Interesting issues, dead traffic yesterday…just thought I’d mention it…
I’d like to propose this date, September 18, as National Incompetence Day. On this date in 1962, preening slug of a Union army commander General George B. McClellan blew a golden opportunity to end the Civil War early, and for the usual reasons: he over-estimated the size of the enemy, and, some have concluded, he just didn’t like to fight. The Battle of Antietam had ended the day before after the bloodiest day of fighting ever to occur on North American soil. Lee’s forces were exhausted and depleted; McClellan’s army had just welcomed fresh troops. McClellan had an estimated three times as many soldiers as Lee after the battle, a stalemate, and was in a perfect position to wipe out the Confederate forces and end the war. But, as usual, he stalled. Certain that Lee had many times the men he actually had, (or having conveniently himself so he could rationalize not continuing the battle) the Union commander allowed the Rebels to retreat from Sharpsburg, Maryland, and head back to the safety of Virginia unmolested, as Lincoln fumed. It was a real chance to deliver a knockout blow and end the Civil War quickly, but George didn’t believe in knockout blows. He specialized in training armies to deliver theoretical knockout blows. To be fair, the training came in useful when a general with guts and ability finally got McClellan’s job: Ulysses S. Grant.
Incompetence isn’t as sexy a breach of ethics as, say, disloyalty or dishonesty, but it probably does more damage than either. McClellan is as perfect a symbol of the often destructive influence it has has on U.S. history as I can think of. Like so many of his ilk, the tendency to screw up didn’t impede the general’s career as thoroughly or quickly as it should have. Amazingly, Lincoln put him in charge of the Union Army twice and the Democratic Party nominated him for President. Fortunately, the party has learned not to try to put total incompetents in charge of the government in the ensuing years…
1. Speaking of ethics incompetence…Faced with having to recognize an LGBTQ student group until its appeal of a lower court ruling worked its way through the courts, Yeshiva University announced last week that it was suspending all undergraduate club activities, punishing everyone in order to get away with discrimination. The issue is, again, religious freedom: Yeshiva’s claim that the New York civil rights laws don’t apply is shaky because the university is incorporated as an educational institution and not a religious one.
A lawyer for the banned student group,Y.U. Pride Alliance, called the move by Yeshiva “a throwback to 50 years ago when the city of Jackson, Mississippi, closed all public swimming pools rather than comply with court orders to desegregate.” That seems like a fair comparison. The Times story is here.
I don’t see how an educational institution can declare that certain interests and ideas are unwelcome on campus and still claim to support academic inquiry and freedom, as any legitimate university must. Would courts require a Jewish institution like Yeshiva to allow a Nazi club on campus? Interesting hypothetical—but why would Nazi’s enroll at Yeshiva?
2. On a related topic: Oh shut up, Ken! Celebrated documentarian Ken Burns told CNN anchor John Berman that Gov Ron DeSantis relocating some illegal immigrants to Martha’s Vineyard, Massachusetts, was comparable to the Holocaust. Burns, whose recent documentary about the U.S.’ role in the Holocaust is coming out, said,
“It’s the abstraction of human life. It’s basically saying that you can use a human life that is as valuable as yours or mine … and to put it in a position of becoming a political pawn in somebody’s authoritarian game. This is coming straight out of the authoritarian playbook, this is what’s so disturbing about DeSantis is to use human beings, to weaponize beings for a political purpose, it’s like when somebody disagrees with him in Florida, like the Walt Disney Company, he punishes them.”
Like the vast majority of American historians, Burns’ has allowed bias to make him not only stupid but untrustworthy. What a fatuous, overtly partisan thing to say.
Sure, Ken, sending non-citizens who broke laws to come here to a resort beach community with their consent is exactly like Germany shipping its own law-abiding citizens to death camps in Poland. Why should anyone take your perspectives on the Holocaust (or anything else) seriously if you’re capable of making such an offensive and idiotic comparison? And for the record, Florida did not “punish” Disney for “disagreeing” with DeSantis. It dissolved an old sweetheart partnership with Disney that gave it special privileges after Disney metaphorically stabbed its partner in the back….as you would dissolve a partnership with a director who publicly called you bigoted hack.
