The Twitter Files and Political Exploitation of Social Media

07 Wednesday Dec 2022

Posted by Nuetzel in Censorship, Regulation, Social Media

Tags

Bari Weiss, Censorship, Common Carrier, Communications Decency Act, Content Moderation, Disinformation Governance Board, Elon Musk, Eugene Volokh, Fighting Words, First Amendment, Hunter Biden, In-Kind Campaign Contribution, James Baker, Mark Zuckerberg, Matt Taibbi, Michael Munger, Munger Test, Public Accompdation, Public Square, Section 230 Immunity, Social Media, Telecommunications Act, Trump-Russia Investigation, Twitter Files, Your Worst Enemy Test

I’ve been cheering for Elon Musk in his effort to remake Twitter into the kind of “public square” it always held the promise to be. He’s standing up for free expression, against one-party control of speech on social media, and especially against government efforts to control speech. That’s a great and significant thing, yet as Duke economist Michael Munger notes, we hear calls from the Biden Administration and congressional Democrats to “keep an eye on Twitter”, a not-so-veiled threat of future investigative actions or worse.

Your Worst Enemy Test, Public or Private

As a disclaimer, I submit that I’m not an unadulterated fan of Musk’s business ventures. His business models too often leverage wrong-headed government policy for profitability. It reeks of rent seeking behavior, whatever Musk’s ideals, and the availability of those rents, primarily subsidies, violates the test for good governance I discussed in my last post. That’s the Munger Test (the “Your Worst Enemy” Test), formally:

“You can only give the State power that you favor giving to your worst enemy.”

On the other hand, Musk’s release of the “Twitter Files” last weekend, with more to come, is certainly a refreshing development. Censorship at the behest of political organizations, foreign governments, or our own government are all controversial and possibly illegal. While we’d ordinarily hope to transact privately at arms length with free exchange being strictly an economic proposition, one might even apply the Munger Test to the perspective of a user of a social media platform: would you trust your worst enemy to exercise censorship on that platform on the basis of politics? Like Donald Trump? Or Chuck Schumer? If not, then you probably won’t be happy there! Now, add to that your worst enemy’s immunity to prosecution for any content they deem favorable!

Cloaked Government Censorship?

Censorship runs afoul of the First Amendment if government actors are involved. In an interesting twist in the case of the Twitter Files, the two independent journalists working with the files, Matt Taibbi and Bari Weiss, learned that some of the information had been redacted by one James Baker, Twitter’s Deputy General Counsel. Perhaps not coincidentally, Baker was also formerly General Counsel of the FBI and a key figure in the Trump-Russia investigation. Musk promptly fired Baker from Twitter over the weekend. We might see, very soon, just how coincidental Baker’s redactions were.

Mark Zuckerberg himself recently admitted that Facebook was pressured by the FBI to censor the Hunter Biden laptop story, which is a key part of the controversy underlying the Twitter Files. The Biden Administration had ambitious plans for working alongside social media on content moderation, but the Orwellian-sounding “Disinformation Governance Board” has been shelved, at least for now. Furthermore, activity performed for a political campaign may represent an impermissible in-kind campaign donation, and Twitter falsely denied to the FEC that it had worked with the Biden campaign.

Solutions?

What remedies exist for potential social media abuses of constitutionally-protected rights, or even politically-driven censorship? Elon Musk’s remaking of Twitter is a big win, of course, and market solutions now seem more realistic. Court challenges to social media firms are also possible, but there are statutory obstacles. Court challenges to the federal government are more likely to succeed (if its involvement can be proven).

The big social media firms have all adopted a fairly definitive political stance and have acted on it ruthlessly, contrary to their professed role in the provision of an open “public square”. For that reason, I have in the past supported eliminating social media’s immunity from prosecution for content posted on their networks. A cryptic jest by Musk might just refer to that very prospect:

“Anything anyone says will be used against me in a court of law.”

Or maybe not … even with the sort of immunity granted to social media platforms, the Twitter Files might implicate his own company in potential violations of law, and he seems to be okay with that.

Immunity was granted to social media platforms under Section 230 of the Communications Decency Act (DCA). It was something many thought “the state should do” in the 1990s in order to foster growth in the internet. And it would seem that a platform’s immunity for content shared broadly should be consistent with promoting free speech. So the issue of revoking immunity is thorny for free speech advocates.

Section 230 And Content Moderation

There have always been legal restrictions on speech related to libel and “fighting words”. In addition, the CDA, which is a part of the Telecommunications Act, restricts “obscene” or “offensive” speech and content in various ways. The problem is that social media firms seem to have used the CDA as a pretext for censoring content more generally. It’s also possible they felt as if immunity from liability made them legally impervious to objections of any sort, including aggressive political censorship and user bans on behalf of government.

The social value of granting immunity depends on the context. There are two different kinds of immunity under Section 230: subsection (c)(1) grants immunity to so-called common carriers (e.g. telephone companies) for the content of private messages or calls on their networks; subsection (c)(2) grants immunity to social media companies for content posted on their platforms as long as those companies engage in content moderation consistent with the provisions of the CDA.

Common carrier immunity is comparatively noncontroversial, but with respect to 230(c)(2), I go back to the question: would I want my worst enemy to have the power to grant this kind of immunity? Not if it meant the power to forgive political manipulation of social media content with the heavy involvement of one political party! The right to ban users is completely unlike the “must serve” legal treatment of “public accommodations” provided by most private businesses. And immunity is inconsistent with other policies. For example, if social media acts to systematically host and to amplify some viewpoints and suppress others, it suggests that they are behaving more like publishers, who are liable for material they might publish, whether produced on their own or by third-party contributors.

Still, social media firms are private companies and their user agreements generally allow them to take down content for any reason. And if content moderation decisions are colored by input from one side of the political aisle, that is within the rights of a private firm (unless its actions are held to be illegal in-kind contributions to a political campaign). Likewise, it is every consumer’s right not to join such a platform, and today there are a number of alternatives to Twitter and Facebook.

Again, political censorship exercised privately is not the worst of it. There are indications that government actors have been complicit in censorship decisions made by social media. That would be a clear violation of the First Amendment for which immunity should be out of the question. I’d probably cut a platform considerable slack, however, if they acted under threat of retaliation by government actors, if that could be proven.

Volokh’s Quid Pro Quo

Rather than simply stripping away Section 230 protection for social media firms, another solution has been suggested by Eugene Volokh in “Common Carrier Status as Quid Pro Quo for § 230(c)(1) Immunity”. He proposes the following choice for these companies:

“(1) Be common carriers like phone companies, immune from liability but also required to host all viewpoints, or

(2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis).”

Option 2 is the very solution discussed in the last section (revoke immunity). Option 1, however, would impinge on a private company’s right to moderate content in exchange for continued immunity. Said differently, the quid pro quo offers continued rents created by immunity in exchange for status as a public utility of sorts, along with limits on the private right to moderate content. Common carriers often face other regulatory rules that bear on pricing and profits, but since basic service on social media is usually free, this is probably not at issue for the time being.

Does Volokh’s quid pro quo pass the Munger Test? Well, at least it’s a choice! For social media firms to host all viewpoints isn’t nearly as draconian as the universal service obligation imposed on local phone companies and other utilities, because the marginal cost of hosting an extra social media user is negligible.

Would I give my worst enemy the power to impose this choice? The CDA would still obligate social media firms selecting Option 1 to censor obscene or offensive content. Option 2 carries greater legal risks to firms, who might respond by exercising more aggressive content moderation. The coexistence of common carriers and more content-selective hosts might create competitive pressures for restrained content moderation (within the limits of the CDA) and a better balance for users. Therefore, Volokh’s quid pro quo option seems reasonable. The only downside is whether government might interfere with social media common carriers’ future profitability or plans to price user services. Then again, if a firm could reverse its choice at some point, that might address the concern. The CDA itself might not have passed the “Worst Enemy” Munger Test, but at least within the context of established law, I think Volokh’s quid pro quo probably does.

We’ll Know More Soon

More will be revealed as new “episodes” of the Twitter Files are released. We may well hear direct evidence of government involvement in censorship decisions. If so, it will be interesting to see the fallout in terms of legal actions against government censorship, and whether support coalesces around changes in the social media regulatory environment.

Dobbs, Roe, and the Freakout Over Federalism

25 Wednesday May 2022

Posted by Nuetzel in Abortion, Federalism, Uncategorized

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Abortion, Adoption, Akhil Amar, Artificial Womb, Bill of Rights, Birth Control, CDC, Classism, Court Leak, dependency, Disparate impact, Dobbs v. Jackson Women’s Health Organization, Due Process Clause, Emergency Contraception, Equal Protection Clause, Establishment Clause, Eugene Volokh, Eugenics, Federalism, Fetal Homicide Laws, Fetal Rights, Fetal Viability, First Amendment, Fourteenth Amendment, Great Society, Josh Blackman, Judicial Activism, Later-Term Abortion, Margaret Sanger, Morning After Pill, Personhood, Planned Parenthood v. Casey, Privacy Rights, Pro-Life, racism, Roe v. Wade, Ruth Bader Ginsburg, Samuel Alito, Supreme Court, War Drugs, World Health Organization

The leak of a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization has created uproars on several fronts. The opinion, written by Justice Samuel Alito, represented a 5-4 majority at the time of its writing, but it is a draft opinion, and the substance and the positions of other justices might change before a final decision is handed down by the Court by the end of June. The draft would essentially uphold a Mississippi law restricting abortions after the first 15 weeks of pregnancy. This would overturn the Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions. The former established that states could regulate abortion only beyond a certain stage of pregnancy (originally the first trimester), while the latter allowed states to regulate once a pregnancy reached the stage of fetal viability. While 24 weeks is often cited as the lower limit of viability, it is considered to be as early as 20 weeks by the World Health Organization, an estimate that could decline with future advances in prenatal and neonatal care (such as artificial wombs). In any case, viability would no longer be the standard if the draft opinion stands. Indeed, it would once again be up to states as to how they wish to regulate abortion.

