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Daily Archives: January 9, 2021
The data that proves that a list vote for Plaid Cymru is the best way to beat Abolish in every region – Nation.Cymru
Posted: January 9, 2021 at 2:55 pm
Mark Reckless and Nigel Farage. PjrNews / Alamy Stock Photo.Adam Price: Picture by Plaid Cymru (CC BY-NC-ND 2.0)
Math Wiliam
Im grateful to Nation.Cymru for allowing me to respond to a recent article published earlier this week by Dafydd Trystan, where he predicted that the fourth list seat across several regions in Wales may well come down to a close fight between Abolish and the Greens.
I have great respect for Dafydd Trystan, as a former Chair and Chief Executive of Plaid Cymru and someone Ive campaigned alongside in Cardiff South and Penarth in the past.
But I feel the urgent need to respond to his prediction due to a genuine fear that if people mistakenly believe the Greens have a chance of winning seats on the list and then vote accordingly, the result will be a greater number of Abolish the Assembly representatives being elected to the Senedd than would otherwise be the case.
There are two elements to my rebuttal. Firstly I will show through data analysis that the Greens are nowhere near winning a list seat in any region based on current polling, and that the battle for the fourth seat is a Plaid Cymru v Tory/Abolish contest in every single one.
Secondly, I will explain why I believe that its very unlikely that pro-independence Labour supporters will decide to vote Green over Plaid Cymru on the list.
In the interests of transparency, Ill declare an interest in being a dedicated Plaid Cymru member. In this regard I am also happy to make public the calculations I did in coming to my conclusions.
What the data tells us
There are two sources of data that can be used to ascertain the current state of play in each region ahead of Mays Senedd election.
The first is obviously the result of the last Senedd election, which every pollster uses as a base for making projections for the next election.
The second is the most recent Welsh poll. This is provided by the latest Cardiff University / ITV Wales Barometer from October 2020.
Im sure many Nation readers enjoy reading Roger Scullys Elections in Wales blog, where he makes seat projections based on the results of each poll. My method is similar to his and comes to very similar conclusions based on the last poll. But what you dont get on Mr Scullys blog is projections about how close (or how far) the contest is in terms of the fourth seat in each region.
In order to gain this understanding, Ive taken the results of the last poll and used the data to work out the multiplier for how many votes each party is likely to gain or lose in each region. For example, Labour secured 31.5% of the list vote in 2016, but theyre now on 33% on the list. This means Ill be multiplying their 2016 vote for each region by the long number you get when you divide 33 with 31.5 (using an Excel formula rather than pen and paper!). For an explanation about how the DHondt system which the Senedd uses works, click here.
I will now share what the resulted projections are for each region on the basis that Mr Scully was correct in projecting that only one constituency seat will currently change hands, which is the Vale of Glamorgan being taken from Labour by the Tories. This could all change before May of course, especially given that the party campaigns are yet to reach full swing, so this analysis is based purely on the current polling context.
North Wales
The 2016 contest for top spot in the North Wales region was extremely close between Plaid Cymru and the Tories, ultimately giving the parties one seat each, since the other two were taken by UKIP who had a relatively high regional vote share but no constituencies.
According to the latest data, the Tories look set to take seat 1 with Plaid Cymru taking seat 2. The third looks set to be taken by Abolish with the Tories on course to win the fourth. But the question is: which party is best placed to take that fourth seat away from the Tories (or Abolish if they fail to beat the Tories into third place)?
The answer is clear-cut: it is Plaid Cymru. There is a 5,000 vote difference between Plaid Cymru and the Greens in the challenge for fourth spot. The Greens are nowhere near.
I decided it would be fun to work out which seat the Greens would get if there were an infinite number of list seats. The answer is seat number 20.
In order to gain the fourth list seat the Greens would need over 14,000 votes. They are currently on course to win just 6,385. A vote for the Greens on the North Wales list will be a wasted vote unless they double the 4% theyre currently on nationally.
It is worth noting also that Labour dont pick up a seat until seat number 7 (because of the high number of constituencies they hold) which means that a Labour vote on the list will not do anything to keep out Abolish, or the Tories either. In a theme that will play out for every region: the best way of beating the right-wing abolitionists on the list is to give Plaid Cymru your second vote, whomever you decide to give your first vote to.
Conclusion: Its a three-way contest between Plaid Cymru, the Tories and Abolish for seats 3 and 4.
Mid and West
This is the region where the Greens got their biggest share of the vote in 2016 with 3.8%. So are they in with a chance of competing for the fourth seat here as things currently stand? The answer is no.
The Mid and West region is the only one where Labour pick up list seats, and theyre currently on course to retain the two theyve already got.
My analysis suggests that Abolish will take the third seat comfortably here if the national swing plays out as expected.
The fourth seat is an extremely close battle between the Tories and Plaid Cymru, with the Tories currently set to squeeze it by fewer than 500 regional votes over Plaid Cymru.
Since it seems that its now a prerequisite for new Tory candidates to support abolition and that they will have a new candidate since they dont currently have a list seat here, the best way to prevent an abolitionist being elected is to vote Plaid Cymru. Theres no point in voting for a Tory abolitionist to stop an Abolish abolitionist.
The Greens are over 3,000 votes away from being in contention. With an infinite number of seats, theyd get seat number 8.
I would add that its only fair to mention that if the Lib Dems to lose Brecon and Radnorshire, theyd be in the running for seat 4.
Conclusion: A two-way contest between Plaid Cymru and the Tories for seat 4 (becoming a three-way contest with the Lib Dems if they lose Brecon and Radnorshire).
South Wales West
If the constituencies play out in accordance with Roger Scullys latest projection, Labour would win every seat in this region. This would leave the Tories and Plaid Cymru to pick up two list seats each. But its by no means a foregone conclusion.
My analysis shows the Tories taking seats 1 and 3, with Plaid Cymru taking seat 2 comfortably and seat 4 being a head-to-head between Plaid Cymru and Abolish.
Plaid Cymru currently hold the advantage, but its not a major one. The Greens again are nowhere to be seen, being 8,000 votes off the mark. Theyd pick up seat number 17, if it existed.
Conclusion: Two-way contest between Plaid Cymru and Abolish for seat 4.
South Wales Central
The Tories look set to increase their representation in this region. As well as gaining the Vale of Glamorgan, they currently look set to retain their two list seats as well. While seats 1 and 2 go comfortably to the Tories and Plaid Cymru, its much closer for 3 and 4.
As things stand, the Tories take seat 3 with Plaid Cymru just about managing to hold Abolish off for seat 4. It is very close though, with fewer than 1,000 votes in it. Given their high number of constituency seats, Labour dont come close. But they do come closer than the Greens who are once again trailing by a country mile. Theyd get seat number 10 in our parallel humungous-Senedd reality.
Conclusion: A two-way contest between Plaid Cymru and Abolish for seat 4.
South Wales East
Given the fact that Dafydd Trystans article included a picture of the Greens candidate for South Wales East, you might expect this to be their best chance of winning a seat. You would be very wrong. The Greens wouldnt pick up a seat here until seat 18.
As things stand it looks like two list seats each for Plaid Cymru and the Tories. However, I will note that seats 3 and 4 looks like being an extremely close four-way contest involving the Brexit Party/Reform UK (assuming that the 2016 UKIP vote is indicative of a 2021 Brexit Party/Reform UK vote).
