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Last month, TikTok user @nas.alive asked people to answer the question: Whats one thing that is normal in your country but weird for the rest of the world? It took off. Missing among the videos of bagged milk (Canada), nose-touching (UAE), live fish dwelling in bathtubs (Slovakia), and other global oddities was a primer on the First Amendment (US).

The First Amendment of the US Constitution limits the governmentnot private entitiesfrom restricting free expression. This is why companies like Facebook and Twitter can moderate contentand also why they could suspend then-President Trumps accounts during his last weeks in office. While many Americans applauded this move as an appropriate response to the violent Capitol insurrection, unexpected critics emerged in corners of the globe where the American version of free speech is considered, well, weird.

German Chancellor Angela Merkel criticized the move as problematic, saying that lawmakers, rather than social media CEOs, should regulate speechthe exact opposite of what the First Amendment allows. Despite her rocky history with Trump, the EU leader said that his free speech right can be intervened in, but according to the law and within the framework defined by legislatorsnot according to a decision by the management of social media platforms. Frances Finance Minister also said he was shocked by the decision, which he framed as social media oligarchy regulating speech. Leaders outside of Europe criticized the move as well.

The reaction is notable not only because it reflects an ideological difference in how the regions understand free expression, but also because it occurs during a pivotal moment of change for social media companies. The EU already has placed some regulations on digital platforms, and now it is pushing to broaden those regulations through the Digital Services Act. If First Amendment principles are to survive online, Americans must engage with changes abroad.

A bedrock of American historyand, correspondingly, American constitutional legal doctrineis distrust of the government. Anyone with a basic understanding of American historyor access to Hamiltoncan see why. By contrast, Europeans predominantly understand the role of government as a safety net against corrupt private sector interests. These differences are not merely speculative: Europeans report relatively higher levels of trust in the institutions of government, while Americans trust of government has been in more or less steady decline since 1958.

This may explain why the EU allows for more robust public regulation of the private sector. Take privacy law for example: in 2018, the EU implemented the General Data Protection Regulation (GDPR), which places requirements on companies to protect European residents data. Private companies guilty of violating the GDPR, by, for example, implementing poor data security measures, face fines of up to 4% of their annual global turnover or 20 million Euros, whichever is greater.

The GDPR has had sweeping consequences on a global scale. Most US companies with a European presence have found it most efficient to apply the GDPR requirements across the board to their entire global operations. American internet users now find themselves clicking through cookie consent notices on nearly every website they visit. Scroll up on this very article and you will see a cookie banner; you can thank Europe.

By contrast, privacy laws in the US are piecemeal and industry- or information-specific. For example, HIPAA protects medical information, and the Gramm-Leach-Bliley Act applies to data held by financial institutions. Unlike the GDPR, the text of these rules focuses on data security rather than abstract principles of individuals privacy rights.

When it comes to privacy, the US approach is to keep the government out of it as much as possible. The EU approach is to ask for government enforcement. In the end, the EU approach is winning: because it is easier for digital platforms to apply a uniform set of rules across their global operations, the strictest rules become the global norm.

While the GDPR imposes privacy rules, a different regulation, the e-Commerce Directive, creates rules for intermediary service providers that host third-party content, such as social media platforms. The 2000 e-Commerce Directive is old enough to drink even in America, so in December, the European Commission proposed an update via the Digital Services Act (DSA).

The proposed DSA is much lengthier than its predecessor, but it preserves key parts of the e-Commerce Directive by providing intermediary liability protection for user-generated content and prohibiting any laws that require platforms to monitor all content.

Its primary goal is to address illegal content, and it does so by laying out due diligence obligations, with the heaviest burdens on Very Large Platforms, those that reach at least 45 million average monthly users. The obligations include systems for reporting illegal content, including use of trusted flaggers, which are entities which have demonstrated particular expertise and competence, whose reports must take priority. Very Large Platforms must take mitigating measures at the organizational level to address illegal content. The DSA also allows users to challenge takedown decisions and encourages transparency about content moderation decisions.

The DSA does not define what is illegalfor that, platforms must look to national laws. Each Member State will create an independent authority called the Digital Services Coordinator to supervise compliance in their territory. Nations that identify a violation of their laws online can use the DSA procedures to send orders to platforms notifying them of the violation.