Here is an update on where things stood on May 11th. Reportedly, the 5-4 majority still stood, and no other draft opinions existed in the case at that time. No news since.

Due Process and Privacy Rights

Was Roe v. Wade a good legal decision? Ruth Bader Ginsburg did not hold the opinion in high regard as a matter of the jurisprudence. Apparently, she felt that the Court should have simply struck down the restrictive Texas law in question without imposing a set of rules, which amounted to an aggressive infringement on the legislative function and the evolution of law, and case law, at the state level. Her words were:

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade.”

She also felt the Court should not have leaned on the Due Process Clause of Fourteenth Amendment, which prohibits the denial of “life, liberty or property, without due process of law”. And she believed that relying on due process and the privacy rights of a woman and her physician made Roe vulnerable to challenge. She was probably right.

Yale Law School professor Akhil Amar, who is pro-choice, also believes the Roe decision was misguided and calls its reliance on due process “textual gibberish”. The objection to substantive due process is based on the absence of any principle establishing which “rights” not found explicitly in the Bill of Rights are valid, and which are not.

Equal Protection

In fact, Amar defends Justice Alito’s draft opinion and believes, as Ginsberg did, that the Equal Protection Clause of the Fourteenth Amendment is a better defense of abortion rights. The contention is that unless a woman possesses the right to terminate a pregnancy, she is not on an equal footing with similarly situated men in terms of self-determination and life opportunities. Of course, none of this weighs the interests of the unborn child.

Establishment Clause

Josh Blackman has an interesting series of comments about whether the Establishment Clause of the First Amendment may be a valid defense of abortion rights. That seemingly preposterous claim relies on abortion as a right, in some cases, protected by the free exercise of religion. As Blackman sums up in his sixth point:

“… abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I’ll bring the bagels for the next meeting of the Temple of Automatic Weapons.”

Eugene Volokh makes several interesting points on attempts to use the Establishment Clause “to obtain exemptions from generally applicable laws”. A separate, misguided take at the Establishment Clause is that a law must be unconstitutional if it was based on religious beliefs. Volokh handily disposes of that contention here.

Judicially-Prescribed Rights vs. Constitutional Rights

Blackman has written that the Alito draft is a tour de force, addressing many constitutional principles and concerns expressed by other justices. In another post, Blackman explains a very basic rationale for a decision to overturn Roe. It is related to the objections expressed by Ginsberg and Amar, and to the many “lamentations” expressed in the Court’s abortion opinions over the years since Roe. Namely, that rule and establishment of new rights by court decision was not a mechanism intended by the framers of the Constitution, but self-government and federalist principles were:

“It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.”

Personhood

Of course, none of these points are really germane to the crux of the pro-life argument to which I subscribe. However, both Roe and Casey acknowledge the state’s interest in protecting the fetus beyond some point in a pregnancy. The closer to term, the greater the interest. The implication is that a fetus gradually takes on degrees of “personhood” through the course of gestation, and that rights attach to that nascent individual at some point. Both Roe and Casey, by allowing states to regulate abortion beyond some point, offer recognition that the closer an abortion occurs to full term, the stronger the case that it may be prohibited.

The law in most European nations carries the same implication, and if anything leans more heavily in favor of fetal rights than Roe. Furthermore, there are 38 states with fetal homicide laws, which treat the fetus as a person in the case of a murder of a pregnant woman. In 29 of those states, the law applies at the earliest stages of pregnancy. This suggests that in most states, sentiments may weigh in favor of treating the fetus as a person imbued with constitutional rights.

In the end, this is not an exclusively religious argument, as the pro-abortion Left always suggests. For me, it’s purely an ethical one. At what point beyond conception are pro-abortion activists willing to concede that a human life is at stake? Apparently a heartbeat is not enough to convince them. Neither does the appearance of small fingers and toes. Nor the ability to feel pain. These are all things that happen before the child is “viable”. But even viability is not enough for some of the more radical abortion activists, who are proposing choice right up to the moment of birth. Incredibly, and despite the real limitations imposed on mid- or late-term abortions in many states (in line with Roe and Casey), some pro-choice advocates are now acting as if overturning these cases causes women to lose such an unfettered right!

Practical Matters

Anyone can obtain a variety of birth control alternatives without a prescription (and often for free). This includes emergency contraception, or the “morning after pill”. Granted, sometimes birth control measures fail, which places the prospective mother (and perhaps an involved or conscientious father) in a difficult position. Nevertheless, careful use of birth control would minimize the abortion problem and obviate much of the debate, but people are often too impulsive or careless about sex.

Late term abortions are a fairly small percentage of all abortions. The CDC reported that in 2018, 50,000 (~8%) abortions occurred after the first trimester (14+ weeks), and 6,200 (1%) took place at or beyond the point of theoretical viability (21+ weeks). This study found that of abortions at 20+ weeks, mothers tended to be younger (20 -24), discovered their pregnancies somewhat later, faced logistical and financial delays in arranging the abortion, or faced other challenging life circumstances. However, the researchers rebut a common rationale for late-term abortion when they say:

“… most women seeking later terminations are not doing so for reasons of fetal anomaly or life endangerment.”

Eugenics and Classism

Pregnancies among black women are terminated at a disproportionately high rate. That’s consistent with the original, eugenicistic and racist goals of Planned Parenthood founder Margaret Sanger. This is an outcome to top all disparate impacts. I have witnessed pro-abortion activists counter that these aborted lives would have been miserable, impoverished, and without opportunity — essentially not worth living — but these are value judgements of the most monstrous kind. I’ve also heard the pathetic argument that fiscal conservatives should be happy that abortions will reduce spending on aid programs. Of course, the plight of the would-be mother is also emphasized by pro-abortion advocates, but we should not be so eager to accept the tradeoff here: abortion gets the mother is off the hook, but a child’s life is at stake. No matter the odds of success, human beings are all endowed with potential and opportunity, and it’s not necessary to be economically secure to be happy or pursue dreams.

It’s easy to be pessimistic that public policy can ever mitigate the economic burden on impoverished women who bring unexpected or unwanted pregnancies to term, or to brighten the economic future of their children. After all, over the decades since the Great Society program was conceived, the welfare state has proven no better than a dependency treadmill. Family structure has been decimated by those programs and the destructive consequences of the failed (but ongoing) war on drugs. Likewise, public education is a disaster. However, there are also alternatives such as adoption, and there are many private individuals and organizations working to encourage prospective mothers and ease those burdens.

The Leak

The leak of the draft opinion in Dobbs is unfortunate as it compromises the ongoing integrity of the Court’s internal debates and proceedings. In addition to this institutional damage, the impropriety of staging protests outside the homes of justices and inside places of worship should be roundly condemned by people with respect for judicial integrity, privacy and free exercise. These protests are partly attempts to intimidate, and they have even been accompanied by threats of violence. The belligerent posture of these activists is unconscionable.

Long Live Federalism

Again, the Court’s final decision in Dobbs might not be the opinion in the leaked draft. However, if the Court does indeed overturn Roe, it would not outlaw abortion. Rather, it would allow voters in each state to have a voice in aligning the law with public sentiment. Some states will have more restrictive abortion laws than others, but even the Mississippi law at issue in Dobbs allows abortion up through week 15, almost two weeks longer than the original Roe limitation.

The country is still deeply divided on the issue of abortion. Fundamentally, a broader acceptance of the life-and-death reality of abortion would help bring more consensus on the issue. One theory I have is that many who oppose overturning Roe would simply rather not think about that reality. In their minds, Roe keeps abortion compartmentalized, safely walled off from conscience and sometimes even spiritual convictions. They rationalize Roe based on their inability to observe the person whose life is at stake, and they accept justifications that minimize the value of that life.

A single rule imposed by the Court has not and will not resolve these differences. Indeed, Roe and Casey were failed acts of judicial activism that should be reversed. While bad legislation is regrettable, it is always subject to review and challenge by the people. In a federalist system, a bad law is contained like a single experimental treatment in a large trial with multiple arms. However, in this case, unlike a trial with random selection of subjects, one treatment group may differ from others in important respects, and the objective is not to identify one single-best solution, but different solutions that work best for different groups. That is a closer approximation to real self-government than federal legislation and especially one-size-fits-all Court rule-making.

On Quitting Facebook, One Year Later

25 Friday Feb 2022

Posted by Nuetzel in Censorship, Social Media, Uncategorized

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Censorship, CIA, CloutHub, Common Carrier, Content Moderation, Eugene Volokh, Facebook, Facebook Jail, Fact Checkers, FireEye, First Amendment, Frenemies, Friend Requests, Gab, GETTR, Hosting Function, Meta, MeWe, Parler, Public Square, Recommendation Function, Section 230 Immunity, Telecommunications Act of 1996, Telegram, Truth Social, Vivek Ramaswamy

I’m very happy to be off Facebook, or “Meta” as it now calls itself. The platform has become, effectively, a propaganda arm of governments, and one that appears to be engaging in unconstitutional censorship. More on that below.

