Free Speech is Not a Get Out of Jail Free Card

I own and use a watch that goes tiktok – a present from my dad when I graduated from college. But no one has my watch in mind when discussing whether to ban or regulate TikTok. There is confusion, however, about what the First Amendment does or doesn’t, should or shouldn’t, be taken to mean. That’s partly because the issue is being posed very narrowly. Narrowing discussion to a particular media outlet raises all kinds of questions and fears. Can government ban Fox News or the New York Times?

Issues often look different when one takes a broader view. The FCC has resisted licensing foreign owned radio and television stations. And the FCC had a “fairness doctrine” which required that radio and television stations broadcast competing points of view about controversial issues of public importance. There was controversy about whether that was consistent with the First Amendment but what really killed it was a broadcaster who said that the only thing controversial about its award-winning program were the unstated inferences that the complaining party wanted to object to. By the time the doctrine was repealed, it seemed relatively useless, though I’d like to have it back now that the issue has become counter-factual nonsense.

More recently, the European Union developed a privacy directive that prohibited the transfer of personal information out of Europe unless consistent with European rules, and later replaced it with a still stronger law. American companies had a choice between staying out of the European market or entering an agreement with the European authorities about how they would protect the privacy of European customers – where privacy is much broader than it is here. That wasn’t discrimination against American companies; it was requiring that American companies respect European law.

National security may be enough of a justification, but the TikTok issue looks different if the question is how foreign companies can guarantee that they will not transfer information about Americans out of the US, or whether other countries, like China, must abide by the same rules for American companies that they want from us.

The biggest problem is that Congress has been unwilling to strengthen American privacy law. American courts long ago struggled with the legality of tracking what we do online. With few exceptions, courts accepted tracking and treated data about us as the property of the media companies.Those decisions had little to do with the First Amendment but left companies with an enormous body of information about us, and left us with little privacy. That lack of generic restrictions on what companies can gather or share, put us in the position of wanting to impose restrictions on TikTok that are not applied to other companies.

Congress could impose many restrictions on TikTok and similar companies that would pose no constitutional problems. But narrowing the issue to TikTok makes the issue constitutionally harder to justify. So it would be better if Congress could deal with the underlying problems, rather than narrowing the issue to TikTok.

I want to end with another First Amendment issue. Trump to the contrary notwithstanding, it does not and has never meant you can say anything about anything. Libel, fraud, threats and intimidation have never been legal. The fact that they depend on words is not a get out of jail free card to libel, defraud, misrepresent, threaten or intimidate others, ignore required notices and disclosures, or to ignore rules designed to protect jurors.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 7, 2024.

Dominion Voting Systems v. Fox News

I wasn’t able to fit this commentary in before the suit by Dominion Voting Systems against Fox News Network and Rupert Murdoch was settled. But I want to get back to it because I think it is important to understand how misguided speculation was that the Supreme Court might change the rule if the case got to them.

Before the Constitution and before the First Amendment, the old British rule applied here. It made the press responsible for defamation, meaning any damage to someone’s reputation. So the more damaging the truth, the more the press had to pay. It wasn’t until John Adams was president that the Alien and Sedition Acts protected true, though hurtful, statements. But the rule left no slack for mistakes.

In the 1964 New York Times v. Sullivan case the Court finally cut the press some slack. It held:

The constitution[] … prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The original ruling was limited to public officials but the Court quickly expanded that to public figures.

The malice language confuses many. The Court referred to malice for historical reasons. But it defined malice narrowly as statements made “with knowledge that it was false or with reckless disregard of whether it was false or not.” The word “malice” adds nothing. Knowledge of falsity or reckless disregard of the truth became the legal standard after Times v. Sullivan. That meant that honest mistakes are protected but lies and reckless behavior are not.

David McCraw, a vice-president of the New York Times and former student of mine at Albany Law School, spoke in my class on Comparative Constitutional Law and explained how protective that standard is to the media by comparison with other countries which make them responsible for any mistakes and whatever injury to reputation they cause.

