Why Trump’s Social Media Executive Order Is Both Illegal And Unwise

Today Donald Trump signed an Executive Order punishing social media companies for the way they moderate online content. The order was specifically aimed at Twitter, which has embarrassed the president this week by add fact-checks to several Trump tweets.

The meat of the Executive Order attacks Section 230 of the Communications Decency Act of 1996, saying, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct. It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”

Here is what subparagraph (c)(2)(A) says:

No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

Communications Decency Act, subparagraph (c)(2)(A)

The law gives social media companies, “interactive computer services,” wide latitude to moderate a wide variety of objectionable content. The law specifically says that even constitutionally protected material can be restricted if the action is taken in good faith.

Another relevant portion of the law is subparagraph (c)(1) which is literally one sentence before the paragraph cited by the president’s Executive Order. That line says:

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.

In other words, the law specifically says that social media companies cannot be treated as publishers of information that they do not produce. Despite the plain language of the law, the president’s Executive Order calls on social media companies to be treated like “any traditional editor and publisher that is not an online provider.” Since laws passed by Congress have more weight than an Executive Order, President Trump’s decree is illegal on its face.

Beyond the illegality of the order, its premise is also wrong. In contrast to many Republicans who claim that Section 230 gives special protections to social media companies, the law actually offers protection based on activity rather than status. When Twitter moderates or removes tweets published by its users, it is protected from liability under the law but, when it produces its own content, it is legally a publisher.

“In plain English, this means that my comments on Twitter or Google or Yelp or the comments section of my favorite website are my comments, and my comments only,” David French explained in Time back in January, adding that Section 230 “allows websites to take down racial slurs – all without suddenly also becoming liable for all the rest of their users’ speech.”

This is exactly what Congress intended when it passed the law. In response to several court cases in the 1990s, Congress designed Section 230 to encourage internet providers to moderate and remove offensive content from their platforms rather than allowing the internet to continue to be a cesspool of insults, pornography, and fake news. Well, even more of one anyway.

As Jeff Kosseff, author of The 26 Words That Created The Internet, explained, “For Congress, the motivator for Section 230 was that it did not want platforms to be these neutral conduits, whatever that means. It wanted the platforms to moderate content.”

The rub is that if the government leaves it up to the internet providers to moderate content then there will be as many different versions of what is offensive as there are internet providers. However, the alternative is that the government become the arbiter of what is fair and what is offensive for all companies.

That is where President Trump wants to go. Trump’s Executive Order calls on the Secretary of Commerce, the Attorney General, the National Telecommunications and Information Administration (NTIA), and the FCC to issue regulations determining when internet providers are not acting in good faith, act inconsistently with terms of service, and without a meaningful explanation or allowing users to be heard.

While censorship on social media platforms is not currently a First Amendment issue since the Bill of Rights restricts the government and not private companies, Trump’s plan could make it more difficult to moderate offensive content on the internet by inserting the government into the equation. Twitter has the right to remove content as a private company but if the government directs Twitter to remove or moderate content then it could constitute a First Amendment violation.

Allowing the government to make subjective decisions about the management of content on the internet is never a good idea, but the summer of 2020 is a particularly bad time for Republicans to make such a move. Aside from the strategic fact that Trump’s proposal is an expansion of government into policing free speech on the internet, there are tactical considerations as well.

As we head into the 2020 elections, it looks increasingly likely that Republicans will lose both the presidency and the Senate. If Trump and company act now to set up an infrastructure for micromanaging speech on the internet, it is very possible that a Joe Biden Administration will put that policy fully into place. That fact alone should have been enough to slam the brakes on the Executive Order.

Regardless of the outcome of this year’s election, whatever bureaucratic restrictions the Trump Administration puts on free speech will one day be administered by Democrats. When that happens, it is very likely that the Democrats will use those rules against conservatives. When Republicans give the government a new weapon to brandish, they should remember that sooner or later it will be turned against them.

Originally published on The Resurgent

Facebook Is Still Up To Its Old Tricks

Less than two weeks ago, Facebook announced its intention to reform itself to address conservative concerns of bias. Facebook’s changes were in response to an audit led by former Republican Senator Jon Kyl and included an appeals process and more transparency in why content is removed by the social media platform. Now it seems that Facebook is already up to its old tricks.

On Friday, Live Action tweeted that Facebook had flagged a post stating that “abortion is never medically necessary” as “false news.” Facebook’s notification to Live Action notes that “Facebook reduces the distribution of misleading content while showing additional reporting on the same topic” and warns that “pages and websites that repeatedly publish or share misleading content will see their overall distribution reduced, their ability to monetize and advertise removed, and their ability to register as a news Page removed.”

https://twitter.com/LiveAction/status/1167547494307418112?s=20

Science Feedback, the organization that fact-checked the Live Action posts, rates the claim that “abortion is never medically necessary” as “inaccurate.” The group, which claims to be nonpartisan, argues that some medical conditions “such as pre-eclampsia, HELLP syndrome and placenta previa, in which abortion could become medically necessary in order to save the life of the mother.” The group also points out that “In order for early delivery to save both the life of mother and child, the fetus first needs to have developed sufficiently that it stands a chance of surviving outside of the womb.”

In an interview with Fox News, Live Action President Lila Rose responded, “We have doctors, OBGYNs, [who are] board-certified, who are also featured in our videos, who are saying the exact same thing. In fact, thousands of doctors agree with Live Action, with me, that abortion is not a medical treatment.”

Earlier this year, American medical leaders representing more than 30,000 doctors signed a letter at The Public Discourse which stated, “It is never necessary to intentionally kill a fetal human being to save a woman’s life.” In 1981, Surgeon General C. Everett Koop said, “The fact of the matter is that abortion as a necessity to save the life of the mother is so rare as to be nonexistent.” Even Dr. Alan Guttmacher, a former president of Planned Parenthood, said as far back as 1967, “Today it is possible for almost any patient to be brought through pregnancy alive, unless she suffers from a fatal illness such as cancer or leukemia, and, if so, abortion would be unlikely to prolong, much less save, life.”

