Monthly Archives: April 2022

Dr. Stanley Fish addressed topics such as free speech, hate speech and academic freedom on April 3 at NDSU. By examining the first amendment he shared his thoughts on how hate speech and free speech are up for interpretation. According to NDSU, Fish argues that free speech is a double-edged concept it frees us from constraints, but it also frees us to say and do terrible things.

Dr. Stanley Fish is an author and a professor. He has formerly worked and taught at the University of California, Berkeley; John Hopkins University; Duke University and the University of Illinois at Chicago. He worked as the dean of the College of Liberal Arts and Sciences during his time at the University of Illinois, according to NDSU. He has authored several books such as, Sinning Argument, How Milton Works and Theres No Such Thing as Free Speech: And Its a Good Thing.

Fish presented his finding of free speech at NDSU and answered audience questions. He largely talked about hate speech and its ambiguity. Hate speech can not be defined because in order to define it, you would have to be able to distinguish in a neutral and non-political way utterances that are hateful from utterances that are not hateful, he said. According to Fish, this is impossible to distinguish because no values or utterances are universal to everyone in the world.

He explains how people do not believe that certain speech is hateful because it is their perspective on the world. He stated that people view it as their truth, rather than a hateful action. He explains that people do not view some hate speech as hateful, but rather their freedom to share their own beliefs.

Fish explained that all hate speech will be political. Hate speech legislation is irremediable political. It will always be slanted and biased because of its political nature and the personal perspective on the issue.

Fish later explained his definition of hate speech by saying, Hate speech is what your enemy says loudly and effectively. He stated that people want free speech for themselves and not for the opposing group.

Fish stated how the operations of the first amendment are rhetorical. Its a collection and ensemble of Talismanic phrases and slogans, ritually invoke examples, fabricated entities like the marketplace of ideas, shaky distinctions and then ad hoc exceptions to those distinctions. This is all made up first amendment rhetoric, said Fish.

He explained that free speech justifies hate speech in many cases because of its ambiguity. Many court cases try to present free speech as a reason for their actions. The rhetoric of the first amendments helps lawyers justify their defendants actions.

Fish also explained free speech in higher education. Students have no free speech rights, it is entirely a matter of the instructors discretion, said Fish. He also stated that the instructors are also limited in their freedoms of speech. University and college teachers have the freedom only to do that job, he said.

The university is in the business of education, where the advancement of knowledge, not the advancement of free speech interests is the goal and the obligation, said Fish.

He explains that Freedom of Speech does not have a specific shape or set of rules which makes it so hard to determine. We dont know what Freedom of Speech is. Freedom of speech is, if its anything, kind of a chameleon.

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Dr. Stanley Fish discusses the first amendment - NDSU The Spectrum

Muslim worshipers gather on May 9, 2021 at Al-Aqsa Mosque in the Old City of Jerusalem, where tensions between Israeli police and Palestinians escalated that night into open conflict. (Mohammad Arar / Shutterstock.com)

by Greg Gonzalez

Last month, the American Association of University Professors issued a statement condemning legislative attempts to restrict instruction about Israel and about racism in the United States. While the AAUP consistently opposes legislation restricting how race and sex can be taught on college campuses, its opposition to legislation that defines antisemitism to include any criticism of Israel is a new and welcome development.

Like FIRE and other civil liberties organizations, the AAUP specifically criticizes legislative efforts to adopt the International Holocaust Remembrance Alliances definition of antisemitism. The IHRA definition states:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Scholars of antisemitism, Jewish history, and the Israel-Palestine conflict have called the IHRA definition highly problematic and controversial

In 2019, Florida passed legislation that utilizes language nearly identical to the IHRA definition to address antisemitism on college campuses. Several more states, as well as Congress, considered adopting the IHRA definition which is also the definition used by the U.S. Department of State for data collection purposes to combat discrimination on college campuses. Further, then-President Trumps 2019 Executive Order 13899 directed agencies charged with enforcing Title VI to consider the IHRA definition.

As the AAUP explains, Fifty-six scholars of antisemitism, Jewish history, and the Israel-Palestine conflict have called the IHRA definition highly problematic and controversial, noting that it privileges the political interests of the state of Israel and suppresses discussion and activism on behalf of Palestinian rights.

In fact, the definitions primary author, Kenneth S. Stern, has opposed legislation requiring its use because of the likelihood that it would chill campus speech.