So Dominion charged Fox with violating what was already a very lenient standard. It didn’t just charge Fox with screwing up. It charged it with knowing falsehood, deliberately lying, or reckless disregard of the truth, by repeatedly reporting what they knew to be false, reporting as true what they told each other privately was false, and what the evidence they had showed was false. Fox had plenty of slack for mistakes. It could have told its audience that people were making claims and spreading rumors that Fox was unable to substantiate. What it couldn’t do was report rumors and claims as fact that it knew were false or didn’t bother to check. Fox was going too far by reporting fantasy as news. It violated a very lenient form of press responsibility. Condoning reckless falsehoods or deliberate lies has serious consequences.

Overruling Times v. Sullivan would have imposed a stricter obligation on Fox and wouldn’t have helped it. It’s important to recognize that Fox was not being held to a strict standard; it was being held to a very generous standard, and it apparently couldn’t even meet that one.

I think the Court got it right in Times v. Sullivan but some media outlets still fail to live up to their obligation for honest reporting.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on May 23, 2023.

Ayesha Rascoe

My commentary over the past few weeks has been driven by the politics – I’ve been worried, upset, and haven’t been sleeping very well, so even though some of us are still working on the election, I want to relax a little and talk about something that’s much more fun.

There’ve been comments about Ayesha Rascoe on the listener comment line. Here’s my take about her.

I certainly hear the African-American accents in her voice. Hallelujah.

I also hear her enthusiasm and I enjoy it.

Let me add that each new NPR voice potentially brings in a new audience to hear the quality of news that NPR provides. That matters.

So let’s back up. NPR has been breaking barriers for the benefit of us all since it was formed. Some of us remember the founding women of NPR – Susan Stamberg, Linda Wertheimer, Nina Totenberg and Cokie Roberts – every one of them savvy, unique, warm, caring voices and every one a woman. I remember meeting Cokie Roberts’ father on a tour of the Capital years ago when he was the House majority leader –  nobody was going to hide the politics from his daughter, Cokie, and I’ve used the Haggadah she and her husband wrote for interfaith families like theirs – and ours. I’ve had the pleasure of speaking with Nina Totenberg. She’s been a sane and insightful Supreme Court reporter,  covering an institution I’ve studied and written about for decades. I’m all ears when she’s on the air. Linda Wertheimer had family ties to activism for a cleaner politics. I never got a taste for Mama Stamberg’s Cranberry Relish but I loved the warmth in her voice much as I do Scott Simon’s warm voice now. I loved them all.

Warmth matters, by the way. I have never forgotten waking up decades ago to the description of a father wiping leaves off the coffin of his son in Central America as a result of the wars there. It matters that we care.

And it’s been obvious that NPR has continued bringing on reporters and hosts from all religious and family backgrounds – as a former Peace Corps Volunteer I notice those things and I’ve been delighted. NPR isn’t perfect – what human institution could be – but its view of the world is broad and much more helpful than most – which is why I listen. I treasure its diversity of voices and subjects – not just because they’re diverse but because their choices are enlightening. Not merely traditional, they probe and help us to see the world more deeply.

Rascoe is not the first African-American voice on NPR but she is the first that you didn’t have to Google to find out. On television you can see, but on radio you have to hear or be told. Her speech isn’t traditional or familiar for some people but then purists like me shake our fists at people who talk about “this point in time” when they could just have said “now.” Yes, I hate cliches.

Rascoe is no cliché – she’s a breathe of fresh air.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on Nov. 15, 2022.

Fairness Doctrine for the Internet

What will it take to restore a responsible, truth-telling, media?

I’ve talked with you about how section 230 of federal communications law protects fraud and other lies. Publishers, like newspapers, magazines, TV and radio stations have been responsible for the falsehoods they broadcast and could be sued for circulating false claims on their systems. But that rule was removed for much of the internet in its early days. Eliminating publisher responsibility for interactive computer services magnified the outrageous nonsense on the internet.

Social media companies are deciding whether they can carry particular posts or speakers. They’ve been trying to address the best known and most egregious posts. But removing section 230 would impose penalties for falsehood and oblige websites to respect the facts.

There was another rule that brought some decency and civilization to broadcast media. It was called the fairness doctrine. As summarized by the U.S. Court of Appeals:

[T]he fairness doctrine impose[d] a double obligation on the broadcast licensee … [to] devote a substantial portion of available time to the discussion of ‘controversial issues of public importance.’ … [And when presenting such issues] to present responsible conflicting views.”