Rose also told Fox News that Live Action had contacted Facebook and was told to contact the fact-checkers with its concerns. It seems that, with a difference in opinion between medical professionals on both sides, that Live Action’s case would be a likely candidate for Facebook’s new oversight board. Labeling Live Action as “false news” seems to be an overreaction since the controversy seems to boil down to a quibble between the word’s “never” and “hardly ever.”

Live Action is not the only conservative facing sanction from Facebook, however. I have had recent reports from members of conservative Facebook groups who say that they are still being sent to “Facebook jail” for posts that do not violate Facebook’s community standards. In one example, a meme depicting Charles Manson morphing into Alexandria Ocasio-Cortez led to two of my Facebook acquaintances receiving a 24-hour ban. The picture was what those of us in the South would refer to as “tacky,” but it didn’t seem to violate Facebook’s written standards.

One of the Facebook users shared the meme with me along with several screenshots. In violation of Facebook’s promise to be transparent, the notification only says that the post violated community standards and did not give a specific reason. The notification offered the user to “see options” in order to “learn more about this post and see what you can do.” When this option was selected, it led to a blank screen with an exclamation point icon. There was no explanation as to what community standard was violated or how to appeal to the oversight board.

As a private company, Facebook has the right to set its own rules and pick what sort of content to allow on its platform. However, if the social media giants want to be public forums for political discussion, they must do a better job of not discriminating against conservative viewpoints. Otherwise, Facebook will find many of its users migrating to competing platforms that don’t discriminate against conservative content+9. No company, no matter how big, is infallible.

Earlier this month, Facebook made a commitment to enforce its community standards with more fairness. Maybe the company is truly trying to improve how it polices conservative content, but it has a long way to go.

Originally published on The Resurgent

Facebook Makes Changes To Win Conservative Trust

The long-awaited results of Facebook’s year-long audit have been released. Unsurprisingly, the report shows that conservatives don’t trust the social media platform for a variety of reasons.

Per Axios’ exclusive report of the audit results, conservative complaints about Facebook fell into six broad categories. These include concerns that Facebook algorithms make it more difficult to spread conservative content, that community standards that label some long-held traditional beliefs as hate speech, that enforcement was biased against conservatives, that Facebook labeling an ad as “political” would jeopardize tax-exempt status, about long approval times for time-sensitive ads, and that Facebook employees writing rules and community standards were biased against conservatives.

The audit was conducted by Jon Kyl, the former Republican senator from Arizona at Facebook’s request. Kyl describes the process in the Wall Street Journal today. The audit consisted of 133 interviews with “individuals, groups, and lawmakers who either use, study or could potentially regulate Facebook,” beginning in August 2018.

In response to the audit’s findings, Facebook has already committed to a series of reforms that are specifically intended to benefit conservatives. The first reforms include:

·        Oversight board – A board will be formed to hear appeals for difficult content-removal cases.

·        Explanations of news-feed rankings – Facebook is launching “transparency tools” that will explain why the content that users see in their feed is there.

·        Page transparency – Page owners can now see when content has been removed for violating community standards and when distribution is reduced due to “false” ratings from fact-checkers.

·        Staffing – Facebook has hired four new employees to work with small groups and answer questions and complaints about content removal.

·        Ad labeling requirements -  Rather than labeling ads as “political,” ads will now be classified as “about social issues, elections or politics.”

·        Ad policies – Facebook has changed a policy that prohibited ads that showed medical tubes in patients. The change will make it easier to get pro-life ads approved.

“We believe these and other measures described in our interim report are steps in the right direction,” Kyl writes. “Yet these are complicated issues, some of which involve conflicting opinions even among conservatives. For that reason, restoring trust fully may remain an elusive goal. Conservatives no doubt will, and should, continue to press Facebook to address the concerns that arose in our survey.”

In a statement, Facebook VP of Global Affairs and Communications Nick Clegg, wrote, “Regardless of one’s own political views, this is about whether we apply our own policies fairly to all sides, and whether those policies begin with an understanding of how core groups of users express their beliefs.”

“While we err on the side of free speech, there are critical exceptions,” Clegg added. “We don’t allow content that might encourage offline harm or is intended to intimidate, exclude or silence people. And we work to slow and reduce the spread of content like debunked hoaxes and clickbait by downranking it in News Feed. We know we need to listen more as we work to strike the right balance with these policies.”

“Even if we could craft them in a way that pleased all sides, when dealing with such nuanced issues, involving policies that apply to billions of posts, we will inevitably make some bad calls, some of which may appear to strike harder at conservatives,” Clegg acknowledged.

The new reforms are merely the first step in Facebook’s attempts to fairly enforce its rules. The process is ongoing and Kyl’s team will issue another report in a few months.

Many conservatives on Facebook have spent time in “Facebook jail” for seemingly innuous posts or had content removed will understandably be skeptical of the social media giant’s commitment to fairness, but today’s announcements mark a significant victory for both conservative users of social media and free markets in general. As a private platform, the company does have the right to enforce its own rules and restrict objectionable content, but it has responded to consumer pressure to enforce its rules more fairly. This is not only good news for conservatives on Facebook but also for advocates of small government who were skeptical of conservative calls to regulate the social media platforms in the name of “fairness.”

Originally published on The Resurgent

Trump Order On College Censorship Is A Nothingburger (But That’s A Good Thing)

President Trump recently promised an Executive Order targeting the suppression of free speech on college campuses and yesterday he delivered. The president followed up on his pledge to conservatives at CPAC, but whether the new Executive Order will actually change the situation is doubtful.

Compared with the president’s strong promise that “If a college or university does not allow you to speak, we will not give them money. It's that simple,” the text of the Executive Order is much less strident. In fact, Inside Higher Education calls the actual content of the Order “modest.”

