Law 20: The Biden Administration As Constitutional Problem

Mississippi was the last state in the U.S. to feature the Confederate emblem on its flag. The state adopted a new flag on June 2020.

Picture: Mississippi state flag 1894-2020 (credit: Walmart).

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A Glimpse into the Constitutional Problem

Biden answers: “They’re killing people,” when asked about “misinformation” on platforms like Facebook. (Reclaim the Net – confirmed by multiple sources)

For killing people the penalty may be death in 27 states and the federal government.

ii

“You have made a choice to allow them to continue to spread lethal lies.” (U.S. senator Schatz to Facebook on covid)

The “free flow of ideas” is in fact the vehicle of “lethal lies,” so it was a silly mistake to invent free speech and the First Amendment. To combat lethal lies you need consistent enforcement of speech repression.

Let me say it straight out: Lethal lies are lies that kill people (see Joe Biden: “They’re killing people.”) For killing people the penalty may be death (in 27 states and the federal government).

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Welcome on Board

Facebook oversight board member [Danish former prime minister Helle Thorning-Schmidt] says free speech “is not an absolute human right.” (Reclaim the Net)

The irony of her statement (not “in” her statement as she seems completely devoid of a sense of irony) is that a private company such as Facebook does not under the First Amendment have to care about the status of speech as a right (of others). As its lawyers often stress, it is Facebook’s very free speech right to refuse some kinds of speech on their platform, so if free speech is “not an absolute human right,” then this is bad news for Facebook because it means they have been censoring thousands, perhaps millions of people based on what they think is an absolute human right (to do so) but is not.

In fact this former prime minister of Denmark (who sits at the oversight board of a Delaware, United States, incorporated company without knowing much of American law, obviously) only parrots and repeats the mantra of the European Court of Human Rights, which balances rights such as free speech on the one hand and personality rights on the other hand.

But the same holds true in U.S., as in its libel law: not all speech is protected. The First Amendment does not allow you to defame someone, that is, you cannot, in the case of public figures for instance, publish false defamatory statements about public figures (but the latter must prove the statements are false, not you that the statements are true, and public figures must also demonstrate that you acted knowingly or in reckless disregard of the truth, this is the rather stringent “actual malice standard”).

As Donald Trump’s lawsuit against big-tech platforms is mentioned in Reclaim the Net’s article, let me add that, although Trump is suing for civil liberties (breach of First Amendment, especially after recent admission by the Biden administration that it was “flagging problematic posts for Facebook that spread disinformation”), he may sue for libel as well. When Twitter flagged all his tweets and then banned him to the effect that people should think he is a compulsive liar†, that was an attack on his good name by statement of fact and therefore falls under the category of defamation. That he might win a libel suit is not granted though because 1/ he was one of the most prominent public figures at the time (actual malice standard) and 2/ the truth or falsity of the facts in question is still under scrutiny (forensic audits).

†Accusing someone of lying belongs among the eight “sensitive categories” that make statements defamatory on their face: “#3. Impugn another’s honesty or integrity.” (Neil J. Rosini, The Practical Guide to Libel Law, Praeger 1991, p. 9)

ii

By parroting the European Court of Human Rights, the former prime minister of Denmark proves how silly she really is. When the European Court says free speech is “not an absolute human right,” it means governments can limit free speech in consideration of other rights. But the thing is, Facebook is not a government, it’s a private business that is free to refuse some speech and accept other on its platform unless the law says otherwise or government entanglement in the business can be proven.

Parroting the European Court of Human Rights at and from the oversight board of a Delaware incorportared business is preposterous on so many grounds, I don’t know if you can imagine.

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Group Defamation Is Nonexistent in Law

Defamatory statements made about a large class of people cannot be interpreted to refer necessarily to any individual. And only individuals, not classes of people, can sue for damage to personal reputation. This principle has been established in a number of cases, including one in which a class action was brought on behalf of 600,000,000 Muslims to recover damages for airing the film Death of a princess. The group found the film, which depicted the public execution of a Saudi Arabian princess for adultery, insulting and defamatory to the Islamic religion. The claim was dismissed because the aim of defamation law is to protect individuals, and if a group is sufficiently large that a statement cannot reasonably be interpreted to defame individual group members, First Amendment rights would be impaired by permitting individuals to sue.

Neil J. Rosini, The Practical Guide to Libel Law, Praeger 1991, p. 32.