One year ago my profile dropped off of FB entirely. I had decided to quit in January 2021 after about 15 years. I downloaded everything from my profile and wrote a blog post called “On Quitting Facebook”. It was my last entry there, so that’s really when I quit, but it took a month before they completely deactivated me.

You have to resist the temptation to go back during that interim month or it starts all over again — a new interim period, that is — when you finally decide to get out. I knew immediately that I loved being free of it, so that part was easy. My feelings haven’t changed a bit.

F-R-Double E

I no longer have to put up with the propaganda that FB prioritizes nor the “demoted post” phenomenon. None of my posts had actually been blocked outright, but I knew “Facebook jail” was happening to users with increasing frequency, as well as post blocking and “red flags” authorized by politically-motivated FB “fact checkers”.

Free of FB, I no longer have to put up with various “frenemies” I’d somehow collected. And quitting FB allowed me to reclaim precious time I’d been wasting on an obsession that one would think avoidable: scrolling through my news feed, sometimes more than once a day, to view an assortment of photos of meals, puppies, and peoples’ lovely feet propped-up in “relax mode”, plus huge dollops of left-wing political and economic BS, often delivered with snark. But of course the lefty BS is almost everywhere in media.

There was one other disturbing anomoly on FB that became more frequent for me: friend requests from exceptionally gruesome-looking characters. I think they were fake requests, but I had tight security on my profile, so the source and motive is anyone’s guess. The increasing frequency led me to wonder whether someone had information about me, which my security settings should not have allowed. That would have meant it was partly an “inside job” on FB, perhaps designed to intimidate me in one way or another. I have no idea, but I don’t miss those requests.

So there’s a lot to like about quitting FB! It certainly brought a few disappointments and challenges. Unfortunately, I did lose touch with some good people. In what follows I elaborate on certain legal ramifications of FB’s poor conduct in hosting users both privately and within what’s purported to serve as a “public square”; the social media frustrations I’ve experienced since quitting; and my impressions of a few other platforms.

Government Censorship?

FB is a private company, so the usual libertarian position is that it can run its platform any way it wants. It is therefore no business of the government’s whether FB moderates content, bans certain users, or takes editorial positions. However, FB benefits from immunity to prosecution under Section 230 of the Telecommunications Act of 1996, which was traditionally intended for common carriers like telephone companies. That means they can’t be held liable for anything a third party might say on their network. Say what you want on the phone, because liability-free carriers shouldn’t care. FB and other social media platforms receive this same protection. But should they?

While we can think of FB as a kind of modern public square, in some respects it looks more like a common carrier. By that I mean much of the communication that takes place on the platform is voluntary and between private contacts, or groups of “friends”. The voluntary nature of these connections is a key aspect of what Eugene Volokh calls the “hosting function”. No one is forced to look at what you post. Yet FB makes a habit of moderating the content of those posts and conversations and still receives immunity under Section 230.

In other respects, FB does resemble a public square. Content posted by one party can be shared by each contact with their own network of friends, and thus can “go viral”. But if FB moderates content, censors users, or takes political positions of its own via the “recommendation function” often exercised by social media platforms, then it is not acting purely as a public square. Indeed, in that case it is more like a publisher, which otherwise would not be immune from lawsuits.

The case against FB is even stronger than that, however. It has acted as a de facto agent of the government in several respects. A recent FOIA request has revealed a White House email showing:

“… Facebook, Merck, and the CDC Foundation, whose corporate partners includes Pfizer, have formed an alliance ‘to use social media and digital platforms to build confidence in and drive uptake of vaccines.’”

FB has also acted to delete user accounts at the behest of the U.S. and Israeli governments. And FB has partnered with a security firm called FireEye, which is funded by the CIA. There are other areas of “cooperation” between entities performing government-funded activities described at the last link.

The topic of social media giants censoring speech on behalf of the U.S. and other governments has been discussed by Vivek Ramiswamy, who notes the obvious breach of constitutional rights that it represents. It’s fine for a private firm to regulate speech on its own premises, but conducting censorship at the behest of government is equivalent to censorship by government and a flat out a violation of the First Amendment.

Moreover, FB has had the audacity to propose government “oversight” in its effort to moderate content. What, in the name of regulatory capture, could go wrong? I’d say the whole thing is Orwellian, but perhaps no more than what we’ve already seen. The best policy response, as Volokh suggests, might be to separate the hosting and conversation functions of social media from the recommendation function. The former can be treated as “common carrier” functions for the purpose of applying Section 230, with an obligation for non-discrimination and minimal content moderation, while the latter function would receive no immunity under Section 230.

My Post-FB Social Media Escapades

My blog lost a lot of readership when I quit FB. Last spring, however, I began a roughly five-month stint as a contributing blogger on a site that brought a jump in my readership. Unfortunately, it became clear, over time, that it was largely an audience unwilling to entertain more objective and sometimes technical considerations. I also became disillusioned after finding myself writing posts to debunk certain conspiratorial fantasies of other contributing bloggers on the site. I didn’t want to be associated with those writers, so I cut ties. My readership crashed again, but I’m not sure I lost many high-quality readers in that instance.

I joined various “free speech” social media platforms: first Parler (until it was taken down by Amazon, and I haven’t been back), and I’d been on MeWe, but then Gab, CloutHub, GETTR, and Telegram. MeWe, Gab, and CloutHub sponsor groups with shared interests, and I’ve made it a point to join Libertarian groups when I can find them. Those groups are not very active on CloutHub. GETTR feels a bit more like Twitter to me, and there are no group pages. Telegram is a secure messaging app with extra features. I just started a so-called “channel” there to which I can post my content. Users can view and subscribe to my channel if they wish, but I have to cross-post to other channels to find them. We’ll see how it goes, but there are a lot of people who LOVE Telegram!

A few friends from my FB days followed me to one or two of the “free speech” platforms, but only one of them seems to have maintained any presence there. Most of them became entirely inactive from what I can tell. I know some went back to FB, upon which so many people are dependent. Sometimes that’s for business reasons, which is both understandable and regrettable. Anyway, at least one of my former FB connections is still cross-posting some of my articles to FB, which is fine and I truly appreciate it.

Like FB, the alternative platforms I’ve tried are dominated by meme warriors. While a few trolls lurk there, MeWe, Gab, and CloutHub are very much echo chambers. But at least dissident voices have a place where they aren’t censored! In an ideal world we’d have diversity of thought and civility.

I’ve grown kind of numb to all the memes. I tend to scroll right past them in search of meatier fare. Memes tend to over-simplify complex issues and appeal to mood affiliations. They generally offer zero evidence in support of their messages. Even worse is their impact on attention span. It’s extremely difficult to get users to read anything longer than a meme blurb. In fact, there are people who notice the headlines on my posts and make immediate comments on that basis, as if I’m posting memes! But again, FB is very much a hall of memes, so I don’t mean to imply that there’s been any change for me in that respect … I just like to bitch about memes!

There are a few anti-semites on some of the “free-speech” sites, Gab in particular. In fact, Gab is thoroughly dominated by the religious right, so the anti-semitism is all the more striking. Excepting the Jew haters, whom I can block, I respect the religious right, and our interests are often aligned. However, a steady diet of posts with Christianity as an emphasis makes Gab less than ideal for me. Besides, every time I click on the Gab app it takes like 15 seconds to load on my phone!

I joined MeWe well before I quit FB. Nevertheless, I’ve had trouble getting traction there and I’m thinking of dropping out just to simplify my life. So far, CloutHub seems a little better in terms of generating visits to my blog.

It’s hard for a small-time blogger like me to get much notice on GETTR. There are some well-known conservative personalities there, so there are some decently informative posts. I have not been very active on Telegram, but that might change, as I said above.

I’ve been on LinkedIn for many years, but I’ve only recently decided to begin posting my articles there. I’ve lost a handful of connections as a result! That’s okay. As I like to say, eventually I’ll piss everyone off! I do get some views from LinkedIn, but users who might agree with my point of view are often too chickenshit to say so. That’s more understandable on a platform oriented toward career and professional contacts. However, I think the perception of social pressure is not very much different than the intimidation some people feel on FB.

I’ve considered joining the Truth Social platform, Donald Trump’s foray into social media. It’s billed as a “big tent”, but it will be another echo chamber, I’m sure. It’s also been a technical mess so far (not unique among new apps in that respect). I’m no Trump hater by any means, but any post that might be critical of him is almost certain to attract some hate on Truth Social (the link no is satire, btw). That’s not censorship per se, but TS might not be a great place for some of my posts.

No Going Back

Maybe the last section above was more self-assessment than anything else. As a personal decision, quitting FB was unequivocally positive for me. It hurt my blog readership, but I still hope to gain momentum on other platforms and to promote Sacred Cow Chips by placing links on other sites. In any case, I blog for myself as much as anyone else, just because I enjoy writing, thinking about issues, and occasionally doing a “deep dive” to research an issue.

The censorship occurring on the big social media platforms is simply unacceptable, and I wish more people would rise-up against it. I experienced some schadenfreude when I saw that Meta’s (Facebook’s) financials were a disappointment last quarter. The number of active users declined ever so slightly, but that was a first for FB. One can only hope it’s a trend in the making. And see this, though it might be a bit over-optimistic. Damn the censorship!