3. What would make HBO think that this is ethical, necessary or sensible? HBO Max removed cigars from Warren Beatty’s and Paul Newman’s hands in movie poster art used on its home page promoting the films, “McCabe & Mrs. Miller”.’” and “The Life and Times of [Judge] Roy Bean.” Morons. Will the service start digitally removing joints, bongs, guns…the mind boggles.
Warren should sue for HBO Max making him look like an idiot:
4. Wait, what? I don’t understand this court ruling at all, and I don’t think it will stand up to appeal, either. Texas’ HB 20 was signed into law last year. It prohibits social media platforms with over 50 million monthly U.S. users from censoring posts based political positions and viewpoints. The Computer Communications Industry Association (CCIA) and the NetChoice organization, representing social media companies, sued, arguing that the law was unconstitutional. Amazingly, the Fifth Circuit disagreed, holding that the right to free speech didn’t include the right to censor speech, even on a privately-owned platform. The opinion is here.
5. Finally, for your reading pleasure and perusal, this op-ed in the Times: “When Diversity Isn’t the Right Kind of Diversity.” Here’s the final paragraph:
It seems odd to have to point out in 2022 that “diverse” hires can be every bit as diverse on the inside as they are on the outside. For every Ketanji Brown Jackson, you’re liable to get a Clarence Thomas. Apparently, we need constant reminders that there’s more to people than meets the eye and that in multicultural societies, an acceptance of diversity must be more than skin deep.
Ethics Alarms 
McClellan actually refused to meet with Lincoln when Lincoln came to his house to discuss the progress of the war, sending some lowly servant to tell him that the general had retired for the evening and would not be seeing company. Why Lincoln didn’t tell this flunky that this was not an invitation to share a drink or play whist but McClellan’s Commander in Chief giving him a direct order to come down I do not know. Just as an additional factoid, McClellan actually turned down Grant’s request to be recommissioned at the start of the Civil War, leaving it to the Illinois State authorities to get Grant back in uniform and back in the saddle, where soon after he won the first significant Union victory of the war.
1. What, universities have been stepping all over conservative ideas for the past several decades. I don’t see how one university shutting out a group that doesn’t comport with its views governing sexuality is any different. However, all ideas are equal, but some are more equal than others.
2. Hey, what’s the difference between 9/11, the Holocaust, and a cow? Eventually you have to stop milking a cow. This one ran dry a while ago, especially in these circumstances. It’s a little different when dealing with actual anti-semitism, which this isn’t.
3. Eh, they were removing guns from FBI agents’ hands and replacing them with walkie talkies in ET long before this. Not that that justifies this, but it shows that this kind of thinking has been around for quite a while.
4. Wait, WHAT?
5. Because diversity isn’t really diversity, it is the introduction of liberal and woke ideas where there were none or not enough before. A place that’s totally woke or totally liberal doesn’t need diversity, it already has enough.
RE: 4 Are these social media firms publishers or platforms? If they want section 230 protections for being platforms for speech and not responsible for the content, then they should not be able to simultaneously argue they have a right to muzzle speech with which they don’t agree.
Jack,
I read the appellate opinion from the link and its reasoning makes complete sense to me. Could you elaborate on why you believe that the social media giants should prevail; or did I misunderstand your statements in #4?
It makes ethical sense but not Constitutional sense. It compels speech. Private companies supply a free service, and have a right to decide how it can be used. If there’s a monopoly, break it up. I agree with the opinion from a utilitarian point of view, but I don’t see how it gets past the First Amendment. The right to censor is a First Amendment right.
I disagree, the court specifically stated the inability to censor was not compelled speech when the platform itself declares itself to be a communication method and not a publisher. Can telephone companies deny service to groups that espouse ideas that are at odds with corporate “values”? I don’t think so. The opinion makes the point that a plaintiff claiming the right to censor cannot claim that it is not responsible for content later on. The Texas law did not ban all forms of censorship and no punitive damages could be obtained. What stops any business from demanding advocates of known positions antithetical to their values never be allowed to purchase and use branded items because some idiot believes the use reflects the values of the firm?
I would be interested in Steve in NJ or Glenn Logan’s take on this or someone direct me to some controlling precedents that will help this non lawyer understand why the appellate court’s ruling fails constitutional muster.