The case alluded to is Khalid Abdullah Tariq Al Mansour Faissal Fahd Al Talal v. Fanning, 506 F. Supp. 186, 187 (N.D. Cal. 1980)

In this decision the court stressed that such actionable group libel (as provided for by hate speech laws around the world) “would render meaningless the rights guaranteed by the First Amendment”:

“If plaintiffs were allowed to proceed with this claim, it could invite any number of vexatious lawsuits and seriously interfere with public discussion of issues, or groups, which are in the public eye. Statements about a religious, ethnic, or political group could invite thousands of lawsuits from disgruntled members of these groups claiming that the portrayal was inaccurate and thus libelous. … If the court were to permit an action to lie for the defamation of such a multitudinous group we would render meaningless the rights guaranteed by the First Amendment to explore issues of public import.” (Source: Justia)

The consequences here laid down in the hypothetico-deductive mode are an accurate depiction of “Western democracies” such as Canada, France… In these countries (at least France, which I know best) hate speech laws make hate speech both a crime and a tort, and the authorities have allowed anti-defamation organizations to pocket damages from hate speech trials (beside their being subsidized by government).

Picture: A scene from drama-documentary Death of a Princess (by Antony Thomas, 1980, on the execution of Princess Mishaal bint Fahd Al Saud for adultery)

Nota Bena. The only groups that are taken into consideration in U.S. libel law are actual groups of few individuals, that is, not the group category as it is understood by hate speech laws around the world: “Calling a five-member task force ‘rife with corruption’ entitles each to sue. Asserting that a particular labor union is controlled by organized crime would certainly defame the officers of the union. Accusing all–or even most–of a 20 person night shift of using drugs on the job injures the reputation of each.” (Rosini, p. 32)

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My Hate Speech Your Problem

“In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no ‘hate speech’ exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker’s viewpoint.” (Wikipedia) (Emphasis mine)

Previous major Supreme Court decisions include R.A.V. v. City of St. Paul (1992) and Snyder v. Phelps (2011).

Societal Impletation. In the 1980s and 1990s, more than 350 public universities adopted ‘speech codes’ regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.”

Private regulation. In 1992, Congress directed the National Telecommunications and Information Administration (NTIA) to examine the role of telecommunications, including broadcast radio and television, cable television, public access television, and computer bulletin boards, in advocating or encouraging violent acts and the commission of hate crimes against designated persons and groups. The NTIA study investigated speech that fostered a climate of hatred and prejudice in which hate crimes may occur. The study failed to link telecommunication to hate crimes, but did find that “individuals have used telecommunications to disseminate messages of hate and bigotry to a wide audience.” Its recommendation was that the best way to fight hate speech was through additional speech promoting tolerance, as opposed to government regulation.” (Wikipedia: Hate Speech in the United States)

It is since the advent of a big-tech cartel that the issue of hate speech has become a cause of concern, for this cartel has unprecedented means of censoring people and is censoring perhaps millions of people at this juncture, based on terms of service where hate speech allegedly has a prominent place among the things these TOS do not allow. (The figures of human beings subjected to the cartel’s arbitrary censorship around the world are probably unknown even to the most invasive spy agencies, of which the cartel might be, by the way, only a scion, given the U.S. military origins of the internet.)

Besides, it is the most amazing story in the world that a thing –hate speech– so consistently protected by the Constitution should be the principal yardstick by which people in America think they are judged, as if hate speech were worse than crime. But something the Constitution protects cannot be worse than crime. (You would have to change the Constitution to allow government repression of hate speech, and then you could say, all right, hate speech is not desirable, but so long as the Constitution protects it, believe it or not, hate speech is desirable – at least it is preferable to its ban, which is to say that it is desirable to the extent that its ban, which is also in your power, would be harmful.)

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It’s not enough to defend free speech, you must defend hate speech.

In Canada and other Western democracies politicians (politicos) defend free speech too – yet they are always passing new hate speech laws as one man.

It’s in your power to ban hate speech in the United States. It’s in your power to align the United States with Western democracies. It’s in your power to align the New World with the Old World. Therefore it’s not enough to defend free speech, you must defend hate speech.

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You can’t be leader of the free world when you’re the free world.

iv

It pains me to see how Americans are not thankful for, are not even appreciative of the relentless combat led by Justices of the U.S. Supreme Court and other courts to uphold freedom of hate speech –against the whole world– and of how they are thus opening the eyes of those who have eyes to the despicable hypocrisy of all politicians, all public officials, all public figures engaged in public controversies within so-called Western democracies.