There are fewer than 1,000 votes between the four parties for seats 3 and 4. Currently, Abolish currently look set to miss out, but Plaid Cymru will need a good vote here to keep them at bay.
Conclusion: A four-way contest for seats 3 and 4 between Plaid Cymru, Tories, Abolish and Brexit Party/Reform UK (although its very difficult to say what will happen with regards to the Brexit Party/Reform UK vote)
A Green Surge?
While Ive definitively proved that the Greens look set to continue their historical trend of not coming close to winning a seat in any region, this is based on current polling that shows them on 4% nation-wide (and yes, that nation being Wales).
But Dafydd Trystans prediction is predicated on a big increase in Green support, which would obviously change the dynamic. He says:
Will the Greens recent unequivocal support for Welsh independence place them in a stronger position than previously to attract second votes on the regional list, particularly from Labour voters who are increasingly pro-independence or at the very least indy-curious according to every recent opinion poll?
This assertion cannot be proven either way in advance of the result, which well hopefully get on Friday May 7, 2021. But there are a number of very good reasons to think that this is very unlikely indeed.
It is inaccurate to state that the Welsh Greens unequivocally support independence. All theyve said is that theyd campaign for independence if a referendum was called. They havent committed to pushing for a referendum, while Plaid Cymru has. And lets not forget that their members voted against becoming an independent Welsh Green Party in 2018, preferring to remain a branch of the England and Wales Green Party. If they dont even want independence for themselves, why would they prioritise campaigning for independence for Wales?
And if Labour supporters feel strongly enough about independence to vote for another party on the list, why would they opt for a Green Party for whom independence is not a priority when they can make independence a real possibility by voting for Plaid Cymru?
Theres also the fact that Welsh electors generally know that the Greens wont get elected. Theyve never come close to winning a Senedd seat, and they never will until we reform our electoral arrangements. People know this, they can sense it, and would only think otherwise if they were incorrectly told the opposite. So why waste a vote on them when they can vote for a party that can get elected at the expense of Abolish?
The takeout from all this is abundantly clear. A list vote for Plaid Cymru is the best way of beating abolitionists in May. Its the best way of keeping fascists out of our Senedd. And its the only way of securing an independence referendum for Wales.
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Trump Calls For Peace As Riot Roils Capitol: ‘You Have To Go Home Now’ – The Federalist
Posted: at 2:55 pm
President Donald Trump called for peace in a video after a mob of his supporters violently breached the Capitol building on Wednesday in protest of the certification of the 2020 election results for Democrat Joe Biden.
I know your pain. I know your hurt, Trump stated. We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side. But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We dont want anybody hurt, he said. Its a very tough period of time. There has never been a time like this where such a thing happened where they could take it away from all of us from me, from you, from our country.
Trump continued his message by telling his supporters to go home even if they were upset about voter fraud and election integrity.
This was a fraudulent election. But we cant play into the hands of these people. We have to have peace. So go home. We love you. Youre very special, Trump said. Youve seen what happens you see the way others are treated that are so bad and so evil. I know how you feel. But go home and go home in peace, he added.
Trumps message which Twitter flagged as a claim of election fraud that is disputed, prohibiting people from liking the tweet, replying to it, or responding to it due to a risk of violence comes after multiple members of Congress condemned the chaos and called on the protesters to leave.
Vice President Mike Pence previously called for people to leave the Capitol building, saying that those involved will be prosecuted to the fullest extent of the law.
The violence and destruction taking place at the US Capitol Must Stop and it Must Stop Now. Anyone involved must respect Law Enforcement officers and immediately leave the building, he wrote on Twitter. Peaceful protest is the right of every American but this attack on our Capitol will not be tolerated and those involved will be prosecuted to the fullest extent of the law.
President-elect Biden also denounced the Capitol chaos, calling on the disorder to end.
During the breach of the Capitol, a woman was reportedly shot in the chest and is in critical condition.
Jordan Davidson is a staff writer at The Federalist. She graduated from Baylor University where she majored in political science and minored in journalism.
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Trump Calls For Peace As Riot Roils Capitol: 'You Have To Go Home Now' - The Federalist
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I lost a law school election to Josh Hawley. I moved on then, and he should now on Trump. – USA TODAY
Posted: at 2:55 pm
Irina D. Manta, Opinion contributor Published 3:15 a.m. ET Jan. 5, 2021 | Updated 2:20 p.m. ET Jan. 5, 2021
He beat me for president of the Yale Law School Federalist Society by exploiting the rules. He should follow my example and not contest Trump's loss.
Sen. Josh Hawley has made waves with his call for Republican senators to object to President-elect Joe Bidens election victoryand force Congress to voteWednesdayon whether to accept the Electoral College results.I invite Sen. Hawley to reconsider his misguided position and, instead, to do what I did when I lost an election to no other than him: Show grace in defeat.The principle is the same whether the election is for president of the United States or, as with us, for president of a campus club.
Sen. Hawley, R-Mo., and I were both members of the Yale Law School Class of 2006. While we had our differences, we shared a common bond through our joint participation in the schools fairly small Federalist Society, made up of mostly conservative and libertarian law students.
At the end of our first year, we were both electedas vice presidents for events of the YLS Federalist Society. Collaborating in these positions in our second year proved difficult. I organized the lion's share of the groups events and frequently received no responses from him on emails I sent to him and the societys president that year. This puzzled me because I thought ourgoal was to make the organization as strong as possible, and failure to communicate was an obstacle.
This isnt to say that Sen. Hawley didnt have his qualities as a vice president. For example, his marketing skills certainly contributed tostrong turnout at an event with the late Harvard Law School professor William Stuntz. While I did more work that year, Sen. Hawley knew better how to shine the spotlight on his contributions, which is an important skill in the political arena.
The YLS Federalist Societys presidential electionstarted rolling around the spring of our second year, in 2005, and it was traditional for one of the two VPs for events to assume that role. Sen. Hawley and I each announced our candidacies. Shortly before the election, a friend tipped me off to how Sen. Hawley was planning to beat me, given that he was uncertain he coulddo so based onvotes only fromregular members who knew our records best.
Irina Manta on May 22, 2006, in the Lillian Goldman Library at Yale Law School.(Photo: Family courtesy)
Asappearedaccuratebased on the eventual turnout, Sen. Hawley had obtained from the sitting president the student email addresses for the YLS Federalist Society Listserv (and the president, whom I had helped to win the previous year, did not volunteer that information to me at that stage). The rule was that anyone who had signed up for the Listserv by a certain earlier date could vote in the societys elections. This included a bunch of people whodid not attend events and had little or no involvement with the society.
Hawley's White House path:Be No. 1 at pandering to President Trump and trampling democracy
The rule, while easy to administer, was a bad one. It even had the potential for individuals to co-opt the society for the sole purpose of destroying it. Historically, however, nobody had exploited that rule, to my knowledge. Instead, candidates had campaigned for votes from people actively involved withthe society.
Law professor Irina D. Manta and Sen. Josh Hawley.(Photo: Manta by Carlos Farini. Hawley by Getty Images.)
I found out about Sen. Hawleys plans too late to counter them successfully. I lost the YLS Federalist Societys presidential election to him by a handful of votes.The presidency comes with a number of advantages, including entry to key professional opportunities. From my perspective, I was the more deserving candidate and cared more about the organization. The voting rules, again, were problematic, and Sen. Hawley exploited that all the way to victory for himself and the rest of his slate.
