s on a computer tape.”

And yet there was something admirable about Stevens’ insistence that the privacy rights of individuals should take precedence over the interests of the news media. As a journalist and as a First Amendment advocate, I wish Stevens and his fellow justices had ruled otherwise. But today we are at the mercy of a government that has been spying on us for years and of technology giants who store all kinds of personal data about us for purposes benign and otherwise. I think it says something positive about Stevens’ character that he stood up for privacy in the early days of computerized databases.

It says something, too, for the court we had and lost. Justice Stevens was a giant, and he will be missed.

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