Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

24 June 2015

First-Amendment Extremism and the Fairness Doctrine

[For brief comment on the survival of Obamacare’s subsidies, click here. I first wrote this post over a month ago, but subsequent events seemed more important. Today, it has obvious application to the hate speech and hate groups that helped “inspire” the Charleston Massacre.]

The trouble with absolute freedom
The Fairness Doctrine and its practical benefits
Defamation law: an open floodgate
    In culture and politics, the only absolute truth is that there is no absolute truth.
The trouble with absolute freedom

Twenty-two years ago, in late spring 1993, I was a Fulbright Fellow teaching patent and licensing law in Moscow, in Russian. Toward the end of my fellowship, the cultural attaché at the US Embassy in Moscow insisted that I attend a conference outside my usual fields of research and teaching.

The title of the conference was “Power, Law and the Press” (власть, закон, и прессы). Its focus was the general question of freedom of speech and of the press, the same question that motivated our Yankee First Amendment.

The conference took place at the House of Journalists (Дом Хурналистов)—a sort of faculty club for journalists from all over Moscow, a holdover from Soviet days. Attending were twenty-one Russians, two Germans, and myself. The organizers had hired an English translator for the Germans and me, but by that time my Russian was good enough that I didn’t need her. I participated in Russian.

During that golden time, our Yankee relationship with Russia was extraordinarily good. Russia was shedding its confining skin of Communism and emerging from seven decades of cultural isolation and stagnation. Its intelligentsia and even some of its leaders looked to the West in general, and to us Yanks in particular, for answers.

When my turn came to speak, the scene was like that old E.F. Hutton “pin drop” ad. There was absolute silence. Every face in the room was intent on mine.

Explaining our First Amendment and how seriously we Yanks take it was easy. Answering hard questions was not.

A rather aggressive red-haired Russian reporter pressed a point. He recounted what he said was a not uncommon tragedy in Russia’s turbulent Caucasus region. Ethnic Group A commits an atrocity—a mini-pogrom—against Ethnic Group B, killing seven innocent people. The press accurately and faithfully reports the event. The next day, people from Ethnic Group B commit a similar atrocity against Ethnic Group A. The process continues until the fire of hatred burns itself out or until the security forces move in.

Wouldn’t it have been better, my questioner asked, for the press to have suppressed the report of the first atrocity?

I was serving as an informal cultural ambassador, and a commandeered one at that. So I was acutely aware that complete honesty was not just the best policy, but the only one. I answered “yes.”

I quickly followed up that simple affirmative with a discussion of the press’ responsibility and discretion. Our private Yankee publishers, I assured the attendees, would voluntarily withhold the report of the first atrocity if they suspected that a second like event might occur. I could see the questions and skepticism in the other attendees’ eyes, but the conversation turned to other topics.

The experience left me with a burning, unanswered question: What if the private press is not responsible and has no discretion at all?

What if the press, far from suppressing hatred and unreason, promotes it? What if it hires bullies and ranters as “reporters” and “pundits”? What if it takes the worst prejudices and the most unreasonable and violent instincts of what used to be called the hoi palloi, and magnifies, amplifies and promotes them, in a gigantic echo chamber, systematically and deliberately, virtually every day? What if its primary motivation for doing so is simply making money and gaining power for its owner?

What if its secondary motivation is empowering a twisted ideology that can only be described as apotheosis of the bully, in domestic, economic, foreign and military affairs? And what if it achieves inordinate success in doing so, to the point of corrupting, cheapening, and coarsening our entire culture? to the point of dominating an important electronic medium, cable TV?

What, in short, should we Yanks do with Fox?

The traditional answer is “nothing.” We can’t do anything because the media must be free, free even to subvert our culture and society. We can’t do anything for the same reasons that we can’t do anything about “hate speech,” as long as it doesn’t stoop so low as to explicitly promote imminent murder or violence against the objects of hatred. The only antidote to bad speech, says conventional wisdom, is good speech, even if the bad speakers are very bad and have powerful megaphones and lots of money.

Strangely enough, not every advanced culture has come to the same conclusions. Germany has a law against hate speech. If you deny the Holocaust in Germany, you can go to jail.

Having cast off its Nazi psychosis long ago, today’s Germany is hardly a totalitarian state. Its genuine and highly public repentance for its near-genocide is unique, not only among nations today, but in human history. (Compare, for example, Turkish resistance to merely acknowledging the Armenian Genocide.) Modern Germany’s leader, a female ex-physicist, is an object of universal admiration and respect.

