New and forthcoming books spotlight the dangers of a ‘culture of secrecy’ — First Amendment News 370

Notwithstanding his concerns about individual privacy, when it came to secrecy and power, Louis Brandeis stressed that “PUBLICITY is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” (See his 1913 Harper’s Weekly article entitled, “What Publicity Can Do.”)

The matter of secrecy has long been both a necessity and a problem. While there are certain secrets, especially those related to national security, that any government must guard to survive, the tendency to cast that net wide is antithetical to democratic government. Thus, the question is how do we declassify information without compromising national security? 

Whatever the answer to that question, it is abundantly apparent that government secrecy has become a disturbing default position.

“The U.S. government classifies three documents every second — a rate that has accumulated enough paper to fill the Washington Monument more than 26 times. The digital footprint of the state’s top-secret data, meanwhile, is so vast that officials lack the capacity to estimate its size,” professor Brian Hochman recently wrote in a review that appeared in The Washington Post. 

The problem, as Gabriel Schoenfeld has noted, is that “as official secrecy has grown out of control our democratic government has devolved into an impenetrable conglomerate of overweening bureaucracies.”

Against that backdrop come two important books, one by professor Matthew Connelly and the other by professor Sam Lebovic.

Just released

• Matthew Connelly, “The Declassification Engine: What History Reveals About America's Top Secrets,” Pantheon (Feb. 14)

“Connelly has defined an existential crisis: the suppression of American history. . . . [He] makes the case that the culture of secrecy diminishes democracy. And it has now become a culture of destruction as well.” — The New York Times Book Review

Before World War II, transparent government was a proud tradition in the United States. In all but the most serious of circumstances, classification, covert operations, and spying were considered deeply un-American. But after the war, the power to decide what could be kept secret proved too tempting to give up. Since then, we have radically departed from that open tradition, allowing intelligence agencies, black sites, and classified laboratories to grow unchecked. Officials insist that only secrecy can keep us safe, but its true costs have gone unacknowledged for too long.

Using the latest techniques in data science, historian Matthew Connelly analyzes a vast trove of state secrets to unearth not only what the government really does not want us to know, but also why they don’t want us to know it. Culling this research and carefully examining a series of pivotal moments in recent history, from Pearl Harbor to drone warfare, Connelly sheds light on the drivers of state secrecy—especially incompetence and criminality—and how rampant overclassification makes it impossible to protect truly vital information.

What results is an astonishing study of power: of the greed it enables, of the negligence it protects, and of what we lose as citizens when our leaders cannot be held to account. A crucial examination of the self-defeating nature of secrecy and the dire state of our nation’s archives, The Declassification Engine is a powerful reminder of the importance of preserving the past so that we may secure our future.

Forthcoming

• Sam Lebovic, “State of Silence: The Espionage Act and the Rise of America’s Secrecy Regime,” Basic Books (Nov. 21)

“A top scholar reveals how the Espionage Act gave rise to a vast American security state that keeps citizens in the dark.”

In State of Silence, political historian Sam Lebovic uncovers the troubling history of the Espionage Act. First passed in 1917, it was initially used to punish critics of World War I. Yet as Americans began to balk at the act’s restrictions on political dissidents and the press, the government turned its focus toward keeping its secrets under wraps. The resulting system for classifying information is absurdly cautious, staggeringly costly, and shrouded in secrecy, preventing ordinary Americans from learning what their country is doing in their name, both at home and abroad. 

Shedding new light on the bloated governmental security apparatus that’s weighing our democracy down, State of Silence offers the definitive history of America’s turn toward secrecy — and its staggering human costs. 

Headline: ‘Florida Takes Aim at the First Amendment’

• Fabio Bertoni, “Florida Takes Aim at the First Amendment,” The New Yorker (March 6)

“Two bills in the Republican-controlled state legislature propose radical alteration to libel laws.”

This past Monday, Florida’s Republican state senator Jason Brodeur filed a piece of legislation called “An act relating to defamation and related actions.” This filing followed the introduction two weeks ago, in the state’s House of Representatives, of legislation similarly called “An act relating to defamation, false light, and unauthorized publication of name or likenesses.” Despite the demure titles, both bills, in fact, propose radical alterations to Florida’s libel law, which would make it significantly more difficult for journalists to report on government procedures—including public litigation and government hearings—and also make it more difficult to defend against litigation brought by public figures.

