Showing posts with label Atlantic. Show all posts
Showing posts with label Atlantic. Show all posts

Friday, October 9, 2020

Could 'inverse' First Amendment save us from ourselves?

Journalism professor Stephen Bates, J.D., University of Nevada Las Vegas, has published a fascinating article in The Atlantic on "the inverted First Amendment," as envisioned by philosopher William Ernest Hocking (1873-1966) in the 1940s.

Hocking on National
Educational Television
As Bates explains, Hocking posited that a correct interpretation of the First Amendment command, "Congress shall make no law ... abridging the freedom of speech," incorporates the command that, sometimes, Congress must make laws that further the freedom of speech.

Post-war America was beset with the perception that mass media were out of control, contributing, as Bates describes, to "polarization, echo chambers, and provocateurs."  That's a good reminder for our times that since the Spanish-American War and subsequent, in part consequent, invention of modern journalism, it's never quite been the idyllic institution of our imaginations.  Hocking contributed a key study to the work of the U.S. Commission on Freedom of the Press, on which he served.

The commission, otherwise known as the Hutchins Commission after chair and University of Chicago President Robert Hutchins, produced a landmark 1947 report.  Concluding that the press is a vital institution in American democracy, the Hutchins Report could have been read as justification for government regulation in furtherance of social responsibility.  The report was read to bolster the controversial development of journalism professionalization and ethics codes.

Hocking's inverse, or positive, First Amendment would have compelled the government affirmatively to protect free speech and even to promote journalism.  This model of positive speech regulation is not unknown in American media law.  In the broadcast medium, because it was not afforded full First Amendment protection, the dubiously constitutional fairness doctrine was instigated by the Hutchins Commission.  In the same vein and medium, we still have, however increasingly irrelevant it is, the equal time rule.  There is some debate over whether there is not some minimal positive requirement in the First Amendment penumbra.  For example, due process in the Fifth and Fourteenth Amendments may be read to require that a court respond to a complainant's filing—a petition for redress of grievance—if only to dismiss it.

A positive First Amendment could have been the basis for a constitutional right of freedom of information, or access to information, in lieu of the later enacted and oft beleaguered Freedom of Information Act of 1967.  Some states and many countries, not to mention international human rights systems, declare a constitutional or human right of access to information, which may require government transparency and even the affirmative publication of information.

Pres. Roosevelt
proposes a Second
Bill of Rights in
January 1944.

More broadly, the notion of positive civil rights, as opposed to the mostly negative commands of the U.S. Bill of Rights, animates constitutional law in many other countries, especially in association with what are sometimes called "second" and "third generation," or "red" and "green" rights, guaranteeing socioeconomic interests, such as employment, food, housing, and a safe environment, as opposed to "first generation," "blue" rights of a political nature.  ("Generations" models of human rights have been criticized fairly as inadequate, if not patronizing, to describe socio-legal development, but the model is still usefully descriptive in some contexts.)  In fact, some positive, "second generation" rights would have been enshrined in U.S. law, had President Franklin Roosevelt's "Second Bill of Rights" gained traction.  The famously expansive constitution of South Africa well models the codification of socioeconomic rights, while the experience of the courts and the people of South Africa speaks simultaneously to the challenges of making the model work, and the arguable perils of constitutionalizing aspiration.

Prof. Bates
An inverted First Amendment could empower the government to combat misinformation, or "fake news," today in ways that the First Amendment as presently understood forbids.  However, Bates recognizes, such a positive First Amendment would have a dark side to contend with.  A strong interpretation of a positive First Amendment could justify government regulation that would suppress speech in the interest of furthering other speech, just as the fairness doctrine was said to have done.  Critiquing contemporary calls to regulate the internet, Paul Matzko for the libertarian Cato Institute wrote in 2019:

In one of her early newsletters, Ayn Rand excoriated the public interest standard as an excuse covering “the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons are not the public)” [1962].

Rand’s words were meant particularly for FCC Chairman Newton Minow, who, in what may be the only famous speech by an FCC commissioner, had described television as a “vast wasteland” and called for limits on the number of game shows, Westerns, and cartoons aired....

.... The more serious danger was the routine weaponization of the public interest standard to advance private or partisan interests. For example, during the early 1940s, the Roosevelt administration pushed for a ban on newspaper ownership of radio stations, ostensibly because of the public’s interest in preventing cross-media consolidation, but also to prevent anti-New Deal newspaper owners from having a radio platform from which to criticize the President’s policies. The FCC during Richard Nixon’s administration would use a similar rule to try and pressure the Washington Post into abandoning its investigation of the Watergate scandal. 