But you know what? As far as electoral fairness is concerned, none of that matters. The rules were the rules. The people who showed up to vote had the right to vote. I have no reason to believe that the person who counted the votes miscounted. Based on the system we had, which while flawed was hardly unethical, Sen. Hawley won and I lost. And not once did I attempt to contest that loss.
Sen. Hawley and I both ended up initially aslaw professors, but thenour paths split. He pursued political offices while I remained in academia (though also continued my own political activism). And while he has been one of President Donald Trumps loyalists, I have been the opposite, from my membership in Checks & Balances(a group of lawyers and academics committed to the Constitution and the rule of law)to my volunteer work for the Biden campaign in 2020.
On his way out the door: Congress should impeach Trump again and bar him from holding any future public office
Of course, the stakes are much higher when it comes to the presidency of the United States than that of the Yale Law School Federalist Society. Conversely, however, maintaining the integrity of the democratic system of our country vastly trumps doing so for a law school club. While Sen. Hawley is unlikely to succeed in his bid to hinderBiden from taking office, he is setting a dangerous precedent such that one day, a hostile Congress could overturn a rightful presidential election.
The courts have ruled repeatedly that there is no evidence of widespread voter fraud in the 2020 presidential election. Some speculate that Sen. Hawley is simply posturing to position himself for his own presidential run someday. Even if this provided ethical cover for his actions (spoiler: it doesnt), he has the intelligence to find better tactics than erodingour democratic system.
Irina D. Manta is professor of law and founding director of the Center for Intellectual Property Law at Hofstra University'sMaurice A. Deane School of Law. Follow her on Twitter:@irina_manta
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The Year Another Capitol Siege Almost Took Place on the Hill – Governing
Posted: at 2:55 pm
The election of 1800 keeps coming back to inform, console and trouble us. John Adams was the incumbent. Thomas Jefferson was the challenger. After one of the most vituperative elections in American history, Jefferson emerged the winner. He had 73 electoral votes, Adams just 65. Thus, Adams became Americas first one-term president. There have been nine, depending a bit on how you count. Donald Trump is the latest. Before him, it was George H.W. Bush.
The problem in 1800 was twofold. First, a structural weakness in the Constitution: There was no separate balloting for president and vice president. Second, by coincidence Jefferson tied in the Electoral College with his vice presidential running mate (no such term existed at the time) Aaron Burr. That meant that the Constitution could not differentiate between Jeffersons 73 electoral votes and Burrs 73. When this happens, the Constitution requires the election to be sorted out in the House of Representatives, with each state getting only one vote. This has only happened twice, once in 1801 and again in 1825 when the House elected John Quincy Adams even though he lost the popular vote to Andrew Jackson.
The Electoral College in action. In 1800, Jefferson had 73 electoral votes and Adams just 65. But Aaron Burr, running for vice president, also had 73 votes. What to do?
Everyone knew that Jefferson had been elected president. John Adams was disappointed, even bitter, but he was too much a patriot and a gentleman to refuse to accept the voice of the American people. The problem was that the Federalists (the party of Alexander Hamilton and George Washington) could not reconcile themselves to the idea that Thomas Jefferson had defeated the establishment candidate John Adams. Die-hard Federalists determined to do whatever it took to deny Jefferson the presidency. Some partisans suggested that the outgoing Federalist Congress simply vote in an entirely new president. Others said that if they could delay the House vote until after March 4, the date the new president was to be installed, they could name a president pro temp of their choice. Sound familiar?
It was a time of intrigue, panic, conspiracy and chaos. The raw new national capital was beset with small clusters of passionate men devising political strategy, demonizing their political adversaries, fretting in apocalyptic terms about the survival of the young republic. The Washington diarist Margaret Bayard Smith wrote that the conspiratorial Federalists hurried to their lodgings under strong apprehensions of suffering from the just indignation of their fellow citizens for attempting to overturn the election.
Balloting in the House of Representatives began on Feb. 11, 1801. The House immediately determined not to adjourn until they had resolved the issue and chosen a president. Food was brought into the House chamber. The votes went on day and night, deep into the night, and exhausted representatives sacked out on the floor, sometimes on pallets. One representative, Joseph Nicholson of Maryland, was so sick that he had to be carried into the House chamber on a litter through a Washington snowstorm, but he declared that he would cast his vote for Jefferson even if it killed him. He was so frail that his wife had to guide his hand as he marked his ballots. One newspaper reported that it was ludicrous to see [Congressmen] running with anxiety from the committee rooms, with their nightcaps on.
For six excruciating days and 35 separate ballots, the vote was invariably the same: eight states for Jefferson, six for Burr. Jefferson needed the endorsement of nine states to win. It was clear that Burr was never going to win, because that eight-vote Jefferson block would never yield to a junta but neither would Jefferson win unless one of the Federalist states gave up the fight and changed its vote to Jefferson.
Finally, on Saturday, Feb. 14, a Delaware Federalist named John Bayard announced that he had decided to support Jefferson, thus giving him the nine state votes he needed. Someone in the Federalist caucus immediately shouted Deserter! As soon as Bayard announced that he intended to do the right thing, he was subjected by Federalist die-hards to unrelenting criticism. When the Federalist met in caucus after his announcement, the clamor was prodigious and the reproaches vehement. Several Federalists from New England announced that they meant to go without a constitution and take the risk of a Civil War.
James Asheton Bayard (1738-1807) lived in Wilmington, Del., the home of former Delaware senator, vice president, and now president-elect Joe Biden. Bayard served three terms in the House of Representatives, beginning in 1797, ending in 1803.On the principle that no good deed goes unpunished, Bayard was targeted by the Jeffersonian Republicans in the election of 1804 for his opposition to several of the administrations initiatives. Accordingly, Bayard was defeated by Jeffersonian-Republican candidate Caesar Rodney. Fortunately for Bayard, he was soon selected by the legislature of Delaware to serve as a U.S. Senator, a position he held from 1814-1813. He was one of thirteen senators to vote against James Madisons declaration of war against Great Britain.
Why did Bayard decide to switch his vote? Historical opinions vary. Some said he had found a way to negotiate with Jefferson through an intermediary and to wring a few concessions out of the president-elect in exchange for ending the impasse. Jefferson denied this all the way to his death on July 4, 1826, and the historical record appears to support his denial. Some historians say that Aaron Burr began to pull back from his earlier statement that he would accept the presidency if the Federalist-dominated Congress handed it to him. Bayards own explanation was that it was clear that Burr was never going to get to nine votes, and therefore it was absurd to prolong the crisis indefinitely, and that to exclude Jefferson, as he put it, would come at the expense of the Constitution.
Aaron Burr. Did he pull back from his earlier statement that he would accept the presidency if the Federalist-dominated Congress handed it to him?
In other words, when the crisis moment of his life came, James Bayard gave his support to due process, fairness and the Constitution of the United States rather than to the party of men he resoundingly preferred to Jefferson and the Republicans. However much he disliked and distrusted Jefferson, Bayard was devoted to the survival and stability of the Constitution more. The step was not taken, Bayard later wrote, until it was admitted on all hands that we must risk the Constitution and a civil war or take Mr. Jefferson.
Note, however, that at no time did Bayard simply acknowledge that Jefferson was clearly the presidential candidate (not Burr) and he had clearly defeated John Adams, therefore it was only fair to honor the peoples will and install him as president.
