Smartmatics & the Limits of the 1st Amendment

 

One of the virtues of absolutism is the power to be consistent: If you say there should be no limits to free speech, then anytime you have a case, no matter how complicated it is easy to know the answer. 

If  Mr. Giuliani appears on your show and you know what he says it is a lie, and you agree with him, "Wow!" you say, "That's awful!"  He can say it and you can broadcast it,  because speech, even false speech is protected by the First Amendment-- if you are an absolutist, like the ACLU. 

There are some problems with this:

1/ Here is the first amendment: 

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

So, if the judicial branch of the government finds a defendant guilty of defamation for lying on public airwaves, that is abridging the right of freedom of speech, his right to say wrong, stupid or knowingly untrue and hurtful things. And if that lie is put forward by the press, then it's doubly protected.

Right? Well, not absolutely.

Famously, as Justice Holmes said, "The first amendment does not give you the right to falsely shout 'Fire' in a crowded theater."

Why?  Because there can be consequences to those words, which are an act in themselves and people can be directly and immediately harmed, physically or financially, by that act.

Laws against inciting a riot come down to the Brandenberg decision, in which the test for incitement is proximity to violence, or "imminent lawless action." So someone who says, "Go lynch that darkie!" if that is followed by a lynching, then he is guilty of incitement. 

But if he says, "Hang those people who don't look like us, or maybe not. You might want to. I don't know. But I'm with you. If you want to save the country and your wives and daughters, and if you want to be heroes and do the right thing, you have to use force. I'm right behind you," well then, you've got some ambiguity. 

He really said "you might want to" not "you really ought to" or "you have to."

But if 10 minutes later a person of color is lynched, most juries would find Brandenberg instructs them. 

In other democracies, like Germany, you cannot deny the Holocaust. They decided, after Hitler,  an abridgment of free speech was a fair price to pay for squelching the big lie, and yet their democracy thrives.

So some abridgment of free speech can be seen to be necessary.

We need some rules to guide when speech can be abridged.

These rules usually start with something called "the truth." 

In America "truth is an absolute defense against a charge of defamation or slander."

But what is a "fact"? and What is "truth"?

2/ To prove something is a lie, you often have to establish the truth.

 And how do you prove there are no lasers from outer space causing wild fires or that Democrats do not drink the blood of white Christian children in Satanic rituals or that Hillary Clinton is not even today running a child pornography ring out of the basement of a pizza pallor which has no basement, in Northwest Washington, D.C?

 To appreciate what Fox News did in the case of Smartmatic you really have to hear the clips from Fox and that's where the podcast, "The Daily," is so useful.

Listen to this podcast and then come back to this blog post.

(Preview of coming attractions: Rudy Giuliani and Sidney Powell claimed Smartmatics software for elections machines turned elections in Georgia, Pennsylvania and Arizona from Trump to Biden; but the truth is, no Smartmatic software was even in voting machines or used in any way in any of those states. 

In fact, Smartmatic was used only in LA county. 

That is one of those things you can investigate, document as a "fact." 

That Smarmatic was created and is still owned by Venezuela's Hugo Chavez is also easy enough to disprove, and yet Fox apparently never sent a cub reporter to investigate, simply reported what Giuliani and Powell said as true and reacted with, "Wow! We are so eager to hear the rest of your investigation!" )

https://www.nytimes.com/2021/02/05/podcasts/the-daily/smartmatic-fox-news.html

The common tests for defamation and slander are:

1/ The claim is false.

2/ The speaker knew it was false when he made it.

3/ The speaker had "malice aforethought" which is to say, meant to cause harm to the party he slandered.

Listening to this podcast, without doing any more googling, the Smartmatic suit seems to meet all these requirements. 

One of few memorable classes I attended in college in which the professor  confounded the class by asking us to define what is an incontestable "fact." 

We went through all the mathematical arguments: 2+4=4. 

But no, that's a definition, not a fact. We agree on that one as a convention. 

"We are both sitting in this room together." 

"Ah, but how do you know this?"

And on like that--spinning right on to metaphysics, Wittgenstein, Bertrand Russell and onward. 

