Hey all. Let's hop to it.
I don’t know that there’s ever an ideal time to be writing a book about ditching the Constitution, but it is a particularly odd moment for the project. While the deficiencies of our federal institutions have become more obvious to liberals over the last few years, the right’s also lurching towards a more ambivalent relationship with the compact — there’s a quixotic but evidently well-financed effort to trigger an Article V convention underway, voices like Adrian Vermuele have been urging a move beyond conservative originalism, and Trump cut straight to the chase yesterday with a call for the Constitution’s “termination” over the 2020 election and the supposed suppression of stories on the Hunter Biden laptop, which we’ll get to in a bit.
Given all this, taking up the Constitution’s defense from the left seems tempting, at least as a short-run political strategy — most voters are still fond of the thing, for better or for worse, and figures on the right are exploring a turn against it for all the wrong reasons. As it happens, I was recently at a conference in DC on Joseph Fishkin and William E. Forbath’s The Anti-Oligarchy Constitution, which argues that progressives should resurrect the tradition of utilizing the Constitution to advance their policy aims, particularly on issues of political economy. It was a great event, though I left it with just about the same mixed feelings about that agenda that I had coming in.
You’ll have to wait for my book for a fuller account of my reservations, but one thing I’ll say here is that we really do have to address the lobotomizing role the Constitution plays in public discourse. Whatever uses might remain for it as a matter of policy, it won’t do to continue treating it as reverentially as we do now. Beyond its function in law, it’s a totem that smothers discussion, a rhetorical weapon that ends theoretical and philosophical debates where they ought to begin. Nowhere is this clearer than in discourse over free speech, which this country now considers coextensive with the First Amendment — as though the principle itself is shaped and governed by the parameters of American constitutional law.
As I’ve written previously, American speech law is actually very permissive compared to the speech regimes of liberal peer nations. Hate speech laws, for one, are common in European countries we tend to consider free. It’s entirely possible Kanye West would have faced prosecution for his recent comments on Nazis and the Holocaust if he’d made them in France or Germany. But, obviously, neither country is an Orwellian society or on the cusp of becoming so. Speech is complicated; despite our pretensions and the liberality of First Amendment jurisprudence, not even we enjoy a fully unfettered speech environment. Liberal societies can reason their way towards certain defensible restrictions and debate them.
All that said, I do think the American speech regime is fairly close to the ideal; I don’t think concerns about the power afforded governments by hate speech laws are unfounded. The First Amendment and other restrictions we place on government’s capacity to act on us are important because governments, well, govern. They make, execute, and adjudicate the laws; they enjoy a monopoly on violence. Governments are part of the fundamental architecture of society. For that reason, it’s important that they treat each of us fairly. And given their power, it should be difficult for them to take serious action against us. But governments are not, themselves, society. And this is where the inanity of First Amendment discourse often lies. It’s not especially difficult to come up with good reasons why the federal government shouldn’t sanction someone for denying the Holocaust or arguing that Ancient Rome never existed. It’s far more difficult to come up with good reasons why universities, and especially private universities shouldn’t.
In fact, as I’ve also written previously, universities and other non-governing institutions and organizations in liberal societies enjoy the freedom of association — a right as important as and deeply enmeshed with the freedom of speech which allows them to come together for a common purpose or in alignment with particular values. Intuitively, most of us understand that it would be illiberal for the government to butt in and demand that a particular perspective on history be taught or not taught at Yale, or that The New York Times should cover or not cover a story in a particular way. And, as it happens, this would violate the First Amendment. Other groups and we, as individuals, are obviously free to make those arguments. This does not violate the First Amendment. And Yale and The New York Times are free to tell us to buzz off. This doesn’t violate the First Amendment either. This is what freedom means.
This brings us, as I suppose all things must, to Twitter. I’ll lay my cards fully on the table here and say that I really haven’t followed the Hunter Biden story very closely at all; I don’t think I could name a widely discussed political subject I care less about. As best as I can gather, Hunter got himself into tax and lobbying trouble and might have traded on his name and proximity to his father to secure and sweeten business deals — a grave and unprecedented wrong brought to our attention by the scrupulously meritocratic Trump family. You, dear readers, may well know more about all this than I do; it seems extremely telling to me that all the hue and cry on the right now is about the supposed suppression of the story rather than the substantive allegations against Hunter themselves, which major outlets have, in fact, covered. The New York Times on the Justice Department’s investigation in March:
The investigation, which began as a tax inquiry under the Obama administration, widened in 2018 to include possible criminal violations of tax laws, as well as foreign lobbying and money laundering rules, according to the people familiar with the inquiry.