And although the takedown procedures only apply to illegal content, there are also measures in place to address merely harmful content, such as political disinformation, hoaxes and manipulation during pandemics, harms to vulnerable groups. Very Large Platforms must conduct risk assessments of their vulnerabilities to the spread of such harmful content, and those assessments will be subject to independent audits. Platforms are also encouraged to follow preexisting codes of conduct.

The proposed DSA is similar in some ways to the GDPR. Like the GDPR, it applies to all online platforms that offer their services in the EU, even if they are based in America, and requires non-EU platforms to appoint a legal representative. It also is enforced with fines set forth by each Member State, but the fines are potentially higher, capped at 6% (rather than 4%) of the global turnover of the digital platform. In extreme cases, a court can temporarily suspend the platform.

How would the decision to remove Trumps accounts fare in a world where the DSA is law?

Because the DSA allows Member States to enforce their own national laws on any platform operating anywhere in the EU, and it imposes the heaviest burdens on Very Large Platforms which are mostly US companies like Facebookthe strictest European nations laws could apply even to uniquely American social media controversies.

Germanys controversial NetzDG law is currently one of the most speech-restrictive laws in Europe. It requires that digital platforms censor hate speech and defamatory speech, as defined by the German Criminal Code, and it gives platforms a weekand, sometimes, just a dayto remove problematic content. This is a remarkable contrast to American law when one considers that it takes months or years for American courts trained in resolving legal disputes to determine whether speech is defamatory or notand hate speech is in fact protected under the First Amendment.

Even under NetzDG, the Trump tweets that led to his Twitter suspension may not have been illegal. And while the DSA mandates removal of illegal content, it leaves the question of what to do with merely harmful content up to the platforms. So, even if the DSA is passed, the EU would not require platforms to suspend Trumps account. Nor would it prohibit such a move.

But that could quickly change, as illustrated by a recent development in Poland. In response to the deactivation of Trumps social media accounts, Polish officials announced a new draft law that would make it illegal for platforms to take similar actions. The draft law states that social media companies cannot remove content that is not expressly illegal. Although the law purports to apply only to companies operating in Poland, under the DSA, the law would apply across Europe and, practically speaking, could extend into the US.

If laws like the Polish bill are implemented alongside the DSA, American First Amendment principles could come into direct conflict with the European model of free expression. European governments would not only tell companies what they must remove, but also what they must not remove.

Ask five Americans to explain to a European why the First Amendment is worth protecting, and youll get five different answers. This is not a design flaw, nor a failure of the US education system. Rather, the reasons for the First Amendment are, and have always been, varied and up for debate.

Among the many theories for the First Amendment is the idea of the marketplace of ideas the argument that ideas should be aired freely to allow the public to compare competing ideas, and the truth will prevail. Critics of this theory point out that powerful groupslike Very Large Platformswill have outsized influence in the marketplace. Another criticism of the marketplace theory is that, after 230 years of testing, it simply hasnt proven accurate: if anything, critics say, this model of free speech elevates salacious falsehoods and buries truth.

The European regulatory framework is perhaps a direct response to the perceived failure of the marketplace of ideas. Europeans think the truth needs a boost, and that boost should come from the government. An American may counter that there is no evidence that governments are better than platforms at leveling the playing field in a way that lets truth prevail.

Another theory of the First Amendment is that, in a democracy, government must stay out of speech decisions so that citizens can learn truthful information about their elected officials. Although the DSA is primarily focused on non-political speech, such as terrorist content and child sexual abuse material, it is theoretically problematic, because the rules are set by the very legislators that are under scrutiny.

Another theory is that self-expression has inherent value. Under this theory, the fulfillment of the selfartistically, spiritually, creativelyis only possible where the government is constrained. The DSA, and even the current regulatory framework, is problematic under this theory; these laws can be misapplied in ways that stifle expression. This risk is heightened by the DSAs cross-border reach, because expressive content, such as jokes and art, can take on vastly different meanings across cultures. The New York Times has already documented several instances where satirical content was censored under existing European laws. Because the DSA may result in nation-specific laws applied globally, platforms will have the unenviable job of determining whether a joke in Denmark is a crime in France, and which countrys interpretation prevails.

The challenge for platforms going forward will be complying with these evolving and demanding European regulations. The challenge for US and EU legislators will be harmonizing their free speech principles and addressing dangerous content without Balkanizing the internet. Although both regions value the fundamental right of free expression, European leaders comments on suspending Trumps social media accounts demonstrate that the EUs vision for the internet may be in tension with US First Amendment principles in unexpected ways.