Today’s Germany also has maintained a thriving economy in trying times. It’s the global leader in switching to non-nuclear sources of energy that don’t threaten our species’ long-term survival. (France leads in nuclear energy.) Somehow, it’s hard to believe that modern Germany, in refusing to mimic our Yankee First-Amendment, has revealed a fatal flaw in culture or structure that ultimately might subvert its future or cause a relapse of its Nazi psychosis.

I know, I know. Allowing government to decide what speech is good and what is bad would be a very dangerous thing. That’s a reliable and well-trodden road to tyranny. But there are other paths to promoting better speech besides having government bureaucrats or self-interested pols censor it.

The Fairness Doctrine and its practical benefits

Human history’s most effective rule against “bad” speech involved no censorship at all. On the contrary, it relied on the general principle that the antidote to bad speech is good speech, or at least more speech. It was our so-called “Fairness Doctrine,” which Ronald Reagan abolished.

The Fairness Doctrine was simplicity itself. If someone published an attack on a politician running for office, the pol attacked had the right to publish a rebuttal, in the very same medium, and for free.

That approach had (and still might have) four virtues. First, the object of the attack could respond in the very same medium that had published the attack. That virtue would be salubrious today, when citizens and voters have self-sorted into rival camps that read and view only their own partisan propaganda. The Fairness Doctrine would at least give them easy access to opposing views.

Second, because the response to an attack had to be aired for free, it gave publishers an economic incentive toward moderation and diplomacy and away from abrasiveness and sensationalism. Right now, they have precisely the opposite incentives. Being extreme, immoderate and abrasive increases their audience and their income. “Shock jocks” get rich without consequence, just like bankers in 2007-2008.

Third, the Fairness Doctrine did not involve government at all, except as a “referee” to determine what was an “attack” and therefore which pols were eligible for the benefits of the doctrine. In no way did government evaluate, approve or condemn the content of speech, let alone censor, modify, mandate or rewrite it. The speech responding to an attack was entirely the product of the pol attacked.

Finally, a new Fairness Doctrine today might put the kibosh on the avalanche of negativity that has come to characterize our public discourse. (The term “negative ad” is just a euphemism for “attack.”) If private, profit-making media had to air responses to every negative ad for free, the frequency of their negativity would fall abruptly. Negative ads might vanish overnight, except when an attack were sufficiently important as to warrant the financial risk, for example, in revealing provable corruption or gross errors of policy judgment.

Defamation law: an open floodgate

A second approach to curtailing “bad” speech is the the law of defamation. It, too, relies on the acts of aggrieved private parties (plaintiffs), not government. Government plays only a minor role, when a court serves as referee in determining whether the speech was false and uttered with the requisite intent.

Yet for two reasons, defamation law today is inadequate to stem the torrent of rancid lies and half-truths that has come to characterize our public discourse. First, defamation laws work far, far too slowly. The pace of judicial proceedings was always too slow to have an appreciable effect on elections, or even on politics in general. By the time a defamation lawsuit could be adjudicated, the next election cycle had come and gone.

In today’s Twitter society, in which public opinion can form and grow entrenched in a few hours, defamation law is laughably inadequate. Think, for example, of the alleged “gang rape” at the University of Virginia and the permanent damage that a badly researched and edited story did to that institution’s reputation. The University might win a libel lawsuit, but there will still be vast swathes of the American psyche in which its reputation may never recover.

Second, our current defamation law is slanted, if not to protect lies, at least to protect very bad reporting. Before holding any publisher liable for defaming a public figure (including most politicians), it requires that the publisher have published an untruth about him “recklessly.”

Under this peculiar standard, a proven falsehood about a pol isn’t defamation if its publication was an honest mistake, even a stupid mistake. The publisher of the falsehood must have acted in disregard of whether it was true or false, or the falsehood itself must be proven deliberate.

How many journalists really act that way? More to the point, how many could be induced to admit to having acted that way, even by skillful cross-examination in court? Wouldn’t Fox’ bullies all swear on their mothers’ graves that they had been trying hard to be “fair and balanced,” if only because their corporate slogan says so?