“What stops any business from demanding advocates of known positions antithetical to their values never be allowed to purchase and use branded items because some idiot believes the use reflects the values of the firm?” Well, to begin with, they aren’t censoring anyone. California added viewpoint discrimination to its public accommodation law, but public accommodations don’t involve communicating opinion. You can still throw a racist out of your bar for annoying patrons. If a Comedy Club has open mike night, they can’t be forced to allow a comedian to tell “Kill the Jews” jokes.
The Texas law would seem to easily lead to a law requiring newspapers to print everyone’s op-ed, or Ethics Alarms to have to allow Chris S’s comments. Or a baker to have to make pro-gay weddings cake. Nor do I buy the argument that a social media platform becomes “responsible” for content by simply providing a forum. The idea is to encourage free speech. Taking away private platforms’ right to decide who uses their free service just makes it less attractive to create platforms, and that constricts speech as well.
I object to viewpoint censorship on social media platforms; it’s why I quit Twitter. A law blocking a platform from doing the government’s bidding and censoring critics might pass constitutional muster if carefully drafted. This: I doubt it.
The appellate court made the distinction between newspapers and these platforms. It stated newspapers had a finite amount of space which could compromise other stories they want to print by having to print every point of view that they receive. The court went on to say that computer service platforms have virtually no space limits. The court likened these firms to telephony enterprises and cited case law involving telegraph service providers specifically western union. My point about any other business censoring unflavored points of view is no different. None are being compelled to speak and nothing stops them from providing their own perspective . If they want to play the role of the town square they cannot decide what is acceptable points of view.
But the town square is public, and regulated by the Constitution. If social media platforms were declared pubic utilities, that would change everything, but they aren’t. I find the space distinction a desperate stretch, especially since newspapers have websites.
You and I are in complete agreement on the issue of viewpoint discrimination. I will counter that the service provided is not free. It is true that monetary compensation is not used but the Users barter for the service by providing valuable personal data and rights to the content they post online on an ongoing basis.
While Facebook does not sell users data directly it does so indirectly by serving as a middleman using its algorithm to serve up targeted advertising. That is the foundation of the business model from which the service derives its income.
One might argue that the perceived value of this trade is lopsided in favor of the user because of the billions of dollars needed to create and maintain the platform while all the user exchanges for access is giving the Service intelligence about the User. The problem with that argument is that it only appears lopsided because until the business model was developed the user has no individual means to collect financial compensation for them being subjected to an endless barrage of advertisements. Through this business model Users obtain an exchange of value by creating a social media account. In a sense, Facebook, et al serves as a medium of exchange which is the primary defining characteristic of money.
Obviously, in aggregate the value to advertisers must be large enough to pay the fees to social media firms so that they can make a profit. Without large numbers of Users social media cannot reach the economies of scale necessary to remain viable. In a sense, Users collectively agree to provide data in exchange for the ability to use the platform. If the platforms restrict who can say what to such a degree that the User base shrinks, then the value of the targeted advertisements shrinks in value. Assuming that restricting censorship would chill the creation of new platforms and subsequently chill speech that would suggest that creating a platform has few barriers to entry. I would say that creating a platform has huge barriers to entry especially in light of the vertical integration of existing platforms which can and have shuttered other upstart social media firms using their monopoly power. If a platform censors and Users no longer gain value because their speech is suppressed, those Users will end the relationship and the economies of scale that allowed the Service to be profitable may disappear and the Service goes away like the predecessor to Facebook, “MySpace”
My reading of the opinion would not subject blog sites or web-based newspapers to the public utility standard that would trigger the commerce clause. Facebook seems to want to paint itself as a mere platform to avoid being responsible for what it publishes and also have the right to publish only what it deems fit to print under the rubric of providing “safety”. Invoking “Safety” has become the operative means to restrict challenges to the ruling class. Sticks and stone might break my bones, but words will never hurt me needs to be the standard by which the term safety should be applied.
Comment of the Day
The right to censor is a First Amendment right, but it is not absolute.
I agree with the Fifth Circuit for several reasons.