When the final vote was cast on Feb. 17, 1801, six days into the fiasco in the House of Representatives, Bayard did not need to switch his vote after all. Bayard cast a blank vote, as did South Carolina, but Maryland now voted for Jefferson, giving him the ninth state vote he needed to be officially certified as the third president of the United States.
John Bayard. OnFeb. 14, 1800, Bayard, a Delaware Federalist, announced that he had decided to support Jefferson, thus giving him the nine state votes he needed.
Jefferson, who was fond of nautical metaphors in spite of the fact that he did not do well on ocean voyages, now wrote, The storm we have passed through proves our vessel indestructible. He called his election the Second American Revolution. He would serve two terms as president, then hand pick his successor James Madison. Archibald Stuart of Staunton, Va., wrote, The minds of men from extreme anxiety seemed to settle down into a firm resolution to resist every attempt to give us a President who had not been the choice of the people. I was pleased to discover this temper as it proves our liberties cannot be lost without a struggle.
When push came to shove (and it nearly did), the Federalists, led by John Bayard, did the right thing and curtailed their attempt to prevent Jefferson from assuming the presidency. But what if they had persisted? Jefferson and many historians have argued that if the Federalists had succeeded in overturning the election, our fragile new republic might have collapsed just a dozen years after its founding. There might have been civil war of secession. The election of 1800 was the first transfer of power from one party of men to another, from one approach to American governance to another. In the end it turned out to be a peaceful transfer of power, though not without some real political chaos.
Rumors always travel faster than truth. During the first five weeks of 1801, Virginias governor James Monroe was warned that the Federalists planned to remove arms and gunpowder from a depot in Virginia to store elsewhere in case the crisis devolved into armed conflict. He sent agents to make sure that did not happen. The Federalists thought they heard that Virginia and Pennsylvania militia troops were on their way to the national capitol to make sure Jefferson was seated in the presidency. Wild talk of secession by one or more sections of the country circulated through the capitol and in neighboring states. The Republicans circulated a rumor that if things fell apart, they would call for a new constitutional convention, a threat that terrified the Federalists, who feared that the United States would be refashioned into the loose association that characterized the discarded Articles of Confederation.
Just how serious did this get? Jeffersons greatest biographer Dumas Malone asked, Were they [Jeffersons republicans] prepared to use force if need be and thus risk the disruption of the Union? Did they contemplate any other form of resistance? At the very least, the political rhetoric was incendiary. Pennsylvania Governor Thomas McKean (a Jefferson supporter) declared, if bad men will dare traitorously to destroy or embarrass our general government and the union of the states, I shall conceive it my duty to oppose them at every hazard of life and fortune; for I should deem it less inglorious to submit to foreign than domestic tyranny. McKean said he was ready to issue an order for the arresting and bringing to justice very member of congress, or other person found in Pennsylvania, who should have been concerned in the treason.
McKean and James Monroe of Virginia both wrote rashly about the possible need to marshal state troops at the border of the District of Columbia to take back the presidency for Jefferson, if necessary, but both acknowledged in more sober moments that they would have sullenly acquiesced if the Federalists had been successful in handing the presidency to Burr. The Republican floor manager of the House of Representatives Albert Gallatin, later Jeffersons Secretary of the Treasury, said, No appeal whatever to physical force was contemplated, nor did it contain a single particle of revolutionary spirit.
Just what impact all this violent rhetoric and brinksmanship had on the final outcome is difficult to determine. In the end, Jefferson took office right on schedule, put together one of the greatest cabinets in American history, cut taxes, reduced the size of the army and navy, balanced the budget, paid off a considerable percentage of the national debt, and doubled the size of the United States with a single stroke of his pen. In other words, he proved to be a sensible centrist president, sometimes even a little Federalist in his actions, and he was resoundingly re-elected to a second term in 1804. Civil war was averted, as was a coup detat by the bitter losing party. The guardrails held barely.
Years later, a little weary from a lifetime of political struggle, but with his characteristic optimism, Jefferson put it all in perspective in a letter to his old friend and one-time rival John Adams: And so we have gone on, and so we shall go on, puzzled and prospering beyond example in the history of man.
At 2021 begins, we seem to be particularly puzzled.
You can hear more of Clay Jenkinson's views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour, and the new Governing podcast, The Future in Context.
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GOP Lawmakers Have A Point: Americans Need To Trust Elections – The Federalist
Posted: at 2:55 pm
On Wednesday, a dozen Republican senators along with more than half the Republican members of the House will raise a formal objection to Joe Biden electors during the Electoral College count certification. They will object over concerns about election integrity following widespread allegations of voter fraud, reports of irregularities in the counting of absentee ballots, and documented violations of election law in several battleground states.
The corporate media have with one voice denounced these Republicans and dismissed their concerns as nothing more than the ravings of partisans obsessed with peddling conspiracy theories and currying favor with Donald Trump. Chuck Todd of NBC News declared Sunday that not a single court has found a single instance of fraud an assertion precisely no one believes, not even Todd himself.
Yet thats been the medias mantra that there is no evidence of voter fraud or irregularities, none whatsoever. We are all supposed to pretend that 2020 was the first election in American history that was clean as the driven snow.
Speaking to Sen. Ron Johnson, one of the senators planning to object Wednesday, Todd even claimed the only reason tens of millions of Americans question the integrity of the election is because Republicans have been sowing doubt. In a particularly appalling moment, even for Todd, he accused Johnson of using his committee to create the illusion of voter fraud.
Elsewhere in the corporate press, Sens. Josh Hawley and Ted Cruz and all the other Republicans planning to lodge an objection on Wednesday have been vilified as seditionists. George Will called them the Constitutions most dangerous domestic enemies. Even conservative outlets such as National Review have criticized the GOP lawmakers, rather disingenuously claiming the allegations of fraud and irregularities arent so different from those that fueled Democratic doubts about the outcome in Ohio in 2005.
But heres what all these strident denunciations are missing: There really was evidence, lots of it, that voter fraud and illegal electioneering took place on a massive scale in the November election.
Im not talking about exotic theories that voting machines controlled by communists in Venezuela and China switched millions of Trump votes to Biden (a convenient straw-man the corporate media constantly slays). Im talking about old-fashioned, mundane stuff: people voting twice, dead people voting, cash-for-votes schemes, election workers ignoring state laws about the counting of absentee ballots, and courts changing the rules and deadlines for absentee ballots at the last minute. Much of it was perpetrated by Democratic political machines in places like Philadelphia and Detroit cities infamous for corruption and election-rigging.
We at The Federalist reported on it. We talked to poll challengers in Michigan who witnessed election workers counting ineligible absentee ballots and not allowing GOP observers to do their jobs. We talked to political insiders and volunteers in Philadelphia who described an election system thoroughly compromised by a corrupt Democratic machine.
We chronicled an illegal scheme to bribe Native American voters on tribal lands in Nevada and Arizona with cash cards, electronics, and other prizes in exchange for votes. We reported on changes to mail-in voting in multiple battleground states, including Georgia, rammed through by state legislatures or issued by fiat from bureaucrats and judges, that made it easier to cheat with fraudulent or ineligible absentee ballots.
Some of this was made possible by the often haphazard and sometimes unlawful expansion of absentee voting and extensions of absentee voting deadlines, all under the pretext that COVID-19 justified radical changes to how we vote (it didnt). The result, in some states, was what amounted to a chaotic experiment in mass mail-in voting.