As the AAUP further notes:

[The IHRA definition] has provided a pretext to bring coercive legal actions against supporters of the boycott, divestment, and sanctions movement, denying proponents of this peaceful form of economic and cultural protest their freedom of expression. And it has led to cancellation of university courses and conferences on the rights of Palestinians and to targeting faculty members in Middle East studies for dismissal and other severe sanctions.

The AAUP states that the expansive definition is an assault on academic freedom and undermin[es] the public mission of higher education to serve the common good through open, searching, and critical pedagogy; research; and extramural speech. Further, the AAUP believes that existing civil rights laws that prohibit religious or race discrimination can be used to combat the purported increase in antisemitism.

FIRE has repeatedly warned about the threat to free speech rights posed by legislative and regulatory efforts to employ the IHRA definition in identifying alleged discriminatory harassment. What constitutes a certain perception of Jews is open to many interpretations, and, thus, is hopelessly vague. Illustrating this vagueness is the list of examples of antisemitism that accompanies the IHRA definition, including [d]rawing comparisons of contemporary Israeli policy to that of the Nazis.

The First Amendment clearly protects the speech in this example. After all, because a person is allowed to compare the policies of countries other than Israel to that of the Nazis, it is an impermissible viewpoint-based restriction to forbid such comparisons to contemporary policies supported by the Israeli government.

As such, the IHRA definition is too vague and overbroad to be used as a basis for antidiscrimination efforts in institutions of higher learning. Notwithstanding these criticisms, policymakers continue to push for its usage.

Just in February, members of Congress urged the Department of Educations Office for Civil Rights to prioritize a proposed rulemaking in response to Executive Order 13899 on Combating Anti-Semitism, which directs federal agencies to consider the IHRAs definition and its accompanying examples of antisemitism when regulating how schools protect Jewish students from discrimination. Of course, OCR can play an important role in helping higher education institutions adequately address discriminatory antisemitic conduct, but utilizing or adopting the IHRA definition in the rulemaking process risks chilling or punishing protected speech.

FIRE applauds the AAUPs opposition to legislation that uses the IHRA definition of antisemitism.

Our concern is not hypothetical. As we recently wrote, Elected officials and private actors have indeed sought to pressure universities to suppress speech critical of Israel, or to enlist the Department of Education to do so.

Combating discrimination based on race, religion, or national origin is a laudable goal, but must be done in a manner consistent with the First Amendment and principles of academic freedom. FIRE applauds the AAUPs opposition to legislation that uses the IHRA definition of antisemitism, and we look forward to working together on this important issue in the coming months and years.

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AAUP sides with FIRE, opposes legislation which adopts overly broad antisemitism definition as threat to academic freedom and freedom of speech -...

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Last week, the Supreme Court handed down two nearly unanimous decisions in cases involving the First Amendment. One was an 8-1 decision written by Chief Justice John Roberts inRamirezv. Collier, in which the Court sided with a death row inmate who claimed he had the right to have the religious leader of his choice touch him and pray audibly for him in the execution chamber. The other opinion was 9-0 inHouston Community Collegev.Wilson, where the Court held that a legislative censure issued by a community college board did not violate the free speech rights of the respondent, another trustee on the board, in an opinion written by Justice Neil Gorsuch.

First Amendment expertsMichael McConnellof Stanford Law School andEugene Volokhof UCLA Law join hostJeffrey Rosento discuss the opinions' impact on how we interpret and understand and religious freedom and freedom of speech in America.

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Prof. Michael McConnell, Jeff Rosen, and I on the Court's Recent Free Speech and Religious Freedom Cases - Reason

This article was featured in One Story to Read Today, a newsletter in which our editors recommend a single must-read from The Atlantic, Monday through Friday. Sign up for it here.

Americas first newspaper, Publick Occurrences Both Forreign and Domestick, was also one of its shortest-lived. Motivated by the creed That Memorable Occurrents of Divine Providence may not be neglected or forgotten, the inaugural issue, published in 1690, aired rumors of an affair between the French king and his daughter-in-law, along with other scandalous reportsand was promptly censored and confiscated by British authorities in Boston. But the American appetite for such salacious fare was irrepressible. By the time of the Civil War, journals such as The Illustrated Police News were devoted to graphic depictions of real-life criminal cases: Readers were served up vivid woodcuts of brothel raids, hangings, suicides, and child deathsthe more violent and gruesome, the better.