So what our Supreme Court really did in New York Times v. Sullivan (the case that established the “recklessness” standard) was to give the press a free pass for propagandizing us. Fox’ corruption of our once-basic social values—accuracy, impartiality, reason, temperance and politesse—followed as night the day.

Our defamation law is not entirely a free pass. The Court has never decided whether a pattern and practice of prejudice, bias and antipathy can prove “recklessness” and make a falsehood actionable defamation.

That why the City of Paris’ lawsuit against Fox is so important. If Paris can establish a rule that a pattern and practice of lies and half-truths implies recklessness in publishing a particular untruth, the cloak of legal immunity and practical impunity that private propaganda machines like Fox and political “operatives” like Rove and Luntz now have will begin to unravel.

But even that expedient is likely to be too little, too late, and too slow.


When our Founders drafted our First Amendment, their greatest fear was the government censorship that their British forbears had occasionally tried to impose on a developing democracy. They feared government control of political discourse and wanted to insure that government could not control or inhibit private speech, especially about politics and government.

Those Colonial days were very different from ours. Private business was weak and tiny. Virtually every American institution that you might characterize as a “business” today was about the size of a typical modern start-up company. No one dreamed of vast continent- and globe-spanning corporate empires involving tens or hundreds of thousands of employees, and even larger numbers of customers. No one dreamed that eventually private business would surpass government in economic power, or that a single private business called “Apple” would have more economic power than France.

No one dreamed of modern technology, either. At that time, political discourse was by word of mouth, posters, books, and pamphlets. Period. Except for the first, all involved the “cool” medium of writing. The very process of putting thoughts into words, sentences and paragraphs—or of reading and understanding them—required the mediation of our higher reasoning centers. No one dreamed that political discourse and even “news” would some day come in fleeting images and sound bites that bypass our higher reasoning centers and produce a false simulacrum of actual experience. No one dreamed how easily that simulacrum could be manipulated to foment shock, fear and hatred, and so to persuade and delude.

In that innocent, Colonial era, no one dreamed of the kind of visual-visceral propaganda begun by Nazi propagandist Josef Geobbels, continued by Stalin and Mao, and now perfected by Fox. No one dreamed of Fox’ seminal advance: turning delusion into entertainment and using it primarily to make money, but also to propagate a simplistic philosophy of “might makes right” that would attract ordinary people.

Nor did anyone dream that incessant personal attacks, using gut-grabbing imagery and sound, would replace rational discussion of issues in political campaigns. Our Founders would have been astonished at how routine such attacks have become, the rawness and lack of reason in them, their resemblance to puerile name-calling, the expense they entail, and the fact that an entire profession of visual-aural liars has arisen to prepare them.

Fox is not a government propaganda machine. It’s private. So are the myriad political “operatives” and producers of attack ads that now constitute the vast bulk of “discourse” in our political campaigns. No Founder anticipated that such a grave threat to rational, useful and civilized discourse could come from the private sector. Nor did any Founder foresee that eventually the private sector would drown government in a bathtub and become the dominant force in society, far more powerful and ubiquitous than government.

Today Fox and the attack-ad makers are just as single-minded, just as capricious and unreasonable, and much more effective, than the government propaganda machines of Hitler, Stalin and Mao. If we allow them to continue on their present course, they will drive us Yanks into Alexis de Tocqueville’s nightmare: a society governed by the worst impulses of the mob, fostered, magnified, and promoted for purposes of profit and control. Ancient Rome will have had nothing on us!

If you doubt this, just read this article about what some apparently sane retirees in our Yankee Mid West believe. You might blame their bizarre convictions on the Internet. But given their age and the media propensities of their demographic cohort, Fox is by far the more likely culprit.

Applied with understanding and finesse, our First Amendment has been a net benefit for our society. We have avoided the errors of nations like Russia, Iran and China, which seek to control their people by controlling what they know. That sort of paternalism always impedes a society’s flexibility, creativity, innovation and social cohesion. It can also impede education and even basic business.

But absolutism and extremism are pretty much the same thing. Our unthinking and reflexive reverence for absolutely free speech has now produced an extreme result. We have sat idly by while powerful private apostles of intolerance, hatred, belligerence, intransigence, unreason and impulsiveness have corroded our society to the point of paralysis, boorishness and dangerous risk-taking. If we Yanks let them continue, we are ultimately courting oligarchy, fascism, or (when and if the 99% wake up to how badly they’ve been duped) even revolution.