Dozens of states made changes to absentee voting, some more drastic than others. Nine states along with Washington, D.C., took the extraordinary step of mailing actual ballots to every voter on the rolls. Others did away entirely with eligibility requirements for mail-in ballots, introducing no-excuse absentee voting. Still others introduced novel procedures for curing incomplete absentee ballots that would normally be thrown out.
The corporate press ignored all of it, just as they ignored any story that might have hurt Biden during the campaign. Their goal was and is to get Democrats elected, period. They dont care about being fair, or telling the truth, or keeping their readers informed about reality. If they did, they would have reported on this stuff instead of lumping it all together as so many conspiracy theories.
That brings us back to the Republican lawmakers who will object to the Biden electors on Wednesday. In a joint statement issued over the weekend, 11 senators and senators-elect noted that the extent of fraud in the 2020 election is disputed but that the allegations of fraud and irregularities in the 2020 election exceed any in our lifetimes. As a result, large numbers of voters dont trust the election results. The statement cites a November Reuters/Ipsos poll that found 39 percent of Americans believe the election was rigged, included a whopping 67 percent of Republicans.
While the formal objections of these lawmakers wont change the outcome of the election or stop the Electoral Colleges certification of the count, the senators call for a bipartisan election commission at least acknowledge that we have a serious problem on our hands when this many Americans dont have confidence in our elections, and that something needs to be done about it. Democrats and corporate media, by contrast, refuse to acknowledge we have a problem at least not this time, because they won.
A commission along the lines of what the senators are proposing isnt the solution. Im not sure anyone knows what the solution is in a country where national elections are conducted differently from state to state, even county to county. But to paraphrase Frdric Bastiat, the best way to ensure voters trust the results of our elections is to make our elections trustworthy.
Until we do that, every national election from here on out will be a crisis.
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Josh Hawley Was The Exact Sort Of Prick Youd Imagine Him To Be At Yale Law School – Above the Law
Posted: at 2:55 pm
(Photo by Greg Nash-Pool/Getty Images)
As you probably could guess, based on his radically right-wing record and degree from Yale Law School, Senator Josh Hawley was a member of the Federalist Society in law school. And as you also probably guessed based on those two facts, he was a bit of an asshole back then (I mean, probably now too, but this story is about his law school days, so).
Irina Manta, a professor at Hofstra Law School and a FedSoc darling who was spotted trying to make the law hold people accountable for lying on Tinder and branded a Karen after a neighborhood squabble over fireworks, has an opinion piece on USA Today dishing on Hawleys time in law school and urging him to ditch his sure-to-be-failed attempt to prevent Joe Biden from becoming the 46th President of the United States. Manta is also clear to note, that despite her association with FedSoc, she worked on President-elect Bidens campaign this cycle. But enough with the background, lets get to the (old) hot goss.
Manta and Hawley are both members of YLS 06, and were active in their law schools Federalist Society, so, obviously their paths crossed. But more than just casually cross, they were both elected as Vice Presidents for Events for FedSoc as 2Ls.
As Manta notes, Collaborating in these positions in our second year proved difficult. I organized the lions share of the groups events and frequently received no responses from him on emails I sent to him and the Societys president that year. This puzzled me because I thought our goal was to make the organization as strong as possible, and failure to communicate was an obstacle. ALL THE SIDE EYE.
As Mantas version of the story goes, she did way more work in their joint position, so when both Manta and Hawley threw their hats into the ring for President of FedSoc for the following year, she thought she had it in the bag. But thats where the chicanery begins, according to Manta.
Shortly before the election, a friend tipped me off to how Sen. Hawley was planning to beat me, given that he was uncertain he could do so based on votes only from regular members who knew our records best.
As appeared accurate based on the eventual turnout, Sen. Hawley had obtained from the sitting president the student email addresses for the YLS Federalist Society listserv (and the president, whom I had helped to win the previous year, did not volunteer that information to me at that stage). The rule was that anyone who had signed up for the listserv by a certain earlier date could vote in the Societys elections. This included a bunch of people who did not attend events and had little or no involvement with the Society.
The rule, while easy to administer, was a bad one. It even had the potential for individuals to co-opt the Society for the sole purpose of destroying it. Historically, however, nobody had exploited that rule, to my knowledge. Instead, candidates had campaigned for votes from people actively involved with the Society.
I found out about Sen. Hawleys plans too late to counter them successfully. I lost the YLS Federalist Societys presidential election to him by a handful of votes.The presidency comes with a number of advantages, including entry to key professional opportunities. From my perspective, I was the more deserving candidate and cared more about the organization. The voting rules, again, were problematic, and Sen. Hawley exploited that all the way to victory for himself and the rest of his slate.
So his success is based on following the letter, rather than the spirit, of the law. Got it. And now hes all in a tizzy because Democrats followed both the letter and spirit of election laws? Also, got it. He strikes me as exactly the sort of prick who earnestly believes its fine for him to do it but its cheating when you do it. Unsurprising.
Manta closes with a plea for Hawley to drop his objection over the certification of the electoral college results because she didnt object to his shady law school victory, so he should take a lesson. She notes he is setting a dangerous precedent such that one day, a hostile Congress could overturn a rightful presidential election. Shes not the only Yalie who disagrees with Hawley over his position, but all the obvious double standards in the world are still unlikely to change Hawleys position. At least we have a better sense of the exact sort of person Hawley really is.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email herwith any tips, questions, or comments and follow her on Twitter (@Kathryn1).
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CU professor: Stopping spread of misinformation on social media will take more than censorship – FOX 31 Denver
Posted: at 2:54 pm
BOULDER, Colo. (KDVR) The protests that turned violent at the U.S. Capitol Wednesday could have been partly fueled by misinformation on social media, according to University of Colorado Boulder professor Dr. Casey Fiesler.
Fiesler, a professor of information science, focuses on social media ethics and law. She says theres evidence of the influence of filter bubbles in creating a widespread belief the 2020 election was fraudulent. She says social media platforms make it easy for people to only see information that aligns with their beliefs.
You have a sense that you know so many people because you have so many interactions with strangers on forums like Facebook. You feel like you have this bigger sense of the world but you have still curated your social media feeds such that youre only interacting with people who are like yourself, said Fiesler.
In severe cases, she says that could lead to becoming radicalized.
Social media platforms took quick action against President Donald Trump following the chaos in Washington. Twitter froze the presidents account temporarily and removed several tweets, citing rule violations. Facebook and Instagram blocked his accounts indefinitely.
Twitter has flagged the presidents tweets about alleged election fraud for months, saying the claims are disputed. Fiesler says those warnings wont stop the spread of misinformation.
When Twitter flags something for misinformation, that doesnt make a lot of people think its false. And thats the problem, said Fiesler, when you see a piece of information that confirms what you already believe, youre going to believe its true.
Fiesler says social media platforms have their own terms of service and rules that users have to abide by. Those platforms can remove content for violating those terms if they choose. However, she says some may choose to leave certain posts up even when they violate the rules if the post is of interest to the general public. Fiesler says a tweet from the president could be an example of this exception.
Fiesler believes an effective way to stop the spread of misinformation is to limit the ability for people to share it that could include disabling retweets on content considered dangerous or false.
At some point, it becomes a matter of principal and values. What are you going to allow your platform to be a part of? said Fiesler.