In preparing for this article, I read through the seven-page order, which was reportedly in the works before Mr. Trump’s CPAC speech, and found very little about restricting funds from colleges that abridge the speech of their students. It does say that “it is the policy of the federal government to… promote open, intellectually engaging, and diverse debate,” but the Order then veers into counseling students about choosing a beneficial degree and avoiding default on federal student loans.

With respect to free speech, the president orders the Office of Management and Budget to “take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.” The Order then establishes new reporting requirements, but these deal more with student loan debt and whether students complete their degrees in a “timely and affordable” fashion.

In other words, the president is telling the OMB to enforce current law. In other words, the Executive Order is a nothingburger.

With President Trump, that’s a good thing. The likely alternative would be that the president would declare a national free speech emergency and use it to seize funds from colleges that are accused of restricting free speech. As an added bonus, the president might even try to divert those funds to the construction of the wall.

The reality is that when Congress appropriated grants to colleges, it placed certain restrictions on the use of those funds. The Executive Order does nothing to place new restrictions on the money that has already been designated by Congress. To do so would most likely be unconstitutional.

Free speech – or the lack of it – is definitely an issue on many college campuses, but the solution is not unilateral action by the president. Presidential action that violates existing law would be a particularly bad idea, but the general idea of getting the federal government involved as the arbiter of free speech is not a small government solution. Having the federal government play the referee is only a good idea as long as the head of the federal government is a free speech proponent. Few conservatives would be comfortable with the idea of Bernie Sanders or Kamala Harris as the defender of their First Amendment rights and with good reason. However, that might be what they get if they seek a larger federal role in policing campus speech.

There is already a remedy for college students whose free speech rights are abridged. Students have successfully sued to force public colleges to uphold their First Amendment rights on a number of occasions. Last December, a student of the Los Angeles Community College District won the right to pass out copies of the US Constitution on campus. As part of the settlement, the school dismantled its designated “free speech zones.” The same month, UC Berkeley settled another lawsuit filed by   Berkeley College Republicans and the Young America’s Foundation. The conservative groups alleged that Ann Coulter and David Horowitz were forced to cancel events because Berkeley restricted when and where they could speak. The plaintiffs also said that Berkeley placed different restrictions on conservative speakers and groups than it did for liberals. The settlement included $70,000 to pay attorney fees for the plaintiffs and prohibits the school from charging security fees based on concerns that the “viewpoints, opinions, or anticipated expression” of the speakers or their sponsors “might provoke disturbances.”

Viewpoint censorship on college campuses is a serious issue and President Trump’s heart seems to be in the right place, but proclaiming the new Executive Order is a solution to the problem is dishonest. There is very little new ground broken in the Order, but that isn’t a bad thing since the president lacks the authority to do much more. At best, the Executive Order shines a light on the problem.

Originally published on The Resurgent

Meet Alex Jones' Most Surprising Defender

In the wake of several social media giants banning Alex Jones, there was much rejoicing from the left. The enforced departure of the conspiracy guru was cheered as a victory by liberals across the country. There was, however, at least one prominent liberal who bucked the trend.

Bill Maher, the far left host of HBO’s “Real Time With Bill Maher” and “Politically Incorrect,” gave the tin-foil-hat-wearing talk show host a surprising defense last Friday. Maher began the segment by saying, “Alex Jones, who is not my friend and who tells crazy lies about me is thrown off Twitter, I think, and Facebook and a few other platforms.”

“Thank God!” exclaimed Jennifer Granholm, the former Democratic governor of Michigan and a current analyst for CNN, as the audience broke into cheers and applause.

“Well, if you’re a liberal you’re supposed to be for free speech,” Maher countered.

“That’s free speech for the speech you hate. That’s what free speech means. We’re losing the thread of the concepts that are important to this country,” he continued.

“If you care about the real American shit or you don’t. And if you do, it goes for every side. I don’t like Alex Jones, but Alex Jones gets to speak. Everybody gets to speak,” Maher said.

“Sure, but he doesn’t necessarily get to speak on Facebook or Twitter,” Charlie Sykes contributing editor for the Weekly Standard, responded.

“I get that,” Maher agreed.

“If a guy goes out – and this is not opinion -  if he engages in vile slander and fabrication about children who are murdered at Sandy Hook and he harasses the parents of children who were murdered at Sandy Hook … Facebook [and] Twitter don’t have an obligation to provide him a platform because they’re private companies.”

Both Maher and Sykes are absolutely correct. Censorship on social media is a free speech concern, but it is not a First Amendment issue. The First Amendment protects Americans from censorship by the government. It does not protect people from censorship by private companies who legally set the rules for behavior on the internet platforms that they own and operate.

“The way to get rid of hateful things is that sunlight is the best disinfectant,” Maher said, quoting Supreme Court Justice Louis Brandeis.

“A good example is the alt-right rally,” Maher continued. “They had their rally again. Twenty people showed up, okay? Not because we outlawed it, but because we let it happen the first time and these mental midgets found out, oh, it’s not so great when you do this in public because then you go back to the office and people don’t like you so much.”

While both sides of the political spectrum pay lip service to free speech, both sides are happy to censor the speech of political opponents. Liberal activists often shout down conservative speakers on college campuses and social media platforms are accused of bias against conservatives in enforcing their terms of service.

For their part, many on the right approve of using the power of government to regulate what they consider to be “fake news.” An Ipsos poll from earlier this month found that 43 percent of Republicans, a plurality, agree that “the president should have the authority to close news outlets engaged in bad behavior.” This would be a direct violation of the First Amendment.

I rarely get to agree with Bill Maher, but he is absolutely correct here. Freedom of speech should apply to all ideologies, but it is most important for speech that is unpopular or that we disagree with. Nothing in the Constitution or the US law prohibits us from having our beliefs challenged or guarantees the right to an uninterrupted echo chamber.

Originally published on The Resurgent

Alex Jones, The NFL and Freedom of Speech

The conservative world – or at least the right-wing world – was rocked this week with the news that Facebook, Apple and Spotify would ban Jones and his Infowars podcasts from their sites. Much of the right-wing reaction has focused on the question of freedom of speech and whether the internet giants have a duty to provide access to Jones’ conspiratorial ramblings.