But real life is not metaphysics. 

There are "facts" which are clear enough "real" enough and necessary so we can live life and not be harmed by wrong facts: If you are bleeding, we have to stop that so you can not die.

If you do not believe in exsanguination and tourniquets as "facts" then you are not going to survive long enough to exercise no friggin' First Amendment. 

If you have been wounded, and your billion dollar company rendered worthless by Fox News in pursuit of a story it wants to be true but should know is not true, then you ought to be able to be made whole by Fox News. 

Part of this discussion is tied up in the concept of "platform." 

 If someone posts a lie on Facebook, is Mark Zuckerberg responsible for the consequences of that lie? So far there is a law, 230c, which says, no, Facebook and Twitter cannot screen or "vet" millions of comments daily and users have to know that.

But not true for news organizations which present themselves as "journalists"  or news outlets, whose job, it is commonly understood, involves challenging the assertions made by those they quote and interview, and to investigate the substance of those claims and then, if they report these claims they are responsible for reporting the denials by those affected.

Anyway, those were the rules when newspapers did not have to compete with News "shows" and social media. 

FOX News may well argue it is and has not been for years a news organization: It's simply entertainment with blond, leggy young women crossing their gams on white leather couches while flashing white teeth and wearing hot pink dresses cut mid thigh. 

But words have consequences, and in this case a multi-billion dollar company, Smartmatics, was executed. And it was a company which did a lot of social good in counting votes quickly and accurately in elections, mostly in countries outside the US. 

And it was a company which was not even on the scene when the crimes occurred as alleged by Giuliani, Power and, more indirectly, by FOX.  This unholy triumvirate claimed Smartmatics did illegal, nasty, election-stealing things in Pennsylvania and Georgia and Arizona, when, in fact, no Smartmatic software was running in any of those states and was only running in LA county. It's like blaming Mexico for Pearl Harbor. 

The motivations of Giuliani and Powell were so clearly manifest, their need to find a dastardly villain capable and eager to steal the election was so visible, there is little doubt about motive, and the motive was clearly not truth seeking.

So we can only hope the courts, and ultimately the Supreme Court (Trump's Court) will do the right thing. 

But this is America.

America's Guarded Gate: 2021

 

Listening to the New Yorker's podcast February 5, "Trump Closed the U.S. to Asylum Seekers. Will Biden Reopen it?" I was struck by how the law functions in individual cases.

Medical journals typically only publish papers which give you the big picture, studies which are "sufficiently powered" to draw general conclusions: This vaccine works to protect from disease or it does not. Double blind, prospective, controlled studies.

But sometimes they publish a case report of a single well studied case, and the axiom has been, "A single, well studied case sometimes tells you more than a big study."

So it was with this podcast. Looking at how general rules set down by Trump play out for a single case, you see the larger picture more clearly.

Once we look at what happened to one woman from Honduras, we can back away from the close up to see the larger picture.

In this case a woman appears, without a lawyer but with a translator before a newly Trump  appointed immigration judge who clearly is faced with a body of law she is not comfortable with and the federal prosecutor, who is seeking to deny this woman entry on the basis of arguments with which she clearly is accomplished in using.

https://www.newyorker.com/podcast/the-new-yorker-radio-hour/how-trump-closed-the-us-to-asylum-seekers

The woman has walked from Honduras, through the jungles of Guatemala and Mexico to reach the southern border of the US, where she asked for asylum. She testifies she was a political party functionary in Honduras and her husband was a store owner and between the two of them they apparently offended both drug traffickers and government officials friendly to the drug lords. Her husband stepped out his door one morning and was shot to death. One of her three daughters was kidnapped, raped in the presence of a police officer, who stood in a corner of the room while she was raped on the bed,  and later the daughter was shown a picture of the whole family and told, "We are coming to get your m other and sisters."

The mother thought it prudent to flee her home town, and when it became evident she was safe nowhere in Honduras, she headed north to the USA.

She now appears before the judge and her testimony is her only evidence. There is no document from her hometown chief of police. There is no witness to deny what she says and none to confirm it.