Check out more from this issue and find your next story to read.

The invasiveness of contemporary gossip sites, social media, and search engines, it turns out, has a long pedigree. Although the technologies of dissemination have changed, the impulse to portrayand profit fromintimate material has thrived for centuries.

The lineage of the counter-impulselegal efforts to restrain intrusions into Americans private lives and affairsis shorter and its legacy more elusive. Public calls for a right to privacy emerged only at the turn of the 20th century, triggered by a more aggressive press as well as technical innovations like instantaneous photography, new communication platforms like the telegraph and the telephone, and, later, novel uses of personal information by private companies and government agencies. In response, state legislatures, the Supreme Court, and eventually Congress stepped in to patrol the boundary between the properly public and the deservedly private.

The battles were at times spirited. But many commentators now claim that the war is over, and that privacy has lost. Public and private organizations alike mine the minutiae of our lives, and citizensenmeshed in a culture of confession and data-driven consumerismare unable, or unwilling, to resist. Older modes of discretion have given way to an ethos of self-disclosure, an urge to be known. In this view, the sidelining of privacy as a social and cultural valueas well as a legal rightwas only a matter of time.

Read: Welcome to the age of privacy nihilism

The rise of powerful technologies (facial recognition) and businesses (Facebook) that hinge on access to our personal information understandably inspires such fatalism. Yet over the past two decades, ever-expanding surveillance has been accompanied by a wide-ranging public debate about protecting aspects of our lives from scrutinyevidence that privacy, endangered though it may be, is not yet extinct as a cultural concern. Indeed, that debate has sparked a welter of new proposals for protecting private life, such as the right to be forgotten and the right to move through public spaces undetected.

In Seek and Hide: The Tangled History of the Right to Privacy, the legal scholar Amy Gajda links our present struggle to an underappreciated tradition in American law and thought. She argues that although the right to privacy may have been a 19th-century innovation, privacy sensibilities have since the nations beginnings served as a durable counterweight to the hallowed principles of free speech, free expression, and the right to know. Ranging across several centuries, her account of the determined fight to protect privacy sounds like just the sort of road map we could use right now. But legal victories won in the name of privacy have often been sorely inadequate. Whats more, they have historically favored the privileged over the vulnerable. A realistic defense of privacy in the digital age isnt a lost cause, but it will require grappling with new social as well as technological challenges. It will also entail reckoning with privacys past uses and abuses.

Seek and Hide focuses on a specific kind of privacy conflict: the propriety of publicizing true but intimate or embarrassing facts about a person. That sort of shame-inducing exposure may sound almost pass in the era of Twitter and TMZ. Were by now used to personal missteps forever preserved online, innuendo circulating on the web, doxing as a weapon of rhetorical war. We take for granted the constant prying that seems to come with a life hooked up to the internet. But the history of disputes over press invasions serves as a kind of barometer, revealing the cyclical nature of privacys fortunes. It also highlights the persistent disparities in whose privacy has mattered to lawmakers and courts.

From the September 2020 issue: The AI panopticon is already here

Gajda traces the championing of privacy (and skepticism of an overly free press) back to the nations founding. Thomas Jefferson and Alexander Hamiltonwho otherwise agreed on littleboth spoke to the damage that truthful-but-embarrassing disclosures could cause. To let such details loose in the world, Hamilton charged, was a two-edged sword, by which to wound the public character and stab the private felicity of the person. (Both men, it should be noted, were considerably less bothered when those details concerned a political rival.)

Not incidentally, these men each had a personal investment in keeping certain matters quiet: Jeffersons sexual relationship with the enslaved Sally Hemings and Hamiltons affair with a married woman, made still more scandalous by his payoffs to her husband. Courts, following the lines of status in American society, were generally happy to oblige, punishing journalistic invasions chiefly when they threatened the reputations of elite white men.

The cohort of Americans who could count on their privacy being respected grew over the course of the 19th century. The middle class, with its newly genteel sensibilities and domestic sanctuaries, was now included, although womens and childrens privacy continued to matter mostly as an extension of that of male heads of household. At a time when immigrants, nonwhite people, the poor, criminals, and other unworthies were neither allotted much privacy nor thought to deserve it, the well-heeled and respectable won libel suits against reporters for printing potentially damaging stories. In the mid-19th century, for example, the New Hampshire Supreme Court ruled that a local newspaper was unquestionably out of line in tarnishing the name of a good, pious, virtuous and honest woman by recounting that, during the course of a party she had attended, kisses were bestowed on ripe lips and cheeks generally innocent of such sweet tokens.

