Resolute Square

Elon Musk, Fox News, and Free Speech Absolutism

When the "free speech absolutist" has no interest in free speech.
Credit: Arleen Myers Fields
Published:December 19, 2022

*with Teri Kanefield's generous permission to reprint her brilliant blog

“Free Speech Absolutism”

Elon Musk abolished Twitter’s moderation policies and allowed “America’s most prominent Nazi,” Andrew Anglin, back onto Twitter along with Donald Trump. He declared himself a “free speech absolutist” and said all voices should be heard.

Then, on Thursday, he went on a binge and suspended the Twitter accounts of a number of well-known journalists. He offered a flimsy pretext, claiming that the journalists had told people his family’s location. It was a lie. In fact, they were criticizing him, and he didn’t like it.

Because Musk claims to be a free speech absolutist and has been criticizing the previous owners of Twitter for banning people and content, people pointed out his hypocrisy—but what he did was worse than that.

Max Fisher, an international reporter and columnist for The New York Times said this about Musk and friends:

Last week, I wrote about how Musk, Peter Thiel, and others in their circle believe that freedom and democracy are no longer “compatible.” People who don’t want democracy don’t have many alternatives, which is why Peter Thiel and friends support the idea of an elected autocrat. A person who prefers an autocrat doesn’t want freedom of the press. Freedom of the press is protected in the constitution precisely because the first thing an autocrat wants to do is control the press.

In banning journalists while declaring himself a “free speech absolutist,” Musk was demonstrating that “free speech absolutism” is just another name for a Russian propaganda technique known as “noise.”

The notion that all voices, including “dissenting” voices, must be heard makes sense if the dissenters agree on the basic facts (like “up is up” and “Biden won the 2020 election”). In an intact public sphere (which is required for a working democracy), people agree on the facts but disagree on the best way forward. But if the “dissenting voices” amount to conspiracy theories and lies, the “all voices deserve equal consideration” policy becomes a way to elevate and legitimize lies and conspiracy theories. This elevates and legitimizes lies. It also crowds the airways, jams the signals, and confuses people with noise.

Insisting that lies share a platform with truth under the guise of “all voices must be heard” is thus a technique for spreading and giving credence to disinformation, which creates confusion and undermines factuality, which in turn destroys democracy.

The propagandist has a neat tool. He accuses people who want to de-platform lies of being opposed to “free speech.” This confuses people and is thus effective.

After elevating lies, the Free Speech Absolutist shuts down the opposition on invented grounds

The final stage in the propaganda technique is for the propagandist to silence truth on invented grounds such as, “That person is advancing pedophilia,” or, in Musk’s case, “That person is revealing my location.”

“Free Speech absolutism” has nothing to do with the First Amendment

The First Amendment offers protection from the government:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Saying “You’re a fat ugly pig” is allowable under the First Amendment, but a person who goes around saying things like this deserves to be shunned and ignored. We teach our children manners. There are things you don’t say. “Look at that fat ugly lady,” is one of them. “Hitler had great ideas” is another. Manners and social norms have nothing whatsoever to do with Constitutional protections. If you enter a person’s place of business and say, “Hitler had great ideas,” and the business owner escorts you out, that business owner has not violated your Constitutional rights.

False Equivalence

Sometimes I can’t tell whether propagandists are stupid and believe their own nonsense or whether they are cleverly advancing well-known propaganda techniques, such as False Equivalence. Like this:

  1. Conservatives complained when Trump was banned from Twitter for spreading election lies and inciting a literal insurrection in which people died.
  2. Liberals complained when journalists were banned from Twitter on Elon Musk’s whim.
  3. The propagandist says, “you’re hypocrites! You liked it when Conservatives were banned, but now you complain when liberals are banned.”

The problem with that, of course, is that the reasons for the banning are not the same. Being banned for spreading lies and inciting an insurrection is not the same as being banned on the whim of the owner.

At the same time, analogies comparing Musk to autocratic political leaders are misplaced. The better analogy is that Twitter is a business run by a right-wing fanatic who is attempting to turn it into a mouthpiece for right-wing propaganda.

The problem with a liar is you never know whether they are lying on purpose because they are evil or they are lying because they have serious issues. I mean, maybe Musk really believes in the QAnon conspiracy theories and thinks that most mainstream journalists (the ones he banned were from NBC and the New York Times) are evil liars. As I was writing this, Musk had this conversation:

“Catturd,” incidentally, has a “verified” badge because he agreed to pay Musk $8 monthly. (For people not accustomed to Twitter, before Musk, the badge meant that you were notable in government or one of the professions. Musk said that policy was “corrupt” and now sells verification.)

It’s Musk’s platform, so he makes the rules, but we don’t have to listen to him or support his platform.

The Dominion / Fox Defamation Lawsuit

The First Amendment protects lies, but no rights are absolute. Sometimes lies are so egregious that they can cause a person financial and other damages, in which case the person who was the target of the lies can sue for damages.

Dominion Voting Systems v. Fox News provides an example.

Background: Fox News spread lies about Dominion Voting Machines, which caused the company financial damages and made company employees and executives the targets of harassment and death threats. Dominion Voting Systems, therefore, sued Fox for $1.6 billion, claiming that Fox knowingly spread false claims that its machines were used to rig the 2020 election. (The complaint is here.)

Fox tried to get the case tossed out on First Amendment grounds but lost, so the case is going forward. The law that applies comes from a Supreme Court case called New York Times v. Sullivan.