The judge asks her if she herself was tortured, or was it only her daughter?

The law requires the person seeking asylum has been directly personally threatened, not by rumor or not by association.

 The judge asks the prosecutor about the presence of the police officer. If the policeman was carrying out an official policy of the Honduran government then the woman may have a case under an exception called the CAT rule, having to do with protecting asylum seekers if they have credible evidence they will be tortured because of their race, religion or political beliefs. 

Since the policeman was of her race and presumably also Catholic, then those cannot be used, but maybe political belief. The prosecutor points out it's not known if the man dressed as a policeman was actually a real policeman or at what level, local, state, federal or whether he was just a rogue cop or acting out a Honduran policy. In fact, the prosecutor points out the entire case is based on what this asylum seeker says: there are no supporting documents, no proof her daughter was raped or even that she has a daughter. 

The judge asks the woman if she has the badge number or name of the policeman who stood in a corner while her daughter was raped. Oddly enough, the woman cannot provide these.

In the end the judge says her heart goes out to the woman but the law requires she send the woman back to Honduras because she does not meet criteria for admission. And, the judge notes, this woman was naughty:  she crossed over two other countries on her way to America and did not seek asylum in those countries. 

It's fascinating to hear the judge try to get herself off the hook of her own conscience, how emphatically the judge wants to say what a nice person she is but she is helpless before the requirements of the law to help this naughty, law breaking mother who walked through two countries to reach the American border.

MS St Louis

Of course, this is not a new story: When Cordell Hull, Franklin Roosevelt's Secretary of State, refused to allow the M.S. St. Louis entry to any American port in 1939 because its load of Jews fleeing Hitler did not qualify for asylum, because they did not have a letter attesting to their good character from their local police, who were the Gestapo, he literally wrapped himself in the American Flag by his desk saying he would be betraying his duty to American law by admitting these people, and the ship returned its people to die in the concentration camps. Hitler later laughed about the American posture of being the savior of the downtrodden Jews, pointing to America's rejection of the St. Louis and sending them back to France and Germany where they were exterminated by men who  at least had the spine to own what they were doing. 

Rejected and sent home to die

Of course, as Daniel  Okrent details in his amazing book, "The Guarded Gate," American immigration policy has always instilled barriers based on race and class disparagement. First it was the Chinese. Later the dark races from Southern Europe (Italy, the Balkans) then the Jews, and along the way even the Irish, who while still white, were often Catholic and always poor. 

Immigrant from Slovenia, a "shit hole: country

Why, asked Donald Trump in amazement, were immigrants always trying to get into America from "shithole countries?"  Why weren't more Norwegians applying for membership in the American Dream Machine?

Of course, in some ways the barriers to immigration find support from people who do not mind the idea of seeing communities spring up which are dark skinned. There are other objections:

1. What if new immigrants take away jobs from those already here?

Immigrants 

2. What if new immigrants who cannot find jobs turn to crime?

What Trump sees when he sees immigrants

3. What do we do with new immigrants who reject the basic idea of tolerance? The UK is beset by problems of Imans in London who preach that the UK is an infidel nation and the immigrants arriving there should not tolerate the British women who walk around half naked, enticing good Muslim boys to impure thoughts, Imans who activity reject the nation and its values into which they have moved. A graft vs host reaction.

4. And what about numbers and rates: Suppose tomorrow America threw open its borders and 10% of Indians and 10% of Chinese moved here in 2022? That would be 150 million Indians and 150 million Chinese and in that case English would not be the language of the majority of people living here.

But for now, we are dealing with immigrants from Central America mainly, people who can walk here. The same forces of instability driving immigration into Europe from the Middle East and Africa: poverty, political instability, crime and violence drive people to vote with their feet and flee.

International law says, Mad Dog is told, that no nation can reject a boatload of Jews or any other similar group who would be returned to a country with laws which would send them to extermination camps, and having passed that law, the nations of the world sat back feeling very virtuous.

But what about that lady whose daughter was raped, or so she says, and what about all those folks, the wretched refuge of the teaming shore?