Wednesday, February 17, 2021

Part I

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Does the First Amendment Protect All Speech? Should it? Interesting Questions Take on New Urgency in Social Media Age

We believe in freedom of speech, it’s one of the most basic and fundamental of American rights, but do we believe that all speech should be free? Is freedom of speech covered in entirety without restriction under the First Amendment? These have been long debated issues in the United States and for good reason, because the American Revolution itself in terms of an assertion of rights, natural rights, rights granted by God, that revolution in itself and the formation of the United States as a nation was only possible because of the freedom of the press and freedom of speech and freedom of assembly. These were the rights that were protected by the revolutionaries because they were the rights that were essential, not only to the revolution, but to the formation of the nation, our particular American understanding of freedom of speech. But freedom of speech is not absolutely without limit. A very interesting issue.

Who then decides what speech is free and what speech is no longer protected? In one famous case, Justice Oliver Wendell Holmes said that free speech was a cherished American right but that free speech ended with someone declaring fire in a crowded theater, obviously when there was no fire. Meaning that there would be an immediate deadly result to people who might be trampling one another trying to get out of that crowded theater when there was no fire. “That,” said Justice Holmes, “is not protected speech.”

Issues and controversies about the freedom of speech have taken on a new urgency, an entirely new dimension with the rise of social media and platforms such as Twitter. And of course a part of that debate right now in the culture is the extent to which those platforms should be monitored, should monitor, should allow or disallow certain forms of speech. There are arguments over facts and counter-arguments about facts, freedom. All of this very much in the maelstrom of America is now hyper-partisan, hyper-political age.

But there’s some interesting arguments to be found here and one of them was made by Harvard Law professor Cass R. Sunstein in an article recently published by Bloomberg Opinion. That’s a division of Bloomberg News. The headline in this edition of the article was, “Broken Free Speech Debate.” Professor Sunstein is a very interesting person, a prominent public intellectual in the United States, a very well respected law professor. He is a man of the left. That is to say, he’s politically liberal. He served for a number of years in the Obama administration. He then went back to teaching at Harvard Law School. One of the things that marks professor Cass Sunstein is the fact that he often engages in public conversations in a way that attracts conservative interest, even in disagreement. There are often many interesting arguments made by Cass Sunstein, including in some recent books that he has co-authored with conservative legal scholars.

But in this particular article, he makes some really interesting assessments about the current debate over free speech. And even where we disagree with him, the argument really is interesting. He begins by saying, “The U.S. Supreme Court is strongly committed to the marketplace of ideas.” That’s a technical term, but we all understand it. The Constitution provides a marketplace of ideas. He reminds us of that. He then goes on to write, “It tends to believe in the words of Justice Brandeis, that the remedy for falsehoods and fallacies is more speech, not enforced silence.” Those words, more speech not enforced silence are from Justice Brandeis himself in a famous opinion.

But even as we’re looking at this, we recognize that you have here, the argument implicit just in these first opening words of this article, that the issue here with free speech is not that it is helpfully prevented by making the speech impossible or illegal, but rather it is to be matched with better speech. If you think you have a better argument, if you think what you’ve heard is false, then you counter the argument. More speech is the answer, not enforced silence. But then Professor Sunstein writes, “If you believe that, you might also believe that if people lie about COVID-19, the 2020 presidential election, a politician, a journalist, a neighbor or you and me, nothing can be done. Sure, you can answer with counter speech, the truth. And that’s it.”

He goes on to say, “The problem is in many cases, counter speech is an effective. Lies lodge in the human mind. They are like cockroaches. You can’t quite get rid of them.” Now, one of the things we see in our contemporary debates is the fact that many, particularly on the left are arguing that conservatives are wrong not only in ideology and in worldview, but in a basic argument about what constitutes a fact. Now that’s an interesting argument to have, but right here, even where we may disagree with Professor Sunstein about in some cases, what is and is not a fact, the reality is that he’s onto something when he talks about the tenacity and the perversity of a lie.

Part II

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Cockroaches in the Mind: The Insidious Power of Lies

In a biblical worldly perspective, there’s some really fascinating stuff for us to consider here. For one thing, Professor Sunstein says, “It’s not a fair fight. The truth is often defeated by a lie. Free speech that is truth is often defeated by free speech that is false.” He has a very poetic way of speaking to the power of a lie. He says, “They lodge in the human mind,” quote, “they are like cockroaches. You can’t quite get rid of them.”

Now there’s some really interesting stuff here when you consider the fact that even as we know as Christians, the distinction between the truth and the lie, we know that God hates a lie. We know that we are to be the people of the truth. One of the frustrations in our own fallenness is that we are sometimes attracted to lies. Furthermore, we’re sometimes tempted to lie. Sometimes we have difficulty knowing what is the truth and what is the lie and here’s something that Professor Sunstein is pointing to that many Christians perhaps have not really thought about. Once you hear a lie, even if you know that it is a lie, you can’t unhear it. It still lives somewhere in your mind.