The requirement “to present responsible conflicting views” used to be stated as a balanced presentation of conflicting views. Wikipedia added “honest” and “equitable” to balanced – certainly a decent aspiration.

In the de-regulatory mood of the 80’s and 90’s, the FCC retracted the rule but the statutory authorization stands for application to broadcast media.

Contemporary mass media have continually heightened the polarization of their presentations. And contemporary social media apply formulas that lead us to posts that Facebook and others think we’d like based on what we’ve clicked on before. That feeds and magnifies our prejudices. It’s an excellent financial model but it does it’s best to keep the left separate from the conservatives, let alone the conspiracy theorists and the white supremacists and vice versa. If polarization is the problem, social media should not have the power to point us at material in a partisan and one-sided way.

It’s not clear that the fairness doctrine could be revived or that the Court wouldn’t reverse or narrow its prior decisions so as to defang it. But my point is that this is another way we’ve polarized our country by changing legal rules that had worked for quite a long time. As I’ve described before, political primaries push both parties toward their extremes and away from each other, a result of progressive changes years ago, the Supreme Court recently changed rules that apply to political contributions, conservatives are changing rules to keep anyone who won’t vote Republican away from the polls, and gerrymander those who manage to vote in order to lock in legislative majorities. All those legal changes help polarize the country. The result is a violent clash, fueled with claims of gun rights even in the House of Congress and at other public offices and political events.

We’ve created an alt-wrong mob. People in mobs feed on each other’s support, lose their minds, give us the dangerous nonsense of outlandish and disproven conspiracy theories and lose their ability to cope with facts. Law has to be yanked back to the side of good sense, peace and values befitting a democratic country. That said, my confidence in the marketplace of ideas has taken a jolt in the wake of the Trump era.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on May 18, 2021.

Section 230 and Free Speech

The spread of false claims, conspiracy theories, and organization for events at which people have shown up armed at state houses and the U.S. Capital, has led to a lot of commentary about section 230 of the 1996 copyright revisions. That section reads:

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.

Print publishers, radio and television stations, had been held to “publish” what was printed, seen or spoken on their systems. In turn, publishers have been held responsible for publishing libel or slander since the birth of the nation and further back in England. But section 230 absolved publishers and speakers of liability for what they put on their internet services. Although the Court changed the general standard of liability for false statements, it has never removed the joint responsibility of papers, magazines, broadcasters or other publishers for defamation. Section 230 did that, but nothing in section 230 is constitutionally required and the First Amendment is no obstacle to its repeal.

Before section 230 was passed in 1996, much of the scurrilous content advanced by QAnon, white extremists, Proud Boys and other groups would have been confined largely to word-of-mouth chatter, with relatively little impact on national politics.

Some of the stories blaming Hillary for the death of Vincent Foster, the death of American diplomats at Benghazi, or for “sexually abusing children in satanic rituals … in the basement of a Washington, D.C., pizza restaurant” could have subjected any publisher to litigation for defamation and resulted in a significant judgment and the embarrassment of defeat in court, as would similar claims against other Democrats. In light of what we know from the publicity and the investigations of those charges, it is unlikely that any of those allegations would have satisfied a court, any more than the repeated charges that the 2020 election was rigged by the Democrats.

Unable to sustain the claims, the defense would likely have collapsed in such cases. Not surprisingly, papers, magazines and broadcasters would have been cautious about such claims absent protection such as by section 230. Even the congressional investigations of some of those charges wouldn’t have protected all the allegations being thrown around and many of those stories would have been rewritten to avoid liability before they hit our screens. Ironically, the efforts to gerrymander the legislative races and to disqualify Democratic-leaning voters did strongly suggest election rigging but by the Republicans, by taking advantage of gaps in the law and in favor of Donald Trump and his allies.

Publishers are targets but anonymous and individual speakers are rarely sued. Going after small-time speakers is a game of whack-a-mole, never ending, expensive, resulting in negligible damages collected and therefore frustrating for plaintiffs. Going after publishers, however, is big news, makes substantial damages for false claims reasonably likely, and could well shut much of the nonsense down.

