A Legal Remedy for Virus Hoax Talk?

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Eric Wemple, Fox News has never been so right

Mr. Wemple, who writes a WaPo blog on media issues, is dreadfully upset that someone in the state of Washington is pursuing legal action against Sean Hannity and Fox News—based largely, it appears, on the assertion that Fox News virus hoax talk misleads Washington’s consumers, in violation of that states consumer protection laws. Wemple is understandably upset that a judge in a faraway state might conceivably tell him what things are true and what things are not true, what opinions are legitimate and what opinions are illegitimate.

He sees what we lawyers call a big slippery slope problem. Such concerns are entirely legitimate, and Wemple makes some very good points.

That said, I wish to play devil’s advocate and invite you to reflect on this question:

Is there a First Amendment right for a person, knowing that his words are false, and motivated by malicious intent, to use words that are likely to cause those relying on his statements to risk death or serious physical injury?

In Schenk v. United States (1919), Justice Oliver Wendell Holmes famously wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

The quote from the good Justice was, as we shysters like to put it, high dictum—”a judge’s expression of opinion on a point other than the precise issue involved in determining a case.” The case at bar was not about intentionally and falsely uttering words likely to cause physical harm. Instead, the case at bar was about writing words intended to encourage people to disobey the law—and, on that specific question. a lot of legal water has flowed under the bridge since Justice Holmes’ 1919 decision.

And yet, I believe it remains interesting that, writing 101 years ago, Justice Holmes thought it axiomatic that the Constitution does not forbid punishment of one who, knowing his words are false, utters words in such a manner, and in such a place and time, that his words are likely to result in death or serious physical injury.

Now, just because Justice Holmes thought his dictum stated an axiomatic truth does not mean that you or I have to accept the assertion. But, on the other hand, if we disagree with the Holmes dictum—and if we claim, therefore, that Fox News ought to be immune from any legal accountability for its actions—then, I submit, it is incumbent on us to defend that position with compelling logical arguments. And this, I think, is hard to do.

And, I would further submit that any argument advocating extreme deference to free speech and freedom of the press ought to be evaluated in light of the legal context.

Political Speech. As a general matter, speech uttered in a political context is immune from scrutiny. In short, you have a constitutional right to lie. I think the policy considerations underlying that doctrine are obvious.

But do you have an absolute constitutional right to lie in other contexts? Nah, not so much.

Untrue Speech that Injures Reputations. State tort law prohibits false speech injurious to reputation—in other words, the law of defamation—is constitutional, with this proviso: if the person claiming to have been defamed is a public figure, the Constitution blocks the claim of defamation unless the victim shows “actual malice,” i.e., the speaker knew that his claim was false or recklessly disregarded whether it was true or false.

I would suggest therefore, that if you advocate blanket immunity for Fox News, you need to show either that reputational interest is more important than the law’s interest in protecting law and health, or that the entire body of case law on the intersection of defamation and free speech is wrong, and should be overthrown.

Commercial Speech. The First Amendment affords some protection to firms advertising their products, but does not protect commercial fraud—i.e., lying to sell your product.

Commercial Speech about Medicines. Finally, note that the Food and Drug Act allows heavy regulation of commercial speech relating to medicines.

Laws Forbidding Reckless Endangerment. My state makes it a misdemeanor to, intentionally or recklessly, create a situation where others are exposed to serious physical danger. I am sure that such laws are common in other states as well. The statute was not written with Fox News’s conduct in mind, but its language certainly seems to fit the bill.

Human Wickedness—Common or Novel

The forms which human wickedness can take are numerous. For the most part, if we behave perversely, our iniquitous conduct fits some common pattern of evil, and the law has established a remedy for it.

At times, however, a person or group will engage in a novel form of wickedness—something not specifically addressed in any statute or judicial decision. That can create a quandary for those advocating legal accountability—and I am sure that Sean Hannity and Fox News will avail themselves of each and every possible argument to dodge responsibility. I do not know whether they will succeed or fail.