A heartfelt thanks to the Supreme Court of the United States who consistently defends the freedom of hate speech guaranteed by the Constitution whereas courts in Western democracies have agreed that governments can ban hate speech and the countries still parade as free speech lands in front of their distorting mirrors with all their swag.

When the U.S. Supreme Court consistently defends hate speech as a constitutionally protected freedom (Brandenburg v. Ohio 1969; R.A.V. v. City of St. Paul 1992; Snyder v. Phelps 2011; Matal v. Tam 2017), the Justices are talking to the world. They are telling Western democracies: You are apes, aping political freedoms with nauseating swag.

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Yes, hate speech is under attack.

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Hate Crime Laws Are Unconstitutional

It’s time the courts declare hate crime laws unconstitutional. This is long overdue.

How can hate speech be protected as the U.S. Supreme Court intends (R.A.V. v. City of St. Paul [1992], Snyder v. Phelps [2011], Matal v. Tam [2017]) when public figures known for taking positions some call hate speech must always fear being provoked to offenses, even minor, that would lead to aggravated punishment, while the opponents who would provoke the incidents have no such Damocles sword hanging over their heads?

Let’s take an example. If a public figure vilified by LGBT groups as a hater gets entangled in a brawl with LGBT hecklers, he may face hate crime charges while the others will face unruly behavior charges or such like (they are not known for being haters because they’re the ones who call people haters and the media follow that stance).

Generally speaking, the “haters” (who have a constitutional right to hate speech) are at greater risk of frame-up because for them even the slightest charges can be greatly detrimental due to the aggravated penalties with which so-called hate crimes are dealt with.

Due to hate crime legislation whole classes of people are deprived of their full rights to political participation. This is GOVERNMENT REPRESSION OF POLITICAL OPPONENTS.

ii

It’s political-police legislation, under which hecklers from minorities have a license to disrupt political speech in order to create incidents with political figures where the latter risk facing hate crime charges and the hecklers unruly behavior charges if anything.

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Mister Chow Goes to Court,
or The Limits of Political Correctness (and Libel Law)

Mr Chow, owner of a Chinese restaurant in New York City, was humiliated by a culinary critique and sued. In turn the court that dismissed his claim (in appeal) humiliated him by the terms of the judgment and the author who deals with the case in a treatise on libel law (a kind of textbook) adds still another layer to the humilitation.

Restaurant reviews (like aesthetic criticism) seem to generate hyperbole of particular piquancy. For example, a food critic declared that the “green peppers…remained still frozen on the plate,” the rice was “soaking…in oil” and the pancakes were “the thickness of a finger” in a review of a Chinese restaurant. Though the restaurant owner had no tolerance for literary license and sued for defamation, the judge applauded the critic’s “attempt to interject style into the review rather than…convey with technical precision literal facts about the restaurant.” The judge refused to limit the author and others like him to pedestrian observations like “the peppers were too cold, the rice was too oily and the pancakes were too thick,” and also observed that the statements were incapable of being proved false. “What is too oily for one person may be perfect for some other person. The same can be said for the temperature of the vegetables, [and] the thickness of pancakes.” In another review, a sauce was described as “yellow death on duck” and the poached trout renamed “trout ala green plague.” For essentially the same reasons, the statements were deemed too hyperbolic expressions of pure opinion and not statements of fact.

Neil J. Rosini, The Practical Guide to Libel Law, Praeger 1991, p. 146.

The case described is Mr Chow of New York v. Ste. Jour Azur S.A. (2d Cir. 1985). The last two quotes are from Mashburn v. Collin (La. 1977) (cited in Mr Chow of New York v. Ste. [it should be Sté., for Société] Jour Azur). The culinary critique in Mr Chow appeared in the Gault & Millau Guide to New York.

It was not enough that Mr Chow had been humiliated by the hyperbolic acid of the critique, the judge had to applaud the critic’s “attempt to interject style into the review” and in turn Rosini derides Mr Chow for lacking “tolerance for literary license,” scorns him for attempting to limit culinary critique to “pedestrian observations.” So much for political correctness.

It seems that PC has not encroached on public discussions in the legal and judicial field. I believe, although these facts are some forty years old, this is still the case because, as in other more or less specialized fields (in no way less important as to public controversies), the discussions are somewhat beyond the grasp of the general public. However, I am not sure Gault & Millau has maintained its piquancy with respect to ethnic cuisine, no matter how piquant the dishes are.

