It’s hard to explain why Emily Bazelon’s New York Times Magazine article, sarcastically titled “Free Speech Will Save Our Democracy,” bothers me, so let me start here: Hannah Arendt was not a political philosopher.  Hannah Arendt was a political theorist.  She made this clear in an interview with journalist Günter Gaus on West German television in 1964.  “I am afraid I have to protest,” Arendt says, not even answering his first question. “I do not belong to the circle of philosophers.  My profession, if one can even speak of it at all, is political theory.”  This exchange is reprinted on the first page of The Portable Hannah Arendt.

This may seem a peculiar way to start a critique of an earnest article about the implications of public lying, deceit, misinformation, facts, alternative facts, and the truth.  But I mention it because Bazelon asserts as fact, not opinion, that Arendt was a political philosopher in order to use her writing to frame her disinformation jeremiad.  This is something Bazelon clearly believed and found important.  But her own subject disagreed with her and not secretly.

An author writing about the dangers of misinformation should show considerably more humility when talking about what constitutes fact.  Or, as she quotes John Stuart Mill, “All silencing of discussion is an assumption of infallibility.”

Bazelon begs this scrutiny by arguing, in effect, that something must be done about all these people saying things that aren’t true.  And also by quoting the children of George Orwell who write or say ear-ringing ouroboros like, “[U]se of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with,” and “Free speech threatens democracy as much as it also provides for its flourishing,” and “Campbell Soup Company can’t experience democratic legitimation,” and “The First Amendment value of individual autonomy means we should know who is speaking to us and why,” and “[T]he First Amendment over the last hundred years has mainly become a weapon of the powerful,” and “[D]emocracy needs to protect itself from anti-democratic ideas,” and (Bazelon’s contribution to Newspeak), “[I]t’s time to ask whether the American way of protecting free speech is actually keeping us free.”  Neither Hannah Arendt nor Donald Trump wrote or said any of these things.

Bazelon starts with an obscure viral phenomenon.  Earlier this year, comments made by think tank types wargaming a 2020 election scenario that included secessionist threats in the Pacific Northwest showed up in an obscure conservative intellectual journal before jumping from YouTube into the gutter of the right-wing infoverse and then vaulting to Fox News.  This is a strange place to start given the most obvious, and dangerous, consequences of misinformation surrounding COVID-19.  Bazelon makes two mistakes almost immediately, one trivial and one much more concerning.  She claims the original intellectual journal article titled “The Coming Coup?” wrote “without evidence” that Democrats were “laying the groundwork for revolution”.  The is easily disproven: the author cites publicly available comments about contingencies for a Trump loss transition made by Joe Biden, Al Gore, and Hillary Clinton.  (And that sets aside the many presumably non-partisan military officers the author cites in opposition to the president.)  She clearly sees “coup fabrication” (her words) as a disingenuous distortion of the original intent of the wargame.  But that’s not what the conservative commentator was writing about and in any case, “coup” is broadly defined as “a sudden, violent, and illegal seizure of power from a government,” which includes secession.

The second error is much more concerning.  Bazelon’s narrative unfolds as a post hoc, ergo propter hoc fallacy, an implied chain of cause and effect with words taken out of context weaponized by partisans and then spread through a network of right-wing online sites, private organizations, social media outlets, and traditional broadcasters.  “By the end of [September 2020],” Bazelon writes, “the fraction of Republicans who were not ‘confident’ that the ‘election will be conducted in a fair and equal way’ hit 65 percent”.  This suggests a direct relationship between the misinformation and evolving public opinion.  This is not true.  In fact, the number was stable at 65 percent from the same question asked in August, before this information water spout spiraled upwards and the second poll was taken.  Moreover, there are no other data points that I could find to suggest this number has been growing.  And without that comparison, these numbers are worthless, because a single poll is simply a coordinate: alone it tells you nothing about distance, speed and direction.  It is true that this number is higher for Democrats and Independents, but without more data determining that relationship, too, is impossible to define.

Bazelon also entertains a hoary myth about the effect of Fox News on political behavior.  Known as the Fox News Effect, it hypothesizes that the new appearance of Fox News shifts voting patterns toward  Republicans.  Unfortunately, the initial study she appears to be referring to, The Fox News Effect: Media Bias and Voting, published in 2005, dismisses this effect in its abstract:

We find no significant effect of the introduction of Fox News on the vote share in Presidential elections between 1996 and 2000. We can rule out an effect of Fox News larger than 0.5 percentage points. The results are robust to town-level controls, state and county fixed effects, and alternative specifications. We also find no significant effect of Fox News on voter turnout. Our results imply that Fox News convinced between 0 and 2.1 percent of its viewers to vote Republican. The evidence is consistent with the view that voters are sophisticated and filter out media bias. Alternatively, voters may display a form of confirmatory bias.