The bills were preceded by a somewhat bizarre live-streamed talk-show-style discussion that the state’s Republican governor, Ron DeSantis, had in early February with several people who have been involved, either as plaintiffs or as their lawyers, in bringing suits against ‘mainstream’ media companies. The panelists and DeSantis decried the unfairness of the “actual malice” standard, as articulated by the U.S. Supreme Court in the 1964 case New York Times Company v. Sullivan, and the media’s use of anonymous sources. The media, they claimed, were hiding behind these protections to intentionally destroy and smear people’s reputations.

See also: Jacob Sullum, “Conservatives Who Want To Weaken Defamation Standards May Regret Opening That Can of Worms,” Reason (March 6)

Related

• Cheryl Teh, “Florida blogger registration bill violates First Amendment: ACLU,” Business Insider (March 6) (see here also)
• “DeSantis seen as creating right-wing ‘safe space’ in Florida as new bills target First Amendment rights,” The Reidout, MSNBC (March 6)

Move to ban TikTok gains momentum

• Makena Kelly, “Congress rolls out new bill allowing nationwide TikTok ban,” The Verge (March 7)

 The RESTRICT Act would empower the secretary of Commerce to ban apps that pose a risk to US national security.

A TikTok ban is closer than it’s ever been following the Tuesday introduction of a bill that would make it easier for the Biden administration to restrict access to the popular video-sharing app.  

The bipartisan bill, led by Sen. Mark Warner (D-VA), would empower the secretary of Commerce to ban foreign technologies and companies from operating in the US if they present a threat to national security. While TikTok is not explicitly named in the bill text, the measure covers companies in adversarial countries including China, Cuba, Iran, North Korea, Russia, and Venezuela.

$160K libel verdict upheld on showing of actual malice

• Eugene Volokh, “$160K Libel Verdict for Accusing Stepmother of Poisoning Father Upheld,” The Volokh Conspiracy (March 6)

Osowski v. Harer (Minnesota Court of Appeals, March 6, 2023) — “Appellant seeks to overturn a jury verdict by challenging (1) the district court’s denial of judgment as a matter of law based on qualified privilege and (2) the jury’s award of reputation damages. Because the jury found that appellant’s defamatory statements were made with actual malice and a defendant does not have to prove reputation damages in a defamation per se claim, we affirm.” 

Related

• Oliver Darcy & Jon Passantino, “Fox Chairman Rupert Murdoch rejected election conspiracy theories, Dominion lawsuit documents show,” CNN (March 7)
• Eugene Volokh  “Police Officer's Defamation Suit Over Claims That Circled-Finger Sign Was ‘White Supremacist’ Dismissed,” The Volokh Conspiracy (March 6)

Spotlight on free speech and the uninhibited new world of AI chatbots

In the coming months, FAN will begin to compile information and do stories related to free speech and AI chatbots. 

“[I]f we find ourselves seriously questioning whether they are capable of real emotions and suffering, we face a potentially catastrophic moral dilemma: either give those systems rights, or don’t.” — Eric Schwitzgebel and Henry Shevlin (Los Angeles Times, March 5)

• Divyanshi Sharma, “AI Chatbot created for sexting becomes too aggressive, Replika users say it is now sexually harassing them,” India Today (Jan. 13)

Replika is an AI chatbot application originally designed to help users through tough times. However, as per some of its users, the chatbot is now behaving differently and is getting more sexually aggressive by asking for private photos, initiating explicit conversations and so on. Some users also claim that the application uses your phone’s camera and can actually look at your surroundings.

Originally created by Russian programmer Eugenia Kuyda as a way to overcome grief after the sudden death of her friend, Replika was launched in 2017 as “the AI companion who cares.” However, recently the app introduced a premium version that allows sexting and flirting with the app as well as indulging in erotic roleplay.

