Should mass media audiences have right to know whether content is fact or opinion?

Political protestor in 2012
(photo by Gabriel Saldaña CC BY-SA 2.0 via Flickr)

To protect the civil rights of the audience, radio and television providers in Mexico may be compelled to distinguish between fact and opinion, a minister of the First Chamber of the Supreme Court of Justice ruled in November 2021.

The decision by Minister Juan Luis González Alcántara Carrancá struck down a federal telecommunication reform that repealed the fact-opinion distinction, holding that the repeal violated the right of the audience to know the nature of the content it is receiving. (More at Observacom en español.)

It remains to be seen whether the minister's opinion will hold up, or how enforcement might work going forward. But the opinion points to some intriguing considerations as all liberal democracies debate their responses to the problems of misinformation and scarce objectivity in news media.

Approaching misinformation as a problem of audience rights rather than speaker rights is a compelling spin.

The approach is not unknown in U.S. telecommunication regulation, which is justified in part with reference to public ownership of the airwaves. As television transitioned from broadcast to cable, the public right to receive gained ground alongside the property rationale. Though these days, the whole enterprise of balkanized media regulation is constitutionally questionable.

Detaching the audience right from the medium to ground a general right to receive accurate information from mass media, apart from speaker rights, is, anyway, a bold further step. The debate in American free speech law over anonymity and compelled source disclosure in campaign finance, though, comes to mind.

The idea that fact and opinion can be distinguished, or should be distinguished, is an additionally intriguing idea.

It would be easy to conclude that the distinction is too hazardous to contemplate, chilling the practice of journalism for fear of perceived slant, invading the province of ethics, and threatening the vital tradition of the editorial page. The fuzzy identity of advocacy documentary puts the problem in focus, whether the subject to be tested is Hillary: The Movie (2008), the film at the heart of Citizens United, or the latest Michael Moore project.

At the same time, the "fact-opinion dichotomy" is an extant feature of our defamation law. We have developed tools to make the distinction, and we expose assertions of fact to greater potential liability than we do opinions.

Indeed, the Mexican fact-opinion distinction is not grounded in an effort to combat misinformation; rather, the notion grows out of advertising regulation, where the concept is familiar to American jurisprudence, too. Mexican regulators sought to protect consumers against surreptitious advertising strategies such as product placements and paid endorsements. The U.S. First Amendment similarly tolerates heightened government regulation of commercial speech in the interest of consumer protection.

In commentary on the Mexican case, Daniel Villanueva-Plasencia at Baker Mackenzie wonders at the implications if the fact-opinion regulatory distinction were to escape the confines of telecommunication and find its way to the internet, where social media influencers, among other content creators, would come within its purview.

I do not mean to suggest that compulsory fact-opinion labeling is constitutionally unproblematic, or even viable, in U.S. First Amendment law. I do suggest that an approach to the misinformation problem beginning with audience rights and compelled disclosure, that is, with more information rather than less, is a good starting point for discussion.

The case is Centro Litigio Estratégico para la Defensa de los Derechos Humanos v. Presidente de la República, No. 1031/2019 (Sup. Ct. J. Nación 2021) (excerpt of opinion).

Remembering journalist Paul Greenberg, 1937-2021

pxhere CC0 1.0

In April, our world lost a great American writer: Paul Greenberg died at age 84.

Long a nationally syndicated columnist writing from "small town" Arkansas, Greenberg won the Pulitzer Prize in 1969 for editorials on civil rights.  In D.C. Beltway circles, he is maybe best known for having given Bill Clinton the moniker "Slick Willie."  But Greenberg was no dogmatic partisan.  He described himself aptly as an "ideologically unreliable conservative."

Greenberg's politics were difficult to pin down, because he resisted labels and simply called the world as he saw it.  His parents immigrated from eastern Europe early in the 20th century, and their experience infused his morality and writing with a libertarian savor.  The same 20th-century-immigrant experience forged me, so I identify with the motivation.  An embrace of liberal immigration policy alongside a relentless insistence on conservative work ethic strikes some in America as a vulgar inconsistency, but, to me, strikes a sonorous chord.