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CU professor: Stopping spread of misinformation on social media will take more than censorship - FOX 31 Denver
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TV Is Starting to Cut Ties with Trump, as His Legacy Wreaks Havoc on Reality – IndieWire
Posted: at 2:54 pm
Amid the chaos and tragedy of Wednesday afternoon, an unexpected concession was made. President-elect Joseph R. Biden asked President Donald J. Trump to go on TV and give a speech to the American people, and the typically uncooperative POTUS technically did just that.
Years, if not months, earlier such a clear-cut request and response couldve been seen as a justifiable rationale to air Trumps pre-taped address without warning or censorship. The Capitol was under siege by Trump supporters, and any attempt to end the violence was worth a shot. Plus, who would call out cable or network news for showing something both presidents wanted the country to see?
But on Wednesday, after years of putting Trumps speeches through exhaustive fact-checks and suffering through power-hungry ratings ploys, the news anchors proved a bit smarter than that.
It certainly helped that the speech started with a lie (though whether it was referred to as such, or instead labeled a baseless assertion, depends on who you heard describe it). Trump, trying to connect with his already devoted gang of domestic terrorists, claimed at the onset we had an election stolen from us. After the video ended, CNNs Jake Tapper said, I also want to note that in that video, he lies about the election being stolen and pours more fuel on the fire. [] He continues his shameful behavior of lying to his supporters about what happened. It is absolutely disgraceful. I feel ambivalent about the fact that we even aired it.
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There was no ambivalence on CNBC, where Shepard Smith shouted for his producers to Stop the tape before its minute-long runtime elapsed. That is not true, and we are not airing it, he said. Other networks didnt air the video at all, while still others claimed to be duty-bound to let the riot leader try to calm his rioters. Meanwhile, the arguably more-powerful social media sites of YouTube, Facebook, and Twitter all deleted the video entirely. (Calls to ban Trump from the latter two platforms have yet to be acknowledged, despite his continued propagation of hate speech.)
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Would it have been better for the networks to follow suit and not air Trumps video at all? Most likely, yes. Like a TV villain who gets too many chances by the kind-hearted protagonist, everyone should know by now that Trump is incapable of denouncing even his most despicable supporters. But the clarifying remarks made surrounding the video, as well as calls like Chuck Todds to avoid glorifying the terrorists behavior by showing their photos from inside the Capitol, stand as progress for TV news. When Trump was running and first elected to office, reporters were drawn to his asinine antics like moths to a flame; the unprecedented nature of his presidential behavior was too unbelievable to disregard, so they didnt.
Now, they are or theyre trying to, at least. That could be because theyve learned from their mistakes, slowly realizing that feeding a beast who thrives on ratings is a gradual way to get eaten alive. Or perhaps theyre a bit quicker to call out a lame duck president, knowing they wont have to put up with him for four more years. (Major networks cut away from his election week speech, when he baselessly tried to undermine the results theyd already recognized as accurate.) Or, and this is entirely possible, it just feels like national pundits are putting Trump in their rearview because were all eager to do the same thing.
But Wednesdays events and the infuriating reaction showed the fine line media has to walk moving forward. Trump, his message, and their combined toxicity need to be cut out of the discourse. His office and title are no longer reason enough to justify coverage, and the droves of invaders swarming the Capitol were a terrifying example of what happens when his manipulative pity parties are given a national platform. Too many people only hear his words, and they miss the anchor explaining why theyre wrong.
At the same time, the consequences of Trumps tenure demand not only our attention but a quick and assertive response and as contradictory as those goals may sound, they are distinct. Trump isnt going to just quietly sulk off into the sunset, and even if he did, hes already activated a following thats angry and eager to act out. Keeping Trump off TV wont magically put out the fire, but it will cut out some of the oxygen feeding it. When the flames inevitably erupt, as they did Wednesday, the response has to be better than the cops taking selfies with terrorists; there has to be more decisive action taken to defend America than there was to defend American property. (Despite what Republicans claimed later that night, Wednesday most clearly illustrated the police forces appallingly inequitable treatment of white and Black protesters.)
In other words, it cant feel like those in charge of protecting democracy are just sitting around watching TV. Most people watching at home are helpless to do anything, but the cop staring at the same cell phone we are doesnt need to be taking a picture or checking the news. He needs to be taking action. This kind of tepid response to a nightmare scenario the last time I watched bombs be placed in the Capitol, it was on Designated Survivor led to growing panic and immense frustration. Once video surfaced of officers parting the barricades to let the Trump supporters through, many onlookers said theyd had enough. After an afternoon spent watching TV, they walked away or changed the channel.
The media doesnt have that option. They have a responsibility to cover the news in its entirety, and aside from a few notable mistakes (like not airing that video of the gates being opened), they did just that on Wednesday, from noon to well past midnight. Many of us couldnt stop watching, which made it all the more important that Trumps rhetoric wasnt given additional airtime. Thats a start. Someday, hopefully, the fallout will fade from the airwaves, as well. But only when its been addressed, not appeased.
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TV Is Starting to Cut Ties with Trump, as His Legacy Wreaks Havoc on Reality - IndieWire
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Trumps Twitter ban is a step toward ending the hijacking of the First Amendment – The Boston Globe
Posted: at 2:54 pm
And while Twitter and Facebook finally took the welcome if insufficient steps of cutting off Donald Trump and his associates who have using the platforms to promote the violent overthrow of our freely elected government, this comes only after these and other tech companies have been implicated in the promotion of antidemocratic politics around the world.
There is no doubt that much of what takes place on Twitter and Facebook is real, unfettered exchange about fundamental political issues. Such discussions are often not incredibly civil, and they dont need to be. But much of what is spread by social media from misinformation to intimidation strikes at the heart of democratic ideals.
How can anyone argue that democracys own core principles require us to let them tear it apart for as long as they want?
The problem stems from the fact that in the United States, and to a lesser extent around the world, we have come to develop an absolutist perspective on free speech. The First Amendment begins Congress shall make no law, and thats often held to mean that government may not touch anything that even looks like speech. But that claim is untrue: Even in the United States, law touches speech in hundreds of ways. For example, speech used in furtherance of a criminal enterprise such as murder or fraud counts as primary evidence of the crime. There are penalties for libelous and slanderous speech. There are full prohibitions on noxious material like depictions of the exploitation of children. Yet technology companies, far-right agitators, and other groups continually present the issue as black and white: They claim that either we protect speech absolutely (despite the fact that we dont do this) or we dont protect it at all.
As a small group of scholars and activists are arguing with increasing force, this is a false choice, and it is manifestly possible to protect free speech and thus enhance the political and democratic values free speech is meant to promote while suppressing, or at least not actively encouraging, the efforts of those who want to turn democracies against themselves.
And if we grasp that protections on speech really exist to enhance democratic participation, then its easier to see through the claims that digital products such as Bitcoin or Apples computer code count as speech. In other words, wed see that a lot of cries for freedom of speech in the Internet era are really just demands for freedom from regulations that wouldnt be challenged in the offline world.
Computer code on a pedestal
The problem of freedom of speech being used to undermine the democracy it is meant to promote has deep historical roots, but two unfortunate trends have made it especially acute. One trend is that the far right has, at least as far back as the rise of fascism in Italy and Germany, sold the view that the speech we hate is somehow the most valuable speech in democracies and legal scholars and organizations like the ACLU have helped to advance that claim. One of the most famous First Amendment cases in the 20th century was the ACLUs defense of a proposed march by Nazis on Skokie, Ill., in the 1970s. When Americans learn about this event, they learn that the ACLU was protecting a fundamental democratic value by defending Nazis. Yet how it can be that democracy depends on tolerance for speech that is designed to generate hatred not just of minorities but of democracy itself?