In Rosini’s book, the case illustrates the judicial difference between statements of fact and expressions of opinion. I find the distinction specious because opinions by Gault & Millau and other influential critics oftentimes are meant by those who claim participation in the set of connoisseurs as true statements of fact. When a master critic writes the rice is too oily, make no mistake, it is too oily. If you care about your social life, dare you not say you like the rice at Mr Chow’s when Gault & Millau wrote it is “soaking in oil.” In fact you do not even go to Mr Chow’s after reading that from Gault & Millau. In other words it is the critic’s opinion that is harmful (when negative), one cannot distinguish the critic’s opinion from statements of fact.

Only in the abstract “what is too oily for one person may be perfect for some other person,” because, as soon as the critic, who by definition knows what is good, speaks, his opinion is law – a law of taste. Just like juries are judge of facts and magistrates judge of law (sometimes judge of law and fact together), critics are judge of taste.

Therefore I am not too surprised that the trial court had found the defendant, the critic, guilty, because the distinction between expression of opinion and statement of fact is a specious one; a critic’s opinion is as likely as statements of fact to ruin one’s reputation and business, and Mr Chow probably could provide evidence of pecuniary loss (if he lost customers because of the critic’s “literary license”). – But what’s the point of critique if it either must be positive or face lawsuits? There is no critique, then, only réclame. Yet one needs critique, for instance when traveling to places where one has no acquaintances (the importance of culinary critique has increased with tourism).

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The Biden Administration As Constitutional Problem

[White House press secretary] Psaki: No options are “off the table” regarding regulating online speech. (Reclaim the Net)

All options unconstitutional. “The White House isn’t toning down its rhetoric.” At some point in a continual, legally unrealistic discourse, it becomes something else, something like the announcement of a coup in broad daylight.

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“Congress shall make no law…abridging the freedom of speech.” (First Amendment)

This administration is always talking of solutions to regulate –read ABRIDGE– speech. They ought to understand once and for all that they must leave people and their freedom of speech alone because if this legally unrealistic discourse goes on it should be clear that they are not going to find solutions as they are a constitutional problem in its own right.

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The only available solution is to amend or repeal Section 230, which Donald Trump already contemplated. They don’t want to say they are walking on his footprints.

But this comes along the same kind of discourse on “online extremism.” It it is their obsession: to abridge freedom of speech. On the present issue they basically want to abridge the freedom of speech of opponents to the administration’s health policy. All solutions are off the table except tinkering with Section 230 and that would only allow for tort litigations (“to hold platforms accountable”) where the subject is in fact the government’s health policy.

To “hold platforms accountable” for spreading misinformation. (Reclaim the Net)

You’ve got to ask the question: “accountable for what?” (One needs to name a specific crime or tort there, not the vague “spreading misinformation.”) Does this administration want to explode Section 230 so that a couple of pharmaceutical companies, which the government commanded to develop covid vaccines, can sue for product disparagement? The government is trying to conflate opposition to its health policy with libelous attacks on private businesses. In that case all opposition to health policy choices would be stifled because:

“Pharmaceutical companies can be seen as ‘agents’ who work for the government (or society), developing new drugs. … They do not receive an amount of dollars for each successful drug discovery. Instead, they receive a patent.” (Gerrit De Geest, Rents, 2018) (The words “or society” are irrelevant: pharmaceutical companies work for the society as represented by the government.)

When Facebook, YouTube etc censor content that departs from an official narrative about the Covid, how is this not “state action” (allowing First Amendment suits)? As a matter of fact, what they are censoring is disagreement with a public policy. This choice, though private, is commanded by the government’s narrative. The platforms are making themselves (even if no state entanglement could be proven) enforcers of said public policy by not allowing opponents to the policy to share their opinions, that is, by not allowing anything through their private channels except the message buttressing the government’s policy, except government’s speech.

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Surgeon General says “equity” is the reason COVID “misinformation” needs to be censored online. (Reclaim the Net)

“Misinformation is a threat to our health, and the speed, scale and sophistication with which it is spreading is unprecedented.” (Surgeon General)

Opposition by speech to government’s public health policies is an absolute constitutional right. Governement’s talking of “misinformation” is ominous enough, its ceaseless repetition a threat not only to political opponents but also to the Constitution. Government has no constitutional power, while enforcing its public policies, to enforce the justificatory discourse underlying them.

One comment

  1. Pingback: Law 21: Ape Speech Laws Over the World | florent boucharel AD-FREE

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