Now Professor Sunstein teaches law. His immediate concern is how this applies to the law. He says, “This psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms, including Facebook, YouTube and Twitter in trying to stop falsehoods. Ironically,” writes the professor, “those understandings and those practices may themselves be based on a mistake of fact, something like misinformation.”

Now in a worldview perspective, there’s something really important for us to recognize in this argument that lies or untruths are like cockroaches. You can never actually totally get rid of them. Now, this means that even when we hear a lie, let’s say about someone because that’s the context of this article. An untruth told against or about someone. And let’s say that you find out that that statement was untrue. Here’s the problem. It’s still there in your mind somewhere, maybe even counterintuitively or counter-intentionally. Maybe the fact is that lie resides closer to the surface than we would like to think. Even when we know it’s a lie, it’s still there.

Now this for Christians points to a quandary. We are to be the people of the truth. We understand the power of the lie. We understand that sometimes a lie can defeat the truth in the short term. We understand that eschatologically that a lie is going to be defeated by the truth just as Satan’s defeated by Christ. But the reality is that the devil wanders to and fro seeking whom he may devour in this age and so also do lies wander to and fro. And the really horrifying thing is they often live in our mind. We can’t. And here’s the issue. It turns out that we can’t fundamentally unthink or unhear what we’ve heard and thought about. It’s there somewhere. We find out that it’s not true, yeah, but it’s still there. And in the age of social media, Professor Sunstein is really onto something.

When you read a tweet or you see an argument out there in social media and one of the points he makes is that there is a bias toward truth. What does he mean by that? He means that when we see something, we tend to believe in it unless we are convinced otherwise. The default position is that we believe what we hear. We believe what we read. That too is important. It’s important for us to recognize that whoever gets there first with the argument is likely to have the argument that is believed first and then defeating that argument or defeating that untruth with the truth, that turns out to be a bigger challenge than we might think.

About this latter issue, Professor Sunstein writes this very interesting paragraph, “Even if you are informed that what you have heard is false, you’re likely to have a lingering sense that it is true or at least that it might be true. That impression,” he writes, “can last a long time. It will probably create a cloud of suspicion, fear or doubt. It can easily affect your behavior.” Again, really, really interesting. There’s something else that we have to factor into this and professor Sunstein does not make a major issue of this, but I think we should. And that is that we have a certain kind of inclination to believe certain kinds of statements about certain kinds of people. And especially when you consider the major human pattern of insider versus outsider, we tend to believe things about outsiders that we wouldn’t believe about insiders. And if it’s negative, we’re more likely to believe it and it is much more difficult to dislodge that claim, that word that we’ve heard is there somewhere like a cockroach in our mind.

Later in the article, Professor Sunstein writes this, “It,” meaning that false statement, “it can lead you to fear or dislike someone or to believe that there’s something wrong with that person even if there really isn’t. You might think that on balance a statement is probably false,” but then he writes this, “but probably false doesn’t mean definitely false. It means maybe true.” There’s that truth bias or bias to truth that he’s talking about. When we hear something, especially as something we’re kind of inclined to want to hear, even when we have to come to the conclusion that that statement or that word was false, it still lives there. “Probably false,” as he says, “doesn’t mean definitely false. It means may be true.” We have to admit that’s the way it works sometimes.

He then offers some insight from research that was done by University of Pennsylvania psychologist, Paul Rosen. Now pay attention to this. It’s really interesting. We’re told that the professor had undertaken this research to explain what’s going on in this situation. “In one of his experiments, people were asked to put sugar from a commercial sugar package into two similar brown bottles. Then people were given two labels, sugar and sodium cyanide, and were asked to put them on the bottles. After having done that, people were reluctant to take sugar from the bottle labeled sodium cyanide, even though they themselves had affixed the label. When the label cyanide is seen on a bottle, people don’t want to use what’s inside it even if they know for a fact that it’s only sugar.” He goes on to say, “This helps explain why lies and falsehoods are so corrosive. Some part of us believes them, even when we know we shouldn’t.”

Now I think that is really interesting. You have people, they know it’s sugar, they put the sugar into two different bottles then they put the label sugar on one and sodium cyanide, one of the deadliest poisons on earth on the other. And the fact is that even as they know what’s in it because they put the sugar in the two bottles and they know that the one label is false because they put it on themselves, the reality is well, I’m going to tell you right now, I’m going to take the sugar out of the bottle marked sugar. I’m not going to take the one out of the bottle marked sodium cyanide.