The crux of the issue is that Facebook and the other companies are private entities. Because they are not part of the government, the First Amendment does not apply. The First Amendment only protects freedom of speech from being infringed upon by Congress, not private corporations.

In Facebook’s case, the waters are muddied by CEO Mark Zuckerberg’s claims that the social media giant is “a platform for all ideas” and that he is trying to “root out” bias in the company. If the company truly welcomes all ideas, then it should allow Jones to post his ideas, as reprehensible as they are, unless he violates the site’s terms of service.

Facebook should also set an objective standard to determine what is and isn’t “hate speech” and “bullying,” the vague terms that were used to justify Jones ouster from the site. The standards should be applied to both sides of the political spectrum. The list of political leftists who use hate speech is long and filled with people who are rarely held accountable for their words. Sarah Jeong is only the most recent example.

If freedom of speech is endangered by the left, many on the right are happy to attack the free speech rights of their political opponents as well. The most glaring example is the NFL kneeling controversy. President Trump overstepped his authority last year by calling on NFL team owners to fire players who kneeled to protest during the National Anthem. Many conservatives supported the president without stopping to think that the NFL, like Facebook, is a private organization.

In either case, the appropriate action for people who disagree with how the owners of Facebook and the NFL run their businesses would be to fire them. No one is forced to have a Facebook account or watch the NFL. If enough people vote with their wallets and stop sending their money to leftist companies, these policies may eventually change. The one thing that conservatives should agree on is that the government should not tell private companies how to run their business or what they should allow.

Unfortunately, that is not the case. Both sides seem perfectly willing to abridge the free speech rights of their political opponents. That includes many on Republicans who consider the media “fake news.” A new Ipsos poll found that a plurality of Republicans, 43 percent, believe that “the president should have the authority to close news outlets engaged in bad behavior.”

The idea that Big Government should referee the freedoms of speech and press is not new to the left, but should be an anathema to small government conservatives. At the very least, Republicans in favor of restricting speech should be aware that the government’s powers of censorship would almost certainly be turned against conservative outlets – or conspiracy sites like Infowars - by the next Democratic administration.

Where Voltaire famously said, “I disapprove of what you say, but I will defend to the death your right to say it.” Modern Americans of all political stripes say, “What you say offends me, so you must be silenced.” The First Amendment applies to me, but not you.

Justice Louis Brandeis had a better idea. Noting that “Those who won our independence were not cowards” who feared political speech, Brandeis said that, for the problem of dangerous and evil speech, the “remedy to be applied is more speech, not enforced silence.” That’s a solution that all Americans should get behind.

Originally published on The ResurgentAlex Jones

Democrat Bill Would Outlaw Fake Election News

It seems that President Trump regularly makes the news for his rhetorical attacks on the freedom of press and journalists. Now some Democrats, apparently eager to prove that they are ambivalent about the First Amendment as well, want to criminalize certain types of speech about elections.

The Huffington Post reports that Democrat Sens. Claire McCaskill (Mo.), Ben Cardin (Md.), Doug Jones (Ala.) and Patrick Leahy (Vt.). plan to introduce legislation that would make it a federal crime to knowingly spread false information about voter registration and qualifications or the time and place of elections. Democratic Reps. A. Donald McEachin (Va.) and Jerry Nadler (N.Y.) will introduce companion legislation in the House.

“Misinformation campaigns intended only to suppress the vote and disenfranchise Missourians are crimes that run counter to our democratic values, and the punishment for those actions should fit the crime,” Sen. McCaskill said in a statement.

The Post cites several examples of election hoaxes from recent elections. Flyers in Maine in 2016 falsely told college students that they had to “pay to change your driver’s license to Lewiston” and “pay to re-register” their vehicles if they wanted to vote locally. The Republican mayor of Mansfield, Ga. posted a message to his Facebook page that read, “Remember the voting days: Republicans vote on Tuesday, 11/8 and Democrats vote on Wednesday, 11/9.”

Of the two examples, the first seems to be a serious attempt at voter suppression while the second is an obvious joke. I’ve heard the same joke in more elections than I can remember and no one ever seemed to take it seriously. It seemed funny when I first heard it about 20 years ago, but now seems as tired as, “That was no lady, that was my wife.”

In either case, the First Amendment defender in me argues that the best reaction to false speech and fake news is not criminalizing speech that we don’t like it, but in countering it with more speech that is good and true. There are ample opportunities for political groups to educate voters on the real election and voter registration rules in their state.

There is also the question of how effective such a “fake speech” law would be. The speech police might snare jokesters like the mayor of Mansfield, but it is less likely that they would catch the anonymous culprits who printed the flyers in Maine. Flyers printed cheaply on a home copier or printer would be hard to trace unless police nabbed someone in the act of handing them out.

When it comes to fake news, the Democrats need to remember that the First Amendment prohibits the government from making any law “abridging the freedom of speech.” It does not include exceptions for fake speech, hate speech or things that people find offensive.

Republicans should remember that the same guarantees apply to the freedom of the press as well. The last thing that proponents of small government should want is for government bureaucrats to determine what is true and what is fake or unfair.

In the end, it is a voter’s responsibility to register and educate themselves on candidates and elections. When there are real and serious attempts to mislead potential voters, these reprehensible acts make it more difficult to exercise the right to vote, but no one ever said that democracy was easy. One of the most difficult aspects of maintaining democracy may be guarding against well-intentioned but poorly thought out laws that erode our basic constitutional rights.

Originally published on The Resurgent

Why the Masterpiece Cakeshop Ruling Is Bad For Conservatives

While Jack Phillips, the owner of Masterpiece Cakeshop can rest a little easier after this week’s ruling, the Supreme Court decision may not bode well for the larger issues of religious freedom and freedom of speech. The narrow ruling avoided the question of how religious freedom and personal sexual freedom can be resolved and instead hinged on the anti-religious attitude of several members of the Colorado Civil Rights Commission.