Sometimes the government does, itself, get into the business of journalism.  Yet recent rancor between President Trump and the Voice of America over what the President seems to perceive as partisan disloyalty shows that VOA's very credibility throughout the world depends on its statutorily mandated editorial independence.

The line between government action to protect a negative First Amendment, such as an artistic-value savings provision in indecency law, and government regulation to further a positive First Amendment, such as leveling the free speech marketplace with a must-publish or must-censor rule, is much finer in practice than in theory.  As Bates observes, "Hocking was a philosopher, not a lawyer."

The article is Stephen Bates, The Man Who Wanted to Save the First Amendment by Inverting It, The Atlantic, Oct. 7, 2020.

Friday, April 24, 2020

Report from a Social Distance Week 5: A Birthday, a Flood, and a Fire


April snow (RJ Peltz-Steele CC BY-SA 4.0)
My plan-B return to Africa in June was just canceled.  I kind of expected that.  Here in New England, it remains unseasonably chilly, lows this week at the freezing point, and highs usually in the low 50sºF, 12ºC give or take, and a mean wind chill.  One morning even brought a light snow.  The long-range forecast shows no warming for the remainder of the month.  We’re getting deeply anxious for the transition to spring, even as the names of the days have become arbitrary.  At least in this week 5 of isolation, we had occasion to celebrate a calendared milestone, my wife’s birthday.


What I’m Celebrating…
It was a Quarantine Birthday!

For my wife, I made a birthday cake!: a classic pound cake with hazelnut buttercream frosting.  I won no points on aesthetics, but the sweet taste was spot on.  I also made our dinner of vegetable pasta with mozzarella garlic bread, heavy on the garlic.  We had my wife’s favorite wine, Gazela vinho verde (she’s a cheap date).  And from her Amazon WishList, she received some admittedly non-essential but long desired Yuxier BBQ gloves (Spider-Man-style, but not really, because a Chinese maker wouldn’t dare test trademark).  Our daughter sent our favorite flavored honeys from the Savannah Bee Company, and there were lots of lovely cards: thanks, family and friends.

What I’m Reading
The Atlantic (May 2020).  The latest issue of my favorite magazine, The Atlantic, hit my doorstep this week, and I’ve never been happier to see it.  This month has the usual plenty of enthralling content, from an assessment of the fractured right in American politics (Robert P. Saldin and Steven M. Telles), to a photo study of social distance (Amy Weiss-Meyer), to an exploration of the everlasting allure of Scooby Doo (Christopher Orr)—this year’s May movie Scoob! will skip theaters.  Most-interesting-item honors go to MacDowell Colony fellow Francesca Mari’s “The Shark and the Shrimpers” for breaking down the legal system’s obscene exploitation of the BP disaster with faked compensation claimants.  The conduct of key plaintiff’s lawyer Mikal Watts, acquitted, I found frighteningly reminiscent of Ecuador v. Chevron's fallen star, Steven Donziger.  According to Mari, Watts even commissioned a documentary about himself; cf. Donziger’s PR panache.  Somehow, despite the well reasoned fury of U.S. District Judge Lewis Kaplan, Donziger last week wrangled the validation of 30 Nobel laureates.  That’s more Bizarro than the “liberate” tweets.

🙏 Our ongoing Bible reading has proceeded from First to Second Kings, and we’ve begun a Sunday Zoom study of my favorite book, James.  If you feel in need, or wish to support others, in these strange times, you are welcome to visit our church’s new virtual prayer wall, as well as Sunday service at 0930 US EDT.

What I’m Listening To

Floodlines (2020).  This eight-part audio series by Vann R. Newkirk II represents a first foray into podcasting for The Atlantic.  It’s a fascinating deep dive into the Hurricane Katrina disaster, exploring all angles, especially race and socioeconomic implications.  Newkirk skillfully weaves a narrative that traces New Orleans history from its roots in slavery to its contemporary demography.  A lot of what’s here wasn’t new to me, because, for work, I’ve done a more-than-normal amount of reading about Katrina, and I'm personally familiar with NOLA.  (The audio pacing is slow, and you can nudge up the speed if you use an intermediary such as Google rather than streaming from the home page.)  There’s still plenty here, though, for anyone, and maybe a lot for some: Katrina was 15 years ago, so young adults might not even remember it.  For my part, I had never heard of the case of Ivor van Heerden, who lost his academic post at LSU Baton Rouge in suspicious subsequence to his criticism of the Army Corps levees.  That one nugget from Floodlines part 3 sent me down a depressing rabbit-hole-reading of van Heerden’s ultimately unsuccessful litigation.  Academics, even with tenure, almost always lose to judges’ sycophantic deference to university bureaucrats, while a 2011 AAUP report had no trouble seeing through LSU’s pretext.  FIRE wrote about the importance of the van Heerden case just this week.