Section 230 was included in the 1996 Copyright Act to provide some cover for the emerging internet chat-boards. But it has become the source of outrageous garbage. Scurrilous attacks on candidates aren’t new. But the spread, the currency and the way they have convinced so many Americans to trust that nonsense, should make every American ashamed. Repealing section 230 and restoring liability for libel and slander is consistent with the First Amendment. Although more will need to be done, repealing it is essential to the very purpose of freedom of speech – getting at the truth instead of smothering it in a smokescreen of lies.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on February 2, 2021.

Zuckerberg, Facebook and the Responsibility of Publishers

This post is about law and social media.

Zuckerberg has not been willing to take responsibility for the lies distributed on Facebook. And by now everybody but Donald is aware that social media are the major repositories of fake news. And that’s not an accident.

Broadcasting stations, newpapers and other publishers must carefully avoid publishing libel and defamation on their media. That requires them to make real effort to prevent publication of scurrilous material.

Until the 90s, those rules arguably applied to the internet. But then communications law removed publisher liability entirely for “interactive computer service[s]”:

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.

As Dan Solove comments, courts interpreted the statute:

to immunize any ISP [internet service provider] or website for comments made by their users – even when the ISP or website has knowledge the comments are defamatory or invasive of privacy and take no steps to do anything about it.

Some of the results have been outrageous. The statute removed liability even when internet providers knew stories were false. In one infamous case, an anonymous source posted messages falsely linking a small businessman to the Oklahoma City bombing. A crushing barrage of angry callers made it impossible for him to do business.  AOL removed the posts when notified, but variations were reposted immediately and the victim couldn’t get AOL to block them, post retractions or even act more quickly. The courts sided with AOL. And Congress moved in only to protect copyright owners.

In this wild west of unsubstantiated internet allegations, who’s responsible? It’s generally worth suing only corporate defendants who can pay for the damage, which usually means the ISP.  And immunizing fraud on social media makes it harder to hold other media responsible. Once a story is “out there,” other news organizations are stuck. Without a good way to hold companies responsible for checking facts, gossip, lying and fake news dominate the industry.

Recent hearings made clear that Americans find it outrageous that Zuckerberg and his company have no responsibility for the garbage they “share”. It’s time to change. There is no reason for giving huge internet companies, vastly wealthier than print media, advantages that print doesn’t share. But Facebook won’t accept responsibility for most of the lies it distributes.

Radio and television stations, newspapers and other publishers are legally responsible. The very famous case of New York Times v. Sullivan came to the Supreme Court because the Times published an ad taken out by leaders of the Civil Rights Movement that had some inaccuracies. Those who placed the ad in the Times and the Times itself shared liability to anyone injured. The law at the time violated the First Amendment in other ways, which the Supreme Court corrected in that and subsequent cases. But if constitutional requirements were satisfied, publishers were and are responsible.

The deeper meaning, however, is that this problem illustrates that there is no such thing as purely private action. Law always either allows, forbids, or empowers some people over others. One cannot get to the bottom of our economic or social problems without looking at the interplay between public and private decisions, no matter what free market ideologues try to tell you.

— This commentary was broadcast on WAMC Northeast Report on December 3, 2019.

Democratic Presidential Candidates, Voters and Media

Commentators are scoring Democratic candidates by how “moderate” or “far left” they are. That’s nonsense. Let me count the ways.

Perhaps most important is that most voters don’t have a worked out platform. They are actually trying to judge sincerity. Some of us may prefer to choose policies. But most voters feel much more comfortable judging sincerity. So while commentators think Warren is too far to the left, the voters like her. What they are seeing is that she cares about them. That’s important. They want the winner to work for them and they figure that if the candidate cares, they’ll choose the right policies. That after all is the elected leaders’ job. Voters never aligned with Reagan’s policies but they liked and trusted him. That’s one of the reasons Republican appeals to what Reagan did seem hollow. They aren’t Reagan.

There’s another equally important reason. Presidential candidates’ policy preferences tell us what they will try to do, not what will happen. That’s partly out of any official’s control. Legislators, administrators, judges and changing circumstances have a large hand in that. Obama wanted a public option. I still do. But he couldn’t get it. What mattered is that he wanted medical coverage for all of us and he did his best. I appreciate that. And it is a big contrast with the absence of any Republican plan.

So it’s sensible for us as voters to ask whether this candidate will move the political system in a good direction, pulling and pushing despite opposition to get the best possible result. So a candidate like Warren is to the left of the Congress and thank heavens!