The Court did not rule on the central question in the case, the question of whether the government has the right to compel private citizens to act against their sincerely held religious convictions. In the ruling, Justice Anthony Kennedy seemed to stress that, since same-sex marriage was not the law of the land in 2012 when actions in the case occurred, there was leeway for Phillips that a future defendant might not have.

In the decision, Kennedy acknowledged, “State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive.” Kennedy also noted that the Colorado Civil Rights Commission had concluded “on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages.”

Kennedy said that Phillips’ claim “that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.” However, the justice goes on to say that Phillips’ “dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell.”

Per Justice Kennedy, Phillips “was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case.” He continues, “That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The decision of the Court was not that the Colorado law produced an undue burden on Phillips or that the state had no compelling interest in forcing bakers to violate their religious principles. Instead, Kennedy wrote, “the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.”

The opinion of the Court, as written by Justice Kennedy, hinged on the fact that the members of the Colorado commission expressed hostility rather than neutrality. The Court’s decision was not a decision based on objective law or the merits of legal arguments. It was a decision based on the emotions exhibited by the commissioners.

Further, Kennedy’s decision hinted that even this legal loophole might not be open to future plaintiffs. Part of Phillips victory hinted at the fact that same-sex marriage was not legal in Colorado at the time. Kennedy seems to believe that Phillips’ “deep and sincere religious beliefs” would not be so “understandable” in a nation where same-sex marriage has been established as the law of the land.

While the Masterpiece Cakeshop ruling is a clear victory for Jack Phillips, it is hard to see the ruling as a victory for religious freedom or freedom of speech. It is likewise a defeat for the objective rule of law at the hands of what Antonin Scalia once called “the mystical aphorisms of the fortune cookie.” The message to the Colorado Civil Rights Commission is that government officials should act tolerant in public in order to appear objective before making their rulings eviscerating the First Amendment rights of Christians. 

Originally published on The Resurgent

New York Ruling: Bars Can Ban Trump Supporters

A Manhattan judge ruled this week that bars in the city can refuse service to Trump supporters. On the surface this seems to be unjust, but conservatives and constitutionalists should applaud the ruling, which follows the law and small government principles.

It all started in January 2017 when Greg Piatek, a 30-year-old accountant from Philadelphia wore his red “Make America Great Again” cap to The Happiest Hour, a New York City watering hole. Piatek says The Happiest Hour staff was not happy with his headgear and eventually forced him to leave.

The New York Post reported that bartenders noticed the hat after Piatek and his friends had been served the first round of drinks. Piatek says they asked if the hat was a joke and when he was finally able to order a second round, the bartender allegedly “slammed the drinks down.” Piatek claims that the other bartenders ridiculed his hat and refused to serve him and that, when he complained about the service, the manager told him, “Anyone who supports Trump or believes what you believe is not welcome here. And you need to leave right now because we won’t serve you.”

Piatek sued the bar claiming that the incident “offended his sense of being American,” per the Post. Piatek’s lawyer, Paul Liggieri, also claimed that the MAGA hat had religious significance.

“The purpose of the hat is that he wore it because he was visiting the 9/11 Memorial,” Liggieri said. “He was paying spiritual tribute to the victims of 9/11. The Make American Great Again hat was part of his spiritual belief. Rather than remove his hat, instead he held true to his spiritual belief and was forced from the bar.”

“Plaintiff does not state any faith-based principle to which the hat relates,” the judge ruled. “Here the claim that plaintiff was not served and eventually escorted out of the bar because of his perceived support for President Trump is not outrageous conduct.”

The instinctive reaction from many on the right will be to condemn the ruling, but the judge was correct in dismissing the lawsuit. In the first place, the evidence indicates that Piatek and his friends were not upset when they left the bar. The credit card receipt indicates that Piatek’s group ran up a $186 bar tab, to which Piatek voluntarily added a $36 tip. The 20 percent tip is an indication that the group was not displeased with the service that they received.

Second, even though critics of Trump’s movement have called it a cult, support for Donald Trump is not a religious belief and Piatek did not make the case that his hat was religious clothing at the time of the incident. The claim that a MAGA hat is religious garb makes a mockery of true religious persecution.

Although many conservatives seem to have thrown free trade by the wayside, the Constitution does protect the freedom of association and, by extension, the freedom not to associate. Likewise, businesses have traditionally had the right to refuse service to patrons who break their rules. Rules might prohibit sitting at a table without ordering or they might prohibit certain types of clothing.

There are limits to the right to refuse service. Race and religion have long been protected from discrimination by both state and federal laws. New York law prohibits “public accommodations” from discriminating because of “race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status.” The New York Constitution also protects the free exercise of religion.

What the law does not do is protect patrons from political discrimination by a private business. There is no inalienable right to be served a cocktail while wearing a MAGA hat.

In fact, even the US Constitution does not guarantee the right to free speech in a private business. The First Amendment protects Americans from government censorship, not from being ejected from a bar because the patron engaged in an unpopular political expression.

While it’s tempting to try to claim the mantle of victimhood when someone on the right is ejected from a bar for wearing Republican garb, that isn’t a road that conservatives should want to go down. The inevitable result would be leftists filing a plethora of lawsuits against conservative businesses.

It would also result in a further expansion of government into private transactions between businesses and individuals. No conservative should want the government ruling on what political attire crosses the line as unacceptable. Those decisions are better left to the owners and managers of individual businesses.

Trump supporters may be justly angry that Piatek was forced to leave the Happiest Hour, but suing the bar is not the best solution. A better solution is for like-minded individuals to vote with their wallets and patronize a different establishment, one where MAGA hats are at least tolerated, if not welcomed. In a city the size of New York, with establishments that cater to every sort of clientele, there is certain to be a bar where MAGA hat-wearing, Trump-supporting visitors to the city can enjoy their drinks in peace.