Long before a right to privacy was codified, American law thus drew a line between issues of public import that needed to see the light of day and intimate affairs that individuals had every right to cloak. Certain matters were considered especially intimate. Personal correspondence, sexual liaisons, indecorous divorce proceedings, medical diagnoses, and images of the naked body were all deemed worthy of protection. By the 1880s, the U.S. Supreme Court seemed to recognize this boundary in a search-and-seizure case, describing the privacies of life as an essential component of liberty and a sacred right.

It was in the next decade that privacy became a major public concern. This was prompted by the growing audacity of the scandal press, but also by the impact of new technologies, such as the telegraph and the telephone (and with it, the potential for wiretapping). Instantaneous photography in particular let loose a whole new species of virtual invasion in the form of Kodak fiends, proto-paparazzi who were now able to captureand disseminateindividuals images without their knowledge or consent.

In 1890, in what went on to be hailed as a landmark Harvard Law Review essay, Samuel Warren and Louis Brandeis, Boston lawyers, decried the press for transgressing the obvious bounds of propriety and of decency and trafficking in gossip as a trade. They also fretted over the novel forces allowing the unauthorized circulation of portraits of private persons. What they demanded in response was an actionable right to privacy. Their article helped give shape to a new legal claim for damages: the publication of private facts. (Ironically, Warren was heir to the paper company whose product made the printing of illustrations and photographs financially feasible for the scandal presseven as it also supplied paper to more reputable organs like The Atlantic.)

Although their call for a new right was inspired by modern privacy invasions, Brandeis and Warren traded in older gender- and class-bound ideas about who suffered most, both materially and psychologically, from the slings and arrows of publicity. Delicacy around embarrassing revelations was still often imagined as the privilege of elites. As their contemporary, the editor E. L. Godkin, put it, privacy was one thing to a man who has always lived in his own house, and another to a man who has always lived in a boardinghouse. Yet the ability to at least stake a claim against unwelcome public scrutiny was becoming available to a wider array of Americans.

One flash point was a 1900 suit filed by a 17-year-old named Abigail Roberson, charging that she was made sick by the unauthorized use of her image (shown in profile, revealing a bit of collarbone, and accompanied by the tagline Flour of the family) in advertisements for the Franklin Mills flour company25,000 posters displayed in grocery stores, saloons, and other public venues. As Gajda recounts, a lower court sided with Roberson, stating that every woman has a right to keep her face concealed from the observation of the public. A higher court pointedly disagreed, however, that anyone had a right to move through the world free of unwanted publicity. Indeed, others would have appreciated the compliment, Judge Alton Parker pronounced. Popular outcry led the New York legislature to pass the nations first privacy statute the following year. Tellingly, Parker changed his tune just a couple of years later, when he ran for president and became desperate to escape camera fiends and what he described as the sleepless surveillance of surreptitious snapshotters. His own private life and affairs, unlike a pretty young girls, seemed obviously worthy of shielding.

Read: Child data-privacy laws arent protecting kids

The Roberson case pointed to the way commercial interests and evolving cultural values would recast privacy debates in the 20th century. Even as privacy rights gained a firmer footing, the notion that one could not realistically live outside the public gaze was taking hold. It was a position that scandalmongers as well as respectable papers endorsed as part of the First Amendment guarantee of press freedom. Defined relatively narrowly in Hamilton and Jeffersons day, the peoples right to know was becoming a more expansive concept, promoted by publishers and reporters and backed by courts. The ebbing of Victorian norms of propriety, which had sought to keep unseemly matters out of public places, helped loosen rules on what was publishable, too.

The impulse to tell all was temperedfor a timeby the professionalization of journalism in the 1920s. The American Society of Newspaper Editors drafted national standards of behavior for its members, more of whom now came out of journalism schools. The dean of the University of Missouris journalism school, the first such program in the country, wrote in 1914 that no one should write as a journalist what he would not say as a gentleman. (The choice of language suggests the lasting association between privacy rights and social status.) In turn, jurists began to trust reporters to make their own calls as to what was in the public interest to exposeto adjudicate what was newsworthy and what was not.