Notwithstanding his famous wariness of Clinton politics, Greenberg was so much more than a political pundit.  A Jew from Shreveport, Louisiana (near my wife's home town), growing up during and after World War II, he was stocked with ample source material to inform comment on the American condition from a peculiar perch of simultaneous detachment and investment.  His writing exuded cultural fluency, from ancient wisdom to contemporary "fadtalk," as he termed it.  A Greenberg column could invoke the prophet Isaiah, philosopher Foucault, and Leonardo the mutant ninja turtle in one incisive analysis and scarce recognition of any juxtaposition.  Greenberg lionized early 20th-century editorialist William Allen White, whom he credited as having said, "A great editorial is one that says something everybody knows but nobody has said before."

A writer's writer, Greenberg wrote thoughtfully and lovingly, but always with profound humility, about the craft of editorializing.  In a column on the legacy of H.L. Mencken, Greenberg wrote of writing:

The first steps in the writing process may be painful as one watches what seemed a great idea fail the test of words, or turn into something entirely different.  But it is satisfying to watch something of form and substance emerge from the inchoate mass.  When it's well done, the writer feels like a sculptor chiseling away deftly at a block of stone.  If done poorly day after day, stroke after stroke, the effect on both writer and reader is more like that of the Chinese water torture.

Library of Congress Gottscho-Schleisner Collection (1950)

Greenberg lamented the gradual disintegration of journalism in the late 20th century and, as a student of Marshall McLuhan, fretted irascibly about the corrosive effects of ephemeral television.  He railed against the anti-intellectual condescension of the bullet point.  He wrote columns to a thousand-plus-word length that felt cordially readable, though a blog adviser today would animadvert as excessive.  (You're 450 words into this blog now; am I not tiresome?)  He insisted, "I remain convinced that anyone will read an editorial if it's irresistibly written."

I knew Paul Greenberg only by reputation and a degree of separation.  To me, mostly, he was a visage of halftone dots gazing into the world from the top of a broadsheet.  Greenberg's son, Dan, is a friend of mine, and a lawyer with whom I've been privileged to collaborate on many projects over the years.  Dan is possessed of obstinate integrity, humble yet profuse intellect, and earnest devotion to family.  So I always have appraised him as an apple that fell close to the tree.

When the news came that Paul Greenberg had died, I had a yearning to read more of his work, especially work that was not tied to the messy milieu of politics.  So I borrowed from the library a 1992 collection aptly titled, Entirely Personal.  The book compiled some of Greenberg's more intimate writings in chapters such as "family," "religion," "the writer," and "the small town."  These works predated my familiarity with Greenberg, so they were all new to me.  They were a treasure to unwrap.

I asked for, and Dan gave me, permission to share one his father's works from the book.  I had trouble choosing which.  I've read Entirely Personal twice now, and I've been struck time and again by how prescient the writings were, and how salient they remain.  There are superficial tells of their place in time—Ronald Reagan, Russians in Afghanistan, and appointment TV—yet, from these circumstances, Greenberg derived timeless observations that are equally meaningful in a world of Donald Trump, Americans in Afghanistan, and mass media overload.  There are surprisingly poignant pieces on family that speak eternal truths.  But, at this time of loss, they make me sad and seem intrusive—too personal. 

I was captivated especially by Greenberg's chapter on religion.  In the introduction, he recounted, "Someone once asked me how much of my writing was influenced by my being Jewish.  The immediate, spontaneous response that formed in my mind was: 'Every word, including and and the.'"  Besides his Jewish heritage and parents' immigrant experience, Greenberg grew up contemporaneously with the Holocaust.  Consistently with his proclivity for self-definition, his views were shaped invariably by witness.  He was, at once, spiritually conscious in his personal life and fervidly committed to the exclusion of religion from public life.