Censorship and Content Moderation in the Public Square

30 Thursday Sep 2021

Posted by Nuetzel in Censorship, Free Speech, Social Media

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Tags

Anthony Fauci, Censorship, Clarance Thomas, Common Carrier, Communications Decency Act, Eugene Volokh, Facebook, First Amendment, Good Samaritan Provision, Hosting Function, LinkedIn, Luigi Zingales, Mark Zuckerberg, Network Externalities, Philip Hamburger, Public Accomodations, Section 230 Immunity, Sheryl Sandberg, Supreme Court, Trump Administration, Vivek Ramaswamy

I’m probably as fed up with social media as anyone, given the major platforms’ penchant for censoring on the basis of politics, scientific debate, religion, and wokeism (or I should say a lack thereof). I quit Facebook back in January and haven’t regretted it. It’s frustratingly difficult to convince others to give it up, however, and I’ve tried. Ultimately, major user defections would provide the most effective means of restraining the company’s power.

Beyond my wild fantasies of a consumer revolt, I will confess to a visceral desire to see the dominant social media platforms emasculated: broken up, regulated, or even fined for proven complaints of censorial action. That feeling is reinforced by their anti-competitive behavior, which is difficult to curb.

Are There Better Ways?

While my gut says we need drastic action by government, my head tells me … not … so … fast! These are private companies, after all. I’m an adherent of free markets and private property, so I cannot abide government intrusions to force anyone to sponsor my speech using their private facilities. At the same time, however, our free speech rights must be protected in the “public square”, and the social media companies have long claimed that their platforms offer a modern form of the public square. If they can be taken at their word, should there be some remedy available to those denied a voice based upon their point-of-view by such a business? This seems especially pertinent when access to “public accommodations” is so critical to the meaning of non-discrimination under current law (not that I personally believe businesses should be forced to accommodate the specific demands of all comers).

In a lengthy and scholarly treatment of “Treating Social Media Platforms Like Common Carriers”, Eugene Volokh states the following about U.S. Supreme Court case law (pg. 41):

“Under PruneYard and Rumsfeld, private property owners who open up their property to the public (or to some segment of the public, such as military recruiters) may be required by state or federal law to share their real estate with other speakers.”

The Common Carrier Solution

Volokh’s article is very detailed and informative. I highly recommend it to anyone hoping to gain an understanding of the complex legal issues associated with the rights of big tech firms, their users, and other interested parties. His article highlights the long-standing legal principle that so-called “common carriers” in telecommunications cannot discriminate on the basis of speech.

Volokh believes it would be reasonable and constitutional to treat the big social media platforms as common carriers. Then, the platforms would be prohibited from discriminating based on viewpoint, though free to recommend material to their users. He also puts forward a solution that would essentially permit social media firms to continue to receive protection from liability for user posts like that granted under Section 230 of the Communications Decency Act:

“… I think Congress could categorically treat platforms as common carriers, at least as to their hosting function. But Congress could also constitutionally give platforms two options as to any of their functions: (1) Claim common carrier status, which will let them be like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and- takedown basis).”

Economist Luigi Zingales emphasizes the formidable network externalities that give the incumbent platforms like Facebook a dominance that is almost unshakable. Zingales essentially agrees with Volokh, but he refers to common carrier status for what he calls the “sharing function” with Section 230-like protections, while the so-called “editing function” can and should be competitive. Zingales calls recommendations of material by a platform part of the editing function which should not be granted protection from liability. In that last sense, his emphasis differs somewhat from Volokh’s. However, both seem to think an change in the law is necessary to allow protections only where they serve the “public interest”, as opposed to protecting the private interests of the platforms.

The most destructive aspect of Section 230 immunity is the so-called “Good Samaritan” clause aimed at various kinds of offensive material (“… obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”), which the social media platforms have used as “a license to censor”, as Philip Hamburger puts it. Here, Eugene Volokh and others, including Supreme Court Justice Clarence Thomas, assert that this provision should not receive a broad interpretation in determining immunity for content moderation decisions. In other words, the phrase “otherwise objectionable” in the provision must be interpreted within the context of the statute, which, after all, has to do with communications decency! (Here again, I question whether the government can legitimately authorize censorship in any form.)

Arm of Government?

Viewpoint discrimination and censorship by the platforms is bad enough, but in addition, by all appearances, there is a danger of allowing companies like Facebook to become unofficial speech control ministries in the service of various governments around the world, including the U.S. Here is Vivek Ramaswamy’s astute take on the matter:

“… Facebook likely serves increasingly as the censorship arm of the US government, just as it does for other governments around the world.

In countries like India, Israel, Thailand, and Vietnam, Facebook frequently removes posts at the behest of the government to deter regulatory reprisal. Here at home, we know that Mark Zuckerberg and Sheryl Sandberg regularly correspond with US officials, ranging from e-mail exchanges with Dr. Anthony Fauci on COVID-19 policy to discussing “problematic posts” that “spread disinformation” with the White House.

If Zuckerberg and Sandberg are also directly making decisions about which posts to censor versus permit, that makes it much more likely that they are responsive to the threats and inducements from government officials.”

Even LinkedIn has censored journalists in China who have produced stories the government finds unflattering. Money comes first, I guess! I’m all for the profit motive, but it should never take precedence over fundamental human rights like free speech.

There is no question of a First Amendment violation if Facebook or any other platform is censoring users on behalf of the U.S. government, and Section 230 immunity would be null and void under those circumstances.

Elections … Their Way

On the other hand, we also know that platforms repeatedly censored distribution of the Trump Administration’s viewpoints; like them or not, we’re talking about officials of the executive branch of the U.S. government! This raises the possibility that Section 230 immunity was (or should have been) vitiated by attempts to silence the government. And of course, there is no question that the social media platforms sought to influence the 2020 election via curation of posts, but it is not clear whether that is currently within their rights under Section 230’s Good Samaritan clause. Some would note the danger to fair elections inherent in any platform’s willingness to appease authoritarian governments around the world, or their willingness and ability to influence U.S. elections.

Pledge of Facebook Allegiance

Some of our domestic social media companies have become supra-national entities without a shred of loyalty to the U.S. This article in The Atlantic, of all places, is entitled “The Largest Autocracy on Earth“, and it has a sub-heading that says it all:

“Facebook is acting like a hostile foreign power; it’s time we treated it that way.”

The article reports that Facebook’s Mark Zuckerberg has promoted the mantra “company over country”. That should disabuse you of any notion that he cares one whit about the ideals embodied in the U.S. Constitution. He is a child consumed with dominance, control, and profit for his enterprise, and he might be a megalomaniac to boot. If he wants to host social media relationships in this country, let’s make Facebook a common carrier hosting platform.

Insuring Health Insurability

22 Saturday Dec 2018

Posted by Nuetzel in Health Insurance

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Community Rating, Consumer Sovereignty, Death Spiral, Eugene Volokh, Health Insurance Options, Health Status Insurance, Individual Mandate, John C. Goodman, John Cochrane, Obamacare, Pre-Existing Conditions, Premium Subsidies, Tax Subsidies

The latest blow to Obamacare went down just before the holidays when a federal judge in Texas ruled that the individual mandate was unconstitutional. The decision will be appealed, so it will have no immediate impact on the health-care law or insurance markets. But as Eugene Volokh noted, the mandate itself became meaningless from an enforcement perspective after the repeal of the penalty tax for non-coverage in 2017, despite the fact that some individuals might still opt for coverage out of “respect for the law”. What will really matter, when and if the decision is upheld, is the nullification of the complex web of regulations created by Obamacare, officially known as the Affordable Care Act or ACA. Perhaps most important among these is the requirement that buyers in good health and those in poor health must be charged the same price for coverage. That is “community rating” and it is the chief reason for the escalation of insurance premiums under Obamacare.

One Size Misfits All

Community rating means that everyone pays the same premium regardless of health. Those in good health must pay higher than actuarially fair premiums to subsidize the sick or high-risk with premiums that are less than actuarially fair. Two provisions of the ACA were intended to make this work: first, the individual mandate required everyone to remain in the game (and paying the subsidies) rather than going uninsured and paying the “tax” penalty. But the penalty was so light that many preferred it to actually buying insurance. Now, of course, the penalty has been repealed. Second, individuals with incomes below 250% of poverty line receive premium subsidies from the federal government to offset the high cost of coverage. That means low-income buyers do not have to confront the high premiums, which was hoped to keep them in the game.

Community rating caused premiums in the individual insurance market to increase dramatically. This was compounded by the law’s minimum coverage requirements, which are more comprehensive than many consumers would have preferred. Lots of younger, healthier consumers opted out while the sick opted in, or even worse, opted in only when they became sick. This deterioration in the “risk pool” is the so-called insurance “death spiral”. The pool of insureds becomes increasingly risky, premiums escalate, more healthy consumers opt out, and the process repeats. At the root of it is the distortion in the way that risk is priced by community rating.

Tailored Coverage

The coverage and pricing of risk is better left to markets. That means consumers and insurers will reach agreement on policy provisions that are mutually beneficial ex ante. Insurers will offer to cover risks up to the point at which the expected marginal cost of underwriting is equal to value, or the buyer’s willingness to pay. An insurer who offers unattractive policies or charges too much will find its business undercut by competitors. But when risk is priced by government fiat and community rating, this natural form of market information discovery is impossible.

Tax vs. Premium Subsidies

Many in the high-risk population will be unable to afford coverage in the absence of community rating. There are only two general options: they pay what they can for care but otherwise go without insurance coverage, accepting charity care if they are willing; or, taxpayers pay, as under Medicaid. Most lack coverage because they simply cannot afford it, even when they earn too much to qualify for Medicaid.