New York Times v. Sullivan in a nutshell: The dispute arose during the 1960s Civil Rights. The New York Times published an ad seeking contributions to defend Martin Luther King. Sullivan, a city Public Safety Commissioner in Alabama, understood that the ad was criticizing him and his subordinates. Hoping to put the pro-civil rights New York Times out of business, Sullivan sued the New York Times and a group of Black Alabama ministers for libel on the grounds that the ad contained a few factual inaccuracies and libeled him. (He was not mentioned by name in the ad.) He sued under Alabama libel law. A local jury in Alabama awarded Sullivan $500,000 in damages against New York Times, a staggering amount for a newspaper to pay. The Alabama State Supreme Court affirmed the judgment.
The New York Times appealed to the US Supreme Court. The question was whether the Alabama libel law constitutionally infringed on the New York Times’ First Amendment’s freedom of speech and freedom of press protections.

In deciding the case, the Supreme Court set out a standard for deciding when a publication is liable for lies or inaccuracies:

"When a statement concerns a public figure, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity."

The standard is meant to be difficult to meet. The idea is that it shouldn’t be too easy for people to put newspapers out of business or sue and bankrupt a person who criticized you. Under the heightened standard, Sullivan lost. Imagine if Sullivan had won:

Segregationalists would have gone around putting any newspaper that “libeled” them out of business. If you criticized segregationalists, one could sue you.

One of the issues in Dominion Voting Machines v. Fox is presumably whether Dominion is a public figure. It appears that is still to be decided. If Dominion is not a public figure (and, of course, Dominion will certainly argue that it is just a company that makes a product and is not a “public figure”), it will be easier for them to prevail.

Dominion is now deposing Rubert Murdoch and other top executives. I am not a civil litigator, but I assume that discovery works the way criminal investigations work: They start with the lowest rung and work upward in the hopes that underlings will implicate their bosses. They’re looking for evidence that Fox executives or employees lied with “knowledge of or reckless disregard for their falsity.”

Will Dominion win?

I hope so.

The Challenge to the Obstruction Statute

Now, I am entirely changing the subject to criminal investigations.

One of my readers on Mastodon said this:

Teri, I’m so angry today that the DC circuit is considering overturning hundreds of convictions today based on Carl Nichols's objections to the obstruction charge.
You may have seen the headlines, which looked like this:

Federal appeals judges weigh fate of hundreds of Jan. 6 cases:

Hundreds of prosecutions in the Jan. 6, 2021, Capitol riot were hanging in the balance as a panel of federal judges on Monday debated the constitutionality of the Justice Department’s lead felony charge.

Here’s what is going on. Prosecutors have been getting convictions against January 6 insurrectionists under U.S.C. 1512 (c) (2) , which says:

“Whoever corruptly … obstructs, influences, or impedes any official proceeding or attempts to do so” has violated U.S.C. 1512 (c) (2) — and violating this statute is a felony that carries a penalty of up to 20 years in federal prison.”

Defense lawyers have been trying, so far without success, to throw out charges under this section of the U.S. Code by arguing (among other things) that it was not intended to apply to something like the January 6 attack.

Defense arguments focus on the legislative history and purpose of the statute. The law was enacted in 2002 after the Enron accounting fraud scandal. On Oct. 17, 2001, the Securities and Exchange Commission informed the Enron Corporation that it had initiated a formal inquiry into its accounting practices. Two days later, Enron’s accounting firm, Arthur Andersen, launched what prosecutors called a “wholesale destruction” of documents. Later, they defended the shredding of documents on the grounds that under the law as it then stood, destroying evidence was illegal only if an official proceeding was pending.

So Congress passed the Sarbanes-Oxley Act, which included the section on obstructing official proceedings, as a comprehensive revision of corporate accounting practices. Since then, the statutory language has been used to preserve evidence in investigations of white-collar crime and penalize those who destroy such evidence.

Given this background, Jan. 6 defendants have argued that an “official proceeding” under this statute is limited to hearings where evidence is being presented, and facts or rights are being determined. The counting of electoral votes, they argue, was a “ceremonial and administrative event” and not an “official proceeding” under the law. Therefore, they argue, charges brought against the insurrectionists for obstructing the counting of electoral votes should be dismissed.

The defendants were mostly losing on these arguments in court. Now, as expected, they are raising these arguments on appeal. I expect they will lose, but you never know. Two of the justices on the panel felt there were problems with the defense reading of the statute and DOJ reading, so the appellate court may come up with something in between.

I would assume that anyone convicted of obstruction was also convicted of other offenses like trespass, so what the defendants are mostly hoping for is a reduction in prison sentences.

Prosecutors always knew that this would be challenged on appeal. Defense attorneys are allowed to challenge statutes. That’s what they do. Courts “consider” things. That’s also what they do. (And they often get it wrong.)

Someone on Mastodon responded with this:

All challenges? what about ones made in bad faith to weaponize the system against victims? what we see Trump and his allies do time and again.

The legal standard is that lawyers can bring challenges as long as they are not frivolous. This means almost anything goes, and it’s up to the court to decide whether the challenge has merit.

When I brought appeals on behalf of indigents, some people told me I was wasting state resources on unworthy people or people who were obviously guilty. The thing about procedure is that it has to apply equally to all people, those you like and those you don’t like, those you think are guilty, and those you think are getting a bad rap because they’re poor and everything is stacked against them (like my clients.)

Defense lawyers have a duty to their clients. If they don’t offer a robust defense, they’re actually in violation of their ethical obligation.

Now I’ll jump up on my soapbox and address the: “Why hasn’t Trump been indicted yet and thrown into prison when we all know he is guilty?” crowd.

It isn’t so easy, and it isn’t meant to be. Indictments are just the beginning. You can count on objections, motions, a nail-biting trial, jurors who may secretly be MAGA fanatics, appeals, etc. It’s not like in the movies. In real life, it’s a long, harrowing process.

Speaking of long, harrowing processes, I updated my FAQ page to include the most recent events(Updates are in red.)

Multi-tasking: Sunbathing while making sure nobody comes through the door.