If we Yanks don’t find some way to stop them, our future is clear. Our media and the Internet that we Yanks invented will continue to devolve into a cesspool of lies, hatred, bizarre conspiracy theories, and vulgarity, rather than the uplifting sources of education, enlightenment and reasoned discussion that many had hoped for. Public discourse will degenerate into name-calling and obsession over emotionally charged irrelevancies (aka “social issues”), while powerful private interests provoke real wars and steal the nation’s economic substance. William Randolph Hearst, with his San Simeon castle outdoing European royalty, will be a piker compared to tomorrow’s media and media-favored plutocrats.

Some day centuries or millennia hence (if our species survives that long) a future version of our Founders will understand our self-defeating absolutism and correct it, with reality, practicality and consequences firmly in mind. If they make the mistake of having a written constitution like ours, which, unlike the Brits’ unwritten one, is soooo hard to change, something like the Fairness Doctrine will surely be part of it.

Footnote 1. I taught at the Moscow State Institute of International Relations, commonly known by its Russian acronym “MGIMO” (МГИМО). That institute was, and still is, the feeder school for Russia’s Ministry of Foreign Affairs and security services (now the FSB). It offered a five-year program of higher education for Russia’s elite, requiring fluency in two foreign languages for graduation. If one of the languages was Asian, the program lasted six years.

I was told that I was the first American law professor ever to have taught there. Needless to say, I was an object of curiosity, and I was ever conscious of my role as informal cultural ambassador.

Footnote 2. One of my proudest “souvenirs” of that fellowship is a little pamphlet containing a transcription of the proceedings of that conference, in Russian. The editors generously corrected my errors in Russian grammar and word choice, making me seem like the polished international expert I was trying to be.

Footnote 3. His striking red hair was not the only unusual thing about this reporter. He wore “street clothes” while everyone else wore a business suit. But the most unusual thing was his personality: aggressive to the point of abrasiveness.

One of the things that had most surprised me about living in Moscow then was the high level of politeness, diplomacy and “people skills” among my colleagues there. After some thought, I divined the reason: decades of midnight knocks on doors, the Terror and its gulags had knocked the rough edges off of most Russians, especially the smart ones. The ones who were too slow, abrasive or stupid to learn tact and diplomacy simply didn’t survive, professionally or even physically.

For example, I once asked the chair of my department whether I had an accent in Russian. He answered no, but that my speech had its “particularities.”

The red-haired man, in contrast, could have been a journalist from Chicago or New York. I wonder to this day how he has fared, and whether he still lives, in Vladimir Putin’s Russia.

Footnote 4. Maybe such a free pass was appropriate in 1964, when New York Times v. Sullivan was decided. We had a different country back then. President Johnson was still in office, working on civil-rights legislation, and serious escalation of the War in Vietnam was just beginning.

We Yanks got our news from Walter Cronkite (one of the best journalists in human history) and his rivals at the other two television networks. Each of them was dedicated to serious, impartial journalism. None had yet taken on the role of national propagandist or entertainer. No one of them would ever even have thought of making news entertaining; it was supposed to be informing. Their reporting on the Vietnam war, its escalation, and rising protests against it was largely straight news, without bias, “spin,” or even comment.

That was a much more innocent time. Today we have rich and powerful private institutions, some masquerading as “news” media, whose self-evident purpose is to push voters in one direction or another by distracting and deluding them. A free pass for them is no longer self-evidently the wisest policy.

Roberts Court Upholds Obamacare’s Subsidies

By now, the whole nation knows that Obamacare still lives. It owes its life, in large measure, to our Chief Justice. Evidently John Roberts has decided to be a judge in the tradition of Solomon, rather than in the scholastic tradition of an ecclesiastical court.

The Chief Justice wrote for two-thirds of the Court—a supermajority. Like his earlier, lone opinion upholding Obamacare’s mandates, his ruling on the subsidies is a triumph of incisiveness and common sense, a monument to pragmatism.

His reasoning on the minutiae of statutory language is not important. For it derives entirely from the statute’s byzantine complexity and execrable drafting—points that Roberts himself makes several times, albeit perhaps more diplomatically.

No one will ever study the Affordable Care Act for competent drafting of legislation. Roberts himself does better by describing the statute’s essence and history in a mere handful of pages, as compared to the statute’s 900.

But Justice Roberts’ ruling does much more. It has three features that make it a masterpiece, well worth careful study by future generations of law students and jurists.