That situation can be resolved in the long-term (as I’ll describe below), but an overhang of individuals with pre-existing conditions in need of subsidies will persist for a period of years. Under Obamacare, subsidies were paid by charging higher premia to healthy individuals through community rating. Again, that distorted signals about risk and value, creating unhealthy incentives among insurance buyers. The death spiral is the outcome. Subsidies funded by general taxation do not create these price distortions, however, and should be relied upon for assisting the high-risk population, at least those who are determined to qualify.

Health Status Insurance

The overhang of individuals with pre-existing conditions requiring subsidies can never be eliminated entirely—every day there are children born with critical, unanticipated health needs. However, the overhang can shrink drastically over time under certain conditions. A development that is already receiving meaningful attention in the market is the sale of health insurance options, as described by John Cochrane. I have written about this method of protecting future insurability here.

Cochrane raises the subject within the context of new HHS rules allowing insurance companies to offer “temporary” insurance coverage up to a year, but with guaranteed renewability through a total of 36 months of coverage. Unfortunately, if you get sick before the end of the 36th month, you’ll have to give up your policy and pay more elsewhere. But Cochrane speculates:

“Unless, perhaps, they really are letting insurance companies offer the right to buy health insurance as a separate product, and that can have as long a horizon as you want? If they haven’t done that, I suggest they do so! I don’t think the ACA forbids the selling of options on health insurance of arbitrary duration.”

Cochrane links to this earlier article in which John C. Goodman discusses the ruling allowing the sale of temporary plans:

“The ruling pertains to ‘short-term, limited duration’ health plans. These plans are exempt from Obamacare regulations, including mandated benefits and a prohibition on pricing based on expected health expenses. Although they typically last up to 12 months, the Obama administration restricted them to 3 months and outlawed renewal guarantees that protect people who develop a costly health condition from facing a big premium hike on their next purchase.

The Trump administration has now reversed those decisions, allowing short-term plans to last up to 12 months and allowing guaranteed renewals up to three years. The ruling also allows the sale of a separate plan, call ‘health status insurance,’ that protects people from premium increases due to a change in health condition should they want to buy short-term insurance for another 3 years.”

That is far from permanent insurability, but the concept has nevertheless taken hold. An active market in health status insurance would reduce the pre-existing conditions problem to a bare minimum. The financial risks of deteriorating health would be underwritten in advance. Once stricken with illness, those unlucky individuals would then have coverage at standard rates by virtue of the earlier pooling of the risk of future changes in health status. At standard rates, relatively few high-risk individuals would require subsidies in order to afford coverage .

Will healthy, temporarily insured or uninsured individuals buy these options? Some, but not all, so subsidies will never disappear entirely. Still, the population of uninsured individuals with pre-existing conditions will shrink drastically. In the meantime, a healthy market for health insurance coverage should flourish, reestablishing the authority of the consumer over the kind of health care coverage they wish to purchase and the kinds of financial risks they are willing to bear.

Gays and Bakers: Expression or Repression?

26 Monday Feb 2018

Posted by Nuetzel in Discrimination, Free Speech

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Anti-discrimination law, CO Anti-Discrimination Act, Common Carrier, David Henderson, Eugene Volokh, Freedom of Association, Freedom of Speech, Gay Wedding Cake, Masterpiece Bakeshop, Public Accommodations, Richard Epstein, Unruh Act

A lot rides on the legal interpretation of “expression” in the gay-wedding-cake dispute. Eugene Volokh discusses a recent ruling in California in which a trial court judge ruled that the baker’s right to free expression, buttressed by her right to free exercise of religion, protected her from demands that she participate in a form of expression to which she objected. Specifically, she had no legal obligation to create a cake for the celebration of a gay couple’s wedding, according to the ruling.

The facts in the case, CA Dept. of Fair Employment and Housing v. Cathy’s Creations, are that the baker refused to bake the couple a wedding cake but expressed a willingness to sell them anything that was already available in the shop. Thus, she did not discriminate against the couple by denying them access to her “public accommodations”. She also gave the couple a referral to another baker whom she believed would be willing to produce the cake. So there were probable alternatives available to the couple, and the baker’s assistance in locating one mitigated against any harm suffered by the gay couple. That sort of mitigation is an important factor to consider in weighing the rights of conflicting parties. Courts have tended to view “dignitary harm” as less compelling than forced expression.

Volokh argues that the baker’s role in the episode did not demand expression on her part. He says the proposed cake was a pre-existing design and did not involve writing of any kind. Otherwise, Volokh would have supported the ruling. He and a coauthor discuss the distinctions between an artist (who expresses) and an artisan (who merely executes), and an expressive and a non-expressive cake, in an amicus brief, as noted in the article linked above. Here is Volokh’s summary of his view:

“While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not.“

The Volokh article is a little confusing because the amicus brief seems to have been filed in a different but similar case, Masterpiece Bakeshop v. Colorado Civil Rights Commission, which is now before the U.S. Supreme Court. A ruling is expected this summer. Here is a transcript of the oral arguments in that case, which were heard late last year. It’s a fascinating discussion.

Volokh’s analysis is fine as far as it goes. However, a wedding cake is likely to be considered expressive to both the baker and the cake’s buyers. The baker’s effort in executing even a pre-existing design may involve meaning for her beyond mere execution, since the usual intent of a wedding cake is to celebrate a sacred union. Likewise, the baker knows that the buyers consider the cake to be expressive of their union. The baker doesn’t want any involvement in that expression, asserting that it is not for the government to intercede, forcing them to participate by producing the cake.

Does the baker’s offer to supply an existing cake (or any other bakery good) undermine their case? Does the necessity of baking a new cake for a gay wedding differ from offering a cake already on the shelf for the same purpose? That may be irrelevant to the cases at hand, because no other wedding cakes were available at the time, and freshness might demand the preparation of a new cake for such an occasion. Nevertheless, that sort of line between an acceptable sale for the baker and unacceptable expression strikes me as thin.

As for the matter of the baker’s religious beliefs and their importance to her expressive rights, Volokh derides some of the language of the ruling. Those beliefs, Volokh says, are irrelevant to the question of whether a particular kind of expression is protected or compelled:

“By the way, I take it that it’s clear that the Free Speech Clause issue can’t turn on whether Miller’s belief ‘is part of the orthodox doctrines’ of many religions, or whether it’s instead ‘trivial, arbitrary, nonsensical, or outrageous’ — the Free Speech Clause protects views regardless of whether they express views that are seen as orthodox, outrageous, or nonsensical.“

Bravo! However, when the rights of two parties are in conflict, it is appropriate to weigh any impingement upon other, secondary rights of both parties.

A disturbing aspect of these cases is that they do not turn in any way on freedom of association, a freedom that encompasses a right not to associate (since any association must be voluntary for both parties). The presumption is that the baker’s right to freely associate or not associate with whomever they please is superseded by their obligations under public accommodation laws, despite the fact that freedom of association is an enumerated right in the U.S. Constitution. While public accommodation laws have generally been found to be constitutional, those laws do not apply in all circumstances, such as when a particular product or service involves expression. But on its own, a violation of the baker’s freedom of association seems to matter less, in today’s legal environment, than abridgment of her free expression, and perhaps less than any obligation she has to provide public accommodation.

Richard Epstein gives a general treatment of the balance between freedom of association and anti-discrimination law. David Henderson has bemoaned the dilution of the f reedom of association suffered in the name of non-discrimination. He does not defend discrimination on the basis of race, gender or sexual preference. Quite the contrary. However, as a matter of individual liberty, he prefers that we retain our right to associate on any basis of our choosing and pay the price imposed by the market for discrimination. For example, if you hang a sign outside your restaurant saying that you won’t serve African Americans, you are likely to suffer a loss of business from all who find your preference offensive, as many will. That solution is obviously unappealing to those who believe that participation in civil society requires public standards of equal access in private transactions. Still, there is some truth to a quote Henderson provides from an anonymous individual comparing the idea of non-discrimination in public accommodations to the “common carrier” designation:

“‘Either way, the theory boils down to “you brought forth a good or service and abracadabra you now have fewer rights”‘”.

The legal actions against the bakers in the cases discussed above rely on anti-discrimination law (in CA, the Unruh Act, and in CO, the Anti-Discrimination Act). Those laws must face limits in their application, as may be necessary in the case of compelled expression, especially expression against one’s most deeply-held convictions, religious or otherwise. The most basic question in this regard is whether the creation of the proposed wedding (or union) cakes can be described as expression. Whether the bakers are acting as mere fabricators or as artists, there is no doubt that the wedding parties desired the cakes as part of the celebration of their unions. That use of a cake constitutes expression on their part, and it is a kind of expression and an association from which the bakers would prefer to demure.

I support the right of homosexuals to enter into legal marriage, but I also support the bakers’ right to refuse the business. To invoke a phrase used by Richard Epstein in the article linked above, the world would be a better place if all agreed to simply “live and let live”.

What Part of “Free Speech” Did You Not Understand?

27 Thursday Apr 2017

Posted by Nuetzel in Censorship, Free Speech

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Antifa, Censorship, Eugene Volokh, Fighting Words, First Amendment, Free Speech, Harry A. Blackmun, Hate Speech, Imminent Lawless Action, John Daniel Davidson, New York University, prior restraint doctrine, Reason.com, Robby Soave, The Federalist, Ulrich Baer

The left has adopted an absurdly expansive definition of “hate speech”, and they’d like you to believe that “hate speech” is unconstitutional. Their objective is to establish a platform from which they can ostracize and ultimately censor political opponents on a variety of policy issues, mixed with the pretense of a moral high ground. The constitutional claim is legal nonsense, of course. To be fair, the moral claim may depend on the issue.

