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First Amendment Rights and the Court of Popular Opinion

All right, QAnon community believes that observable reality is false and the QAnon narrative is real. There is a question as to whether that sort of speech should be abridged or not and quite tellingly we are now more interested in what social media rather than the Supreme Court will decide.

I am interested in the way in which First Amendment rights have descended into the court of popular opinion where it seems true and false are in the eye of the beholder and social media now has the authority to post or take down what those eyes can see. What is involved here is a radical change in mindset — though “mind” seems not at all to be involved here — contextualizing what both speech and authority might be in a cyberspace age.

The climate of First Amendment talk has changed from what it was at any time in the past. The change is foundational. J.S. Mill’s interpretation of free speech was grounded in the belief that falsehoods, whether lies or bullshit, both wittily distinguished by the philosopher Harry Frankfurt, if exposed in open, uncensored debate would collapse, fall away defeated like a vanquished adversary.

If repressed or suppressed by censorship, lies and bullshit would fester beneath the cultural surface, as an infection untended. Best to bring every opposing view out in the open, regardless of how it seems that such views offend the norms and value beliefs in sway.

And so our view has always been that falsehood and fake news could not stand firm against argument replete with evidence supported by facts. Opinions had to give way to facts, and if the clash were soft and fuzzy– cultural — and not hard and firm — scientific — then critical interpretation, which elucidated and brought to light meaning and acknowledged understanding would hold sway. Lies, bullshit, misinformation, disinformation, fake news and “truthful hyperbole” would in time be exposed to everyone’s satisfaction, or at least a sufficient number of voters to keep a society and its government viable.

Such conditions no longer exist. We no longer share a common, consensual view of what is true and what is false, what is sufficient — a necessary sufficiency — for us to uphold First Amendment rights or when to deny them.

We may wonder why and bemoan our lot and so on but just as the Pandora’s Box we have opened with social media cannot now be closed, we cannot return to a cultural mindset in which our interlocutors could be persuaded by argument summoning facts and educing incontrovertible evidence.

Such a situation is only partially due to the total eclipse of an enlightened sun of a common path of reasoning, though that optimism has been steadily riddled by both 20th Century modernist skepticism and a postmodern deconstruction. It is also partially due to the new adversary Liberals now face in the ring, Trump and his supporters. Arguments launched by Liberals against the position of Trumpians have no legitimacy to be parsed but rather are rejected outright as spurred by hatred, bad loser vindictiveness and a vast conspiracy of dark power.

However, a brief survey of what sort of battle was going on between Liberals and a Republican legion of the ideological Neoliberal and the cultural conservative reveals a game in which “the fix is in.”

A once enduring struggle between labor and capital had softened and fuzzied into everything but that, beginning in 1981 with Reagan’s firing of 11,345 striking air traffic controllers and reaching a pinnacle of shame with the 1996 Personal Responsibility and Work Opportunity Reconciliation Act initiated as Liberal reform by President Clinton. President Obama’s eight years did not make either the wealth divide or the collapse of wages a point of contention, not leaning into or confronting the Neoliberal view but assuming he could rise above the fray. Republicans were in no way compelled to lean into a Liberal view already leaning into their view.

In brief, there was no struggle going on between the political parties that touched the growing economic struggles of about 80% of Americans. We cannot be surprised then that a struggle between Capital and Labor abandoned and replaced by Reptilian brain clashes, clashes, which dug deeply into the crooked timber of our humanity and certainly beyond the limited province of economics and politics, would drive the abandoned 80% to faith healers, demagogues of hate and revenge, and huckster charlatans.

Such recourse has historical precedents. What doesn’t, however, is how a collapse of all manner of authority has driven each of us, pace social media, into a Rabelaisian “Do What Thou Wilt Will Be the Whole of the Law.” Our party duopoly had played the card of reason to a destructive point in the lives of so many, a sure fire delegitimizing of reasons and all authorities claiming to own it. What reason remained to attend to was now one’s own.