Originally published in The Resurgent

Now Facebook Will Tell You Why You're In 'Facebook Jail'

If you’ve engaged in political discussions on Facebook, the chances are good that you have had posts deleted and even spent some time in “Facebook jail,” the euphemism for temporary bans that put users in “timeout” when they get caught posting something inappropriate. A big problem is that Facebook’s community standards were vague and unevenly applied. Many users didn’t know what standard they were accused of violating and had no way to appeal Facebook’s decision. Now that has changed.

Today Facebook released its full community standards playbook, an 8,000-word guide that is used by the company’s 7,500 moderators. The guide is split into six sections that are based on specific types of posts that can be removed. These include violence and criminal behavior, safety, objectionable content, integrity and authenticity, intellectual property and content-related requests. The company says that the standards will continue to be updated frequently.

Many of the problematic posts are straightforward, but there are many exceptions. For example, Facebook says, “we default to removing sexual imagery,” but “make allowances for the content” that fits certain criteria such as when it is “a form of protest, to raise awareness about a cause, or for educational or medical reasons.”

“We remove content that glorifies violence or celebrates the suffering or humiliation of others,” Facebook says, but “we allow graphic content (with some limitations) to help people raise awareness about issues.”

Regarding the sticky issue of hate speech, Facebook lists a number of protected categories that include “race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender identity, and serious disability or disease” as well as “some protections for immigration status.” Facebook does not allow attacks, defined as “violent or dehumanizing speech, statements of inferiority, or calls for exclusion or segregation,” on these groups.

Hate speech is divided into three tiers. Tier 1 attacks are violent speech. Tier 2 attacks are “statements of inferiority.” Tier 3 attacks are calls to exclude protected groups.

There have been reports of Facebook users reposting threats that they have received and then being banned. Facebook says that if hate speech is reposted for the purpose of raising awareness, “we expect people to clearly indicate their intent, which helps us better understand why they shared it.” Otherwise the content may be removed.

When it comes to “fake news,” Facebook allows it. Noting that there is “a fine line between false news and satire or opinion,” the company says, “we don't remove false news from Facebook but instead, significantly reduce its distribution by showing it lower in the News Feed.”

Engadget points out that Facebook addressed accusations of viewpoint bias that results in uneven application of the rules in a recent blog post. “Our reviewers are not working in an empty room; there are quality control mechanisms in place, and management on site, that reviewers can look to for guidance,” the company said.

When the company makes a mistake, new policies will allow users to appeal the removal of content, Monika Bickert, Facebook’s vice president of product policy and counter-terrorism, told Reuters. In the past, only the removal of accounts, groups and pages could be appealed. Bickert also said that Facebook would begin to provide specific reasons for why the content was removed.

It’s important to remember that the First Amendment does not apply to Facebook and social media. The constitutional guarantee of free speech applies only to government restrictions. Private companies like Facebook have the right to police their communities as they see fit, but unless the companies respect freedom of speech they will ultimately chase users away to more open platforms. There has already been much talk online  from conservatives about leaving Facebook and Twitter in the wake of the news that the companies favor liberal viewpoints.  

Facebook’s new openness about community standards seems to be an attempt to fix the problem of vague standards for users. As Bickert said, “You should, when you come to Facebook, understand where we draw these lines and what’s OK and what’s not OK.”

Now if Facebook would just apply those standards evenly across the political spectrum. 

Originally published on The Resurgent

Facebook Deletes Admins On Popular Trump Page

The idea behind net neutrality was that internet users would be protected from punishment or from being restricted from internet access for their political beliefs. Unfortunately, political persecution of social media users already seems to be happening, not at the hands of the government, but by the tech companies themselves. Facebook, recently in the news for sharing data on its users with Cambridge Analytica, has a long history of stifling conservative speech. Now the administrators of a large pro-Trump Facebook page say that the company removed them from control of their page for no reason.

Thomas Pappert and Adam Rogers (a pseudonym), the administrators of the Facebook page “God Emperor Trump,” say that Facebook deleted them from their positions on the page, but did not remove the page itself or any of the posts on the page. At the time of writing, the page was still available for viewing on Facebook, but the pair say that they won't be able to post new content, other than posts that had already been scheduled when they were removed.

The page with its 335,000 followers represents three years of work for Pappert and Rogers. A press release on the Department of Memes says that the page administrators received an email from Facebook at 2:30 pm on March 29. Screen shots provided to Resurgent show a message from Facebook security that says, “You're getting this email to confirm that you're no longer an admin on God Emperor Trump.” The email instructed the admins to have another admin add them back or to contact Facebook.

“In the email we received from Facebook informing us of their decision to remove us from the page, there is a link we could click if we felt it was done improperly. When we click the link, it then leads us to another link, where we can fill out a report,” said Rogers. “When we go to this final page, the 'report' function is broken. It says Facebook had an error and to try again later.”

“It's done this for all of our admins, on different browsers, and across several different states,” he added.

The men say that their page was unpublished twice before and restored by Facebook. Rogers says that publicity from conservative media outlets helped get the page restored in those cases. “They were able to get the attention of actual humans at Facebook, who blamed the decision on an 'algorithmic failure' both times,” he says.

Whether a problematic algorithm or a rogue employee like the one who deleted President Trump's Twitter account last year, biased enforcement of social media rules is a growing problem. The lack of recourse for social media bans and the inability to contact customer service at the tech giants makes getting banned very frustrating for users.

In the wake of “fake news” and Russian bot scandals from 2016, Facebook and Twitter seem to be responding by cracking down on many conservative accounts and pages. A Project Veritas video in January revealed Twitter executives admitting to using “shadow bans” to censor conservative viewpoints. Twitter seems to easily verify liberal accounts while those on the right (including the author) have difficulty getting the accreditation. Conservative pages on Facebook have seen their circulation drop in the wake of new algorithms that prioritize “news that is trustworthy, informative, and local” in Facebook founder Mark Zuckerberg's words.