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Is There a First Amendment Right to Tweet? - JSTOR Daily

The United States has an historic opportunity to work with democracies around the world to address dangerous online content, including white supremacist terrorism. In 2019, a lone wolf live-streamed via Facebook his massacre of 51 people at two mosques in Christchurch, New Zealand. In direct response, dozens of the worlds leading democracies joined with major social media companies to issue a call to action. The Trump administration, however, did not join them, vaguely referring to First Amendment concerns to explain its absence.

With the coming anniversary of the Christchurch Call to Action (May 15) and the Summit of Democracy, its high time to reconsider the U.S. posture. Whatever the merits or demerits of any multilateral effort to address dangerous online content, one purported basis for the U.S. failure to join such initiatives cannot withstand scrutiny. Thats the claim that the United States has a policy of refraining from supporting international agreements that would call on other countries to act inconsistently with the First Amendment.

One of us served as the State Departments most senior human rights official and the other has served on the State Departments advisory committee on international law during Democratic and Republican administrations. Based on our experience and assessment of U.S. practices, we question any assertion of such a general or consistent U.S. approach toward international agreements.

Indeed, some of the main cases cited to show such a policy, on further scrutiny, demonstrate the opposite: The United States takes a pragmatic approach often issuing statements that stress that its own commitment to an agreement do not run afoul of the First Amendment (and asserting carve outs for U.S. domestic purposes). At the same time, it supports the adoption of international agreements by other countries who apply these treaties in accord with international human rights standards. In bilateral human rights dialogues with countries like China, Vietnam, Myanmar and Uzbekistan, U.S diplomats have routinely urged ratification of international human rights treaties without referring to its own reservation relating to free speech. In these and other diplomatic exchanges, U.S diplomats constantly rely on this international framework, rather than the U.S. Constitution and laws. It makes good practical sense to do so.

Were it otherwise, the United States efforts to advance human rights around the world would be stymied and seen as simply trying to impose its own constitutional standards on other governments including in political contexts where an absolutist First Amendment approach could wreak havoc or far worse.

Consider how the United States approached the main human rights treatythe International Covenant on Civil and Political Rights. That treaty requires any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In submitting the treaty to the Senate for ratification, the George Herbert Walker Bush administration acknowledged that this provision directly conflicts with the First Amendment by requiring the prohibition of certain forms of speech and expression. The solution was simple. The United States ratified the agreement but entered a reservation opting out of that provision for itself, that is, to the extent the obligations were inconsistent with the First Amendment. (The reservation read: Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.)

What about the treaty as it applied to other States? That would be up to them to decide. The United States would go on to promote the treaty as a global agreement, including urging other States to ratify the Covenant, and proceed to support the treatys supervisory body. The latter is a committee of 18 independent experts, including a member nominated by the United States from 1995 until 2018 and again in 2020. The Human Rights Committee monitors the application of the Covenant (including Article 20) for States that have committed to comply with it.

The same pattern holds true for other treaties. The Convention on the Elimination of Racial Discrimination, for example, requires States to criminalize all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin (Article 4). In proposing ratification of the treaty, the Clinton administration acknowledged to the Senate, The requirements of Article 4 of the Convention are thus inconsistent with the First Amendment. During the drafting of Article 4, the U.S. delegation expressly recognized that it posed First Amendment difficulties. The solution, once again, was to join the agreement but enter a simultaneous reservation to ensure that parts of that provision did not apply to the U.S. governments own actions. As with the Covenant on Civil and Political Rights, the United States went on to support the treaty on racial discrimination, including joining multilateral calls for other States to ratify the instrument. The treaty also has a supervisory committee, which long included a U.S. member, and it too monitors all States compliance with their own obligations under the agreement including Article 4.

This sort of pragmatic approach by U.S. delegations toward multilateral efforts dates back to the Universal Declaration of Human Rights itself. Consider the incitement provision of the Universal Declaration. Article 7 states that all people are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. During the drafting process, the head of the U.S. delegation, Eleanor Roosevelt, opposed this text. The diplomatic record states: Speaking as United States representative, she supported deletion of the words against any incitement to discrimination, The United States opposed the provision against incitement to discrimination because it feared that such a provision might be used to justify the enactment of repressive measures, laws that would curtail freedom of speech and the press. However, the United States ultimately acceded to the provision in its final form, and has ever since been a leading backer of the Universal Declaration as a whole.