Donald Trump has taken this discord and denial of authority into the heart of the Republican Party, a campaign that party could not stop and to which it has become resigned. A deal could be made with The Deal Maker, one in which endorsing lowered  taxes for the wealthy and demolished regulations would be met by a refusal to endorse any actions made against the president. Putting up with and ignoring Trump’s idiosyncratic, arbitrary and whimsical behavior was for Republicans, intent on the bottom line of profit to shareholders, only another version of holding their noses while welcoming racists, homophobes, misogynists, and anti-unionists into their tent.

A party whose plutocratic mission can only attract plutocrats must however make an appeal to greater numbers. Our casino capitalism rolls winners and losers leaving no secure, happy enough middle. And those on a losing slide, which now takes them all the way to a bottom without a net, far outnumber the winners, although the ante of nothing more than a will to win is magnetizing. Fostering all manner of hate, conspiracy theories and false histories has brought Republicans into close heat races with Democrats, who themselves stand torn between a policy of doubling down in support of the marginalized and minimized or a policy of dismantling a plutocracy settling slowly into all three branches of government.

A leaning toward socialism or diversity both anger enough voters to blind them to the duplicitous role Trump is playing as a “Man of the People.” We observe then that both the recruiting policies of Republicans and Trump target the animosities and hunger for revenge and the thirst for resurrected identity that drive the cultural imaginary of so many Americans. That tragic state of affairs is in a moral way of speaking the result of sins of commission by Neoliberals but also a result of sins of omission by Liberals led also by shareholder politicians who have long ago lost any affiliation with wage earners.

What authority Liberals can assert in regard to their platforms has been eroded by this sense that it is an authority biased against everyone but marginalized minorities. It is also an authority that speaks of defending the wage earner but has over the 16 years of Clinton and Obama done little for the wage earner. Obama not only went ahead and led tax payer redemption of a financial sector, which should have been left to unravel if Liberals were not as faithful to any form of capitalism as are the Neoliberals, but he failed to prosecute the bad actors involved by fully exposing their crimes.

That criminal game board has now been set up once again and though Neoliberals are doing the setting up, incentivized by how happily bad behavior was rewarded in 2008, Liberals are complicit. They could have made a raid on that game right after the 2008 Wall Street looting and made every aspect of it part of a record indelibly impressed on a public consciousness.  Doing so would have brought to public view a great deal of what Bernie Sanders attempted to represent a decade later, all of which had to be engaged as if Sanders was a crackpot who had no basis for being so wildly anti-capitalistic. It was up to Liberals to pound in the lessons of the Great Recession and they failed to do so. That bit of history is now Snapchat vanished.

The authority of the Republican Party is, to repeat, wrapped up in the fortunes of Trump, a leader who in 2016 could shoot a man in the street for no reason and not lose one of his supporters. Liberals hope that he will be an increasingly difficult authority to respect, especially after Mueller presents his findings.

I quote at length Christopher Buskirk, editor and publisher of American Greatness: Liberals “think that Robert Mueller, the special counsel, will one day uncover the smoking gun that has become an article of faith among Trump haters. What that [Mueller’s smoking gun evidence] would look like is anyone’s guess. In this fraught political climate, smoking guns are probably in the eye of the beholder.” (NY Times August 9, 2018)

What then is ruinous to any authority establishing the truth of anything is this “eye of the beholder” view. It is what we have culturally absorbed through our experiences with Trump. He has kicked at the foundational pillars and gotten away with it.  What his ascendancy to the presidency has shown us is that there is no authority that can pull the curtain back and expose anyone. All authority is a sham, daily exposed as such by Trump for whom nothing established in the past is held sacred.

Trump’s carefree and willful mockery of any authority that we believed inhered quite naturally in our Constitutional democracy, our venerable, historical social and political order of things, leads to the conclusion that no obstruction to anyone’s will exists. Trump, from the very start of his presidential campaign, has exerted an extreme irrational, willfulness, an arrogant, childish iconoclast who will take the ball and go home if he does not get his way. And such astounding childish perversity has gotten Republican knees to bend and led Liberals into fruitless rage.  But most tellingly, there has been no Stop sign able to stop him.