Because the social media companies are not the government, the First Amendment does not apply. Private companies can allow or ban posts and users as they see fit. Some, including Zuckerberg, are calling for regulation of the companies to force them to do the right thing with regard to privacy and free speech, but, as the IRS scandal from the Obama Administration shows, even the government can't be trusted to be impartial.

If social media companies want to censor conservative speech, the only other option might be for conservatives to leave the platforms and go to sites that are specifically created for conservatives. This approach has been taken by members of the alt-right who have created alternative sites where their views are accepted.

Social media sites have every right to run their businesses as they see fit, but forcing conservatives to flee to other platforms would be bad for the country as we divide ourselves further into opposing camps that interact with each other less and less. We already have separate news channels and websites. Facebook and Twitter are among the few places where Americans hear opposing viewpoints.

It would also be bad for stockholders if censorship drives users and ad revenue away. Facebook, a company less than 20 years old, has a near monopoly on social media now, but monopolies don't last forever and forcing users to develop competing platforms may accelerate the process of turning Facebook into the next Standard Oil.

Is President Trump Pushing For Return To Fairness Doctrine?

Many of today’s conservatives probably don’t remember the Fairness Doctrine. Many in the political world today never lived under it since it was repealed 30 years ago in 1987. If it still existed, the world of political talk radio would never have come into being. So why would President Trump want to bring it back?

In a series of tweets on Saturday morning, President Trump once again attacked the media, which is not unusual, but in two tweets he raised the question of whether the Administration should get “equal time.” In the first tweet, Trump said, “Late Night host are dealing with the Democrats for their very ‘unfunny’ & repetitive material, always anti-Trump! Should we get Equal Time?”

A few minutes later, in a second tweet, he said, “More and more people are suggesting that Republicans (and me) should be given Equal Time on T.V. when you look at the one-sided coverage?”

Equal time is essentially what the Fairness Doctrine was about. The Fairness Doctrine was implemented by the FCC under the Radio Act of 1927. In 1949, the FCC interpreted the law to mean that radio and television stations must provide contrasting views on issues of public importance and that, if a public personality was attacked on the air, they had to be given an opportunity to answer.

The policy was upheld in 1969 by the Supreme Court in Red Lion Broadcasting v. FCC. In a unanimous decision, the Court ruled that the Fairness Doctrine did not violate the First Amendment and upheld the FCC rule that the subject of a personal on-air attack must be provided with a tape, transcript or summary as well as an opportunity to respond regardless of ability to pay for air time. In 1987, the FCC panel repealed the Fairness Doctrine with a 4-0 vote.

When Barack Obama took office in 2009, conservatives such as Rush Limbaugh feared that the new administration would reinstitute the Fairness Doctrine. Instead, FCC Chairman Julius Genachowski killed the policy permanently in 2011.

Now President Trump’s tweets seem to indicate that the president would like a new version of the Fairness Doctrine. Although Republican politicians do not seem to be lining up to support the president’s call for “equal time,” many of the president’s supporters vocally support the idea on social media.

Although it survived an encounter with the Supreme Court, the Fairness Doctrine has traditionally been viewed as an assault on the First Amendment by conservatives. It is difficult to imagine how conservative talk radio would survive if stations had to provide equal time to the liberal targets of conservative talkers every day. Advertising revenue would be lost and listeners driven away as Hillary Clinton, Bernie Sanders, Elizabeth Warren and others got their equal time every day. It is no coincidence that The Rush Limbaugh Show premiered in 1988, the year after the Fairness Doctrine was repealed, kicking off the golden age of political talk radio.

The intention of the Fairness Doctrine was to protect free speech, but, as government regulations so often do, it had the opposite effect. Free speech blossomed with the repeal of the Fairness Doctrine where before, the Big Three networks had an effective monopoly on news and political commentary.

There is no shortage of news outlets who present the conservative side of stories. Even among the mainstream media there are the Wall Street Journal, the most successful newspaper in the country, the Washington Times and Fox News, to name just a few. There are many more conservative voices in the alternative media and blogosphere.

The traditional conservative answer to a problem with a free speech problem has been to call for more speech. It is troubling that Mr. Trump’s instincts are to call for more government oversight of speech and limitations on the First Amendment.

Originally published on The Resurgent

Schools Ban Anthem Protests

As the NFL begins to pay the price in popularity and falling ticket sales for the spreading anthem protests, some high schools and colleges are taking action to prevent their athletes from following in the footsteps of the professional players. Some schools are emphasizing existing policies that prohibit players from taking a knee during the national anthem as well as instituting new bans on the protest.

The Daily Wire notes that at least three schools around the country have released statements that point out that school policy prohibits players from kneeling during the anthem. While the Daily Wire says that the schools are instituting bans on taking a knee, statements from some of the schools point out that the policies are not new.

Colorado Christian University released a statement that said, “The University athletic department has always required our student athletes and coaches to stand respectfully for any pre-game or post-game prayers, as well as for the National Anthem. Contrary to several reports, this is not a new position.”

The superintendent of Manatee County schools in Florida, Jason Montgomery, sent an email to schools in his district pointing out that both federal and state laws mandate that students stand for the Pledge of Allegiance and the National Anthem. Montgomery wrote, “The Code of Student Conduct complies with all statutory requirements that include requiring a student to stand for the Pledge of Allegiance and the National Anthem, unless excused in writing by a parent.”

Some schools are setting new policies in response to the controversy. In Louisiana, Parkway High School Principal Waylon Bates said in a letter to students and parents that “the Louisiana High School Athletic Association allows school principals to make decisions regarding student participation in the National Anthem.” Bates instructs his students and faculty to “stand in a respectful manner throughout the National Anthem” and warns that “failure to comply will result in loss of playing time and/or participation” and even “removal from the team.”

The First Amendment protects Americans from attacks on freedom of speech and expression by the government, not private employers. Private companies can take action against employees who exercise their First Amendment rights even though the government cannot.