Finally, we should note the United States has also supported international efforts to counter online support for Islamic terrorism, despite turning away from the Christchurch Call to Action following the terrorist attack on Muslims in 2019. In 2015, the Security Council Counterterrorism Committee, in which the United States serves as a leading member, adopted the Madrid Guiding Principles. In addressing foreign terrorist fighters, Principle 26 states:

Member States should build and strengthen public-private partnerships, in particular with social media service providers, while respecting international obligations and commitments regarding human rights, including freedom of expression, and recalling that any restrictions thereon shall only be such as are provided by law and are necessary on the grounds set out in paragraph 3 of article 19 of the International Covenant on Civil and Political Rights. In this regard, Member States should encourage the ICT industry to voluntarily develop terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international obligations and commitments regarding human rights.

In 2018, the Security Council Committee adopted an Addendum to the Madrid Guiding Principles for foreign terrorist fighters, in which principle 39 provides:

In undertaking efforts to effectively counter the ways that ISIL, Al-Qaida and associated individuals, groups, undertakings and entities use their narratives to incite and recruit others to commit terrorist acts, Member States should:(g) Consider continuing, building on or fostering new strategic and voluntary partnerships with many different actors, such as private sector actors, in particular social media and other communications service providers, including for the purposes of blocking, filtering or removing terrorist content, and civil society actors who can play an important role in developing and implementing more effective means to counter the use of the Internet for terrorist purposes, to counter terrorist narratives and to develop innovative technological solutions;

(h) Encourage information and communications technology service providers to voluntarily develop and enforce terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international human rights law, and publish regular transparency report.

There are other cases in which the United States has invoked the freedom of speech as a basis for its withdrawal from or non-participation in multilateral meetings (e.g., the 2009 Durban review conference against racism) or to advance a negotiated diplomatic outcome (e.g., 2011 Human Rights Council Resolution 16/18 on combating religious intolerance). These assertions need to be understood in their political contexts. The Durban Review Conference became embroiled in a larger political debate about Israel, and several other countries also withdrew based on concerns that the review conference would repeat the anti-Semitic attacks that took place at the 2001 Durban Conference. The United Nations Human Rights Council debate about combatting religious intolerance focused an overbroad proposal from Pakistan and others aimed at declaring any negative commentary on Islam examples of religious intolerancesuch as through national blasphemy laws . That said, there are other examples that may support the claim that First Amendment concerns have more directly precluded U.S. participation in an international initiative (e.g., 2020 UN General Assembly Resolution on Combating Glorification of Nazism). Yet thats also consistent with our general point. There is no settled, uniform, or required U.S. approach to these multilateral initiatives. The United States has adopted a pragmatic approach rather than asserted its First Amendment is a necessary model for the world.

When the Biden administration convenes its Summit of Democracy, many of the participating States will be the same ones that supported the Christchurch Call to Action. It is these venues in which the United States can work with fellow democratic countries and tech companies to address the most dangerous online content. Our First Amendment is no cause for completely holding back.

Editors Note: Readers may also be interested in Christchurch Calls and Washington Isnt Answering by Eric Rosand and Why the Christchurch Call to Remove Online Terror Content Triggers Free Speech Concerns by Evelyn Aswad.

Originally posted here:
Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security

For government social media managers, the ability to navigate the online world and the trolls that dwell within it has become a necessary skill set. While the wide variety of platforms offer unprecedented access to constituents, they also offer an avenue for all types of feedback some much less productive than the rest.

What to do about an onslaught of negative feedback was a topic of discussion during the 2021 Government Social Media Conference earlier this week. Experts from agencies large and small discussed the pitfalls and rules that must be considered before going to battle with the worst of parts of the Internet.

For example, does deleting a negative comment run afoul of the First Amendment? The consensus among experts is that the creation of rock-solid policy can make all the difference when answering this question.

Shawna B. Washington, marketing and communications manager for the city of Columbia, S.C., Police Department, noted in a session that her agencys profile has a stipulation stating what may be deleted, including comments with curse words and the like.

Washington said sometimes negative feedback is just that and isnt being directed at starting a larger, productive conversation.

Kaitlin Keeler, digital editorial manager for Oakland County, Mich., explained in another session focused on policymaking that extra care should be taken in assessing whether or not negative feedback crosses a line.

