Jim Acosta's lawsuit against Trump -- it may be questionable, but it begs more questions about press credentials

Jim Acosta and CNN are suing President Trump and apparently the White House (not sure of the exact legal entity) to get his press pass back after it was revoked around Nov 7 (the day after the election) when Acosta persisted in interrupting Trump in the East Room briefing and (perhaps accidentally) touched the arm of a female White House intern. Here is CNN's own account, written by Brian Stelter. 

  

  

Tim Pool interviews a lawyer, who, while a Trump supporter, gives a reasonable assessment of the suit. Trump cannot deny him access because of the content of his questions (as long as otherwise lawful). The White House had apparently not set up any procedures for removal of press passes, so a court might require Trump to set up such processes and provide an appeal process.  But Acosta’s conduct might well get him banned anyway.

  

Pool feels that Acosta has been rude in meetings before and acts like he is auditioning for his own commentary show.  (One of my own DADT screenplay drafts starts with a hidden “audition” so the concept is interesting.)

  

The incident is important for another reason.  Press credentials are important to be admitted to some events. I don’t have them and have not really needed them.  But having them establishes your formal legitimacy as a journalist (or “notability” as Wikipedia calls it).  These days of polarized ideas about free speech and perhaps disapproval of gratuitous speech (the “skin in the game” idea) credentials could become more important.

Radical Left attacks on free speech (and even pressure on tech industry) reflects cultural Marxism

Sameul Kronen (“professional human”) has numerous articles on Medium that might answer Umair Haque, but I wanted to focus on “What Is Cultural Marxism: A Liberal’s Critique of the Radical Left.”

Kronen focuses particularly on the investment in membership in the group as part of “identity”, and this gets to be elaborated to the idea that all accumulated wealth is theft that is to be expropriated from the oppressors.  He also explains the ideology of “intersectionality” as self-generating, and predicts Tim Pool’s recent distinction between equality and equity.

I see this in my own posts.  I get criticized for “cherry picking” people in social situations that offer a common communitarianism (like the Ninth Street Center in the 1970s) that provides pervasive influence on the impressionable in a way comparable to the global Internet.  But is praising David Hogg for his accomplishments a descent in to “able-ism”, or is my recent review of “Boy Erased” the same because the cis male gay hero (Lucas Hedges) is presented as “better” than almost all other men and only thereby able to show conversion therapy as a scam?  Focusing on them seems to be viewed as an indirect attack on the gender fluid  or PWD’s (or even POC’s) now.  Is a blog post that discusses MGTOW’s or the need for marriage oppressive if it embeds a Prager U video with the banner “Be a man”? 

   

I speak for myself online and work alone (but manage to influence others in my own choir) precisely because I fare poorly in competitive social situations – so my speech outflanks people and reduces solidarity potential.  I can imagine the impulse to expect me to be willing to extend a hand to the less than cis-perfect very publicly before speaking again.

California passes open-access law for scholarly research; Open-con meets

I don’t seem to have posted this news yet, but AB 2192 is the “law of the land” in California, as Governor Jerry Brown signed the Open Access act.  All peer-reviewed academic publication must be made available to the public within one year.

Elliot Harmon reports on Electronic Frontier Foundation, Oct. 18, 2018 article.  

  

Jack Andraka said to me on Twitter that he always works with Open-con on the open access issue. OpenCon had a conference in early November (around Boston). The conferences seem to be held in different locations around the world. The code of conduct is interesting in as much as it deals with unwanted physical attention in person, as well as campus speech code issues (like microaggressions).  

Australia's draconian copyright regime; more details on why EU politicians are so dense on Article 13

A disturbing article on Copybuzz by Glyn Moody “Of Hypocrisy and Democracy” explains why European politicians turned a blind eye to opposition from the public to Articles 11 and 13 of the Copyright Directive, only slightly abated in the trilogue discussions.  

  

 There is even a suggestion that established European businesses sense a bit of inherited privilege, and they also interpreted many of the emails and tweets as spam sent from bots – and they even got confused by the US network neutrality debate. 

  

In Australia, there has already been an extreme copyright enforcement regime for at least three years, as Cory Doctorow explains.  It is even possible for copyright owners to get sites de-platformed.  Another part of the argument is copyright owners objecting to posting videos on YouTube and marking them as private, a common but not particularly recommended practice.  Sometimes people post YouTube videos as private and embed them in their own websites to be viewed only that way (if you know the URL on YouTube and go to it, you will get a warning from YouTube that you are “hacking”, possibly illegally.)  There is also discussion of how Australian’s are having to use VPN’s to watch material even legally. 

Electronic Frontier Foundation has shared a New York Times story (by Ariel Bogle and Livia Albeck-Ripka) of a game developer (Christopher Anderson) in Australia who had his home raided and assets seized after developing a "cheat" in the Grand Theft Auto game, in legal action filed by Rockstar Games.  

  

You get the feeling that the entertainment industry really is spooked by the fact that people spend time watching independent low-cost material and no longer buy as much of their guild and union supported product.