Bazelon’s scatter-shot approach obscures her intent.  Much of the article feels like an expanded listicle of dumb things people have said that Bazelon doesn’t like.  (This is a tic presenting in writers of the era who seem to have to repeat the insane things we have all witnessed together simply to recognize them as insane.  I do the same thing so I am sympathetic.)  She interrupts her inventory with a comparative legal brief on censorship and freedom of expression in the U.S. and Europe before ending it with a series of anemic policy proposals.  She attacks, among others, big data companies, Donald Trump, Fox News, right-wing fringe web sites, the Supreme Court, and Joel Kaplan.  (Never heard of him?  Bazelon has only three data points: he participated in a protest against the Florida recount in 2000, serves as Facebook’s vice president for global public policy, and sat behind his friend Brett Kavanaugh during his Senate confirmation.)   The only throughline for these disparate rivals is bad information.  Which returns us to the initial question: what is going on here?   Is Bazelon trying to raise awareness?  I think we’ve reached saturation point about the toxic maw of digital culture.  Sound the alarm?  Same.  Find solutions?  In part, yes, but nothing too radical, maybe the low-cal censorship favored by Europeans.  All of these arguments have been made better by other authors in other fora.

Bazelon provides a précis of American jurisprudence and its protections of free speech from government interference.  These are invariably clear and eloquent defenses not just of political expression but also the right to err, even to lie.  “As a Nation we have chosen…to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Chief Justice John G. Roberts Jr. wrote recently.  It is a shame Bazelon doesn’t take up the case of coal magnate Bob Murray against HBO targeting John Oliver of Last Week Tonight.  This slander and defamation suit was dismissed with prejudice.  After winning the case, Oliver and what looks like an entire Broadway musical chorus line then sang obscene and completely untrue accusations about the vanquished.

But that leads her to a strange Straw Man argument that dissolves itself without much scrutiny:

The First Amendment doesn’t have a formal role in these situations [decisions made by private companies like newspapers to publish or censor material] but the principle that it’s paramount to protect dissident speech makes them difficult to untangle.  If people have the right to peacefully protest against the police, don’t neo-Nazis have the same right to peacefully demonstrate?  Why is Tom Cotton’s Op-Ed beyond the pale but not an October by Regina Ip, a legislator in Hong Kong, who defended police officers’ filling the streets and arresting hundreds of pro-democracy demonstrators?

This is not difficult to untangle at all. The answer is obvious: Yes. Yes, people have the right to protest peacefully regardless of what they say.  Yes, people have the right to express opinions about the rule of law.  Yes, the same goes for a Russian troll engaging in disinformation and a satirist sending up a public figure.  Because sometimes you can’t tell the two apart, as China routinely does with The Onion, or Bob Murray does with John Oliver and HBO.

Of course Bazelon would refer to the great bête noire of political speech, Citizens United v. FEC, in which the U.S. Supreme Court loosened restrictions on corporate money given to political causes. She quotes Harvard law professor John Coates that this, and a series of preceding cases, constituted a “radical break with the history and traditions of U.S. law”.  In Bazelon’s words, this falsely equates corporate political activity as “akin to the shouting of protesters”.

The shot is so easy to make you might miss it: Emily Bazelon is a paid staff writer of The New York Times Magazine, owned by The New York Times Company, a publicly traded S&P 400 corporation with nearly $1.8 billion in annual revenue. Published, her article reaches more than two million Americans. The New York Times itself engages in direct political advocacy by endorsing candidates for federal, state, and local office and taking editorial positions on a myriad of political issues. It does not act like a corporation giving money to a non-profit Political Action Committees because it doesn’t have to: its business model is built in part on political advocacy. The Campbell Soup Company can’t do that. (I will note here that I have published twice with The Times and was compensated for one of those opportunities.)

Bazelon does not help her case by referring to the Seth Rich case, a conspiracy theory that was broadcast as a news story on Fox News and then spread from there.  Fox News retracted the story but other segments on the network did not.  Again, this feels like too easy a shot:  Emily Bazelon is writing this in The New York Times, which famously spread the baseless conspiracy theory that Iraq was actively developing unconventional weapons in 2002.  The same New York Times that is reviewing, but not caveating, its flagship podcast “Caliphate” after Canada arrested the primary source for fraud in connection with The Times’ reporting.  The same New York Times that apologized for assigning Bazelon to a news story about Brett Kavanaugh after she had published opinions critical of him.