She argued that government should generally not remove comments because of an inherent responsibility to protect First Amendment rights. When deleting comments becomes necessary, she said, it should be clear why the comment was removed and which policies it violated.

We need to be transparent, Keeler stated. A disclaimer policy is a great first place to start, and youre going to want to specifically disclaim what you can and cannot delete.

She added that if comments are deleted, they must be archived to protect the agency in case the Freedom of Information Act is invoked.

These sentiments were echoed by ArchiveSocial CEO Ray Carey, who has seen agencies struggle with blocking users and deleting comments. He emphasized the importance of an agency ensuring that these instances are archived and well documented.

Carey said that trolls arent looking to start a dialogue and in many cases are just spamming official accounts for one reason or another. He points to the case of someone commenting that all taxation is theft 15 times a day.

How do you have free and open dialogue with people that are trying to ruin the free and open dialogue and make a mess of your site? Carey asked. How do you balance those two things?

At the end of the day, however, the overall goal of government social media accounts is to engage with the public, said Matt Turner, social media specialist for the National Park Service, during a keynote address. As he sees it, responding to comments from the public on social media posts is a tool to increase visibility.

Engagement is critical to really moving that cycle forward, Turner said. You really want to generate the interest and followers. You want that feedback no matter what it is that overall growth.

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Drawing a Line Between Internet Trolls and the First Amendment - Government Technology

from the delicious dept

Parler -- the social media cesspool that claimed the only things that mattered to it were the First Amendment and, um FCC standards -- has reopened with new web hosting after Amazon decided it no longer wished to host the sort of content Parler has become infamous for.

Parler has held itself up to be the last bastion of the First Amendment and a protector of those unfairly persecuted by left-wing tech companies. The users who flocked to the service also considered themselves free speech absolutists. But like far too many self-ordained free speech "absolutists," they think the only speech that should be limited is moderation efforts by companies like Twitter and Facebook.

And, like a lot of people who mistakenly believe the First Amendment guarantees them access to an active social media account, a lot of Parler users don't seem to understand the limits of First Amendment protections. Parler, like every other social media service, has had to engage in moderation efforts that removed content undeniably protected by the First Amendment but that it did not want to host on its platform. It has also had to remove illegal content and that's where its most recent troubles began.

Over the weekend, the resurrected Parler crossed over into meta territory, resulting in an unintentionally hilarious announcement to its aggrieved users upset about the platform's decision to forward Capitol riot related posts to law enforcement. It really doesn't get any better than this in terms of schadenfreude and whatever the German word is for an ad hoc group of self-proclaimed First Amendment "experts" having their second favorite right explained to them.

Here's Matt Binder for Mashable:

The reaction to the news that Parler "colluded" with the FBI in order to report violent content was so strong on the right wing platform, the company was compelled to release a statement addressing those outraged users.

In doing so, Parler found itself unironically explaining the First Amendment to its user base filled with members who declare themselves to be "Constitutionalists" and "Free Speech" advocates.

Parler's statement spells it out: the First Amendment does not protect the speech shared with law enforcement by the social media platform.

In reaction to yesterday's news stories, some users have raised questions about the practice of referring violent or inciting content to law enforcement. The First Amendment does not protect violence inciting speech, nor the planning of violent acts. Such content violates Parlers TOS. Any violent content shared with law enforcement was posted publicly and brought to our attention primarily via user reporting. And, as it is posted publicly, it can properly be referred to law enforcement by anyone. Parler remains steadfast in protecting your right to free speech.

That's a very concise and accurate reading of the First Amendment and how it applies to the content Parler forwarded to the FBI. It's not covered. But that hasn't stopped a few vocal complainants from telling Parler to try reading the Constitution again and, apparently, decide it means not only hosting violent content, but refusing to pass these threats on to law enforcement.

The core user base being unable to understand the limits of the right it believes allows it to say anything anywhere is partially a byproduct of Parler's promise to erect a Wild West internet playground for bigots and chauvinists who had nowhere else to go. Once it had some users, Parler realized it too needed to engage in moderation, even if only to rid itself of porn and outsiders who showed up solely to troll its stable of alt-right "influencers."

The January 6th insurrection appears to have forced the platform to grow up a little. Of course, some of that growth was forced on it by the leak of thousands of users' posts, which were examined by journalists and forwarded to law enforcement to assist in identifying Parler users who attended the deadly riot in DC earlier this year. Illegal content is still illegal, and being beholden only to the First Amendment doesn't change that.

