I first learnt about Hugo Black through watching the PBS series ‘The Supreme Court’. His early life was inauspicious. Born in 1886, in Ashland, Alabama, a small and isolated town in the Appalachian foothills, he was the youngest of eight children. Determined, he studied law, and practiced in Birmingham, Alabama. For just one year, in 1911, he served as a police court judge: it turned out to be his only judicial experience prior to joining the Supreme Court twenty-five years later! Then things changed. He served in the US Army in the First World War; and was elected to the Senate in 1926. He was a strong supporter of the New Deal, but, probably conscious of votes in Alabama, he regularly opposed the passage of anti-lynching legislation.
In 1937, Roosevelt proposed Black for a Supreme Court vacancy. It caused controversy. By tradition a senator nominated for an executive or judicial office was confirmed immediately, without debate. Departing from this tradition for the first time since 1853, Senate immediately referred his nomination to its Judiciary Committee. Despite criticism for his presumed bigotry, his cultural roots, and his Klan membership, the Committee recommended his appointment. The full Senate considered his nomination; although rumors about his involvement in the Ku Klux Klan continued, there was no clear evidence at the time, and he was confirmed.
An interesting background! Equally interesting was his long term on the bench. The fifth longest serving member of the Supreme Court, he proved to be a champion of constitutional rights and the separation of powers. Emphasising the importance of history to help prevent repeating past mistakes, he wrote: “power corrupts, and unrestricted power will tempt Supreme Court justices just as history tells us it has tempted other judges.” A literalist, he used the words of the Constitution to restrict the roles of the judiciary, believing judges should accept the supremacy of the Congress, unless the legislature itself was denying people their freedoms, and noted: “The Constitution is not deathless; it provides for changing or repealing by the amending process, not by judges but by the people and their chosen representatives.”
It was Black’s commitment to the rights of the Constitution that drove many of his decisions: “in my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced, and respected… I would follow what I believe was the original intention of the Fourteenth Amendment—to extend to all the people the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.” [i]
Why is Justice Black on my mind today? He spoke eloquently in defending the First Amendment, and the right to freedom of speech, and the freedom of the press. When the government tried to stop publication of the ‘Pentagon Papers’ in 1971, he said:[ii]
“for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country … Madison and the other Framers of the First Amendment … wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law … abridging the freedom … of the press.” Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints … we are asked to hold that, despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress … even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law … The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means.”
The First Amendment is always scrutiny. Hugo Black’s powerful justification of the freedom of press was nearly fifty years ago. Do his views still stand in the current environment?
We can start with some basic questions. What is ‘the press’? Does it include all forms of media, physical and online? Does it include television? And does the First Amendment include the freedom to publish lies and alternative facts? Free speech is seen as central to ensuring we are informed; to support healthy and rational debate; to hold powerful people and institutions accountable. But is ‘free speech’ a means to these ends, or is it an end in itself?[iii]
Today President Trump’s constant tweets and assertions are making these questions at least as pressing as they were in Hugo Black’s time, (he had to deal with the world of Richard Nixon). There’s more. On top of lying politicians and commentators, we are also faced with companies like Google and Facebook that use algorithms to tailor what we might want to know. In receiving the ‘push’ from these companies, at the very least we might need some basis to distinguish truth from falsehood. In the past, I knew there were newspapers, and radio and televisions stations, that took pride in ensuring that in what they said they had good grounds to claim it was true. The challenge today is to know how far this remains the case.
There have always been liars and fabulists, of course: in recent times we have the cases of Janet Cooke at the Washington Post, and Jayson Blair at the New York Times.[iv] But they were unmasked. The institutional protections against censorship and propaganda, including laws, journalistic codes of ethics, independent watchdogs, education itself, were in place to ensure we had gatekeepers monitoring truth in free speech. Again, are these protections working today?
If free speech is a means to an end, then that package of institutional protections is critical. Now, I may have been a little bold before in talking about some things being true, and others not. I acknowledge many things in life are contestable. But that doesn’t mean we should abandon seeking the truth. Indeed, it is an invitation to have views challenged. I confess I am sometimes as worried by the simple-minded assertions I hear from people on the left, people whose outlook I share, as I am by the outrageous drivel I hear from some on the right. Are we losing healthy and rational debate by informed citizens with enough education to keep perspective?