But I am pretty sure they do not enjoy a constitutional right, acting maliciously and with knowledge of the falsity of their statements, to encourage their followers to endanger their lives, contrary to the findings of science and medicine.

The Mask That Orange Man Wears

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Maureen Dowd writes,

The fact is that Donald Trump has been wearing a mask for a long time, like Eleanor Rigby “wearing the face that she keeps in a jar by the door.” He studied larger-than-life titans like George Steinbrenner and Lee Iacocca and invented a swaggering character called Donald Trump with a career marked by evasions, deceptions and disguises.

The young builder was intent, as T.S. Eliot wrote, to take the time “to prepare a face to meet the faces that you meet.” Early on, Donald locked in his costume for the masquerade, the look of a C.E.O. in the ’80s. His body armor was a dark suit, white shirt and monochromatic silk tie. His hair was a blond helmet, his war paint was orange.

“He is the most vaudevillian performance artist who ever inhabited the White House,” says his biographer Tim O’Brien. “He has a consuming desire to always be center stage, yet he never wants to reveal who he really is. He masks his finances, his taxes, his friendships, his ongoing family conflicts of interest, his ignorance and his inadequacies. He’s constantly making up areas of expertise he doesn’t have.

“He doesn’t read the Bible and he doesn’t live as a Christian and love thy neighbor. But he is demanding that the churches be reopened because his evangelical base will love that. Everything he’s doing right now is to stave off a loss in November.”

Governor Doug Bergum (R-N.D.) Would Like the Your-Mask-Smacks-of-Socialism Crowd to Just Get a Life

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Yesterday’s readers came from Belgium, Canada, China, India, Portugal, Slovenia, and the United States. Quite a few from Portugal, for some reason. Dr. Aardvark and I definitely want to visit Portugal, but we are going to have to wait a while. (And, not to slight anyone else, we greatly enjoyed Belgium, Canada, China, and India, and we made it pretty much to the Italian border with Slovenia.)

I Once Knew a Saint

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This post is a point of personal privilege.

I once knew a saint. Her name was Barbara. Actual name this time. Barbara was taken from us, way too early, due to a fast-acting cancer. A decade or so before that unfortunate development, Barbara found herself situated in life such that she could spend all her waking hours going about doing good. And that is exactly what she chose to do.

Among her many saintly projects was her “adoption” of a large group of refugees in our city, who were Vietnamese children of American servicemen of various colors. They all came to the memorial service, which ranks among my most moving life experiences. Some of the Vietnamese children, now grown to young adulthood, were Catholics, and they spoke of their desire to see Barbara again in heaven. Others were Buddhists, who prayed to be with her again in their next reincarnation.

Barbara held herself to a high standard. Probably the thing that most embarrassed her was the occasion when she was working with young children in the inner city. They were coloring together when Barbara, unthinkingly, asked one of the kids to “pass the flesh-colored crayon.”  When she realized what she had just said, she was mortified. It never stopped bothering her.

Somewhere—in the next reincarnation or whatever—Barbara is looking with approval on the news that Crayola Unveils New Inclusive Skin Tone Crayons: The “Colors of the World” line aims to promote representation and acceptance.

Barbara, this song is for you.

If Orange Man Were Sane, He Would Still Be Evil, But He’s Not Sane, and We’re Waist Deep in the Big Muddy

Approach the question abstractly. You know someone whose name is Al. Al faces some life choice. He can choose Course A, the course of action that is, objectively, in his own best interest. Or he can pick Course B, the exact opposite of Course A, which no one in Al’s position would pick if he were not delusional. Al picks Course B.

If that happens just one time, you might say of Al, well, everybody makes mistakes, and sometimes they are big mistakes.

But the same thing happens the next month. Faced with a choice between A and B, he once again picks B.

And it happens a third time, and a fourth time, … and a twenty-second time.

What conclusion do you reach? The conclusion you reach is that Al suffers from delusional thinking, and that Al is badly in need of a checkup from the neck up.