The NFL is a private organization with its own rules. If the NFL quashed the anthem protests, it would not be a violation of the First Amendment. In spite of internet rumors, the NFL does not have a rule requiring players to stand for the National Anthem. If it did, the government would have no legal standing to require the organization to enforce such a rule.

The Constitution does protect the right to protest from government interference. The Supreme Court has even protected the act of burning the flag under the First Amendment. When President Trump urges the NFL to fire players who take a knee during the National Anthem, using the power of the “bully pulpit” to attempt to limit free speech, he comes close to a violation of the First Amendment.

Ironically, schools may have a more difficult time banning the anthem protests than the NFL. Public schools are government entities and school policies are limited by the First Amendment. The Supreme Court has repeatedly ruled that students do not give up their free speech rights when they enter a school, but that schools do have the right to limit actions that disrupt the educational process. A public school might well lose a lawsuit over a kneeling ban.

Americans seem to understand this balanced view of protest and respect for the flag. The Seton Hall Sports Poll found that 49 percent of respondents thought that NFL players had a right to protest, but also thought that they should stand for the National Anthem.

As the controversy continues, schools and professional sports organizations will be challenged to find a balance between these opposing viewpoints. While the initial reaction of schools may be to institute bans on taking a knee, such policies may not be a quick resolution to the issue.

Originally published on The Resurgent

Facebook bans conservative meme

Screenshot of Facebook notification (David W. Thornton)

It looks like Facebook is at it again. The social media giant has a history of bias against conservatives and was the subject of criticism in May after whistleblowers revealed that Facebook employees suppressed conservative news on the site. In recent weeks, owners of conservative sites say that Facebook banned a meme that called transgenders “mental disorders.”

The meme in question, shown nearby, shows 32 gender symbols. The list starts with the traditional Mars and Venus symbols for male and female, but then includes new symbols ranging from various transgender symbols to “androgyne” to “demiagender (with third gender).” The two traditional genders were circled in green and labeled “genders.” The other 30 symbols were circled in red and labeled “mental disorders.”

In at least two cases, Facebook has unilaterally removed the meme from conservative Facebook pages while offering no recourse or appeal for the page owners.

Devin Pelkey, owner of the Conservative Soapbox page on Facebook, said, “My account was logged out on my phone, the Pages Manager [app] and Messenger [app]. I was asked to voluntarily suspend my page to remove other content that violated the Facebook terms of service.” Pelkey said that he was not the creator of the meme.

The notification that Facebook sent includes a link to Facebook’s community standards. There was no indication which standard was violated, but presumably it fell under the “encouraging respectful behavior” heading. The preface to the section reads:

People use Facebook to share their experiences and to raise awareness about issues that are important to them. This means that you may encounter opinions that are different from yours, which we believe can lead to important conversations about difficult topics. To help balance the needs, safety, and interests of a diverse community, however, we may remove certain kinds of sensitive content or limit the audience that sees it.

In the same section, under “hate speech,” the standards state:

Facebook removes hate speech, which includes content that directly attacks people based on their:

·         Race,

·         Ethnicity,

·         National origin,

·         Religious affiliation,

·         Sexual orientation,

·         Sex, gender, or gender identity, or

·         Serious disabilities or diseases.

But did the meme constitute hate speech? Was it an attack on people for their gender identity?

According to Psychology Today, gender dysphoria is a real mental disorder:

Gender dysphoria (formerly Gender Identity Disorder) is defined by strong, persistent feelings of identification with the opposite gender and discomfort with one's own assigned sex that results in significant distress or impairment. People with gender dysphoria desire to live as members of the opposite sex and often dress and use mannerisms associated with the other gender. For instance, a person identified as a boy may feel and act like a girl.

The American Psychological Association website says “a psychological state is considered a mental disorder only if it causes significant distress or disability.” It then goes on to say, “According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), people who experience intense, persistent gender incongruence can be given the diagnosis of ‘gender dysphoria.’ Some contend that the diagnosis inappropriately pathologizes gender noncongruence and should be eliminated. Others argue that it is essential to retain the diagnosis to ensure access to care.”

In other words, the APA recognizes gender dysphoria but doesn’t consider it a mental disorder unless it is upsetting to the individual. This is in spite of the fact that the APA acknowledges that gender dysphoria is listed as mental disorder in psychological manuals.

Last year, former Johns-Hopkins psychiatrist-in-chief Dr. Paul McHugh wrote in the Wall St. Journal that gender confusion “constitutes a mental disorder in two respects. The first is that the idea of sex misalignment is simply mistaken—it does not correspond with physical reality. The second is that it can lead to grim psychological outcomes.”

Facebook seems to be allowing liberal bias to outweigh scientific reality in the case of speech critical of transgenders. At the very least, there is a robust debate about whether transgender is a mental disorder. Facebook’s own community standards purport to support such an “important conversation.”

Jeff Thomas, an administrator for The Common Sense Conservative page, said that his page had the same experience as Pelkey’s Conservative Soapbox. The post had been up for about a week and was generating a lot of attention and discussion, which Facebook says it encourages. Then, with no warning, the post was suddenly removed.

When Facebook removes a post, the person who posted it is notified. They have to click “continue” on the notification to get back to their account. There is no appeal if the decision is wrong or unfair. In fact, it is very difficult to contact Facebook about anything. Facebook’s help tab contains a link to “contact your grievance officer” that only works in India, but there is also a “give us feedback” link that allows users to send a message to Facebook.

Thomas says that the administrators for the page sent a feedback message to Facebook explaining about gender dysphoria. So far, they have not received a reply other than a form email that says that “we can’t respond to your emails individually, but we are paying attention to them.”

Thomas and Pelkey are both unhappy with the outcome in which an anonymous Facebook user used Facebook’s bureaucracy to quash a lively debate over an interesting and unsettled scientific and cultural topic with real-world implications.

“It’s some bullshit is what it is,” noted Pelkey.

Disclosure: The author is owner of the Common Sense Conservative page.

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