John Daniel Davidson writes in The Federalist of the distinction between protected and unprotected speech in constitutional law. The primary exception to protected speech has to do with the use of “fighting words”. Davidson describes one Supreme Court interpretation of fighting words as “a face-to-face insult directed at a specific person for the purpose of provoking a fight.” Obviously threats would fall into the same category, but only to the extent that they imply “imminent lawless action”, according to a major precedent. As such, there is a distinction between fighting words versus speech that is critical, discriminatory, or even hateful, all of which are protected.

Hate speech, on the other hand, has no accepted legal definition. In law, it has not been specifically linked to speech offensive to protected groups under employment, fair housing, hate crime or any other legislation. If we are to accept the parlance of the left, it seems to cover almost anything over which one might take offense. However, unless it qualifies as fighting words, it is protected speech.

The amorphous character of hate speech, as a concept, makes it an ideal vehicle for censoring political opponents, and that makes it extremely dangerous to the workings of a free society. Any issue of public concern has more than one side, and any policy solution will usually create winners and losers. Sometimes the alleged winners and losers are merely ostensible winners and losers, as dynamic policy effects or “unexpected consequences” often change the outcomes. Advocacy for one solution or another seldom qualifies as hate toward those presumed to be losers by one side in a debate, let alone a threat of violence. Yet we often hear that harm is done by the mere expression of opinion. Here is Davidson:

“By hate speech, they mean ideas and opinions that run afoul of progressive pieties. Do you believe abortion is the taking of human life? That’s hate speech. Think transgenderism is a form of mental illness? Hate speech. Concerned about illegal immigration? Believe in the right to bear arms? Support President Donald Trump? All hate speech.“

Do you support the minimum wage? Do you oppose national reparation payments to African Americans? Do you support health care reform? Welfare reform? Rollbacks in certain environmental regulations? Smaller government? You just might be a hater, according to this way of thinking!

The following statement appears in a recent proposal on free speech. The proposal was recommended as policy by an ad hoc committee created by the administration of a state university:

“… Nor does freedom of expression create a privilege to engage in discrimination involving unwelcome verbal, written, or physical conduct directed at a particular individual or group of individuals on the basis of actual or perceived status, or affiliation within a protected status, and so severe or pervasive that it creates an intimidating or hostile environment that interferes with an individual’s employment, education, academic environment, or participation in the University’s programs or activities.“

This is an obvious departure from the constitutional meaning of free expression or any legal precedent.

And here is Ulrich Baer, who is New York University‘s vice provost for faculty, arts, humanities, and diversity (and professor of comparative literature), in an opinion piece this week in the New York Times:

“The recent student demonstrations [against certain visiting speakers] should be understood as an attempt to ensure the conditions of free speech for a greater group of people, rather than censorship. … Universities invite speakers not chiefly to present otherwise unavailable discoveries, but to present to the public views they have presented elsewhere. When those views invalidate the humanity of some people, they restrict speech as a public good. …

The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community.“

How’s that for logical contortion? Silencing speakers is an effort to protect free speech! As noted by Robby Soave in on Reason.com, “... free speech is not a public good. It is an individual right.” This cannot be compromised by the left’s endlessly flexible conceptualization of “hate speech”, which can mean almost any opinion with which they disagree. Likewise, to “invalidate the humanity of some people” is a dangerously subjective standard. Mr. Baer is incorrect in his assertion that speakers must balance the “inherent” value of their views with an obligation to be “inclusive”. The only obligation is not to threaten or incite “imminent lawless action”. Otherwise, freedom of speech is a natural and constitutionally unfettered right to express oneself. Nothing could be more empowering!

Note that the constitution specifically prohibits the government from interfering with free speech. That includes any public institution such as state universities. Private parties, however, are free to restrict speech on their own property or platform. For example, a private college can legally restrict speech on its property and within its facilities. The owner of a social media platform can legally restrict the speech used there as well.

Howard Dean, a prominent if somewhat hapless member of the democrat establishment, recently tweeted this bit of misinformation: “Hate speech is not protected by the first amendment.” To this, Dean later added some mischaracterizations of Supreme Court decisions, prompting legal scholar Eugene Volokh to explain the facts. Volokh cites a number of decisions upholding a liberal view of free speech rights (and I do not use the word liberal lightly). Volokh also cites the “prior restraint doctrine”:

“The government generally may not exclude speakers — even in government-owned ‘limited public forums’ — because of a concern that the speakers might violate the rules if they spoke.“

If a speaker violates the law by engaging in threats or inciting violence, it is up to law enforcement to step in, ex post, just as they should when antifa protestors show their fascist colors through violent efforts to silence speakers. Volokh quotes from an opinion written by Supreme Court Justice Harry A. Backmun:

“… a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.”

Anti-Gun Babes Up In Arms

17 Friday Jun 2016

Posted by Nuetzel in Gun Control, Gun Rights

≈ 1 Comment

Tags

ACLU, Alexander Hamilton, Andrew Napolitano, Applied Economics, Assault Weapons, Background checks, Defensive Gun Uses, DGUs, Due Process, Eugene Volokh, Fully-Automatic Guns, Glenn Reynolds, Gun Blame, Gun-Free Zones, Individual Right to Bear Arms, James B. Jacobs, Killing Zones, Mass Shootings, Mizzou, Ninth Amendment, Ordinary Constitutional Law, Pink Pistols, Pulse Nightclub, Rolling Stone Magazine, Second Amendment, Semi-Automatic Guns, Soopermexican, Terror Watch List, Trey Gowdy, Unenumerated Rights, Well-Regulated Militia

Passion for various forms of gun control was inflamed by the tragic murder of 49 patrons (with 53 injured) at the Pulse nightclub in Orlando, Florida in the early hours of last Sunday morning. A man with ties to radical Islam was the perpetrator, but that’s not convenient to the left’s narrative, so scapegoats for the massacre run the gamut from guns to transgender bathroom laws to Christian “intolerance”, as opposed to the intolerance of a bat-shit crazy Islamic extremist. The Soopermexican notes the following:

“It’s really amazing how liberals [sic] are finding a way to blame Christians for the actions of the Orlando terrorist, who was, 1) gay, 2) Muslim, 3) Democrat, and 4) racist. … But then that’s what they did that time when a crazed liberal gay activist tried to shoot up the Family Research Council. Remember that? He literally said he wanted to kill everyone and then ‘smear Chick-Fil-A in the victim’s faces.’“

In case there’s any misunderstanding, I include that quote NOT to denigrate gays, Muslims, or Democrats, but to emphasize the absurdity of blaming Christians for the Orlando shootings. To get a sense of the infectious silliness going around in leftist circles over the slaughter, read this account of a vigil for the Pulse victims held in Columbia, MO by several student organizations near the main campus of the University of Missouri, at which Latino activists scolded the gay activist crowd for being “too white” and for paying insufficient attention to racial issues. Of course, it’s true that many of the Orlando victims were Latino, but after all, the vigil was for them, too, not just the white victims.

The left despises private gun ownership, or perhaps private anything except for their own privileges. Gun-blame feels so compassionate to them, and in this case, it conveniently avoids any mention of the killer’s ethnicity and radical ideology. Agitators say that “assault weapons” must be banned, but they are generally unable to articulate a precise definition. More thorough background checks are another favorite “solution”, but that’s based on an article of faith that such checks would be effective. Without proof that background checks actually work, and there is none, it still seems like a good idea to the “do something” crowd. Then, there are those whose real agenda is to ban guns outright, despite the fact that gun bans are counterproductive and infringe on the rights of law-abiding citizens.

Most of those who wish to ban assault weapons think they are referring to guns that fire repeatedly when the trigger is pulled. In other words, they believe that assault weapons are fully automatic weapons. But fully automatic weapons have been banned in the U.S. since 1934! Semi-automatic weapons require the trigger to be pulled to fire each bullet but load the next bullet automatically. James B. Jacobs of the NYU School of Law gives a fairly detailed description of the distinction between so-called assault weapons and other firearms, which essentially comes down to appearance:

“‘Assault weapons’ are semiautomatic firearms designed to look like military rifles. They are not military rifles—sometimes called assault rifles24—such as the U.S. Army’s M-16 … that can be fired in automatic or semiautomatic mode, or Russia’s AK-47, Germany’s HK G36 assault rifle, and Belgium’s FN Fal assault rifle. In contrast to assault rifles, these semiautomatic look-alikes do not fire automatically. Functionally, they are identical to most other semiautomatics. … Practically all modern rifles, pistols, and shotguns are semiautomatics; non-semiautomatic long guns include bolt action, slide action, and breach loaders; non-semiautomatic pistols are called revolvers.“

Jacobs discusses the futility of a ban on assault weapons and offers accounts of some historical assault weapon bans that were ineffective. Those outcomes were due in part to the flimsy distinction between assault weapons and other guns, as well as the fact that assault weapons are used in a relatively small percentage of gun crimes and in few mass shootings (also see here). This is corroborated by a recent paper appearing in the journal Applied Economics in which the authors report:

“… common state and federal gun laws that outlaw assault weapons are unrelated to the likelihood of an assault weapon being used during a public shooting event. Moreover, results show that the use of assault weapons is not related to more victims or fatalities than other types of guns. However, the use of hand guns, shot guns and high-capacity magazines is directly related to the number of victims and fatalities in a public shooting event. Finally, the gunman’s reported mental illness is often associated with an increase in the number of victims and fatalities.“

Another contention made by ill-informed opponents of gun rights is that mass shootings are never stopped by citizens with guns. That is simply not true, but it is good propaganda because foiled shooting attempts tend to receive much less notice than actual mass shootings. This article by Eugene Volokh provides a list of confirmed incidents in which a mass shooting was averted by a citizen carrying a gun. This situation has its counterpart in the left’s denial that defensive gun uses (DGUs) occur more frequently than gun crimes. DGUs are difficult to count because they often go unreported and may not even require the firing of a shot.