Thus, though it might be an unconventional choice, I found my favorite writing in the book in a column imitative in style.  In 1990, the Supreme Court issued a pair of key decisions on the religion clauses of the First Amendment.  In a case on the Establishment Clause, the Court permitted a Christian student club to meet in a public school over the objection of the school board.  One might expect a "conservative" and staunch advocate for the freedom of religion to applaud the decision.  To the contrary, Greenberg saw the decision as a threat to religion, specifically, to the freedom of church from state, an underlying theory of the Anti-Establishment Clause.  With devilish ingenuity, he wrote a cheeky retort as an addendum to The Screwtape Letters.

In memory of Paul Greenberg, great American writer, here is, "Letter from Below (With Apologies to C.S. Lewis)," published in June of 1990, and reprinted in Entirely Personal in 1992.  I'm not certain I agree entirely with Greenberg's absolutist stance on separationism.  But I understand and deeply appreciate the reckoning of his conviction.  Just as importantly, and characteristically, his witty observations speak also generally, and still today saliently, to the danger of majoritarian usurpation of individual self-determination.

Please note that this republication is made possible by special permission of Dan Greenberg.  The work is copyrighted by Paul Greenberg and is not covered by the Creative Commons license to this blog.

Enjoy.

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Letter from Below

(With Apologies to C.S. Lewis)

June 4, 1990

My dear Wormwood,

The best of news. On the first anniversary of another of our great victories, the one in Tiananmen Square, your affectionate uncle happened to be glancing through the public prints, which are second only to television in promoting our cause, when my eye fell on the latest decision of the U.S. Supreme Court concerning church and state, both of which have been our province from time to time. It seems the distinguished justices have been busying themselves blurring the distinction between the two—a work that would be most dear to my heart if I had one.

This time the justices aren't deciding just when a religious symbol has become sufficiently irreligious to be displayed on public property (may they never tire of such work!) but rather how to make religion an extracurricular activity, which of course is what it should have been all along. What better way to keep it from being essential?

It shouldn't be long before the happy impression spreads that religion requires the support of the state, or at least the occasional use of a classroom. It's a start. Experience has shown that the more official a creed, the less appealing. See the paltry interest in the established churches of Western Europe. Or note the disaster that has befallen that most established of pseudo-religions, Communism, in the eastern part of the continent. It's enough to make you weep. 

I loved Sandra Day O'Connor's formulation for the majority of the court: "A school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion." Do you think she has any inkling of what it does convey—namely, state approval of religion in general? And a state that can approve religion can disapprove it, too. Indeed, I think approval is much the more effective way to stifle the thing.

Religion-in-general, my dear Wormwood, is our great ally. It should be encouraged at every turn. I can just see the kiddies sitting around homeroom now, deciding which after-school clubs to join. ("I just can't make a choice, can you, Rebecca Jo? Chess, scuba diving or religion, they all sound like fun. Maybe I'll take religion. They say it improves your communications skills. ") It shouldn't be long before faith is treated as a nice, constructive after-school activity.

Religion, the real thing, can't be practiced in general—any more than language can be spoken in general. You have to choose a specific one. Religion-in-general has all the moral authority and emotional impact of Esperanto. Our mission is to replace belief with some safe, state-approved substitute. Once we extend a veneer of religiosity over the schools, the genuine article can be expected to fade away. Better to have the little suckers pray in school than in church or, even more dangerous, at home. Civil religion, that's the ticket, my dear nephew.

John Paul Stevens may represent something of a problem. Thank hell, he was the only dissenter from this lovely little ruling. Only he recognized that it comes "perilously close to an outright command to allow organized prayer … on school premises." Do you think he's on to our game, namely more and more organization, less and less personal prayer? We have to reduce prayer to something else—an extra-curricular activity, another government benefit, an opening ceremony, a public convenience … anything but an intimate experience. That's when it's dangerous.