For a moment, the United States enjoyed a rare alignment of privacy sensibilities, journalistic practice, and the law. It didnt last long. As the legal historian Samantha Barbas has explained, the courts deference to the press led, by mid-century, to a transformation in the very meaning of the term newsworthy. It came to refer not to what the public needed to know but to what it wanted to know. And what the public demanded was still the stuff of The Illustrated Police News: voyeuristic accounts of sex and violence.

The courts ratified this shift. In 1966, the Supreme Court heard Time, Inc. v. Hill, which concerned Life magazines misrepresentations of a familys experience being taken hostage during an armed robbery. The Court ruled in favor of the publisher. In an echo of the Roberson case, the majority indicated that exposure of the self to others was simply part and parcel of life in a modern society that placed a primary value on freedom of speech and of press.

In subsequent decades, courts tilted further still, offering constitutional protection to parties who had exposed a private citizens sexual orientation against his wishes, published a rape victims name because it was discoverable in public documents, and televised a horrific accident scene in the name of public interest. Under American law, a private person could become a public one, his or her life stripped bare, simply by virtue of bad luck. Well before the advent of the internet age, American jurisprudence was coming around to the view that everyone was a public figure, and without the restrictions, cultural or legal, on the flow of personal information that Hamilton and Jefferson had counted on.

The vicissitudes of the right to privacy over the past two centuries suggest that we may be overdue for a reckoning akin to Brandeis and Warrens. Even in a no-holds-barred social-media landscape, we are not without resourceswhether in the form of legal precedents or changing social values.

Californias privacy regulations now permit minors to erase their past social-media posts, a version of Europes right to be forgotten. New statutes criminalize the humiliating nonconsensual sharing of explicit photos and videos known as revenge porn. Whistleblowers have begun to reveal the calculated damage to both private and public life caused by unregulated social media. Cities have banned facial-recognition technologies. Courts have ruled that Americans are entitled to some privacy in even the most public of places. Details that were never before treated as privatesuch as home addresses and geolocation datahave earned legal protections.

Pitched battles over claims of privacy and publicity underscore the urgency, and unsettled boundary lines, of our own historical moment. So far, these efforts have been scattershot. But they make clear that privacy is not over. As in the past, new privacy claims are emerging in tandem with novel violations.

Crazy/Genius: Derek Thompson on why we should care about privacy

History of course provides no tidy formula for the present. Gajdas chronicle reveals an enduring tension between principles of free speech and respect for individuals private lives. But it also throws into sharp relief how much the context for that debate has changed in the past several decades. Highly visible privacy invasions have by no means abated: Take Jeff Bezoss recent fight with the National Enquirer over its threat to print embarrassing photos of him and his girlfriend, or Hulk Hogans lawsuit against Gawker over the publishing of a sex tape featuring the former wrestler. (The success of the latter was, depending on your point of view, a victory for privacy or proof that it remains a prerogative of powerful men.) But such episodes in the tabloid press are now swamped by a much more extensive and complex ecosystem of incursions.

Our models and tools for safeguarding privacy need to catch up. We live in a world where daily, continuousand often unfelt and unseenintrusions are the rule, the work not just of traditional media but of tech companies, data-analytics firms, entertainment systems, financial industries, and state agencies seeking unfettered access to our information. Each of us now navigates competing claims of transparency and privacy every time we swipe a credit card, download an app, or pass through a smart home. Focusing on individual violations and litigation in the courts, a strategy that once served to protect (some) Americans privacy, is insufficient in the present. For a shot at privacy in the digital ageto say nothing of the coming metaversewe will need to envision privacy as a collective social good in need of collective solutions: strong public regulation that systematically reins in the parties who trample it.

There is another lesson to be drawn from Gajdas history. From the earliest days of the republic, privacy law has best served the most privileged in American society: those with considerable clout and resources at their disposal. To enact meaningful protections today, advocates will need to challenge the uneven allotment of privacy in the United States, taking careful account of who has and hasnt been served by past victories. If they do, Americans may yet summon defenses of privacy responsive to the needs and desires of ordinary citizens.

This article appears in the May 2022 print edition with the headline Privacy Isnt Dead.

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How Privacy Prevails in the Age of Big Tech - The Atlantic