Facebook seems determined to stop monetization of independent news; also a misunderstanding of how the First Amendment would protect independent speakers

The concerns over the future of independent media continue.  Facebook, at least, seems to be setting up a Catch-22.

Early this morning, I saw a twitter thread by Ford Fischer from News2Share that his @N2SReports page on Facebook is denied monetization.  The page has 44K likes.

As one can see from the thread, it is impossible to say how News2Share was violating Facebook’s rules for monetization.  But if we go back and consider the recent history, with Facebook’s “Purge 3.0” on Oct. 11, and also with the endless circle that I got caught in when I tried to boost my page on the power grid, it certainly appears that Facebook is concerned with more than just gaming its algorithms (which could be a legitimate issue). It appears that Facebook is concerned with the issue of how potentially polarizing political content, in the context of today’s political climate, could incite further violent incidents.  I admit that many small media outlets will wonder if this development is more about "protectionism" for legacy media, since small outlets have low expenses or are self-funded (will take that up soon) and usually don't need paywalls. 

News2Share often presents in-person filmed video of demonstrations, events, and rallies, and at some of them (including Charlottesville in 2017 – see my cf blog Aug. 25, and Sept 2) violence has occurred.  This is essentially combat and breaking news reporting.  There is no question that combat journalists (Bob Woodruff) in the traditional legacy business have taken risks (“skin in the game”) and paid their dues. And legacy media (whatever the controversy over liberal v. conservative bias) generally has well-established practices as to now controversy and violence should be shown and how sponsors and advertisers pay for it. I worked for NBC myself in the 1970s and have some familiarity with this.

With independent media, things are not so clear. It is true, independent media often witnesses important breaking events that mainstream outlets miss.  Furthermore, columnists and bloggers often add commentary that connect ideas and events in usual ways to provide nuance to the political debate. I have done this for twenty years.

But it is apparent that many in the legacy world, in government (not so much Trump himself – actually, more the Democrat establishment) and now in big tech, are suspicious that independent (“amateur”) content is perceived differently by the public (and easily imitated now by foreign actors and bots, to boot).  Facebook seems to fear that it among most of its “real world” user base it provokes polarizing emotion, not the thought that the filmmakers or commentators want. Users feel that speakers are “showing off” when the speakers could be joining them in some sort of solidarity instead.

There is obviously an ethical question about whether reporting (especially with film or images) violent or graphic content should be rewarded with ad money.  It’s easier for legacy media to rationalize its income than it is for independent media. There is also a fear that some bad actors, if they know that people will come to film them, may feel emboldened to show more public outrage until they finally get arrested by law enforcement.  There really is a “cognitive distance” or “space separation” between many independent media providers and “average” users.  This again reflects the concern over “implicit content” and the concern over the “purpose” that visitors deduce from the content being presented to them by a particular speaker and the speaker’s own life circumstances. That is, the identity and reputation of the speaker matters and is part of the content.

We should remember that the capability of individuals, without formal training or licensure, to become influential speakers and commentators and “citizen journalists” appeared rather suddenly, after Congress passed the Telecommunications Act of 1996 and included Section 230. AOL suddenly turned loose this capability with Hometown AOL in October 1996, and by 1997 it was pretty easy for anyone to have a domain and FTP-upload political commentary; by 1998 search engines were doing a pretty good job of finding you. For a very long time, this was seen as enhancing debate. Fortunately, the Supreme Court struck down the “Communications Decency” provision in 1997 and courts also eliminated a similar law, COPA, finally by 2007 (I was part of the litigation).  

Other developments, especially P2P, took a lot of heat, such as with copyright infringement (Napster).  On the web, however, copyright infringement downstream liability could be managed with DMCA Safe Harbor (conceptually parallel to Section 230). In fact, some sort of P2P had existed back to 1985, which had given a small minority of activists ways to organize.  P2P will be important now for blockchain (other posts).

Big social media changed the game by aggregating content based on user data, making search engines less important for many people. But during all this time, as a whole generation of young people were raised on the Internet, there was a naïve assumption that the “right” to speak to a global audience without gatekeepers was part of the First Amendment.

I don’t think that is correct.  Until the mid or late 1990s, as desktop publishing and then the Internet (especially Amazon) and later POD would make self-publishing of books another way to reach an audience, trade publishers (with their literary agents), newspapers, corporate-owned magazines, and broadcast and cable media companies controlled what could be disseminated to the world, because until 1992 the technology to put this capability in the hands of “you and I” had not yet been enabled.  Similarly, major studios controlled movies.  In books and movies, small press and indie companies could slowly make inroads.  Most interpretations of the First Amendment have developed in a world where gatekeepers (usually private companies) could limit the content, largely to want could pay for itself with revenue.

  

That is, the publishing and broadcast industries could control who could be heard as well as what was said.  Today, the big social media companies and now to some extent web hosts and domain registrars (reacting to activist pressures) are in a position to exercise the same kind of control.  Think how the pre-Y2K dot-com  boom and bust settled out to a few large tech companies ruling the world.
     