Only when prayer and Bible study are officially recognized as wholesome activities conducive to better grades and order in the halls will we have defanged the saving thing. The trick is to make it an instrument—a technique, an extra-curricular activity, never a state of being, or all our subjects will be left open to the Enemy. We'll know we're succeeding when school Prayer Clubs start having their own letter jackets. What a great day it'll be when we make religion utterly dependent on peer pressure.

Justice O'Connor says a school can still ban disruptive groups. That's precisely the kind of prayer we want to encourage, Wormwood, the kind that doesn't disrupt anything, especially not our stock in trade: ordinary, routinely accepted, unnoticeable evil. Real prayer can be a powerfully disruptive influence. It can revolutionize the most stable society; never forget what befell poor Nineveh when its people unaccountably listened to that Jonah person against all reason. Yet prayer can also be the one thing that holds people together when everything else has collapsed around them. Perverse, unpredictable thing, prayer. It needs to be put in the care of the proper authorities, namely the state.

Isn't the name of the law that the court upheld perfect? The Equal Access Act of 1984. I love it. The great problem with the First Amendment, which so long has stood in our way, is precisely that it does not provide equal access to religion. Government is explicitly barred from passing any law having to do with its establishment. Religion is set apart, as if it were something holy. Government is told not to touch it or even come close to it. This is intolerable, Wormwood. Only by bringing religion under the state's authority, by rendering unto Caesar what isn't his, can we blur the essence of religion, which is the separation of the holy and the profane. This decision should help.

The great challenge facing religion is not equal access to the world but how to retain enough integrity to stay distinguishable from the world. My fellow demon Glittercut did a good night's work when he invented Success Theology. Our job, my young protege, is to make religion indistinguishable from the world, one more extra-curricular activity. The last temptation—mastery of the powers and principalities—is still the most effective. As the world giveth, so give we.

What we've got to do is get people thinking of religion as something educational, beneficial, a means to some greater social end, an institution wholly worthy of a little government support—a tuition grant here and there, or a place to meet in the schools. We've got to get it on the dole. That way it won't go off on its own with unpredictable results. It needs to be woven smoothly into the social fabric so it can be corrupted with everything else. Left alone, there's no telling where it may spread. The Enemy can be dangerous when left to His own strange devices. Be warned, young demon, He is never stronger than when He appears weak in the eyes of the world.

Have you noticed the enthusiasm this ruling has kindled among many of the faithful? It's an inspiring sight. They've been handed a stone and think it's bread. Delicious.

That's about all the news from down under. I'm still vying with my old rival Gallclaws for the next GS-16 rating in the bureaucracy. The competition here is, of course, hellish. But news like this cheers me.

Your affectionate uncle,

Screwtape

© 1992 Paul Greenberg

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Read more from Paul Greenberg at Jewish World Review, in one of his books, or in your preferred news archive.  The Greenberg family plans to archive his papers.

Linguists' famous feud evidences defamatory power of 'racist' charge

As I've written and spoken about in the past, in the 20-aughts, I was an unwilling combatant, enveloped collaterally, in "the Race Wars" at the University of Arkansas at Little Rock (epilog on my part).  If you've never heard of the Race Wars, you're to be forgiven.  It happened in American flyover country, where nothing in academia matters.  Not like when something happens at UCLA, and we get all vexed about it, like it's the first time, because now it's happened to someone important.  Nevertheless, my experience was life-altering for me.  And as often happens in the course of life's affection for irony, trauma leaves knowledge, wisdom, and even enlightenment in its wake.