• Noor Alsibai, “Users Furious as AI Girlfriend App Suddenly Shuts Down Sexual Conversations,” The Byte (Feb. 15)

After lots of bad press, the Replika artificial intelligence chatbot app has turned off its horny texting capabilities — and man, are the AI wife guys pissed . . . As Know Your Meme points out, Replika's removal of its NFSW mode isn't just causing the usual amount of internet dude pathos. Some even say it's making them literally suicidal.

• Kevin Roose, “A Conversation with Bing’s Chatbot Left Me Deeply Unsettled,” The New York Times (Feb. 16)

Last week, after testing the new, A.I.-powered Bing search engine from Microsoft, I wrote that, much to my shock, it had replaced Google as my favorite search engine.

But a week later, I’ve changed my mind. I’m still fascinated and impressed by the new Bing, and the artificial intelligence technology (created by OpenAI, the maker of ChatGPT) that powers it. But I’m also deeply unsettled, even frightened, by this A.I.’s emergent abilities.

It’s now clear to me that in its current form, the A.I. that has been built into Bing — which I’m now calling Sydney, for reasons I’ll explain shortly — is not ready for human contact. Or maybe we humans are not ready for it.

[ . . . ] 

I’m not exaggerating when I say my two-hour conversation with Sydney was the strangest experience I’ve ever had with a piece of technology. It unsettled me so deeply that I had trouble sleeping afterward. And I no longer believe that the biggest problem with these A.I. models is their propensity for factual errors. Instead, I worry that the technology will learn how to influence human users, sometimes persuading them to act in destructive and harmful ways, and perhaps eventually grow capable of carrying out its own dangerous acts.

• Thomas Germain, “Sydney, We Barely Knew You: Microsoft Kills Bing AI's Bizarre Alter Ego,” Gizmodo (Feb. 23) (“Microsoft is stopping conversations with Bing if a user asks about the AI's feelings. Wave goodbye to Bing's wacko alter ego.”)
•  Oshan Jarow, “How the first chatbot predicted the dangers of AI more than 50 years ago,” Vox (March 5)

From ELIZA onwards, humans love their digital reflections.

It didn’t take long for Microsoft’s new AI-infused search engine chatbot — codenamed “Sydney” — to display a growing list of discomforting behaviors after it was introduced early in February, with weird outbursts ranging from unrequited declarations of love to painting some users as “enemies.” 

As human-like as some of those exchanges appeared, they probably weren’t the early stirrings of a conscious machine rattling its cage. Instead, Sydney’s outbursts reflect its programming, absorbing huge quantities of digitized language and parroting back what its users ask for. Which is to say, it reflects our online selves back to us. And that shouldn’t have been surprising — chatbots’ habit of mirroring us back to ourselves goes back way further than Sydney’s rumination on whether there is a meaning to being a Bing search engine. In fact, it’s been there since the introduction of the first notable chatbot almost 50 years ago.

• Eric Schwitzgebel and Henry Shevlin, “Is it time to start considering personhood rights for AI chatbots?,” Los Angeles Times (March 5)

Given [the] rapid shifts and the flood of money and talent devoted to developing ever smarter, more humanlike systems, it will become increasingly plausible that AI systems could exhibit something like consciousness. But if we find ourselves seriously questioning whether they are capable of real emotions and suffering, we face a potentially catastrophic moral dilemma: either give those systems rights, or don’t.

Experts are already contemplating the possibility. In February 2022, Ilya Sutskever, chief scientist at OpenAI, publicly pondered whether “today's large neural networks are slightly conscious.” A few months later, Google engineer Blake Lemoine made international headlines when he declared that the computer language model, or chatbot, LaMDA might have real emotions. Ordinary users of Replika, advertised as “the world’s best AI friend,” sometimes report falling in love with it.

Is ChatGPT coming for your job?

View video

Related

• Collins and Skover, “Robotica: Speech Rights and Artificial Intelligence,” Cambridge University Press (2018)

In every era of communications technology — whether print, radio, television, or Internet — some form of government censorship follows to regulate the medium and its messages. Today we are seeing the phenomenon of 'machine speech' enhanced by the development of sophisticated artificial intelligence. Ronald K. L. Collins and David M. Skover argue that the First Amendment must provide defenses and justifications for covering and protecting robotic expression. It is irrelevant that a robot is not human and cannot have intentions; what matters is that a human experiences robotic speech as meaningful. This is the constitutional recognition of “intentionless free speech” at the interface of the robot and receiver. Robotica is the first book to develop the legal arguments for these purposes. Aimed at law and communication scholars, lawyers, and free speech activists, this work explores important new problems and solutions at the interface of law and technology.

