Sunday, August 27, 2017

My Rebuttal Letter to Another Professor Attacking Free Speech

In an August 20, 2017 Op-Ed in the Los Angeles Times, a Professor Richard Hasen (UC Irvine Professor of Law and Political Science) had an opinion piece adapted from his law review article entitled "Cheap Speech and What It Has Done (to American Democracy). I wrote a rebuttal directly to the Professor. Although he thanked me for my "very thoughtful" email, he chose to not otherwise engage with me.

Coincidentally or not, the very next day the USA Today had an article entitled "Companies are targeting hate speech." The article starts out "Silicon Valley appears ready to pull the plug on hate speech." The ease with which hate groups such as neo-Nazis can access the internet and spew their hatred is, of course, a legitimate and serious concern. I see it as not much different from the ability of radical Islamist terrorists to use the internet in order to organize and plan terrorist attacks. We rely upon our law enforcement and counter-intelligence agencies to protect us from those who wish to do us harm.

However, Professor Hasen was concerned with false speech affecting people's beliefs and our politics. "Cheap speech is also hastening the irrelevancy of political parties by facilitating direct communication between politicians and voters," referring, of course, to Donald Trump's use of Twitter, and Trump's "lies to the public." Therein lies my concern. Do I think Trump has lied? Yes. Do I think virtually every President (at least every modern President) has lied? Yes. But I see how the concern about speech arises in the context of having a Republican President.

Here is my letter: "Dear Professor Hasen: I read with interest your piece in today's paper on "cheap speech." I agreed with some of your points, but was concerned by others. As a conservative, and someone who is "old school," I love holding a newspaper in my hands. Understanding that every media outlet has an agenda that may affect their reporting, and definitely their commentary, I try to read and listen to multiple sources. I, too, am saddened by the failing newspaper business.

However, I was distressed by the suggestion that Facebook, Google and Twitter should be policing speech. I do not see how these large corporate entities can be entrusted with determining the truthfulness of speech. Over 5 years ago I had an email exchange with the then Public Editor (a position the paper has since eliminated) of the New York Times, Arthur Brisbane. I had expressed my disappointment in an Op-Ed by Mahmoud Abbas, which I felt was filled with untruths, without so much as a sentence by the Times indicating that the historical "facts" stated by Abbas were very much in dispute.

I received the following reply from Mr. Brisbane: "Yes, I do believe editorials and Op-Eds should be factually accurate. It is much harder to police it, though, in part because deploying facts to support argument tends very often toward coloring them right to the very boundaries between accuracy and distortion." I have also found factual errors in the editorials of the "paper of record." And, as Mr. Brisbane pointed out in his final column, the liberal bias of the editorial pages sometimes bleeds over into the news pages. Although, I would probably argue about the extent to which their liberal bias affects the news pages. If the paper of record has difficulty with the issue of accuracy/truthfulness, how can we entrust Google,

You start out suggesting that "cheap speech" is affecting the health of our country. I would not dispute that the ease of speech has an effect on our country. But I believe that the biggest reasons for the divisions in our country are twofold. First, I believe one of our two major parties, the Democrat party, no longer shares in the fundamental values that most Americans used to share. To put it another way, the Democratic Party today substantially is made up of Leftists (witness the near victory of an open Socialist for the party's nominee for President). Classical liberal Democrats seem to be a thing of the past.

Some examples. Classical liberals would never suggest limitations on speech; they had faith in their abilities to debate issues. Today, leftist students and professors try to shut down conservative speakers. The same thing happens with pro-Israel speakers - such as happened to then Israeli Ambassador Michael Oren at UC Irvine. Some of my recent blog posts (I blog at discussed how university professors have new theories for restricting speech (speech should be for the public good, and speech can cause physical harm to people), with no consideration for First Amendment issues. While you do acknowledge the First Amendment, you suggest that we should consider a "shift" in First Amendment doctrine. That may lead to a slippery slope that I, for one, am not willing to risk going down.

One more example. When the owner of Chick-Fil-A expressed his belief in traditional marriage, big city mayors across the country - all Democrats - said that they did not want him doing business (or opening new stores) in their cities. A classical liberal would have said something to this effect: "While I do not agree with the owner of Chick-Fil-A regarding gay marriage, I defend his right to express his opinion, and welcome his business to our city." I could give other examples as well.

The point is, when both sides agree on fundamental values, it is relatively easy to work out "issues." But how do the 2 sides get to discussing issues when they do not even agree on the fundamental values. I said there two reasons for the division in our country today. The second reason may very well be related to "cheap speech." By that I mean we are now inundated (the 24/7 news cycle) with news and commentary. Perhaps that is the reason people now seem to discuss news and politics more than ever. That alone might not be a problem, but I have witnessed the sheer intolerance that some on both sides have for the other side. Some of my fellow attorneys, people who know how to debate issues, have refused to hear or read a conservative viewpoint. (And see my 7/29/16 post "A Personal Tale of Intolerance," as well as the following post. My exchange with Mr. Brisbane is in the 4/21/12 post "Media Bias, Part III.)

Anyway, I thank you for your consideration in reading through this email."

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