– The Court pointed out that “Consistent with Congress’s judgment, they’ve told courts
repeatedly that they merely serve as “conduits” for other parties’ speech and
use “neutral tools” to conduct any processing, filtering, or arranging that’s
necessary to transmit content to users.”
– the Court noted the sheer breadth of the Pl;aintiffs’ arguments. “The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could
cancel the accounts of anyone who sends an email, makes a phone call, or
spends money in support of a disfavored political party, candidate, or
business. What’s worse, the platforms argue that a business can acquire a
dominant market position by holding itself out as open to everyone—as
Twitter did in championing itself as “the free speech wing of the free speech
party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist
of “the modern public square,” Packingham v. North Carolina, 137 S. Ct.
1730, 1737 (2017), Twitter unapologetically argues that it could turn around
and ban all pro-LGBT speech for no other reason than its employees want to
pick on members of that community, Oral Arg. at 22:39–22:52. ”
– most significantly, this was a pre-enforcement facial challenge. That requires an extraordinarily high legal standard. I agree the Plaintiffs failed to meet this standard. among other things, the only relief available under this law is declaratory and injunctive relief. Removing a post or shutting down an account will, at most, result in an injunction . The Court expressly wrote that they “need not decide whether the Platforms might have meritorious as-applied challenges to particular applications of Section 2”
Even in this degenerate age The Times would never print such rubbish in relation to the Prime Minister. However, I wouldn’t put it past some American knock off of The Times.
Well played, PM.
You ask the rhetorical question why would a Nazi even want to enroll in Yeshiva, but the answer seems clear to me. In this day and age, one would enroll so that they can stick a thumb in the eye of a school which embraces that which you hate, and then bankrupt the school when they tell you to stop it. It’s got automatic victim cred built in, and guarantees that the folks you hate most will take the heat.plus, you get a better education than at any of the secular/state schools. Win/win
Did I miss it, or did you mention the Constitution yesterday? (September 17, 1787)
#4: Setting aside the obvious conflicting use of section 230, for a while now, I’ve thought the behavior of todays big social media platforms to be analogous to having a town square where all could speak, but where the four roads leading to the square are controlled by a few private entities that share a common ideology and block those with unapproved ideas from reaching the place where they could be heard. On page three of the decision, the court seems to indicate a similar view. The nature of these platforms also tends to make them monopolistic (or at least oligopolistic). No one wants to have to use eight different Facebook-type apps to keep in contact, so the market naturally shifts to a small favored group or single provider (though this allegiance may shift at times). Again, the court notes their “market dominance” and de facto “common carrier” status.
We’ve seen large business groups all too willingly bend their policies to align with the preferences of one political factor, and to the detriment of others. With Operation Choke Point Obama tried to weaponize the banking system to hamstring firearms dealers. Currently, major credit card companies are suspiciously creating new sales reporting categories to pinpoint ammunition and gun sales. Frankly, with the power that certain worldwide systems have over many aspects of our lives, we should have oversight to limit their ability to be as damaging as any tyrannical government might dream of. Technical market dominance shouldn’t grant authority to suppress speech and ideas.
2. Someone should tell Burns that he’s still subject to Godwin’s law. Just because he made a documentary about the Holocaust doesn’t mean he’s entitled to compare everything else to it. (Maslow’s Holocaust? When all you know about is the Holocaust, everyone looks like a Nazi?)
I suspect he’s also engaging in circular logic: if one assumes the Republicans are fascists, then everything they do is assumed to be fascist in intent and therefore counted as additional evidence towards them being fascists. You know who else uses circular logic like that? Fascists. Oh, and racists. (No, seriously, circular logic isn’t just harmless foolishness–it’s a major factor in how people rationalize their prejudice and bigotry.)
It’s also worth mocking that his comparison likens Martha’s Vineyard to a concentration camp and its residents to Nazi guards.
I have a few thoughts about NetChoice v. Paxton.
– first and foremost, this is an example opf the law stepping in when ethics fail.
– the social media plaintiffs filed a facial challenge, claiming that the law has absoluteluy no constitutional application. Even in First Amendment jurisprudence, challengers must meet a heavy burden.
