Connexion
Examining the case against dramatic action.
The great irony is that, despite all the fear-mongering spewed out about Donald Trump ending democracy, it is mostly the Democrats who are taking shots at its most sacred freedoms: those of the First Amendment.
The House recently passed a bill, HR 7521, seeking to “ban” the popular app TikTok from America’s smartphones. The logic works like this: TikTok is owned by a Chinese company. Chinese companies are under the control of the Chinese Communists. Therefore, TikTok is brainwashing American youth while at the same time gathering their personal data for some undefined yet assumed nefarious use. TikTok thus should be banned.
No evidence has been presented for any of the assertions listed—no evidence the Chinese government exerts direct control over TikTok, whose contents are 100 percent user-created, no evidence the app has any purpose other than to make money, and no evidence the app collects data to use it in some way, nefarious or not. It just feels scary and bad, as in any other red scare, so the House moved to ban it. The Senate votes soon, and Joe Biden says he will sign the bill if it reaches him.
This is not the first time the government has tried to ban TikTok. In 2021, President Donald Trump issued an executive order against TikTok that was halted in federal court when a judge found it was “arbitrary and capricious.” Another judge characterized the national security threat posted by TikTok as “phrased in the hypothetical.” When the state of Montana tried to ban the app in 2023, a federal judge said that it “oversteps state power and infringes on the constitutional rights of users,” with a “pervasive undertone of anti-Chinese sentiment.” Candidate Trump now opposes the TikTok ban.
You’d think that was enough for TikTok. Yet note the ban is just on a Chinese company owning the app, and the bill allows for an American company or ally to buy TikTok and go on its merry way. It’s not a ban; it’s a hijacking. And don’t think the Chinese won’t find an American app to retaliate against. Listening, Apple and Android?
But that is not where the true First Amendment challenge lies, though “banning” the app can itself be seen as restricting speech in its raw form. The real challenge lies in the details of the TikTok bill, which proves to be another Patriot Act in hiding.
Section 2(a)(1) of the bill prohibits “foreign adversary controlled applications” (FACA) from operating in the U.S. The prohibition applies not just to the app itself but to app stores and Internet hosting providers. There’s even a provision for a penalty of $5,000 per user fine; TikTok has 170 million users.
Effectively, the bill creates a federal government kill switch preventing distribution of “prohibited” apps or websites at the hosting level—clear top-down central government censorship of speech, and absolutely unconstitutional under the First Amendment. Unless, of course, the weasel excuse is used that the actual killing of the imported app is carried out by Apple and Google as proxies without being touched by the Feds, the same trick currently used to gather American citizen data, in addition to direct hoovering up of material by the NSA on a scale the Chinese can only dream of.
What is a “foreign adversary controlled application” under Section 2(g)(3) of the new bill? Any social/content-sharing website, desktop app, mobile or VR app that has more than a million monthly active users creating content is a FACA when two conditions are met: First, if it is “controlled by a foreign adversary” or a subsidiary of or a successor to an entity controlled by a foreign adversary. Second, if the President determines it “presents a significant threat to the national security of the United States.”
The term “controlled by a foreign adversary” means that the company (a) is domiciled in, headquartered in, or organized under the laws of a foreign adversary country; or (b) has a 20 percent ownership group from one of those countries; or (c) is “subject to the direction or control of a foreign person or entity” from one of those countries (Section 2(g)(1). “Adversary” is currently defined elsewhere in the U.S. Code as Russia, China, North Korea or Iran, but can be changed to someday be, say, France (remember “Freedom Fries”?)
There in the details lies the real challenge to the First Amendment, a set of vague criteria that allow the president to ban websites and apps based on his own finding of threat. No appeals, no due process. Censorship.
Americans have a right to speak freely, and to listen/read/watch freely and make up their own minds. The Supreme Court in Lamont v. Postmaster General already ruled in 1965 that this right even extends to foreign propaganda (the case involved Soviet propaganda materials passing through the U.S. Mail.) In addition, the irony of the U.S. government showing concern for what a foreign company might do with user data when in the U.S. such data is openly for sale, including to the government itself, cannot be dismissed. The TikTok ban is bad law, probably unconstitutional, and generally unconscionable.