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Filed Under: 1st amendment, content moderation, fbi, insurrection, public infoCompanies: parler

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Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt

They dont send out the DEA to bust people for eating deadly poisonous toadstools. That behavior is, ahem, self-limiting. But the federal government does forbid the sale of mushrooms that make people feel like theyre at a rainbow jamboree with the Care Bears, because lawmakers know lots of people would gobble them up.

We have little trouble understanding why we have and enforce laws: The forbidden conduct would otherwise be too attractive. We punish people for everything from toxic waste dumping to breaking the speed limit precisely because lawmakers think too many people otherwise would engage in conduct thats harmful to society as a whole.

While we understand why we have prohibitions against certain conduct by citizens, we tend to forget that our system forbids certain conduct by the government for precisely the same reason: The harmful misconduct is too attractive to otherwise resist.

Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.

Heres a powerful, influential progressive senator who wants to make sure a company cant heckle her in a snotty way. Or how about a new member of the executive branch who wonders whether the First Amendment is obsolete and thinks the federal government should try to engineer a news media marketplace to its liking? Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesnt like the bias he perceives against his viewpoints.

At the state and federal level, were witnessing a full-spectrum attack on free expression (not to mention property rights). Progressives and nationalists arent mounting this assault at risk to their own careers. Indeed, many are finding lots of political advantage in trying to suppress speech they and their constituents do not like.

Though Thomas Jefferson is most assuredly out of favor with the modern progressives who are his heirs, in 1787 he identified the same problem with American politics many in todays Democratic Party now decry. Jefferson blamed what today is called fake news for the Constitutions version of the presidency that he believed was inclined toward monarchy.

The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, Jefferson wrote to John Adams son-in-law from Paris. The English nation has believed them, the ministers themselves have come to believe them, and what is more wonderful, we have believed them ourselves.

He was calling Adams and the other Federalists a bunch of dupes who created an undemocratic presidency because of the impudent and persevering lying of pro-British journalists. We could say the same thing today about American outlets and politicians who echo Chinese talking points about the prevalence of racism in our country or Russian propaganda about the legitimacy of the 2020 elections.

Unlike many in his party today, though, Jefferson didnt suggest controlling the information Americans could receive. In fact, he said misinformation was an inevitable consequence of life in a free society. The people can not be all, and always, well informed, he wrote. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive.

Aint that the truth

Racism is tolerated less now than it has been at any point in American history, but if you misconceive that important fact, you are likely to be quite discontented. The same goes for election fraud. If you are ignorant of the truth that American elections now are far more secure than in even the fairly recent past you might believe Boss Tweed and Big Bill Thompson were still stuffing ballot boxes. You might even storm the Capitol.

Jeffersons remedy, however, would please few Americans today. He brushed off Shays Rebellion, a tax revolt in Western Massachusetts the year before that left nine dead, as no big deal. Let them take arms, he wrote. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The alternative, he said, was worse. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.

The anti-police riots of last year and the pro-Trump attack on the Capitol would have been to circa-1787 Jefferson what we now callforgive meteachable moments. The perpetrators were misinformed, but according to their misshapen views of the world, their violent actions were justified. When the river of misinformation overruns its banks, Jeffersons advice was not to build the levees higher but to address its source.

Adams did not agree. As president in 1798, he signed the Alien and Sedition Acts partly to crack down on Bonapartist propaganda from France during a period of high tensions between the former allies. It just so happened that what the federal government deemed false statements against it were very often claims and criticisms from newspapers supportive of his old rival, Jefferson, who was preparing to take on his foe in the election of 1800. Limiting speech, he argued, was necessary for preserving domestic tranquility. Fortunately, the rules were far less popular in practice than in concept and were allowed to expire by 1801.

After defeating Adams, Jefferson learned to love the powers of the presidency he had as a younger man disdainedand the awful failures and excesses of the French revolution had also taught him about the practical considerations of armed revolts and foreign propaganda. That tree of liberty must be refreshed from time to time with the blood of patriots and tyrants jazz didnt sound as great when he was worried about Aaron Burr cooking up an insurrection with the help of the Spanish.

We dont have a First Amendment to protect free speech because people love the freedom, but because limiting free expression will always be attractive to those in powerand often to their political advantage.

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The First Amendment: Rarely Popular, Always Necessary - The Dispatch