The idea that Nazi speech must be tolerated to have a functioning democracy is provably false. Nazi speech has been outlawed in Germany since World War II, and yet Germany continues to score very high, sometimes higher than the United States, in assessments of the worlds democracies. For example, in the Democracy Index published by the Economist Intelligence Unit, which weighs such factors as civil liberties and the health of political culture, Germany rates as a full democracy while the United States is a flawed democracy. Are we defending democracy by protecting the speech of Nazis or are we, as legal scholars Richard Delgado and Jean Stefancic put it, simply defending Nazis?
The second unfortunate trend has to do with the blurring of lines between speech and actions taken by corporations. In its infamous 2010 Citizens United decision, the US Supreme Court appeared to assert that spending money on political ads is the same thing as speaking. As in the Nazis-in-Skokie case, the ACLU sided with the party here, corporate interests that seemed on its face to be antidemocratic.
But the issue runs even deeper than this case, because wave after wave of technological change has complicated the speech/action distinction. For example, in the last decade or so a doctrine has arisen called code is speech. It holds that because computer programs are made of code that looks something like human language, everything done with computer code deserves First Amendment protections, and never mind the fact that the whole point of computer programs is to do things to take action. The Electronic Frontier Foundation and other digital advocates routinely suggest that code is speech is an obvious and well-established legal principle. Apple made this very claim in court filings in 2016, when it said it had a First Amendment right not to provide the FBI with a way of unlocking, under legal warrant, the iPhone of a suspect in the San Bernardino terror attack.
So far, many judges have rejected the code is speech doctrine on its face, precisely because computer programs, when they are run, perform actions. And yet, as absurd as the code is speech argument is, it is nevertheless a rock-bottom foundation for much commentary about and on social media commentary that more often than not conflates what most of us understand as speech with things as varied as the operation of Googles search engine, the deployment of facial recognition algorithms, the targeting of protesters with artificial intelligence, and the operation of drones.
Its an attempt to accord actions with the protections granted to speech in fact, with more protections than speech itself actually has. After all, the First Amendment allows the government to write laws affecting speech in a variety of ways, depending on the kind of speech and regulation in question. One very rarely hears the complaint that the broadcasting standards issued by the Federal Communications Commission violate free speech, despite the fact that large categories of content that most of us would think of as speech in some sensethink especially of otherwise legal, adult pornographic materialare barred from appearing on the public airwaves, even when those public airwaves are licensed to private corporations. Issuing orders to commit crimes, or falsely shouting fire in a theatre and causing a panic, as Supreme Court Justice Oliver Wendell Holmes Jr. wrote in a 1919 decision, does not receive First Amendment protection. The claim that speech has absolute protection from law is a species of the assault on governmental regulation that has characterized right-wing political activism for decades.
Into a black hole
In addition to the code is speech doctrine, the absolutist approach to speech has made it hard to regulate digital technology under Section 230 of the Communications Decency Act of 1996. Section 230 has recently become a target of both progressives and conservatives, in no small part owing to ambiguity about its meaning and effects. Some of that agitation, especially from President Trump, has obscured the work of progressive activists, lawyers, and legal scholars who have been working for years to push back against the shield of legal immunity the law appears to give to digital platforms like Facebook and Twitter.
The title of lawyer, journalist, and cybersecurity professor Jeff Kosseffs excellent 2019 book, The Twenty-Six Words That Created the Internet, repeats a claim we often hear from the laws supporters: that social media companies could not exist without it. Those 26 words read: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The law was intended to have two related effects, which in some ways are at cross purposes. One was to encourage platforms to moderate problematic content: Congress hoped to encourage the companies to feel free to adopt basic conduct codes and delete material that the companies believe is inappropriate, Kosseff observes. But it was also intended, Kosseff says, to allow technology companies to freely innovate and create open platforms for user content. Shielding Internet companies from regulation and lawsuits would encourage investment and growth, they thought.
One of the most fascinating aspects of Section 230 is the lack of agreement, among even the well informed, about what it means. Appearing to endorse the claim that the law is necessary, Kosseff writes that YouTube, Facebook, Reddit, Wikipedia, Twitter, and eBay ... simply could not exist without Section 230. Yet in the same paragraph Kosseff rightly notes that those companies operate in many countries that do not have Section 230 protection or anything close to it, and do not come crashing to the ground. In none of them does the Internet break. Even if Section 230 somehow created the Internet, the Internet nevertheless persists quite robustly where the law does not exist.
Section 230 has become a glaring example of the negative consequences of absolutist views of free speech. Internet companies and their promoters and lobbyists have encouraged courts and companies to believe that they have and need to have legal impunity for the content on their sites. Because of this misunderstanding, any editorial intervention or moderation on their part is cast as censorship, despite the fact that, as far as the First Amendment goes, it is only government curtailing of speech that qualifies as censorship. As soon as one starts to consider the actions of private companies to be censorship, the most ordinary activities associated with publishing such as editing can be disingenuously described as censorship.
Section 230 has been used in courts to shield companies from what seem like entirely reasonable legal consequences. One of the most egregious instances is a lawsuit known as Herrick v. Grindr, in which the dating app Grindr repeatedly invoked Section 230 to shield itself from liability for providing a tool that enabled the outrageous harassment of one user, Matthew Herrick. Herrick had met a partner over Grindr. After they broke up, Herricks ex set up a fake profile for Herrick on Grindr and another app and sent a stream of hookups to Herricks home, telling them that he wanted rough sex and that if he appeared to refuse, this was part of the game and the partner should persist in other words, directly provoking people to rape and assault him.
Herrick was resourceful enough to stave off physical harm. He called the police more than a dozen times. He also contacted Grindr and the other dating app company, demanding the fake profiles be removed. The smaller app company immediately did so. But despite the fact that his exs behavior directly violated Grindrs terms of service, Grindr repeatedly refused to help. Herricks lawyer, Carrie Goldberg, has fought a years-long uphill battle against the company, which has hidden behind the near-total immunity provided by Section 230 even though prior legal theories around product liability would seem to apply in the case.
One of the most trenchant critics of the way digital technologies are distorting free speech is University of Miami law professor Mary Anne Franks. In her 2019 book The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech, Franks shows how claims of censorship have been hurled against stalking laws, revenge porn statutes, anti-harassment training, diversity initiatives, blocking users on Twitter, criticism of sexism in video games, pointing out racism, closing comments sections and much more. Rather than encouraging free speech, she writes, these efforts have hobbled attempts to build a truly diverse and robust online free speech culture.
Franks and her Cyber Civil Rights Initiative also have led efforts to ban so-called revenge porn, the disclosure of sexually explicit images without the subjects consent. This nonconsensual pornography, she writes, often plays a role in intimate partner violence, with abusers using the threat of disclosure to keep their partners from leaving or reporting their abuse to law enforcement. Almost every state now has a law criminalizing nonconsensual pornography, but a federal law harmonizing the state standards has remained elusive. The chief opponents have been the ACLU and the self-nominated digital rights advocates at the Electronic Frontier Foundation. As Franks writes, The ACLU took the position that no criminal law prohibiting the nonconsensual distribution of sexually explicit images was permissible within the bounds of the First Amendment. The organization also has made the slippery slope claim arguing that laws against revenge porn could be overapplied, although Franks notes that in briefs opposing the law in Illinois, the ACLU was not able to point to a single actual case of overapplication of such laws in other states. Even now, when the state laws against nonconsensual porn have resulted in no documented impacts on freedom of speech at all, technology advocates still make the same slippery slope arguments to oppose a potential federal law.