But here’s something else, I’m going to argue and this is beyond what’s in Professor Sunstein’s article. I’m going to argue that there is more here than just truth and lie. I think there are some very basic moral issues here that we, as Christians have to understand. And that is, we don’t want to take anything out of a bottle marked sodium cyanide, regardless of what we may even have personal confidence is in it because labels do matter. What we say about things do matter. What we call something does matter. Where we think something came from does matter.

Now, where I think I will differ with Professor Sunstein is in how he would answer this question. He appears to be saying that to some extent, social media platforms are going to have to be the censors to decide what kinds of statements will and will not get prominence on social media. He doesn’t particularly call for outright cancellation, but he is talking about some kind of regulatory control. He ends his article with this amazing statement, quote, “No one should assume the role of a ministry of truth, but informed by psychological research, some social media providers have improved their policies for dealing with lies.” He says, “That’s strong medicine, usually to be avoided. But when there’s a serious threat to health or safety, or to democracy itself, it’s just what the doctor ordered.”

Now again, I’m not going with Professor Sunstein to that point because after all, that’s an easy argument to make if you and your friends are going to be the ones who are going to be deciding what is and is not acceptable speech. I end this article with appreciation, Professor Cass Sunstein of the Harvard Law School. I end this article pretty much like I end his books. That is the experience of reading his books, which is to say, I find him extremely interesting. He makes me think about things in a way I otherwise might never think, but I don’t end up where he ends up because well, the bottom line is we start and end with very different worldviews, but this is the kind of interesting argument we have with an article. It’s an interesting conversation we have with a book. Ideas matter and some of the ideas as he talks about in this article really matter to believing Christians.

It matters to us what is truth and what is lie? Because we are to be the people have the truth. And one of the frustrations about being the people of the truth in a world of lies is that let’s just admit it, the statement here is right. Lies do continue to live in our minds like cockroaches. Very hard to get rid of them. But there’s another basic Christian principle here, which is that if we are the people of the truth, we don’t really believe that we can just turn off lies and turn on truth.

The Bible in both the Old and the New Testament gives us the pattern that the way to drive the lie out is to saturate our minds in the truth. That’s why we are to read and meditate upon the word of God. That’s why we are to be engaged in healthy, truthful conversation. That’s why we are to be about the battle of ideas openly and in conversation with fellow Christians. It is because it’s not just a switch that we can turn on or off. It is a matter of driving out the lies by the overwhelming power of the truth. The difficulty in that is good for us to recognize.

Part III

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The National Anthem and the NBA: A Sustainable Patriotism Must Be Expressed in Some Form of Shared Rituals and Symbols

Next, there’s a very interesting conversation, even controversy going on right now in the United States and included in the target of that controversy are words like patriotism and nationalism. We’ve talked about this a bit on The Briefing. We’re going to have to be looking at all these issues in greater detail. But the issue I want to raise is the fact that somehow you have to have a sense of nation if you’re going to be a nation and you have to have some kind of proper patriotism that comes with loyalty to that nation.

Now that loyalty is not unconditional. If you have an unconditional kind of patriotism, it turns into fascism. These days, especially coming from the left, any kind of patriotism is criticized as nationalism and furthermore, any kind of sense of nation. And I’m going to argue that the rise of the nation, the development of what we know as the nation state has been not an unmixed blessing for humanity, but as you weigh it in the scale of balances, it has been overwhelmingly positive rather than negative for human flourishing and human happiness, the wellbeing of human society.

Now the biblical principle of subsidiarity is that the greatest truth, the greatest opportunity for flourishing, the greatest natural order subsides. That is to say it resides, it is to be found in the most basic unit of society. And even as there are arenas of society and concentric circles beyond where you begin say with the family, mother, father and their children together, there are arenas outside of them, including extended kin and then getting to neighborhood, community, village, getting to just in our context, county, state, national, even international realities. The fact is that the further you get from that most basic unit, the less effective, the less efficient, the less truthful even, the reality becomes. Now that’s not to say that a national government doesn’t have any responsibilities. Of course it does. It is to say that nothing beyond the family can be strong if the family is weak and the family is actually, the natural family, is actually the most effective and efficient and stable unit of society.

But as you think about the nation, well, if you’re going to have a nation, it’s going to be defined by kind of national identity. And if you have any kind of commitment to that nation and I think as Christians, clearly, we’re committed to have some kind of commitment to the nation. Then it’s going to take the form of some kind of necessary patriotism, which is not only a way of honoring our mothers and fathers who’ve come before us and those who have given a great deal, sometimes given their lives so that we would have this nation and this opportunity. It is not uncritical and it’s not unqualified, but it is real. Now, why are we talking about this?