– “For this reason, to facially invalidate Texas’s nondiscrimination rule
would be a remarkable derogation of core principles of federalism. American
courts have recognized these principles since the Founding and only briefly
abjured them to serve two unfortunate causes: imposing racial segregation
and enforcing a discredited Lochner-era vision of property rights. Accepting
the Platforms’ theory would represent the first time since those ignominious
years that federal courts have prevented a State from requiring interstate
transportation and communications firms to serve customers without
discrimination. Given the firm rooting of common carrier regulation in our
Nation’s constitutional tradition, any interpretation of the First Amendment
that would make Section 7 facially unconstitutional would be highly
incongruous. Common carrier doctrine thus reinforces our conclusion that
Section 7 comports with the First Amendment.”
– The Court explained the common carrier doctrine, and cited a Supreme Court precedent rejecting a Fourteenth Amendment challegnge against this doctrine. See Munn v. Illinois, 94 U.S. 113 (1876)
– the Court highlighted several differnces between Texas’s law and a Florida law that regulated social media companies, which had been upheld by the Eleventh Circuit.
Prologue: I know you meant 1862, but the entry states 1962. Also this parenthetical phrase “(or having conveniently himself so he could rationalize not continuing the battle) ” seems to need “conveniently” replaced with “convinced”.
McClellan was a self-absorbed twit. He was either too afraid to put his all into it because he didn’t want to look like a loser or he didn’t want to fight this war at all. Certainly, his 1864 campaign made some fear that he would seek some kind of deal with the Confederacy.
1. Indeed. Why would Nazis enroll in a Jewish school? And why would a member of the LGBTQ community enroll in a school with guidelines that are most certainly based upon religion even if the school itself is not intended predominately for religious training. Like the teacher that goes to work for a Catholic high school and is surprised when her non-marital pregnancy gets her fired, why should this student be surprised when the school does not support LGBTQ lifestyles?
There’s something to be said for doing one’s homework about a place and its policies before deciding to attend school or work there.
2. I’m going to agree with EC here. Burns has got the Holocaust on his mind so he can only see things in terms of Nazis. After all, it’s not the first time border control proponents have been compared to Nazis. Apparently, appropriating the Holocaust is okay so long as you make the comparisons through the lens of leftist cant.
3. They have no appreciation for film, art, history or film history or art history or the history of the art of film. They are subject to a list of things that are considered dangerous and must be airbrushed out of existence. Which is why I’m glad HBO Max is one of the few streaming services we don’t have.
4. I’ve got nothing.
5. Editorial staff must have missed that one before it got published. Everyone knows that diversity only counts with skin color, type of sex organs and with whom one wishes to have sex. It’s skin deep. If you meet those guidelines, your opinions must be set in stone and never divert from those in your peer group.
Or some such nonsense like that.
I only want to point out the typo-“On this date in 1962, a preening slug of a Union army commander General George B. McClellan” The battle and the general lived were 100 years earlier.
Easy to make typo
In the intro 1962 –> 1862.
To be somewhat fair, little as he deserves it, McClellan had reason for doubting Grant’s fitness to be a senior officer and Grant’s drinking was a constant rumor throughout the war. However, any really discerning person should have seen that the United States was going to require a boatload of Army officers, and not all of them could have the record of Scott or Lee.
Antietam’s aftermath, sadly, was but the latest in a series of botched chances for McClellan to end the war in 1862 — before it irrevocably became a revolutionary struggle. Perhaps only McClellan could have kept the Army of the Potomac from capturing Richmond during the Peninsular campaign. And the campaign and battle of Antietam itself was signature significance for McClellan.
He had a once in a century intelligence coup and opportunity to destroy Lee’s army in detail — he frittered that away. During the battle itself, Lee was heavily outnumbered but a huge portion of the Union army was never even committed to battle. It was perhaps one of McClellan’s legacies to the Army of the Potomac. It seemed that they were always running late (see Battle of Fredericksburg) and never seemed to be able to throw its whole weight into a battle when it really counted (See Peninsula, 2nd Bull Run, Chancellorsville). Even under Grant you could see a lot of those traits.
And yet. Those young men were so much better than the generals who led them, and the bulk of those who’d survived volunteered again in ’64 to stay the course.
McClellan would never have understood Montrose’s Toast.