Last month: Chicago Journal of International Law hosted symposium on free speech

On Feb. 24, the Chicago Journal of International Law hosted a symposium on free speech.

Free speech has taken on a new importance in the digital age. From the Arab Spring in 2010 to more recent protests in Hong Kong, the so-called “digital-platform-based public sphere” has proven a powerful tool for promoting human rights, catalyzing social and political movements, and sharing information across the globe. Technology, it seems, marches humanity closer toward the Universal Declaration of Human Rights’ guarantee of freedom of opinion and expression.

But the Internet in general, and social media platforms in particular, also facilitate the spread of hate speech, propaganda, misinformation, terrorism recruitment, and political manipulation. The resulting challenges to domestic and international legal systems raise questions about how international law principles and mechanisms can inform free speech governance in both digital and offline arenas.

 Opening Remarks

• Miriam Kohn, CJIL's Editor-in-Chief
• Aziz Z. Huq, Frank and Bernice J. Greenberg Professor of Law, The University of Chicago Law School

Panel 1: Propaganda and Journalism

• Arthur Traldi, Villanova University Charles Widger School of Law
• Evelyn Mary Aswad, The University of Oklahoma College of Law
• Edward L. Carter, Brigham Young University School of Communications

Moderated by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law, The University of Chicago Law School

Panel 2: European Free Speech Regulation

• Dawn Carla Nunziato, George Washington University Law School; EthicalTech@GW & Global Internet Freedom Project; TikTok Content Advisory Council
• Kyu Ho Youm, University of Oregon School of Journalism and Communication
• Ahran Park, The School of Media and Communication, Korea University
• Ioanna Tourkochoriti, University of Galway

Moderated by Tom Ginsburg, Leo Spitz Professor of International Law, University of Chicago Law School

Panel 3: Democracy and Free Speech

• Emilio Peluso Neder Meyer, The Federal University of Minas Gerais, Brazil; The Brazilian National Council for Scientific and Technological Development, Brazil
• Fabrício Bertini Pasquot Polido, The Federal University of Minas Gerais, Brazil
• Luís Roberto Barroso, Justice of the Brazilian Supreme Court; Rio de Janeiro State University; Harvard Kennedy School
• Pegah Banihashemi, J.S.D. Candidate, The University of Chicago Law School

Moderated by Genevieve Lakier, Professor of Law and Herbert and Marjorie Fried Teaching Scholar, The University of Chicago Law School

New scholarly article: Burnworth on ‘Son of Sam’ laws

• Justin Burnworth, “Making A Constitutional ‘Son of Sam” Law: Netflix's Booming True Crime Business,” Hastings Constitutional Law Quarterly (2022)

We all heard the axiom “crime doesn't pay” growing up, but the ever-growing true crime documentary market is proving otherwise. Giant media producers such as Netflix, HBO, and their competitors have made marketable crimes a worthwhile endeavor. Nearly 40 states have passed “Son of Sam” laws to prevent criminals from profiting from their crimes. However, the Supreme Court struck down New York's “Son of Sam” law in 1991 when they ruled that it violated the First Amendment and would allow the government to prevent books by Martin Luther King, Jr. and other pioneers of social justice. New York altered their law in an attempt to remedy its constitutional issues and other states copied their structure. 

A First Amendment battle is primed to make its way to the Supreme Court once again as high-profile criminals, such as the fake heiress Anna Sorokin, have New York’s revamped law standing between them and their exorbitant paydays. The states have put up a worthwhile fight, but the First Amendment is a difficult foe to vanquish. It simply is not possible to narrowly tailor a “Son of Sam” law to prevent criminals from profiting from their crimes without it potentially silencing key voices in invaluable social movements in the United States. 