Thank goodness for ‘Change My View’ (CMV). To quote from their website: “CMV is most commonly known as the forum on reddit.com, which is a place for inviting others to explain why they disagree with you, with the aim of greater understanding. It was created in early 2013 by Kal Turnbull, and has grown to nearly half a million subscribers, moderated by a team of 22 people.”[v] I read about CMV in Wired, and the article was both fascinating and reassuring.[vi]
If free speech is a means to an end, then there are good reasons to consider the need for some controls over the digital domain. I don’t see a problem in placing some limits on freedom. As John Stuart Mill said, “That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” [vii] As far as I am concerned that is a sufficient justification to require people to drive on the right-hand side of the road (in the USA), or to prevent the use of DDT. Today, there are problems arising in the digital world. As one commentator has argued in looking at what needs to be done “those are not choices for Mark Zuckerberg alone to make. These are deeply political decisions … We can decide how we want to handle digital surveillance, attention-channeling, harassment, data collection, and algorithmic decision-making. We just need to start the discussion. Now.”[viii]
If free speech is a means to an end, then there is one feature of our environment today that is very different from that of Hugo Black. You might think that we live in a world where anyone can post anything on the internet, and anyone can see it. In one sense, that is true. But who will see what appears? There are gatekeepers, the Facebooks and Googles of this world, directing our attention, promoting some views and ignoring others. At the same time, business today thrives on collecting and analysing ‘big data’, getting our attention through targeting messages based on a massive surveillance infrastructure. We live in an oligopoly built on authoritarian ethos, fostering propaganda, misinformation, and polarization.
If free speech were an end in itself, it would imply we would want more and more of it. That seems to be where we are right now. There is a spate, no an avalanche of commentary, views, ideas, facts, fictions, imaginations and lies. A torrent of ‘stuff’ keeps pouting out. In trying to navigate this deluge, in trying to avoid drowning, we seek trusted sources, hoping they will ensure some reasonable degree of accuracy, bringing to attention the things that are important to know. In that task, the press has played a key role.
But that takes us back to the earlier question: ‘what is the press today?’. If I turn to my favourite US newspaper, I am offered a menu of choices: news, breaking news, opinion, ‘more news’, editorials, features (op-ed columnists), world news, business news, technology, arts, politics, fashion and style, movies, sports, theater, science, obituaries, health, travel, television, books, education, food, ‘Insider’, ‘Upshot’, and there’s more, much more. If I was to read 20% of what is in the daily newspaper, I would have no time for anything else!
However, it is not just a matter of overload. I’m not sure I know which items are providing me with information, which are opinion, and which are written from a particular (quite often unacknowledged) viewpoint. I worry about breaking news, because instant journalism relies on supposition and anticipation as much as it reports on what has taken place: news ‘as it happens’ is often wrong or misleading (a reason I steer clear of news on television most of the time).
My favourite UK newspaper? There I have headings like headlines, spotlight, opinion, sport, culture, food, lifestyle, from the UK, around the world, explore, in pictures, and most viewed – and that’s on the first page online. That leaves out environment, science, technology, global development, cities, obituaries; and on top of that there’s ‘More’, ranging from dating to masterclasses, podcasts to professional networks.
Can someone tell me, for just these two tiny parts of the free press, how much ‘truth’ there is in the items I read? Do I have to go to a fact-checking site every time I read an article? Which ones? [ix] I keep remembering the wonderful series of daily strips in Doonesbury, where he depicted a service where you could be provided with the ‘facts’ you needed to justify your views or actions. Gary Trudeau suggested there really are ‘fact-checkers who find the “facts”’ you need. Which leads to yet another question: who checks the fact-checkers?
I suppose this is further aspect of an issue I often ponder. I believe freedoms and rights should come with corresponding obligations. To be able to exercise the right to freedom of speech, for the media to claim the right to the freedom of the press, there should be a balancing set of responsibilities; those institutional protections against censorship and propaganda, including laws, journalistic codes of ethics, and independent watchdogs I mentioned before. I see little evidence that many in the media today worry about these protections and their obligations.
Every week, my electronic calendar has a Sunday morning reminder: “live in truth”[x]: in a world of frequently unchecked statements, alternative facts, hidden lies and misleading assertions, it is a very hard prescription to follow.
Any ideas?
[i] Without apology, I have taken all of this material on Justice Black’s background from Wikipedia, mostly in words used there: see <https://en.wikipedia.org/wiki/Hugo_Black>
[ii] This, and the quotes that follow, come from the Cornell Law School copy of the decision <https://www.law.cornell.edu/supremecourt/text/403/713>
[iii] Zeynep Tufekci, ‘It’s the (Democracy Poisoning) Golden Age of Free Speech’, Wired, Business, 16 January 2018
[iv] A chilling account of these two, and many others, can be found in Kevin Young, Bunk, published in 2017 by Graywolf press.
[v] <https://changemyview.net/>
[vi] The story was about a woman who wanted to be challenged in her view that serial sex offenders should submit to chemical castration: Virginia Heffernan, Wired: Culture, 16 January, 2018 <https://www.wired.com/story/free-speech-issue-reddit-change-my-view/>
[vii] J S Mill, On Liberty, Chapter 1, 1859, Project Gutenberg edition
[viii] Zeynep Tufekci, op cit
[ix] Currently recommended are www.FactCheck.org, www.Politifact.com, www.OpenSecrets.org,
www.Snopes.com, and www.TruthorFiction.com .
[x] It’s a variation on the title of Vaclav Havel’s essay ‘Living in Truth’