But prosecutors face a number of hurdles to bringing criminal charges, the people familiar with the investigation said, including proving that Mr. Biden intentionally violated the Foreign Agents Registration Act, or FARA, which requires disclosure to the Justice Department of lobbying or public relations assistance on behalf of foreign clients.
The Justice Department has given no public indication that it has made decisions about any element of the case, and Mr. Biden has not been charged with any crime.
Now, one specific claim Trump’s camp has made about all this is that Hunter actually brokered meetings between Joe Biden and some of his business associates while Joe was Vice President. Much of the evidence they’ve offered for this has come from a laptop of Hunter’s that was seized by the FBI in 2019. Not long afterwards, the shop’s owner gave a copy of the laptop’s hard drive to associates of Rudy Giuliani, who in turn fed material from the laptop to The New York Post. The Post ran a story alleging a particular Biden meeting based on an email just a few weeks before the election in October 2020. Of course, the Biden campaign denied everything. More interestingly, the Post reporter who wrote most of the article refused a byline, the Times has reported, "because of concerns about its credibility.”
Again, none of the substance of all this has mattered as much on the right as the idea that incriminating materials have been suppressed by the powers that be— this is what all the yammering about the Biden laptop over the past couple of years has been about. And on Friday, Matt Taibbi tweeted a thread featuring internal documents from Twitter showing how the company managed the dissemination of the Post’s story in its immediate aftermath. “Twitter took extraordinary steps to suppress the story, removing links and posting warnings that it may be ‘unsafe,’” he wrote. “They even blocked its transmission via direct message, a tool hitherto reserved for extreme cases, e.g. child pornography.” The justification offered for this was that materials from the laptop violated existing policy on disseminating hacked content — it wasn’t clear at the time where and how the Post had obtained the emails they published. There was some internal debate about that call, but Taibbi doesn’t really make a real argument that the policy had been wrongly applied in his thread — where he notes too, incidentally, that requests to moderate particular subjects and accounts from both the Biden and Trump campaigns had been “received and honored” in 2020. Naturally, this is offered without much elaboration.
Instead, there’s been a lot of babbling about free speech, including appeals to our promiscuous friend, the First Amendment.
Remarkably, within the very internal emails Taibbi posted, Democratic Congressman Ro Khanna apparently made the same argument to Twitter’s then head of “legal, policy, and trust” Vijaya Gadde:
[T]his seems a violation of the 1st Amendment principles. If there is a hack of classified information or other information that could expose a serious war crime and the NYT was to publish it, I think the NYT should have that right. A journalist should not be held accountable for the illegal actions of the source unless they actively aided the hack. So to restrict the distribution of that material, especially regarding a Presidential candidate, seems not in keeping of the principles of NYT v Sullivan. I say this as a total Biden partisan and convinced he didn’t do anything wrong. But the story has now become more about censorship than relatively innocuous emails and it’s become a bigger deal than it would have been.
Now, policy differences we might have aside, I think Ro Khanna’s an intelligent person — which speaks, I think, to just how tangled and confused speech discourse has become. Certain elementary distinctions that ought to be obvious escape people who should know better; there are strange conflations and disanalogies everywhere.
Take Khanna’s invocation of New York Times v. Sullivan, a 1964 case where a local public safety commissioner sued the Times under Alabama’s libel laws over inaccuracies in an ad they had run. The Supreme Court ultimately ruled that public officials have to prove libel by demonstrating that false statements have been made intentionally or with reckless disregard for the truth. It’s a very famous and very good landmark ruling well known to perhaps most journalists working today. It also has nothing whatsoever to do with Hunter Biden’s laptop and Twitter. Even if we’re to sustain an analogy between Twitter and a publication, no libel suit or libel laws are at issue here.