The TikTok bill is not the only current challenge to the First Amendment. As exposed by the Twitter Files and elsewhere, for years the Biden administration worked hand-in-glove with the big tech social media companies, Jack Dorsey’s old Twitter in particular, to censor speech. Various agencies, including those responsible for Covid-19 policy, would contact the media companies to demand wrongthink posts be taken down. Particularly offensive were conservative posts questioning the efficiency and safety of the Covid vaccine, and those dealing with election fraud.
The question of whether or not the government can do that—demanding specific online speech be killed—reached the Supreme Court, and oral arguments were held earlier this month in the case of Murthy v. Missouri. The Court seemed skeptical of the idea that such action by the government was unconstitutional on its face, as the states claimed. Instead, the justices’ questions seemed to lean toward how the censorship was done.
The government was free to persuade social media carriers, cajole them, argue with them but as long as the government did not force them to take something down, it was likely legal. The states contend the looming power of the federal government made each request, however bland and polite, into a threat. Same as when the mafia thug in the movies says, “Nice place you got here, hate to see anything happen to it if you’re late paying us.” In one interaction a government watchdog seeking to deep-six some posts stated, “the White House is considering its options” if the “voluntary” take down effort fails.
There was room for debate. Justice Alito stated, “When I see the White House and Federal officials repeatedly saying that Facebook and the Federal government should be partners…regular meetings, constant pestering…. Wow, I cannot imagine Federal officials taking that approach to print media.” Alito also thought the barrage of emails from the White House and others to the social media companies may have met the legal standard for coercion.
The states agreed, saying, “Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully… We don’t need coercion as a theory. The government ‘cannot induce, encourage or promote’ to get private actors to do what government cannot: censor Americans’ speech.”
Justice Ketanji Brown Jackson replied, “Whether or not the government can do this…depends on the application of our First Amendment jurisprudence. There may be circumstances in which the government could prohibit certain speech on the internet or otherwise. My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.”
Justice Barrett seemed uncomfortable with the lower courts’ conclusion that the Biden administration could be banned not only from “coercion,” but also from any action that “significantly encourages” platforms to take down protected speech. “Encouragement would sweep in an awful lot,” she said.
Interactions between administration officials and news outlets are part of a valuable dialogue that is not prohibited by the First Amendment, said Justices Kavanaugh and Kagan. The Justices suggested instead there is a role for vigorous efforts by the government to combat bad speech, for example discouraging posts harmful to children or conveying antisemitic or Islamophobic messages.
The remarks of Brown et al. are frightening from a constitutional point of view, basically saying when the government is ineffective in creating dominant content of its own to address public messaging (i.e., “vaccines are safe”) it justifies proxy censorship to eliminate counter information.
A Supreme Court decision is expected in June.
The post Could a TikTok Ban Be a Second Patriot Act? appeared first on The American Conservative.
The American social unrest of 2020 and beyond has petered out with little to show.
As the summer of 2023 winds down, one notices—for all the talk of extreme heat—a cooling off.
2020 saw at least twenty-five deaths from riots. The Crowd Counting Consortium, a group that collects data on politically-motivated public assemblies such as demonstrations, counted 270 instances that year involving property damage or injury to a policeman. The group used that figure to downplay the seriousness of riots following the death of George Floyd.
The most notable civil disturbance of 2021 was the breach of the joint session of Congress to count the votes of electors for the 46th President. Five deaths were recorded in connection with that event, but only one (Ashli Babbitt) was linked to it directly.
The following year, no American incident rated mention in the Wikipedia category “2022 Riots,” as the nation failed to place in a field that included the “Kazakh unrest.” So far this year the only riot of note in the U.S. occurred when a streaming personality announced a fan meetup in New York City to give away video game consoles. As Marx put it in The Eighteenth Brumaire, history repeats itself, the first time tragedy, the second time farce.
This decline in the number and seriousness of American riots is either good or bad news depending on one’s politics, but it surely represents the end of a long-running chivaree that America has been subjected to over the past three years.
It may seem odd to invoke the term “chivaree,” which dates back seven centuries, to analyze current events, but there are several parallels between recent American civil disturbances and the folk custom.
“Chivaree” is an Anglicization of the French word charivari, which is in turn derived from the vulgar Latin caribarium, the act of rattling pots and pans with an iron rod to make noise. Although “chivaree” has passed out of common usage among the educated and urban dwellers, it is still heard in spoken English in small towns. (I last heard it in Green Ridge, Missouri, which has a population of 475.)