Another mistake is the continued advocacy for “gun-free zones” (such as the Pulse nightclub) within which even guards are not allowed to carry firearms. Andrew Napolitano rightly labels these “killing zones”.

More stringent background checks are another favorite solution of gun-rights opponents. However, actual background checks have done nothing to stop the most vicious mass shootings that have occurred over the past few years. This is another testament to the naiveté of relying on government to protect you, in this case, a government information system. Sheldon Richman has explained the futility of background checks thusly:

“… people with criminal intent will find ways to buy guns that do not require a check. Proponents of background checks seem to think that a government decree will dry up the black market. But why would it? Sales will go on beyond the government’s ability to monitor them. Out of sight, out of government control. … Thus the case against mandating ‘universal’ background checks withstands scrutiny. This measure would not keep criminally minded people from acquiring guns, but it would give a false sense of security to the public by promising something they cannot deliver.“

Advocates of assault weapon bans and wider background checks are inclined to characterize gun rights supporters as paranoid. As Volokh explained last year, however, there is strong reason to believe that the pro-gun lobby has correctly assessed the motives among the opposition as more extreme. Volokh notes that an ineffectual ban, like the 1994-2004 assault weapon ban and many other gun bans internationally, cannot outweigh the interests of society in protecting a basic liberty.

And as to basic liberties, Rolling Stone offers a wonderful illustration of the left’s disregard for individual rights and constitutional protections in an angry missive to gun rights supporters: “4 Pro-Gun Arguments We’re Sick of Hearing“. The author not only holds the Second Amendment in distain: vogue left-think has it that the entire Constitution is tainted because the framers were unable to agree on abolition 230 years ago (at a time when slave ownership was commonplace among the aristocracy). The fact that many of the founders were sympathetic to abolition makes little difference to these critics. They say the Constitution is not a legitimate framework for governance, despite its extremely liberal point of view on issues of individual rights. Apparently, Rolling Stone would be just fine with abrogating the free speech rights of gun advocates.

Over the past 20 years or so, case law has increasingly viewed the Second Amendment as “ordinary constitutional law“, meaning that it protects individuals’ right to bear arms. The “well-regulated militia” limitation written into the Second Amendment is no longer accepted by the courts and most legal scholars as a limitation on individual rights. The militias it references were state militias raised from the civilian population, and the armaments they used were generally owned by the same civilians. In any case, there is no time limitation imposed on gun ownership by the Second via that clause. An earlier discussion of these issues was provided by Eugene Volokh in “The Commonplace Second Amendment“.

All this is quite apart from the Ninth Amendment, which states that nothing in the Constitution should be interpreted as limiting rights that are unenumerated. That would include self-defense, and ownership of a gun for that purpose is well advised. The Wikipedia entry on the Ninth Amendment says:

“One of the arguments the Federalists gave against the addition of a Bill of Rights, during the debates about ratification of the Constitution, was that a listing of rights could problematically enlarge the powers specified in Article One, Section 8 of the new Constitution by implication. For example, in Federalist 84, Alexander Hamilton asked, ‘Why declare that things shall not be done which there is no power to do?’“

In other words, we do not derive our rights from government or the majoritarian passions of the moment.

Finally, the debate in Congress this week has centered on whether individuals on the FBI’s Terrorist Watch List should be denied the right to purchase a gun. That might seem like a no-brainier, but it raises legitimate concerns about civil liberties. There are about 700,000 people on that list (some reports put the number much higher), many of them U.S. citizens; some of them are there by mistake. Individuals on the list have not been convicted of a crime and are therefore entitled to due process under the Fifth and Fourteenth Amendments. Watch Rep. Trey Gowdy’s passionate defense of due process to a DHS official this past week. When the ACLU and congressional republicans agree on the tyrannical nature of a restriction like this, you just can’t dismiss it out-of-hand. Such a change in the law cannot be justified without a fast and effective process giving citizens on the list a right of challenge.

The left is bereft of competence on the matter of guns, gun rights and the Constitution generally. They consistently demonstrate a dismissive view of individual liberties, whether that involves guns, religion, property, speech or due process. The tragedy in Orlando deserves more than ill-informed, knee-jerk conclusions. The most productive approach to terror risks involves individuals able to protect themselves and help watch out for others. That’s consistent with the position of the gay gun-rights group Pink Pistols. More power to them!

Who Brought the Melting Pot To the Pow Wow?

11 Wednesday May 2016

Posted by Nuetzel in Censorship, Free Speech

≈ 1 Comment

Tags

Bollywood, Censorship, Chinese New Year, Cinco de Mayo, Cultural Appropriation, Cultural Exchange, Delta Blues, Eugene Volokh, Exclusivity, Fighting Words, Flower Drum Song, Hate Speech, Huckleberry Finn, Intellectual Property, Jewish Community Center, Mardi Gras Indians, Moon Festival, Native Americans, Neverland, Peter Pan, Pow Wow, Rivalrous goods, Separate But Equal, The Grateful Dead, The King and I, Ugg-a-Wugg, Washington Redskins

Chris Rock

I ran into a Chinese colleague in a break room at work and mentioned that I’d seen her engaged in a “pow wow” with a senior staffer, and she asked, “Pow wow?” I tried to explain the Native American origins of the term for a gathering or meeting, and I think she liked that, but I joked that my use of the term might represent “cultural appropriation” (CA). A second colleague who’d entered the kitchen glanced at me with a raised eyebrow. Knowing them well, I’m not sure either of them knew what I meant. As it happens, describing the pow wow as a celebration is more accurate, so my use of the term to describe a meeting was too narrow. In fact, in modern usage by Native Americans, it is a celebration of culture, but meetings take place at these events as well.

CA occurs when aspects of one culture are used in some way by others. It is criticized for trivializing the traditions or symbols of the source culture or because it robs it’s members of intellectual property (IP) rights. I can think of examples of cultural trivialization, such as the “Ugg-a-Wugg” song from the musical Peter Pan. Such complaints strike me as hyper-sensitive, but perhaps the umbrage taken by Native Americans to this song is understandable. Nevertheless, I stand more strongly behind the right of free expression. This song, which is rarely performed today out of respect for Native Americans, was part of a larger Neverland fantasy that has great appeal. And after all, the Indians were good guys in the story!

Works such as Peter Pan and Huckleberry Finn are historical and reflect the times in which they were created. As such, some argue that they should be left in their original form. And I agree, in general. However, in the case of a musical that is performed publicly again and again by various professional and amateur groups, I am sympathetic to the notion that potentially offensive elements can be excised if the changes do not do great damage to the story. If it is not in the public domain, the owners of the story’s rights have the final say.

The IP argument is flawed to the extent that IP arguments are always flawed: ideas are non-rivalrous and non-exclusive. Moreover, even IP rights recognized under U.S. law are limited to individual “property”; they do not extend to the traditions and symbols of various cultures that coexist in society.

Another area emphasized by critics of CA has to do with historical grievances against a dominant culture, often without regard to current circumstances. Apparently, such grievances place the minority culture off-limits. Under this view, cultural exchange is fundamentally bad, which is fundamentally absurd. It has the faint ring of “separate but equal” — paradoxical given the avowed desire among critics of CA for an end to racial and social division.

While European colonialists certainly exploited the native inhabitants in many lands, today’s liberal order in the West is attractive to members of different cultures around the globe.They adopt similar institutions and practices at home, and some of them bring their cultures to us. We all gain in the exchange.

Strong condemnation of CA has been all the rage on college campuses over the past few years (see several of the links here). It reflects a hyper-sensitivity about the normal mixing of cultures. Cultural exchange tends to elevate appealing aspects of all cultures into the larger society. Should we really condemn any of the following harmless activities?

Yoga classes at the Jewish Community Center?
Cinco de Mayo celebrations by non-Mexicans?
Caucasians celebrating the Chinese New Year or Moon Festival?
St. Patrick’s Day celebrations by non-Irish, non-Catholics?
Flower Drum Song or The King and I?
Caucasians playing Delta Blues?
African American Mardi Gras Indians?
Caucasians watching Bollywood movies?
The Grateful Dead at the Pyramids?
Caucasians cooking “ethnic” foods?

I grant that respect dictates avoiding use of another group’s sacred symbols. Beyond that, it is difficult to conceive of any objections to activities like those above. They are all forms of cultural cross-pollination, even if they seem to trivialize in some cases. This sometimes involves cultural interpretation by “others” that might not be accurate, but that is always the case when cultures mix. People incorporate or adapt features of other cultures that they enjoy, which is hardly a sin.

Curious about pow wow, I found the following qualification in the Wikipedia entry for pow-wow:

“…the term has also been used by non-Natives to describe any gathering of Native Americans, or to refer to any type of meeting among non-Natives (such as military personnel). However, such use may be viewed as cultural appropriation, and disrespectful to Native peoples.“

Well, well, well! Pow wow is used in conversational english to lend an air of informality or lightness to certain proceedings. It may simultaneously convey a serious diplomatic purpose and an opportunity to resove differences. Sometimes, non-Natives might even use the term to sound clever, like using the French term soirée rather than “party”. Or perhaps they are amused by the image of corporate managers seated akimbo around a camp fire, passing a peace pipe. Or any pipe. Trivial? Maybe, but if that possibility outrages Native Americans, it strikes me as an over-reaction. After all, the joke is partly on “the suits”, and there isn’t much the Indians can do about it under the law.