Nonetheless, Bazelon argues we are in a clear crisis without precedent.  So what to do?  Bazelon turns first to Europe.  She expresses admiration for a kind of censorship lite, a latter-day reincarnation of the paternal benevolence used by old monarchs to quash class conflict.  But she cites only two examples of prohibited speech: incitement to racial violence and Holocaust denial.  (She somehow misses the notoriously loose libel laws in many commonwealth countries.)  I can’t believe I’m checking a Yale-educated lawyer, but incitement and hate crimes are illegal in the United States.  They are not protected speech.

We can continue our petty exposure of further error as we examine Europe’s enlightened censorship model.  Bazelon quotes Miguel Poaires Maduro, a disinformation observer based in Italy.  “Much of the recent authoritarian experience in Europe arose out of democracy itself,” he says.  “The Nazis and others were originally elected.” 

Let’s stop here.  It is not exactly clear which epoque he’s referring to, but since he mentions the Nazis, let’s start there: Nazis were not popularly elected in Germany and neither were the fascist or communist governments that came to power in Spain, Austria, Italy, Russia, Hungary, Poland or Romania during the first half of the 20^th century.

Boaires Maduro continues to channel Orwell:  “In Europe, there is basically an understanding that democracy needs to protect itself from anti-democratic ideas,” he says.  “It’s because of the different democratic ethos of Europe that Europe has accepted more restrictions on speech.”  That is plainly absurd.   Speech is democratic when it is free and anyone can use it for any reason.  When speech is restricted, it is no longer democratic, because the national authority chooses who gets to say what, when, why, where, and how.

Bazelon’s primary evidence for Europe’s enlightened view of censorship is a comparison between the media reaction to the email hacks of the Democratic National Committee in 2016 and that of Emmanuel Macron’s party En Marche! in France in 2017.  She approvingly notes the French law imposing a blackout on political news 24 hours before polls open—we’ll leave aside Bazelon’s astonishing endorsement of a government ban on political reporting a day before a national election—meant when the emails were dumped, hours before the deadline, the French media simply ignored them.  

This argument falls apart before we can finish the story.  French law had nothing to do with this outcome: no good news organization would publish unsubstantiated and uncorroborated information with just hours available and in any event 36 hours later the information was effectively irrelevant to the election outcome.  The 2016 dump in the United States, by contrast, occurred months before the November election, giving news organizations much more time to report it.

Again it’s important to note something that could easily be missed: in both the French and U.S. cases there were no substantial allegations that the information released by the hacks was false.  Here, Bazelon has precipitously overreached: She approves of both French law and media practice restricting political reporting even when the facts are not in dispute.  That should disturb everyone.  It also demonstrates the slippery slope falling away from our decision to censor things that are not strictly true to a point far below where we can simply dispose of information we don’t like.

As for solutions, beyond an endorsement of vague European restrictions, outright censorship clearly makes Bazelon uneasy.  After railing about the right-wing media universe, public lies, viral disinformation, and all the rest, the best solution she can come up with is…more information.  She proposes public investment in local news outlets and online sources.  She argues for more financial transparency in political ad microtargeting.  She doesn’t argue for more “citizen journalists,” a recent phenomenon encouraged by nonprofit news organizations like WNYC, perhaps because she can’t stomach amateurs not getting paid for what The Times pays her to do.

This is not to say that conspiracy theories are acceptable forms of political discourse.  But in the end, speech is speech is speech is speech.  It is the only thing we have to change minds and thus alter the course of human events.  Bazelon’s promoted alternative is the opposite of speech: it is coercion.  Even a civil action resulting in mere monetary damages for defamation is reinforced by the police powers of the state.  It is extremely disturbing to argue that an untrue thing is worse than the violence required to enforce the truth.  Too many people believe that those they disagree with should lose their livelihood for something said, written or thought.  That they should be exiled because of words.

In the end, Bazelon is clearly and sincerely worried about the rapid spread of things that are not true. She should reconsider her concern given the glaring untruths evident in her own argument for combating misinformation. Because, thankfully, the American tradition protects her right to err, too. “Arendt understood that what was at stake was far more” than speech, she writes. That is true but for the exact opposite conclusion Bazelon draws from exposing the workings of totalitarianism: that the destruction of free speech enables all the destruction that follows.

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