In other words, an abstract commitment to free speech absolutism supports a penumbra of legal untouchability around digital technology outweighing the actual, concrete, verifiable harms that revenge porn does to thousands of real people. This stretch of the First Amendment, Franks argues, is turning it into a black hole from which nothing democracy, autonomy, or truth will be able to escape.
Corporate power in disguise
We are supposed to think that the crisis of free speech in social media is about individuals being censored. Never mind that private companies by definition cannot censor. Never mind that the loudest complaints of censorship come from either the companies themselves or from white supremacists and other members of the far right, the same people who insist that hoaxsters and provocateurs like Alex Jones and Milo Yiannopoulos and Jack Posobiec and QAnon promoters have something to say that the mainstream media is illicitly suppressing. That these are the same political forces that have long made common cause behind the metastasizing First Amendment should come as no surprise. All dispassionate analysis shows that the political right not only is not being suppressed but is actively promoted and helped in numerous ways by social media.
In fact, its most accurate to say that technology platforms do not merely permit white supremacist material and other extremist content but actively distribute it. And what can easily be lost in all this is that Twitter, Facebook, Google, and their supporters have not really been advocating for the freedom of individual speech that the doctrine was designed for, to help promote democracy. Rather, it is the antithesis of that: It is corporate power that they have been seeking to uphold even as the actions of right-wing trolls, actions that look like speech because they include words, drive marginalized people in droves away from these platforms, often much the worse for wear due to threats of every kind of violence, some of which come to fruition.
Last year the invasive facial recognition company Clearview AI asserted a First Amendment right to distribute its surveillance technology and to collect pictures of hundreds of thousands or millions of Americans it scraped from the Web from public and even apparently private forums. The spirit of code is speech lurks in that argument. What Clearview AI does has nothing to do with political speech, and yet the company finds it plausible to claim it has the right to violate everyones privacy and sell a profoundly invasive product. In a bastardization of freedom of speech, it asserts the right to ensure a freedom to surveil at will, as law professors Neil Richards and Woodrow Hartzog put it in the Globe.
This expansion of speech rights into territory that has nothing to do with speech is particularly visible in the rhetoric surrounding Bitcoin, the digital currency birthed by far-right online agitators who call themselves crypto-anarchists. Part of what makes Bitcoin distinct is its use of so-called blockchain technology. Blockchain technology is said to be distributed and decentralized, which in this case means that anyone anywhere can run the software that checks the authenticity of transactions and mines Bitcoin in the process. That means the only way to stop it is to shut down every computer that could run it. That makes it very hard to control, and even legislation making it illegal would be difficult to put into practice.
Its true that a software process that is difficult to stop is a new thing in the world. But does that justify the way Bitcoin promoters describe it as censorship resistance? In fact, the co-chair of a law firm serving the cryptocurrency industry, building explicitly on the code is speech position, has claimed that Bitcoin is speech. Yet blockchain technologies are not on their face anything like political speech at all: They simply produce ledger entries, transaction verification, tokens. The idea that laws or regulations that stopped that technology would be censorship can gain traction only in a world that has lost track entirely of the nature of political speech and its role in democratic governance. Indeed, its hard not to pause over the fact that the crypto-anarchists who call blockchain censorship resistant have only contempt and often outright hatred for democracies, so its odd for them to be gesturing at a core democratic value as if it should encourage others to support the technology.
Even today, more than five decades after his death, Marshall McLuhan is widely considered the visionary thinker who most clearly foresaw the Internet. McLuhan was an erratic and self-contradicting writer whose ideas like the global village and the medium is the message often sound far more visionary than careful reflection can support. Much less well known, but arguably far more important, is McLuhans teacher Harold Innis, the Canadian economic historian and media theorist whose learning was vaster and whose writing was far more precise than that of his pupil. In a 1951 meeting in Paris, Innis delivered a paper called The Concept of Monopoly and Civilization. In that wide-ranging paper, Innis worried that large newspapers determined what people thought about across entire continents, creating what he called monopolies of knowledge. The paper was not published until 1995, by which time digital mass instantaneity was finally beginning to show the consequences that his contrarian thinking had predicted: In the name of freedom, a technological framework has been built that the citizens of democracies have very little power over. And the very power to shape that technology has somehow been declared censorship by people who mean to deprive democracy of some of its most important features.
Its welcome that Donald Trump and his QAnon supporters, and even entire products like Parler and 4chan, have been deplatformed since Wednesdays insurrection in Washington, D.C. Twitter, Facebook and others rightly hold Trump responsible for stoking the violence. But theyre also responsible for it, because they served as tools of antidemocratic propaganda. It is time to ask hard questions about whether these products are in fact compatible with democratic governance. It is not clear that private companies should be in position to decide whether to ban elected national leaders from their platforms. That suggests not that the bans are wrong but rather that the existence of the platforms, at least in their current forms, is. Reddit, which moved to a heavily moderated model in the wake of earlier scandals, suggests one form social media could take in the future. But there is no reason to think there cant be other forms of it.
It remains incumbent on all of us to make democratic values central online, and put them ahead of any idea of technological progress or free speech pursued as an absolute and antidemocratic goal.
This means focusing our activism and our legal system on strengthening democracy and its institutions, not handing more and more power to those who pretend to champion democracy while doing everything they can to undermine it. Technology can be useful toward those ends, but only when our uses of it are based on a clear understanding of our core values.
David Golumbia, associate professor of digital studies at Virginia Commonwealth University, is the author of The Politics of Bitcoin: Software as Right-Wing Extremism.
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Trumps Twitter ban is a step toward ending the hijacking of the First Amendment - The Boston Globe
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NCAC Statement on Cancellation of Book by Josh Hawley – Blogging Censorship
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NCAC Statement on Cancellation of Book by Josh Hawley
The National Coalition Against Censorship (NCAC) shares the outrage of our fellow citizens over the attack on the Capitol by a mob of Trump supporters who disrupted the certification of President-elect Joe Biden. The Capitol does not belong to any group or party. The attack struck at the heart of the democratic process, which guarantees the right of every citizen to be heard. We also understand the anger at President Trump, Senator Josh Hawley and the other Republicans who fed the anger of the mob by challenging the legitimacy of our elections.
However, we are deeply concerned by the decision of Simon & Schuster to cancel a forthcoming book by Hawley because of his role in what became a dangerous threat. Of course, publishers have a First Amendment right to publishor not publishany book they choose. Hawley is certainly wrong to claim that Simon & Schuster has violated his First Amendment rights. His book can, and probably will, be published by another company.
Canceling the book weakens free expression. American publishers play a critical role in our democracy by disseminating the books that inspire the public debate that shapes our future. Many of the booksand many of the authorsare highly controversial and generate intense opposition. When that happens, it is crucial that publishers stand by their decision to publish, even when they strongly disagree with something the author has said. Canceling a book encourages those who seek to silence their critics, producing more pressure on publishers, which will lead to more cancellations. The best defense for democracy is a strong commitment to free expression.
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NCAC Statement on Cancellation of Book by Josh Hawley - Blogging Censorship
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