I have always been fascinated by American Indian history and culture. I do not use the term pow-wow in disrespect. I use it because it’s colorful and I like it. The cross-pollination of language and culture is borne out of the utility of a particular word or practice. It can hardly be bad that a few shards of Native American language and culture are incorporated into broader American society.

My sister has a beautiful scarf bearing the profile of an American Indian in full head dress. She has always had an interest in the art and culture of the American southwest, which has benefitted from the heavy influence of Indians who are native to that region. So it was unsurprising to me that she would be drawn to the beauty of the scarf. It is a work of art and she does not wear it out of disrespect for American Indians.

Certain acts of CA are thought to intersect with racism, however. How about the Washington Redskins football team name? The team logo and merchandise use Native American symbols. The same goes for the Atlanta Braves and other teams. However, the term Redskin almost certainly has overtly racist origins as a description of an enemy thought to be savage, much as “Nips” was a derogative used by Allied soldiers in World War II as a term for the Japanese. Defenders of the team claim that “Redskin” is not meant to trivialize or denigrate Native Americans, but instead to recognize their honor and ferocity in battle. The team owner and many fans insist that the tradition of the team name should continue in tribute to American Indians. Nevertheless, the name is understandably objectionable to Native Americans today as a crude description of their genealogy. My friend John Crawford tells me of a proposal to change the team logo to a red-skinned potato, but apparently the idea was rejected by the U.S. Patent Office.

In all of these matters, free speech outweighs all other considerations. While cultural appropriation is sometimes regarded with hostility, that does not give the aggrieved special rights to prevent it. The same is true of racism, however regrettable it is. Even so-called hate speech is protected under the U.S. Constitution, short of “fighting words”. Critics of cultural appropriation can seek to educate, influence, boycott and to shame those believed to have run afoul of their standards. In most cases, however, I think the best advice is to chill out.

Pornography, Respect, and Censorship

03 Sunday Apr 2016

Posted by Nuetzel in Censorship, Equality, Liberty

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Brendan Watts, Censorship, Eugene Volokh, First Amendment, Gail Dines, Gender Egalitariansim, Jodie L. Baera, Journal of Sex Research, Non-egalitarianism, Pornography, Prurient Interests, Radical Feminism, Sexual Aggression, Taylor Kohuta, Women-Hating Ideology

CensorCartoonMPMag14

A study in The Journal of Sex Research reinforces the libertarian view that pornography “artists”, purveyors and users should be left alone, free to engage in their private activities without censorship or harassment by the state. The study is entitled “Is Pornography Really about ‘Making Hate to Women’? Pornography Users Hold More Gender Egalitarian Attitudes Than Nonusers in a Representative American Sample“. It can be downloaded free-of-charge at the link. Here’s the abstract:

“According to radical feminist theory, pornography serves to further the subordination of women by training its users, males and females alike, to view women as little more than sex objects over whom men should have complete control. Composite variables from the General Social Survey were used to test the hypothesis that pornography users would hold attitudes that were more supportive of gender nonegalitarianism than nonusers of pornography. Results did not support hypotheses derived from radical feminist theory. Pornography users held more egalitarian attitudes—toward women in positions of power, toward women working outside the home, and toward abortion—than nonusers of pornography. Further, pornography users and pornography nonusers did not differ significantly in their attitudes toward the traditional family and in their self-identification as feminist. The results of this study suggest that pornography use may not be associated with gender nonegalitarian attitudes in a manner that is consistent with radical feminist theory.“

The study did not deal with child pornography in any way. The study focused strictly on attitudes toward women among porn users in general, attitudes that are clearly relevant to divergent opinions regarding the need for activist social policy with respect to adult pornography:

“Some clinicians, researchers, and social commentators have adopted the view that pornography can improve sexual functioning by providing frank sexual information, reducing shame and anxiety associated with sex, and invigorating libido (… citations). In contrast, others have cautioned that the use of such materials can be associated with risky sexual behavior, poor mental health and well-being, degraded relationship functioning, and, of course, sexual aggression (… citations).“

The authors, Taylor Kohuta, Jodie L. Baera and Brendan Watts, quote feminist Gail Dines as an example of the rhetoric used by porn prohibitionists:

“Porn is the most succinct and crisp deliverer of a woman-hating ideology. While we have other places that encode such an ideology, nowhere does it quite as well as porn, as this delivers messages to men’s brain via the penis—a very powerful method.“

The paper includes a lengthy review of previous research on pornography, sexual attitudes, and “non-egalitarian” attitudes toward women. Earlier research was generally based on small samples or those confined to limited demographic segments, but support for the radical feminist view was inconsistent at best.

Kohuta, et al, attempt to extend earlier work with a large sample of males and females (porn is viewed by both genders) from the General Social Survey (GSS), described in detail at the link, and a more thorough set of attitudinal measures. The five measures are listed in the abstract quoted above. In none of the five cases did the use of pornography correspond to “less egalitarian views” toward women, and in three cases it corresponded to more egalitarian views, though I’d quibble with the abortion measure, which might not be meaningful in that context.

The findings are robust to gender and run contrary to the assertions of radical feminists and other moralistic busybodies: pornography does not encourage “woman hatred” or attitudes that might lead to aggressive behavior toward women, nor is viewership of porn consistent with a predisposition toward those attitudes:

“Of the five high-powered statistical tests conducted in this study, a total of three tests indicated that individuals who had viewed a pornographic film in the past year held more egalitarian attitudes than those who had not—a pattern of results that directly contradicts the predictions generated from radical feminist theory. Of the remaining two tests, neither was statistically significant. Taken together, the results of this study fail to support the view that pornography is an efficient deliverer of ‘women-hating ideology’.

Instead of demonstrating strong associations between pornography use and support of nonegalitarianism, if anything the current findings actually suggest weak associations in the opposite direction. Compared to nonusers, participants who reported viewing a pornographic film in the previous year also reported more positive attitudes toward women in positions of power, less negative attitudes toward women in the workforce, and less negative attitudes toward abortion…. “

The authors make a strong value judgment by assuming that a favorable attitude toward abortion represents a more egalitarian attitude toward women. They rationalize this treatment by noting that radical feminists consider “reproductive autonomy” to be a critical test of gender equality. However, abortion is not always a decision made solely by the woman. Furthermore, porn viewers of either gender, and participants in recreational sex, are likely to find the idea of a pregnancy something of a buzz kill, so the attitude maybe one of convenience. More fundamentally, abortion involves the rights of a human fetus versus the right of the parent(s) to terminate the pregnancy. If one’s ethical convictions are such that the fetus’ rights are paramount, it may not reflect a non-egalitarian attitude toward women.

I find the other four attitudinal measures used in the study unobjectionable. Identification as a “feminist” might mean different things to different people, but it nearly always means a generally strong support for women’s rights. In any case, those four tests indicate no association between porn use and an attitude favoring an inferior role for women in society.

Pornography use was defined by Kohuta, et al by whether the subject admitted to viewing any X-rated film over the past year. There was no distinction between different types of porn, such as depictions of sadomasochism, violent sex, or nonconsensual sex. Therefore, the study does not address whether a taste for these forms is associated with less egalitarian attitudes toward women. Whether viewership of porn or violent forms of porn is associated with acts of aggression against women is much harder to establish. However, as a general question, the attitudes found to be associated with porn in this study suggest that users are unlikely to be inclined toward nonconsensual sex or aggression toward women.

Porn viewers obviously find the subject matter entertaining; it may appeal to their fantasies and might serve as a prelude to sex. Whether those are “prurient” interests is a subjective matter. Porn viewing is a private activity that shouldn’t matter to anyone else. Whether they admit it or not, most adults have had at least a peak at porn, perhaps unintentionally. It might have offended them, but they know how to avoid it; if they have children they should know how to utilize parental controls. I’m skeptical that it hurts anyone. Those who like it even a little bit should be able to enjoy it privately.

In 2012, Eugene Volokh wrote a practical criticism of an idea in the Republican Party platform that “current laws on all forms of pornography and obscenity need to be vigorously enforced”, as well as an earlier Bush Administration effort to crack down on porn. He concluded that such policies could have three possible outcomes:

“1) The crackdown on porn is doomed to be utterly ineffective at preventing the supposedly harmful effects of porn on its viewers, and on the viewers’ neighbors [because porn is available from many foreign and domestic sources].
2) The crackdown on porn will be made effective — by implementing a comprehensive government-mandated filtering system run by some administrative agency that constantly monitors the Net and requires private service providers to block any sites that the agency says are obscene.
3) The crackdown on porn will turn into a full-fledged War on Smut that will be made effective by prosecuting, imprisoning, and seizing the assets of porn buyers.“

Volokh’s conclusions apply to all forms of porn, not just non-violent porn. He underlines the draconian implications of attempts to censor porn:

“I’m asking: How can the government’s policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that’s far, far beyond what any mainstream political figures are talking about right now?“

While Volokh does not address the question of whether porn users have a constitutional right to do so, the First Amendment should protect it as free expression. The paper discussed here implies that porn is no threat to women based on the attitudes expressed by users in the GSS. This is consistent with the libertarian principle that free people must be unencumbered by any authority in their choice of entertainment.