No, the First Amendment alone does not protect who can have the floor or even have a megaphone.  It does protect speech (already uttered from someone allowed the megaphone) from content-restrictions outside of what is specifically unlawful (obscenity, child pornography, now trafficking (FOSTA), and direct incitement to violence, but not hate speech as normally understood (as was disproportionately found on Gab).

The Fourteenth Amendment may provide some protection, as would interpretations of federal civil rights laws as to protected classes (from wanton behavior by tech companies),  which, by the way, makes the Trump administration’s “erasure” of trans protections sound particularly chilling.

One way to limit political speech that is more likely to incite violence is to require speech to provide its own financial accounting (rather than being funded by assets earned elsewhere, as in my case).  It has been suggested that low-volume sites (as shown by sitestats or other measures) could expose speakers and others to hidden vulnerabilities (“long tail” as Taleb says) that are not justified by these sites’ traffic or revenues.  But shutting down such sites could simply increase the incentive for clickbait, which Facebook is often mention as a primal sin. Indeed, Facebook (as are many other web-related industries) are much more comfortable working with content providers who actually do have legitimate consumer goods to sell in large transactional volume, and it becomes hard to see news as a legitimately “sellable” consumer product unless it comes from a large legacy source.  I see the same problem in the POD book industry, where authors are constantly quizzed as to why their books as physical copies don’t sell in actual stores – as if authors owe legacy businesses some kind of protectionism.

I don’t think you can reasonably expect to add wording to the First Amendment, and it sounds to me that a president could, by XO, order accounts from certain kinds of users closed for national security (under the Taleb “long tail” theory  - fortunately, Trump seems much more obsessed with legacy media than individual speakers, however).  The idea that it is Trump himself who incites things rather than speakers will be proposed, but the same can be said of the far Left (the baseball practice shooting in 2017); this seems to be more a matter of progressive polarization and the cognitive inability for large numbers of people to grasp the content they see in proper context (propaganda – a favorite word of Putin – matter).

  

Congress could, however, consider regulating company closure of accounts based on the ideological reputation of users, or even based on their financial size.  If Facebook is limiting the eligibility of controversial small news sites to monetize, it is limiting their ability to “pay their own way”.

Gab apparently will head for blockchain rebirth; more concerns about personal branding online

The biggest news on the private censorship front may be that Gab is reported to be considering going ti blockchain to become “indestructible”, Marvel movie style. Michael del Castillo reports for Forbes Oct. 31, here.

   

It’s true that the site is popular with right-wing extremists, and that is not necessarily intended.  But the way US First Amendment law is set up relative to the rest of the free world, and the fact that big tech has to be acceptable around the world and with a politically moderate customer base, means that any site that doesn’t censor legal hate speech will wind up as such a haven. 

The article gives some biography of Andrew Torba, who certainly looks charismatic enough.
  

The Winklevii (the Winklevoss twins from the days of the founding of Facebook) have also been supporting blockchain for absolutist free speech.

And the free speech gurus are on to something when they maintain that President Trump’s vitriolic statements, rather than sites that allow legal and constitutionally protected “hate speech”, are what is driving mentally unstable people toward violence – that seems true with the alt Right;  with radical Islam, it was angry statements from overseas.  But you can also have a discussion about wealth inequality and the hollowing of the middle class, as well as historical animus against certain peoples.  And you can talk about tribalism in a world that demands individually tailored cognition of events (“personal responsibility”).  

Blockchain may be a way to keep one’s content from normal takedowns but it has its own risks.

There is a detailed story by Gideon Lewis-Kraus from June 19, 2018 on Wired (paywall) about Kathleen McCarthy and Andrew Breitman, going back to 2010.  The story shows how the intermediate digital currency tokens can be used to favor or perhaps eliminate participants in their own local part of the chain. There can also be SEC issues with the underlying value of the enterprise.  (It’s not the same risk as a ponzi.) 

But it also strikes me that right now, blockchain doesn’t seem to promise a digital identity or trademark the way the conventional web does.  Maybe that will change.

Back in 2013, the Guardian had an article by Dan Gillmor that proposed that everyone should register at least one personal domain.

That idea could become controversial, since one way to slow down the spread of fake info on the Web is to regulate who can get on it, rather than the content itself.  That sounds like a Milo-Dangerous idea indeed. I mentioned this today on my COPA blog, as I looked at whether the 2007 opinion really extends the First Amendment to freedom from gatekeepers (which we did not have until the late 1990s). It probably does not (although free speech enthusiastic, including LGBTQ, may well be much better off with a conservative SCOTUS now than they had thought). It’s possible to imagine (even at an international level) requiring future registrants to represent “legitimate” businesses that sell (in a transactional manner) to the public, or that do “legitimate” fundraising, to be monitored by some sort of a-political body.  But we could be headed toward an Internet that is much more like China’s  -- even where people are scored as to their community engagement before they are heard. A lot of activists on the collectivist extremes want this Marxist reality to come back.

Update: Nov. 5 

Gab is apparently back up this morning.  The Washington Post has a major editorial Monday Nov. 5 to which I linked today on the "Bill on Major Issues" blog.