What I’m Watching

Code 8 (2019).  Eh.  It killed a couple of hours.  Did you know that Stephen Amell (Arrow) and Robbie Amell (The Tomorrow People) are first cousins?

For All Mankind s1 (2019).  A pandemic gift on free Apple TV+, I’m loving this series.  It’s not what I expected, and I don’t want to give away too much.  The premise of the show is an alternate history in which the Soviets won the moon race; that much was in the trailers.  Unexpected was the clever imagining of an alternatively unfolding history of American civil rights as a consequence of that pivotal national shame.  The title of the show turns out to have much greater significance than a fleeting reference to the Lunar Plaque or an innocent homage to Neil Armstrong’s famed phrase.  Joel Kinnaman returns to earth from Altered Carbon s1 to deliver a credible old-school astronaut struggling to find his place in a changing NASA, while Sonya Walger, as America’s top female astronaut, shines among an extraordinary cast of leading women.

KN Aloysh (Apr. 19).  My friend Komlan Aloysh launched his YouTube channel of interviews with African changemakers by sitting down to Zoom with Rhode Island-residing, Liberian tech entrepreneur Jacob Roland, founder and CEO of West Africa-serving Pygmy Technologies.  Their wide-ranging conversation reached from the transnational tech sector to Liberian food and culture.  Roland well observed, in whatever area one might wish to create, the Liberian market is ripe and ready.  And he tipped viewers off to top unspoilt beaches in Liberia, though I suggest you get there before Chinese developers do.  The show made me conscious of how much I am missing West Africa just now.

What I’m Eating

Bluewater Bar + Grill. This week's self-sacrifice (sarcasm) to #Save­Our­Restaurants went to a local institution and its generous and hard-working staff.  Our bounty included R.I. calamari, battered cauliflower, chili broccoli, burgers and truffle fries, and the pièce de résistance, cinnamon beignets worthy of their Louisiana heritage.

Bread machine.  “While you're watching Ozark and baking bread ... ,” Trevor Noah began a bit this week.  He had my number.  Ozark s3 is on the to-do list, and already I had dragged the bread machine up from the basement.  My aim was to save from waste the remaining brine from a finished jar of pickles.  For reasons unknown, my pickle-juice bread didn’t rise properly.  I got over the initial disappointment.  Though it was dense and a touch chewy, my undersized loaf was delicious, and I ate it up in the course of the week.

What I’m Drinking

New Orleans Blend.  My wife doesn’t usually care for dark roasts, but even she fell for this offering from Community Coffee.  Its rich texture kicks off your day with a Bourbon Street party in your mouth.  Maybe that’s the cabin fever talking, but laissez le bon temps rouler.

Bombay Sapphire East.  This geo-themed gin in classic Bombay blue boasts of Thai lemongrass and Vietnamese peppercorns.  I’m not sure I could distinguish it from straight Sapphire in a taste test, but I’m willing to pay for a foreign feel while stuck in the States.

Veiner Nössliqueur von Pitz-Schweitzer.  A yummy sample of hazelnut liqueur I picked up in Luxembourg: I used it in the icing for the birthday cake.  And maybe I sampled some according to the one-for-the-cup-one-for-the-cook rule.  The drinking policy at my work-from-home-place is super chill.

What I’m Doing to Stay Sane

Burn this.  Our town has suspended yard-waste pickup, so I collected from the yard and burned in the fireplace the winter season’s accumulated kindling.  We had a nice, hot fire for the birthday celebration.  Though I always worry whether the trees outside are alarmed by the smell of smoke from their fallen limbs.


This is the matrix.  Ramadan Mubarak to our Muslim friends, and blessed weekend to all.

Photos in Celebrating, Eating, Drinking, and Staying Sane are mine, CC BY-SA 4.0.