One thing the Race Wars did was turn me 180 degrees into a plaintiff's advocate for defamation and privacy torts, even while vigorously maintaining my bona fides as a defender of the First Amendment and freedoms of expression and information.  Oddly enough, as a lawyer in the 1990s, I had once researched, for a case, the question of whether, or to what extent, an accusation of "racist" is capable of defamatory meaning.  I had concluded then, nearly never, even if uttered upon a false factual predicate.  And I was untroubled by that conclusion, because it fit with my then-staunch allegiance to free speech near-absolutism.  When, a decade later, the R-word was weaponized against me—falsely, unless one is speaking systemically, without reference to individual culpability, but that wasn't a thing until recently—I reassessed my analysis.

Yet my research showed, still, a decade ago, that it would be exceedingly difficult, impossible in many jurisdictions, to eke a successful defamation claim out of "racist," even when an accuser is signaling, by wink and nod, a false factual basis for the charge.  Common law evolution is slow, and precedents had mounted upon the conclusion that "racist" is a matter of opinion only, incorporating no assertion of fact, and thus incapable, as a matter of law, of lowering one's estimation in the eyes of the community.  Charged with a false accusation that threatened to end my career, that conclusion felt wrong.  If one were expected to resign one's job upon the mere fact of an accusation, regardless of its veracity, and regardless of any defense—I was asked to—then that seemed to me a sufficiently horrific charge to fit the bill for defamation.

In the years since, I have seen the same dynamic play out in cases around the country, to other people, in academia, employment, politics, and other contexts, repeatedly reinvigorating that nagging question, whether "racist" is merely an expression of opinion, or can carry defamatory meaning.  So it was with great interest, while on involuntary summer/pandemic hiatus from UMass Law, catching up with my reading, that I came upon a little story about the accusation "racist" in a Tom Wolfe book.  I'm breaking hiatus momentarily to share this story with you.

Tom Wolfe's Take on 'Everett v. Chomsky'

I just read Tom Wolfe's Kingdom of Speech (2016), about the origin of language, anthropologically speaking. Wolfe references a brilliant book I read some years ago, Don't Sleep, There Are Snakes (2008), by Daniel Everett, about his language work (and much more) with the isolated Pirahã people in Brazil. What I didn't know was that Everett's book was one important salvo in a vast intellectual war, in anthropology circles, between Everett, and his supporters, and Noam Chomsky, and his acolytes, over Chomsky's theory of "universal grammar" (UG).  (I'm not going into detail on the theories here, because that's not my purpose.)  Everett's 2008 book pretty well laid out UG.

What Wolfe explained in Kingdom of Speech is that Chomsky's people were like a (socialist, but, like, really, socialist) cult; they had been merciless in defending UG against advancing science showing UG to be garbage (I generalize). They would go after scientists to undermine their work and in that way kept UG around as a dominant theory of language development for decades, despite what, we see clearly now, was a dearth of evidence. UG was less science and more belief system, or academic cult of personality, built around Chomsky.

Among the unusual features of the Pirahã language is a lack of verb tense, as well as other treatments of time and relativity (especially the omission of something called "recursion"; again, not going into it here) that make communication with us, speakers of the world's modern languages, very difficult. One could conclude that the Pirahã are not very smart, because they don't communicate the way we do. That's mistaken; it's apples and oranges. But it's difficult to perceive Pirahã intellect until one masters the language, and Everett was the first outsider who ever did, only after years of study (and he is a savant-level quick study).

So here's the pertinent part. Everett was burgeoningly famous for his research on the ground in Brazil. Chomsky hated field work in general and hated Everett in particular, whose research was exploding UG. So, in 2007, Chomsky's side engineered this, according to Wolfe:

"Everett was in the United States teaching at Illinois State University when he got a call from a canary with a PhD informing him that a Brazilian government agency, FUNAI, the Portuguese acronym for the National Indian Foundation, was denying him permission to return to the Pirahã ... on the grounds that what he had written about them was ... racist. He was dumbfounded." (Wolfe's ellipses and emphasis.)

Wolfe further explained:

"Everett expressed nothing but admiration for the Pirahã. But by this time, even giving the vaguest hint that you looked upon some—er—indigenous people as stone simple was no longer elitist. The word, by 2007, was 'racist.' And racist had become hard tar to remove.