First, before assaying to interpret the statute, Roberts carefully analyzes what it is trying to do. He describes the three-legged stool of modern efforts to reform private health insurance. They are: (1) guaranteed coverage for all applicants (not excluding pre-existing conditions) and community premium ratings (not charging sick people more), (2) mandates for coverage (so that (1) doesn’t lead to people waiting to insure themselves until they are sick), and (3) subsidies to make insurance more affordable and thus further broaden the risk pool.

Next Roberts summarizes the recent history of reform efforts in America. He describes the “death spiral” of higher premiums and reduced enrollment that reform efforts without points (2) and (3) experienced. He even goes so far as to note percentages increases in premiums and declines in enrollment, and the exodus of insurers from certain states. Then he describes the “breakthough” of Massachusetts’ law, which has all three legs of the stool. He compares it closely to “Obamacare,” implicitly dinging Mitt Romney, who, as a candidate for president, made a lame attempt to distinguish it.

Only then, having described the practical and instrumental machinery of the statute, does Justice Roberts try to interpret it. He doesn’t rely on semantics alone. He wants to know what Congress thought it was doing before he looks at the words. That simple act speaks volumes about the proper relationship between Congress and the judiciary and the proper relationship between pragmatism and abstraction in judging.

Second, Justice Roberts looks at the consequences of a decision one way or the other. Favoring the plaintiffs might acknowledge that literal meaning of the phrase on which they repeatedly grasp, which limits subsidies to “an Exchange established by the State.” But excluding subsidies from exchanges established by the federal government (upon a state’s default) would, among other things, “push a State’s individual insurance market into a death spiral.” To confirm this point, Roberts cites expert studies predicting premium increases of 47% or 35% and enrollment drops of 70% and 69%, respectively.

Of course, these consequences matter only because Congress, in passing “Obamacare,” wanted to avoid them. But isn’t that the whole point?

Roberts thinks so. Here are the key sentences from his peroration:
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Finally, there is his method of interpretation. The Chief Justice eschews literalism, pointing out, again and again, how it makes no sense whether in the large, or as applied to specific provisions.

When confronted with an argument based on “diving several layers down into the Tax Code,” he had this to say:
[I]n [the plaintiffs’] view, Congress made the viability of the entire Affordable Care Act turn on the ultimate ancillary provision: a sub-sub-sub section of the Tax Code. We doubt that is what Congress meant to do. Had Congress meant to limit tax credits to State Exchanges, it likely would have done so in the definition of ‘applicable taxpayer’ or in some other prominent manner. It would not have used such a winding path of connect-the-dots provisions about the amount of the credit.” [footnote omitted]
In other words, Chief Justice Roberts reads the Affordable Care Act as would an honest person trying to determine what someone else’s imperfect speech was trying to say. He did so in light of the full instrumental and historical context of that speech, just as would any honest interpreter.

In contrast, the dissenters, led (of course!) by Justice Scalia, took the phrase relied on by plaintiffs as a gigantic “gotcha.” They elevated it to the level of scripture although it not only perverted the entire thrust of the new law, but created numerous difficulties with interpretation in detail. The dissent elevated form over substance, literalism over purpose, semantics over meaning.

Justice Scalia’s dissent recalls nothing so much as the scene in Hamlet (Act 5, Scene 1), in which the Danish prince speaks with the gravedigger. After hearing the gravedigger take many of his remarks literally and wrongly, Hamlet exclaims, “My, how absolute the knave is!”

Unlike the gravedigger in Hamlet, Justice Scalia and his fellow travelers are neither untutored nor stupid men. So if not the dullness of stupidity, what drives them to choose absolute literalism over sense?

Could it be ideology? Could it be that they, not their antagonists, are the real judicial activists, hiding behind a screen of literalism and infidelity to Congress’ purpose that has no conceivable rational justification but politics?

At least now we can be assured that the Chief Justice is not their fellow traveler. He has twice given us strong signals that he will just call balls and strikes, as he promised in his confirmation hearings.

More than that. In interpreting Congress’ work product, at least, he will be a good social engineer and try to make its products work. As he said about the statute’s guarranteed issue and community rating requirements, they “only work when combined with the coverage requirement and the tax credits” (i.e., the subsidies). Today, as we lament one of the do-nothingest Congresses in American history, having a High Court that wants to make its rare output work is something to be grateful for.



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