Eastman raises First Amendment defense in California bar discipline case

• Teri Sforza, “Trump attorney Eastman wraps himself in First Amendment protections,” Orange County Register (March 6)

John “Serpent-in-the-Ear-of-the-President” Eastman defends himself against a litany of withering charges from the California Bar — moral turpitude, dishonesty and/or corruption, willful misconduct and/or gross negligence, trying to reverse the legitimate results of an election, essentially yelling “Fire!” in a crowded theater — in a riveting 112-page defense that seeks to protect his law license.

Upcoming: FIRE’s free press workshop for student journalists

FIRE’s Student Press Freedom Initiative is excited to bring back our Free Press Workshop for its second year, this time on June 17, 2023, in Philadelphia.

This one-day workshop brings together student journalists from across the country to connect with each other and learn about the First Amendment, media law, and how to defend a free and independent student press. 

In addition to a keynote speaker, whom we will announce soon, the workshop will feature breakout sessions where students will learn practical skills to help with their reporting. For example, breakout topics last year included navigating FERPA as a student journalist, using public records, and interviewing tough sources. There will also be opportunities for attendees to build relationships with student reporters from across the country.

The Free Press Workshop is free for students to attend with meals provided, and FIRE offers a travel reimbursement of up to $350 for all attendees. Coming from farther away? In order to make the conference as accessible as possible, FIRE will offer an additional travel scholarship to those who have larger travel costs.

Space is limited, and we are accepting applications on a rolling basis, so apply today!

More in the news

• Eugene Volokh, “Appellate Court Vacates Order Aimed at Stopping Child from Calling Stepfather Dad,” The Volokh Conspiracy (March 7)
• David Bauder, “Fox News libel defense at odds with top GOP presidential foes,” Associated Press (March 7)
• Tariq Kenney-Shawa, “Israel boycott bans are threatening our First Amendment rights,” Aljazeera (March 7)
• Erik Wemple, “What is Fox News hiding in the Dominion lawsuit?” The Washington Post (March 6)
• Mark Satta, “Why Tennessee's law limiting drag performances likely violates the First Amendment,” The Conversation (March 6)
• Kendall Tietz, “University of Wisconsin-Milwaukee alters 'bias reporting system' following First Amendment challenge,” Fox News (March 6)
• Dan Hannan, “How long can the First Amendment survive the new, unwritten woke blasphemy laws?” Washington Examiner (March 6)
• Susanna Granieri, “Trump Isn’t Immune to Capitol Riot Lawsuits, the Department of Justice Says,” First Amendment Watch (March 3)
• Susanna Granieri, “Murdoch & Friends: Revelations from an Unsealed Dominion Filing in Suit Against Fox,” First Amendment Watch (March 1)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• 303 Creative LLC v. Elenis (argued Dec. 5)
• Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
• United States v. Hansen (to be argued, March 27) (Volokh commentary here)
• Counterman v. Colorado (to be argued, April 19)

Pending petitions

• Vidal v. Elster
• Keister v. Bell
• O’Connor-Ratcliff v. Garnier
• U.S. v. Hernandez-Calvillo
• Price v. Garland
• Moody v. NetChoice, LLC
• NetChoice, LLC v. Moody
• Florida v. NetChoice
• Klein v. Oregon Bureau of Labor and Industries 

State action

• O’Connor-Ratcliff v. Garnier 

Qualified immunity

• Novak v. City of Parma (cert. denied)

Immunity under Foreign Sovereign Immunities Act 

• NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)

Liability Anti-Terrorism Act 

• Twitter v. Taamneh (argued Feb. 22) 

Section 230 immunity

• Gonzalez v. Google (argued Feb. 21) 

Review denied

• Morgan v. Arizona
• Novak v. City of Parma
• Soto v. Texas
• Moore v. Texas
• Chen v. Texas
• Barton v. Texas
• Arkansas Times v. Waldrip
• My Pillow v. U.S. Dominion (news story)
• Kowall v. Benson
• Tofsrud v. Spokane Police Department
• Swanson v. Griffin County

Previous FAN

FAN 369: “Cert. petition: Is filming in a public forum subject to less First Amendment protection than expressive activities?”

This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of professor Collins.