SPEECH AND THE FREE MUSK-A-TEER

SPEECH AND THE FREE MUSK-A-TEER

On July 4, 1994, I was almost arrested.

Seriously.

I was running for Congress as a Democrat in what was then New York's 19th Congressional district.  It covered the northern half of Westchester County and then ran north into Putnam and Dutchess counties while crossing the Hudson to embrace four towns in Orange County.  

On that July 4, I was in Leonard Park in Mt. Kisco, ready to meet and greet the large numbers of voters who had come to the park that day to celebrate the Fourth.  

After I left my car and starting walking toward groups of voters to hand them campaign literature, a cop stopped me and told me I couldn't do that.  I asked why and he said that a local ordinance prohibited solicitation in the park.  I explained (I am a lawyer) that whatever the ordinance said, it could not really be meant to forbid political speech given the First Amendment.  He, however, was not remotely interested in any lessons in Constitutional law and told me that either I could  stop politicking  or he would march me out of the park in cuffs.

This presented a problem.

Leonard Park was only my first of many planned stops that day and our campaign was low on cash and thus very high on my ability to meet and convince as many voters as possible before the September primary.  If  arrested, I would have to spend the better part of the day in jail (or court), waiting for the Constitution to be vindicated in the leafy precincts of northern Westchester County, while my opponents (all of whom, I later learned, had meekly submitted to the no politics ban when they showed up at the park that day) went about their task of meeting voters.

So, I decided not to get arrested.

I did not, however, meekly submit to the town's ludicrous attack on free speech.

Instead, I made a small detour to the Mt. Kisco Police Department and filed a complaint against the police.  

My complaint was not well received.  

The desk officer made a point of reiterating that there was a no solicitation rule that applied to the park, that those celebrating the Fourth did not want to be bothered by people like me, and that -- in case I had any doubt -- he would never vote for me anyway.  He explained that the town had acquired the park from a private owner and that the deed specifically included a "no solicitation" restrictive covenant.  I thanked him for the information but explained that, while the restriction no doubt precluded salesmen for hawking vacuums to joggers, dog-walkers and the tennis crowd, it could not Constitutionally preclude candidates from distributing political literature on the Fourth of July.

As is sometime the case after people are through being angry but realize the source of their anger is still standing in front of them, he thought about this for a  bit and then allowed that I "might have a point".

Done there, I then went about the day's events.

All of this became local news over the course of the next few days.  

As noted, all of my opponents had agreed to leave the park and in their comments made a point of noting how politely they had submitted to the town's restriction.  The owner of a weekly newspaper published an editorial in which he argued that it was not too much to ask that a "politics free zone" be enforced in "bucolic" Leonard Park.  This prompted a concerned citizen to wonder whether that owner would have taken the same position if the town had set up a "reporter free zone" in the park.  That same citizen also wondered why I was the only candidate running for Congress who actually understood the Constitution.  

And was willing to fight for it.

Meanwhile, the town itself was having second thoughts. 

Its manager announced in the days following my near-arrest that it was reviewing its policy,  and later that fall the City Council actually voted to repeal the restrictive covenant.  

So . . .

I didn't go to jail.

And the First Amendment was, if not saved, at least not repudiated.

Yesterday, Twitter announced that it was accepting Elon Musk's $44 billion bid to acquire the company and take it private. 

Musk, an eccentric muti-billionaire who funded and became the CEO of the  electric car company Tesla and then created SpaceX so that (rich) people (like him) could "slip the surly bonds of earth", calls himself a First Amendment absolutist.  He claims that Twitter is the 21st century's "digital town square where matters vital to the future of humanity are debated."  He also claims that he "want[s] to make Twitter better than ever by enhancing the product with new features, making the algorithms open source to increase trust, defeating the spam bots, and authenticating all humans."

In truth, no one knows exactly what Musk will do with Twitter once he takes it private.

He has been called "polarizing", "reckless" and "capricious".  He has exhibited a Trumpy affinity for personal insult and sexist jokes, and while Trump himself says he doesn't want back on the site, his wing of the GOP favors the acquisition, which may be good news for them but bad news for the rest of us.  For their part, Democrats are wary.  

Both of Musk personally and of the notion that any one billionaire should own a platform as powerful as Twitter.

For the First Amendment to function properly, it requires a forum, reasonable access, and actual speech.  You can be absolutist on the First Amendment but if you are absolutist on any one of those three pre-requisites, the likely result will be anything ranging from the anarchy of Babel to the monopoly of censorship. Neither, of course,  was the Amendment's intended result.  

If everyone gets access at once, there is Babel. If no one is given access at all, there is monopoly and censorship.   If no grammar or architecture is required, there may be sounds or signs but there is no speech.  Speech communicates.  It is not and can never be a one-way street.  The First Amendment does not exist to preserve our ability to talk to ourselves.  It exists to preserve our ability to talk to each other.  

What to do?

My (very) modest proposal is to return to Leonard Park in the mid-'90s.

In 1994, Mt. Kisco wasn't wrong in stopping the Fuller Brush man from setting up shop and hawking his wares on Leonard Park's tennis courts. It was wrong in stopping a citizen on the Fourth of July from discussing why he should be that district's Congressman with anyone in Leonard Park who wanted to have that discussion. In creating a "politics free zone", however much that move might have been welcomed in an age when politics and politicians are so despised, the town  killed core speech the First Amendment protects. Worse, it did so in one of the few remaining public venues where that speech would have been person-to-person.

The biggest problems with social media today -- with Facebook and Twitter and their countless imitators -- are the algorithms that determine access and therefore govern the speech conveyed.  I mean this literally.  Those algorithms govern the speakers and the speakers' messages because they effectively determine to whom those messages are delivered.  The architecture of "shares" and "likes" drives speakers into silos of the like-minded and highly motivated.  Often, the people who occupy those silos are very angry.  At the same time, the potential for domination by bots can drive a message that the actual marketplace of ideas, the one with real people in it, rejects. 

So . . .

At the end of the day, these platforms do not enhance free speech. Rather, they enhance loud or extreme speech . . .  

Or . . .

In a word . . .

Noise.

I do not know what Elon Musk intends for Twitter and am not sure he knows either.  

Musk is of the generation that fashions itself as disrupters.  And, to his enormous financial success,  he has made a habit of it.  

With Tesla, SpaceX, AI and even tunnels.  

So, with Twitter he will disrupt.  Maybe the platform's architecture will improve.  Maybe he will be true to his word and eliminate the bots.  Or maybe the Trumps of the world will find a new home and Twitter will become noisier and less communicative than ever.

As I said, I do not know.

What I do know is that I'd feel a lot better about Musk if I thought his view of the First Amendment was grounded.  

To do that, he need not take a trip to outer space.

Leonard Park will do.