My main point is that many of the pundits are still attributing Orange Man’s behavior to some kind of evil but rational strategic behavior. They still think that Trump is consciously putting his reelection prospects ahead of massive human suffering and loss of life. What I say is this: if Trump understood himself to be facing that choice, I am confident he would pick the massive suffering and death alternative in a New York minute. But that is not the choice as he understands it. Because he labors under two overarching delusions.

Overarching delusion number one is that he understands war better than the generals, economics better than the economists, and medical science better than the medical scientists. He says this all the time. And his actions can only be explained by positing an actual believe on his part in his world-historical genius.

Overarching delusion numero dos is that any information that conflicts with his genius, or that (he thinks) makes him look bad, is a hoax concocted by his personal enemies. Incapable of good faith himself, he is incapable of grasping that others, acting in good faith, are using their professional expertise to understand objective reality.

Some examples from today’s news.

Item: The swing states are being hit very hard by unemployment and state tax revenue loss, but

Trump appears dead-set against [new relief], even though it’s often argued he does not share the same ideological aversion to government help for the economically devastated that many conventional Republicans and conservatives do. So holds the mythology of his “economic populism,” anyway.

Why is Trump dug in? He and his advisers insist that the economy and jobs will roar back quickly. “The states are opening up,” Trump says. “It’s a transition to greatness.”

Maybe Trump is so convinced he can dramatically ramp up the economy again through sheer force of will and tweet — even though he’s failed to scale up robust testing, making it less likely people feel safe to resume activity — that he doesn’t want to even act as if urgent new infusions of aid are needed.

Item: Trump claims that medical scientists at two respected institutions are acting solely out of political motivation when they find that his miracle cure is in fact harmful.

Item: Trump is encouraging the religious to crowd together in church tomorrow, even though, as surely as God made little green apples, some of the congregants will be asymptomatic superspreaders.

Item: Current data show that “24 states still have uncontrolled coronavirus spread.” And the big fool tweets that everybody must now transition to greatness at the risk of their lives.

No, ladies and germs, these are not the words and deeds of a sane person. They are not even the words and deeds of a sane but profoundly evil person.

It is well past time to sweep the mental illness under the rug.

Pandemic Tribalism

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Thomas B. Edsall, When the Mask You’re Wearing ‘Tastes Like Socialism’: The partisan divide over how to respond to the coronavirus pandemic has deepened over the past few weeks

Mr. Edsall’s piece of May 20 cites and summarizes a large number of social science studies on what I suppose we might call the social psychology of idiocy. I will not attempt to summarize his summary; please read it for yourself if you want to find your way deeper into the social science.

He ends by quoting a U.C. Irvine psychologist for the proposition, “In 21st century American politics, truth is tribal,” followed by these observations of his own:

In other words, the pandemic has become another example of Trump’s mastery over his most loyal subjects, his ability to manipulate them into violating their own instincts. It is this power over a substantial bloc of the electorate that has put him in the White House — and continues to make him so dangerous.

But, as many recent polls are teaching us, the my-mask-tastes-like socialism-crowd is only a part of the core Trump base—around 10 to 15 percent or so of the total population.

Georgia as a Petri Dish

The point is born out, for example, by Steve Rattner’s charts of this morning. With Georgia having officially shut down late and opened up early,

  • the good news is that so far covid-19 hasn’t sparked
  • but that’s mainly because behavior in Georgia has closely tracked behavior throughout the country—and Georgians by and large have stayed home, rather than obeying the governor’s ideologically driven commands, and, as you would expect
  • Georgians are not stimulating the economy with high levels of consumer spending, and business distress and unemployment remain high.

It’s the Delusion, Stupid

Trump is running around encouraging the nutjobs to take their AK-47s and storm the legislature. He is demanding that people fill church pews this coming Sunday. Many attribute this approach to desperation. But that, friends, is not the right term.

When you are losing money on every sale but think you can make it up on volume, that is not a strategy, that is a delusion.

Likewise, when you practice wedge politics by driving a deeper and deeper wedge between 15 percent of the country and everybody else, that is not a coherent strategy to win. That is delusion, rising to the level of psychosis.