Trump will certainly leave the stage and probably not as Liberals would wish and most certainly not without leaving this legacy of offending the gods without suffering any punishment. Consider that we are like the offspring of strict parentage who suddenly become aware that our parents are drowning in their own foolishness and hang-ups, no more than clay gods. We are left to our own devices, our own opinions.

But, in truth, (an ironic phrase now), our opinions do not emerge sui generis from our own heads but are now fertilized in cyberspace, social media as well as websites like InfoWars, Breitbart News, The Blaze, FoxNews, The Daily Caller, Conservative Tribune, among others, Breitbart  recording more visits in December than Politico, Newsweek and Slate, according to the online site Mediashift.

When we now speak of what is personal, subjective, unique to us and so forth we are speaking of our private, self-curated dialogue with our smart phones, our alter Selves, our universe of personally chosen apps, a unique collection entirely our own. Our authorization of ourselves then is actually an authorization of a chaotic, wild card universe only not chaotic if judged in the purest of cybertech terms. Only in its algorithms is cyberspace an ordered entity.

The real discordant order is the order of popularity, of an “eye of the beholder” order where eyes are led to the priorities of profit, to that one place where no eye is different from another.

At the same time, we are in a stimulus/response relationship with cyberspace’s wildcard chaotic primordial nature in the sense that it has no substantive relationship with what it transmits. Leaders of social media argue they do not want to be arbiters of truth but they do not argue that because it is an absurd notion, which it is, but because it is not their business plan. Ergo, our transference of any form of outside authority to the privacy of our own determinations is in effect transference of authority to the blind mechanics of something like the mythical perpetual motion machine.

Cyberspace becomes not an authorized arbiter of truth but only a space where you can design the truth as you behold it. And as such it is both an encouraging, nurturing space but also one where the bread crumbs your self-defined, self-empowered self personally lays down will always lead you to the wolf’s door. That space, to make clear, is yet another construct of an all devouring economics.

Being an arbiter of truth is a burden that cyberspace cannot handle because not only it sees itself within a limited technocratic lens but also because there is no way in which it can replace the authority that civilization builds slowly through its discourse, institutions and practices.

The manipulation of this cyber space authority during the 2016 election told us that Facebook, for instance, could not stand behind its own definition of itself as a social media platform restricted to facilitating the communication between people and not itself writing or editing content that is so transmitted.

Our new and naïve authority was first called out by a leak that Facebook editors were suppressing conservative topics in its trending bar. Those editors were replaced by algorithms that also got into trouble. It seems they could not distinguish fake news stories, some strategic ones sent by the Russians, from what the legacy press would verify from a source other than the original. So overwhelmed Facebook has deleted its Trending bar, a list of what trend-based algorithms find to be popular.

There’s a thread of popularity running from Facebook’s capacity to attract users and thus advertisers to users/voters to Trump who cleverly saw that what’s most popular, the lowest devils of our human nature, could be counted on to secure him the presidency of the U.S.

We are thus only a short distance away from assuming that what is true is what is popular and what is popular is what your own eyes have beheld.  You have the right to speak freely of what is popular because you are speaking your own mind and it is a right we now see as constitutionally given. And so to speak of what is not popular is conspiratorial, a plot of minds other than your own, a plot of the collective against the dominance of your own personal will.

Lost in the vicious circle of our own opinions closely tied to what is popular, we seem no longer to have the freedom to speak the unpopular without facing rage and insult. Our First Amendment rights are now ours in a personal, popular way as the personal and the popular conflate, a bit of legerdemain now enabled in an alternative dimension of hyperreality we claim also as uniquely our own.

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Joseph Natoli has published books and articles, on and off line, on literature and literary theory, philosophy, postmodernity, politics, education, psychology, cultural studies, popular culture, including film, TV, music, sports, and food and farming. His most recent book is Travels of a New Gulliver.

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