What I think the details really can show is whether the candidates are able to think things through. I do understand why she wants Medicare for all even though, if I were in her shoes, I wouldn’t push for it. Medicare for all guarantees a good plan for all of us because equality means that if it’s going to be good for us, it has to be good for them, too. And of course a single payer system is cheaper to administer. So I admire her dedication to getting good care for us all even if I can see disadvantages. But no candidate will get everything they want. So we’ll get a compromise between “moderate” ideas and caring motives. A president isn’t a monarch, and shouldn’t be.

One more reason: moderate and left are sloppy terms. If I like one leftish idea that doesn’t make me a leftist. If sometimes I support competition like Republicans do, that doesn’t make me conservative. Voters might disagree about one thing or another but like and trust a candidate. Or they might mislabel a candidate’s whole platform based on one idea and jump away. The media are being sloppy. There are ideas to the left of current American politics that Americans like and some they don’t. They do like medical care. They do want government to make sure that we all have access to important and essential services, whether or not the proposals started out on the left. Sloppy characterizations don’t help. Clarity and precision are much more useful.

 

From Chaos to Monopoly – the End of Net-Neutrality

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.

Polarizing America

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).

Silencing: Pensions, Kurds and Black Lives Matter

We watched a Black Lives Matter march pass in front of our house recently. It reminded me of something that happened in 1972, when NBC aired a documentary called “Pensions: The Broken Promise.” It described many instances in which loopholes in pension plans left people without the pensions they thought they had. The narrator called the “situation” “deplorable.” The documentary won many awards and played a part in developing public support for pension legislation which now goes under the acronym ERISA.

But a group called Accuracy in Media sued pursuant to the now defunct “fairness doctrine,” claiming that the documentary presented a “distorted picture of the private pension system” because almost nothing was presented on the positive side.[1] They wanted to censor NBC for not airing another program about all the good pensions. The U.S. Court of Appeals for the D.C. Circuit ruled in favor of NBC. The instances detailed in the documentary really happened; they were undisputed. The complaint asked NBC to air a documentary on a different issue – the overall soundness of pensions in America. The Court understood that requiring NBC to discuss the overall issue would dilute its attack on the abuses that had been allowed and had left many workers without pensions. It also might mean that broadcasters in the future would pull their punches, and avoid controversial exposes, no matter how valuable. Those consequences would neuter, rather than contribute, to public discussion of controversial issues of public importance.[2]

Let me turn to another place where the same tactic is being used. Turkey has not allowed Kurdish grievances to be raised. The government says that there are no Kurds, or no loyal Kurds; there are only Turks. So they can talk about grievances so long as they have nothing to do with Kurds. Having silenced Kurds, they then continue to fight a shooting war against the Kurds.

There have been calls for the same method of silencing in an American context today. Various groups attack Black Lives Matter because they say, accurately, that all lives matter. But the meaning of their attack is to neuter the Black Lives Matter campaign. Of course all lives matter, but African-Americans have had distinctive problems. To require Black Lives Matter to discuss the whole issue of abusive treatment of everyone would dilute their campaign, their point, and make it harder to focus on the difference in the way people are treated, the reason why Black parents have to have “the conversation” with their children about what to do if the police stop them, a conversation white parents don’t need to have. Objections to the slogan, that Black Lives Matter, is an effort to keep the veil over a serious injustice in our society.

Of course all lives matter. But most of us understand the phrase “Black Lives Matter” as meaning that Black lives matter too. That’s standard English, both because meaning in our language comes from context and because a positive statement does not imply the nonexistence of everything else. There is no negative implication that other lives don’t matter; there is only emphasis – Black lives, the lives of Black people, are important, they matter, they have been ignored, and that has to stop. Yes, Black lives do matter.

— This commentary was broadcast on WAMC Northeast Report, August 16, 2016.

[1] In Re Complaint by Accuracy In Media, Inc. Concerning Fairness Doctrine Re NBC, 40 F.C.C.2d 958 (F.C.C. 1973).

[2] NBC v. FCC, 516 F.2d 1101 (1974). Note that the 1974 decision has been vacated on other grounds and is no longer available on common online sources but is available in the hard-copy reporters.