Well we’re talking about this because of the NBA, the National Basketball Association, and Mark Cuban. Mark Cuban is the owner of the Dallas Mavericks. And something very interesting emerged in the national conversation just a few days ago. It was realized that the Mavs have not been playing the national anthem at home games and that was by the edict of the owner of the team, Mark Cuban. The NBA responded with dismissal of Mark Cuban’s position, even as he said, he was offering to enter into conversation. The NBA said, “We’re not going to have that conversation.” Instead, the national anthem, the Star-Spangled Banner is to be played before every single NBA game, period.

One of the things I want to note is how this argument has developed. Were there people that took advantage of this for their own political or their own branding interest? Well of course there were, and that includes some politicians who immediately said, “You can’t possibly have a sporting event without the national anthem. Not having the national anthem is an act tantamount to treason.” Well, you can go down the list. You can imagine some of the arguments that have been made. On the other hand, there have been arguments that have been made, and these seem to be all over the sports pages, especially as those sports pages have turned more aggressively editorial and liberal opinion centered in recent months and years.

The reality is there’s a lot of conversation in the sports pages that says, “Why should you even have a national anthem? Much less, why should it be played before a sporting event? After all we’re talking about sports, which is separate from some kind of political or patriotic reality.” Except I’m going to argue it isn’t. I’m going to argue that from a biblical perspective, some kind of commitment to the nation is going to have to take some form, some patriotic form and there are going to have to be some rituals of that form. Some shared experiences, some shared rituals, some shared symbols, if we are to be a nation. The Pledge of Allegiance, the Star-Spangled Banner, God Bless America, you go down the list. These are especially when officially recognized, these are a part of America’s civic culture. Now there is no universal law. There’s no fundamental principle of the universe that says a nation has to have the national anthem. But then again, in America’s ceremonial moments, as well as the ceremonial moments of other nations, nothing but a national anthem will do.

And there’s another issue here. Why is there this strange, some would argue conjoining of sports and patriotism? Well, it is because sports are one of the most unitive experiences in America’s public life. There are people who don’t know one another, they may live amongst one another and never see one another. They may have very little in common, except for one thing, they are cheering for the same team. They are showing up at the same event. They’re wearing the team colors, they’re cheering the team mascot. And even as they may not know one another, they’re on the same side. This is our team. Go team. But even when you have say in the United States, NBA teams coming from just other United States cities, the reality is this is a part of the dynamic of American culture.

And it’s not just American culture. Look at worldwide football or soccer and see how that plays out. Not only when you look at a country, like say Britain, with the great rivalries inside the country, but consider the European context or even now the global context with rivalries. But those rivalries are also marked by a kind of patriotism. It’s not an accident that Brazilians support the Brazilian team, that those who are in Britain support the British teams, that you have Spanish people supporting Spanish teams. You go down the list. Now there are Americans who have a favorite British team, but the fact is what you’re looking at is essentially in the end, something that is stamped with the nation’s identity. And one of the things we need to recognize is that we are ceremonial creatures. We need bonding unitive ceremonies even if that ceremony is very brief.

And by the way, the singing of the national anthem or the playing in the national anthem is something that is very brief. They’re not about to give too much time to that ceremony, but there’s something else. And that is to say that American sports, those who run American sports and organize American sports and make billions on American sports, they are the very people who have helped to bond together sports and ceremonial patriotism in the United States. Now you have controversies over people kneeling for the national anthem. This is not the time to take all that apart. It is to say that one way or another, no society can long survive without a certain kind of unitive identity. And even as you have people now saying, especially these rather liberal sports writers saying, “Just dispense with the national anthem altogether. Put the national anthem in its proper context.”

Well, what exactly would that proper context be? The left in the United States is always tempted to try to abandon patriotism. And just to be intellectually honest, the right is sometimes tempted to be patriotic, even at the expense of that kind of proper boundary. Now, looking at that double temptation, we need to recognize somewhere Christians have to recognize the necessity of a proper patriotism. We also have to understand that this is not an American issue. It’s often now presented as if it’s all about the Star-Spangled Banner, the Stars and Stripes, the Pledge of Allegiance. It’s all about American chauvinism. That’s not true. Just watch an international sporting event or for that matter watch or just remember the opening and closing ceremonies of the Olympics. You don’t see people there marching in the name of international corporations and social media platforms.

You see them wearing patriotic colors and carrying the flag of their nation because yes, even in what we are told as a supposedly global world, there’s truth in that, but there’s more falsehood in that than anything. The reality is nations still matter and you can’t have a healthy nation without finding a healthy patriotism. Americans bear an enormous responsibility in this generation to help make that happen. And American Christians armed with a biblical worldview have a really important role to play in that conversation. We need to find that role as well.