Creaky 1st amendment part 2

Our 1st Amendment continues to be stressed from what we are learning about social media’s impact on our last election and, now, the primary victory of Judge Roy Moore. We must take these threats as serious, but careful not to expect government to solve them.

What Robert Mueller and the Congressional investigatory committees know about the Russian gaming of our election is shielded from public view. As much as we live in a 24-7 news environment, there are still some investigations conducted in private. Cameras roll when witnesses march up to Capitol Hill and/or word may leak of those called to testify before a Grand Jury, giving us only an inkling of the direction events are headed. We know that there were suspicious contacts between the Trump Campaign and Russians. We know the Russians fancied Trump in some fashion. We know that our vote counting apparatus in multiple states were probed for weakness by the Russians. We don’t know anything about what this meant to the outcome.

The latest nugget learned was about how social media behemoths were duped conduits for Russian “fake news last year. This is particularly frightening with respect to Facebook. Whereas information exchanges like Twitter and search engines like Google can be manipulated to post “fake” materials infecting public discourse, Facebook, with its treasure trove of personal data, can be microtargeted for maximum impact. In this sense, the freedoms of our society are turned against us.

Washington has taken notice. Outrage is probably the descriptive adjective most often attached to the reaction of our elected officials. How could the CEOs of these huge companies not be aware of what the Russians were doing to corrupt our body politic? Mark Zuckerberg’s video apology did little to staunch the condemnation.

Bleeding the emotion, from how we digest all of this, does not alleviate the anxiety.

Publicly owned companies are under no obligation to “self-police” public dialogue and free expression. White supremacists use these internet outlets to connect, which appears to have fueled the starburst of organized racism. Ironically, in the Spring of 2016, news had leaked that Facebook had designated a small cadre of employees to “curate” trending posts to weed out “fake news.”

Right wing organizations reacted with so much venom that this operation was quickly shuttered.

The idea that government can regulate such platforms is fraught with the kinds of entanglements on which our 1st Amendment frowns. We regulate “traditional” commercial speech, to some degree, with bodies like the Fair Trade Commission, Federal Communications Commission, and Federal Drug Administration. Yet, nothing legally prohibits a television station from selling its time to a Nazi sympathizer except for a disapproving public.

Government cannot regulate content or the expression of speech, it can only regulate what violates commercial standards of fairness and truth. Pfizer blankets our airways with Viagra commercials, making most of us uncomfortable to what our children are exposed, and there is really nothing that can be done by government. However, if a commercial falsely portrays a competitor or is too misleading, one of these bodies can step in and ban it.

In other words, Government can regulate for falsity, but otherwise it runs into a 1st Amendment stone wall.

In Europe, certain political speech is banned. For example, it can be a crime to posit that the Holocaust was a lie or that the Aryan race is superior to all other races. We do not do this here. We allow for free expression of even repugnant speech. If someone wants to posit the Holocaust, we defeat such speech with our ideas not with force or censorship. This is our strength; in the case of the internet, it is clear this has become a potentially deadly weakness.

Which brings us to Judge Roy Moore, the Alabama Senate Republican nominee. He represents the worst of our myopic angry impulses. He believes that homosexuality is a sin against God and, for that reason, it should be a crime. He specifically placed his personal Christian beliefs above the Constitution when he ordered all Alabama court officials to cease granting same sex marriage certificates, even though the United States Supreme Court pronounced such governmental action as unconstitutional.

He also flaunted the Supreme Court by

commissioning a Ten Commandments monument for placement at the Alabama Supreme Court. Our 1st Amendment prohibits choosing one religion over another – imagine the howls if a Muslim Judge had commissioned an image of Mohammed for public display at courthouse?

Judge Roy Moore and the Russian social media subterfuge are twin attacks on our fair Republic. In the case of Judge Moore, a voting public has either blindly chosen him as a standard bearer or adopted his narrow politics as their own. If the latter, Alabama voters are what the Russians are looking for … citizens ripe for persuasion with lies and pernicious persuasion.

We have been here before.

The “Know Nothing Party” rose and fell on the backs of “yellow journalism,” back in the days when newspapers were overt opinion rags. We eventually rose to defeat Hitler despite the German affections of major figures like Charles Lindbergh. In the Civil Rights Era, journalism had professionalized and crusading newspapers exposed the evils of racism and Jim Crow. Thee dying gasps were George Wallace’s failed segregationist presidential

campaigns.

The point is that Google, Facebook, Twitter, and other social internet companies certainly should conduct mature self-examination of their business models, just as journalism evolved. Yet, we must be careful not to interfere with the 1st Amendment currents running through the internet. Our country, in the past, has weathered rancid political speech and we can do it again, without the need for government action.

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