In fact, Khanna’s email suggests he actually mixed up New York Times vs. Sullivan with a completely different case — 1971’s New York Times v. U.S. over the Nixon administration’s attempts to block the Times’ and The Washington Post's publication of the Pentagon Papers, classified documents about the Vietnam War which had been leaked by Daniel Ellsberg. The Court backed the newspapers, as it should have. The justices in the majority differed on specific points (my understanding is that most did not actually agree with Khanna’s suggestion that newspapers should have the right to publish important classified information tout court; those with better knowledge of the case and subsequent jurisprudence should feel free to write in) but they were all plainly uneasy with how readily the government had tried to censor journalists.
But what the Supreme Court definitely has not said, in New York Times v. U.S. or anywhere else, is that private companies and institutions like Twitter have an obligation to disseminate what The New York Times, The New York Post, or any other such publication reports. Twitter can moderate, block, or promote stories as it sees fit because Twitter — stay with me here — is not the government.
In fact, the government stepping in and directly demanding that Twitter’s moderators treat certain content in a certain way would itself raise First Amendment issues and, more broadly, cut against the principle of free association. This is one of the unintentional ironies of Taibbi’s thread, actually. I’m not alleging any legally actionable behavior here, but his acknowledgement that Trump’s camp also pressured Twitter into moderating content is interesting to me. As you might recall, Donald Trump, at the time of the 2020 election, was the sitting president of the United States. Joe Biden was a private citizen. And by Taibbi’s own account, there is no evidence “of any government involvement in the laptop story” on Biden’s behalf. Contra Musk, if there are any First Amendment issues to investigate here – and again, I doubt there are – they would probably be on Trump’s side of the ledger.
Now, of course, we might believe there are all kinds of normative reasons why Twitter shouldn’t have suppressed the laptop story. That’s a debate to have. But I’m wary and weary of such debates devolving into dueling claims about free speech in the abstract or, worse, the First Amendment, which shouldn’t enter into the picture at all. There’s something perverse, I think, about talking ourselves into the idea that our private endeavors should be shaped and limited by the strictures we’ve more sensibly placed upon government. I don’t like that a major artery of public discourse is now run by a grifting manchild. I don’t think that justifies the notion that content on Twitter should be regulated, formally or informally, as though the company were an organ of the state.
I think at least some of the people on the left who seem to disagree would see that principle more clearly if Twitter were a remarkably successful and unabashedly left-wing worker cooperative. I hope it is one day; ideally, we’d dismiss the idea that it would have a First Amendment obligation to elevate far-right accounts and ideas if that ever came to pass. I also wouldn’t mind some kind of public or quasi-public social media platform I guess, though I doubt a State Twitter with the ethos of the Corporation for Public Broadcasting would push the same buttons as the genuine article. The alternative would be a truly and fully First Amendment-bound site, meaning a site crawling with Constitutionally-protected Nazis. I suppose that’s why people like former Congressman Steve King have been among those calling for the tech platforms to be regulated as public utilities. There’s a lot of talk too on the right, of course, about Section 230 reform, which, as Republican policymakers like Josh Hawley have conceived it at least, would force platforms to either prove to government regulators that they're unbiased or lose immunity to lawsuits over the content they host. Both options would obviously incentivize broader and stricter moderation than we have now. This is the idea being bandied about as a pro-speech reform.
I’m all for breaking up, smashing, and disintegrating Big Tech when it comes to issues outside content moderation, which isn’t to say thinking through content moderation isn’t important. But it does seem like there’s a lot of wishcasting happening among liberals and conservatives alike about what different moderation regimes might accomplish. The liberal fixation on misinformation was birthed out of a longstanding premise and prejudice — that deep conflicts about values in this country are really conflicts about facts benighted and misled conservatives would embrace if we waved them in their faces more aggressively. Meanwhile, on the right, there’s a conviction that winning the social media wars will help cement a place for conservative ideas in the public sphere even as public opinion changes.
And really, this is what invocations of the First Amendment more broadly often seem to be about. We might think an idea offensive or insensible, it’s often argued, but a commitment to free speech means a commitment to the First Amendment, and a commitment to the First Amendment means, in turn, a commitment to expanding its domain into every corner of our lives. Like the government, we’re obligated to protect conservative ideas in our organizations, in our publications, and on our timelines. But we’re not, actually. Them’s the breaks. Whatever faith you might choose to retain in the Constitution as a governing document, it can't be argued that it contains all the equipment we need to adjudicate all the disputes of civic and private life. Instead, we have recourse to our own reason and our own judgment. Or at least we should.
“Very Online Guy” — Alvvays (2022)
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