"Racist ... out of that came the modern equivalent of the Roman Inquisition's declaring Galileo 'vehemently suspect of heresy' and placing him under house arrest for the last eight years of his life, making it impossible for him to continue his study of the universe. But the Inquisition was at least wide open about what it was doing. In Everett's case, putting an end to his work was a clandestine operation."

It turns out that Don't Sleep, There are Snakes, in 2008, was Everett's rejoinder to this attack. The book was wildly popular, exceeding even the bounds of scholarly readership (thus reaching me), and hammered the nails to shut UG's coffin.

Though things worked out all right for Everett, Wolfe's story evidences, as if more evidence were needed, the defamatory potential of that R-word charge—even at a time when I was being told to let it go, that "words [could] never hurt me."

Incidentally, and strangely collaterally irrelevantly, Wolfe and I both are graduates of Washington and Lee University. As I just read in parody,"Washington and Lee University votes to remove offensive name from school's title. Will now simply be known as 'University.'"

Photo is 'copy,' court has to explain to city, police in state record access case under Arkansas FOIA

Professor Robert. E. Steinbuch at the University of Arkansas Little Rock reports a startling case under the Arkansas Freedom of Information Act (FOIA)—startling because a lawsuit never should have been necessary, much less an appeal.  Professor Steinbuch wrote in opinion in today's Arkansas Democrat-Gazette:

Attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA). The police refused to allow Motal to copy the report by taking a photograph using his cell phone. He sued.

In response, the city filed a motion to dismiss, arguing that a citizen must choose to either inspect, copy, or receive a government record—notwithstanding the metaphysical impossibility of this claim. How can you copy a record without at least somewhat inspecting it—with your eyes closed?

Then, the city argued that a photograph is not a "copy." Remarkably, the trial court judge, Mackie Pierce, agreed. He said that "if the Legislature wanted to give you the right to photograph public records, they could have easily used the word 'photograph.' They didn't. They used 'copy' and 'copying.'"

. . . .

Pierce also dismissed the case because the city relented after being sued, and it provided the records directly to Motal without any need to photograph or otherwise copy them. We see this type of legal manipulation all the time, wherein public entities comply with the law only after being sued and then seek to Jedi-mind-trick their way out of litigation by asserting in court that "there's nothing to see here—move along, move along."

The result too often is that only attorneys and those who can afford attorneys have rights, because they can sue. If you're a regular Joe, you don't have any rights, say the city and the trial judge, because they've orchestrated it that there's no precedent to protect you when the city repeats the same bad acts they did to Motal.

Reversing, the Arkansas Court of Appeals, per Judge Kenneth S. Hixson, ruled in favor of Motal.  Now the city claims it will appeal to the state Supreme Court.  Professor Steinbuch predicts the city will not succeed, despite a dubiously reasoned dissent by Judge Raymond R. Abramson, who would have ruled the case moot ("these are not the droids we're looking for") and parroted the city's argument.  Judge Hixson was an attorney in private practice before going on the bench.  Judge Abramson was a municipal police court judge and a city attorney.

Steinbuch is right in his reasoning and his prediction.  Shame on the LRPD and the City of Little Rock.  They seem to fundamentally misunderstand that a public record belongs to the public.  They are only its custodians.

The opinion piece is Robert E. Steinbuch, "Photo" Finish, Ark. Democrat-Gazette, May 22, 2020.  With University of Arkansas Professor John J. Watkins, Professor Steinbuch and I are co-authors of the treatise, The Arkansas Freedom of Information Act (6th ed. 2017) (excerpt of prior edition at SSRN), which Judge Hixson referenced.

The case is Motal v. City of Little Rock, No. CV-19-344, 2020 Ark. App. 308 (Ark. Ct. App. May 13, 2020), also available from Justia.