“Charivari” referred to a noisy public gathering that could be a positive celebration, such as a wedding, or negative, to scorn behavior that ran counter to community mores, such as wife-beating. (In the former case, the literal practice of pot-rattling manifests at reduced scale by tying tin cans onto the back of the newlyweds’ car as they drive away from the reception.) In the latter, charivaris typically included mocking music or chanting intended to annoy those who were the targets. If things got out of hand, this type could escalate into violence, ranging from minor (carrying the accused around on a long pole) to extreme (tarring and feathering).
Charivaris produce embarrassment or worse for the targets, but nothing for their perpetrators beyond feelings of self-satisfaction and moral superiority: Shaming is the point, not a by-product of the ruckus. So, were the riots of 2020 productive social action, or mere charivaris?
There are measures of well-being—education, employment, personal wealth, life expectancy—that can be used to assess whether the resources that flowed into the political demonstrations of the recent past furthered their stated goals or were counterproductive. If black people were worse off in these categories in 2020 and things have not improved (or gotten worse) since then, one can reasonably conclude that the time, money, and effort spent in taking to the streets were not well-spent: That is to say, that the protests were nothing but a big chivaree.
Take education, for example. The gap between scores of white and black students on achievement tests widened in 2020 and has increased since then, reversing a narrowing trend that had begun in 1975.
Labor statistics are not so bleak, as the gaps between black and white workers grew smaller in terms of unemployment and workforce participation rates from 2020 to 2023. According to the Bureau of Labor Statistics, however, this reflects the fact that, at the onset of that period, blacks were more likely to work in sectors hardest hit by the COVID-19 pandemic, and thus their rebound was greater. The “wealth gap”—the difference between the median wealth of blacks versus whites—has gotten worse since 2019 according to liberal sources such as the Center for American Progress and the Brookings Institution.
In the critical area of public safety, the news was unequivocally bad. According to the National Crime Victim Survey, the rate of gun deaths in large cities rose 37% from 2018 to 2021. African-Americans were disproportionately the victims of these killings; in Chicago, blacks represented 81% of all homicide deaths, in Baltimore, 92%. The victims were overwhelmingly black males—in Baton Rouge 79%, in Louisville, 68%. While there may be several causes of this negative trend, efforts to defund urban police forces must surely be counted as a material factor, and one that has caused some urban mayors to recant their previous positions.
So, the civil unrest that began in 2020 launched a million selfies taken by demonstrators and countless “Black Lives Matter” banners on left-leaning churches and well-tended suburban lawns, but overall did nothing to improve the lot of those for whom the movement claimed to speak, and in some cases worsened it. Rioting, it turns out, is bad for your wealth and your health, and is a diversion from the hard work required in order to change things for the better.
The typical chivaree mob historically was comprised of unmarried young men who would parade through the streets wearing masks or painted faces, and in some cases the dress of a lower-class “out” group, such as blacks and Native Americans. (The Boston Tea Party was a chivaree where participants dressed as Mohawks with painted faces.) Chivaree revelers purported to be non-violent, but this was often camouflage: Participants taunted their targets, hoping to provoke a reaction, and responded in kind when it came. The parallels to the events of the recent past are too obvious to require mention.
At the conclusion of a charivari, gifts were often solicited from the objects of abuse; this was the price paid to get the revelers to go away, much like trick-or-treating by children. Fund-raising by the Black Lives Matter Foundation has declined from $90 million in 2020 to $9 million in the organization’s most recent fiscal year, perhaps as it has become apparent that money was neither the problem, nor the solution, to the riots.
What has changed to make riots less attractive than they were a few years ago? As Samuel Johnson put it, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” There is a presidential election starting up next January, leaving little time to abandon the revelries of the recent past in favor of the sober politics that can avert a political execution.
The principle “No enemies to the left” emerged during the French Revolution; successive avant-garde factions took ever-more-extreme positions in a game of revolutionary one-ups-man-ship, and members of the National Assembly adopted them all in order to maintain power. Once this dynamic takes hold, as it did following the spring of 2020, it takes a sober mind and a courageous heart to emerge from the mob and provide adult supervision.
The post Is Our Long National Chivaree Over? appeared first on The American Conservative.
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