Is Lying About an Election Free Speech or Fraud?

In the weeks before the 2016 election, memes proliferated on Twitter bearing instructions on how to vote by phone or text message. The images were stylized to resemble Hillary Clinton’s campaign materials, and targeted her supporters in both English and Spanish. “Save time. Avoid the line. Vote from home,” they read. But no state allows either method for casting a ballot.

It’s unclear who crafted this low-budget bid at voter suppression. Far-right Twitter accounts helped spread them in an apparent attempt to reduce Clinton voters’ actual participation on Election Day. Similar ads on Facebook that falsely told voters they could vote by tweet were later found to be part of a Russian influence campaign that sought to damage Clinton’s candidacy. While their efficacy is uncertain, the ads and memes fit within a broader pattern of spreading false and misleading information to confuse and deter voters.

Democratic lawmakers unveiled a bill on Thursday that would criminalize misleading tactics like these, as well as similar ones that have cropped up in state elections in recent years. If enacted into law, the Deceptive Practices and Voter Intimidation Act would give federal prosecutors new tools to punish people who attempt to spread false election-related information. It would also be an interesting test of the Supreme Court’s willingness to allow lawmakers to regulate political speech on the campaign trail.

The bill is narrowly targeted at falsehoods designed to dissuade voters from participating in the electoral process. Its main provision would make it a crime to intentionally distribute false information about an election’s time and place, the qualifications to participate, any criminal penalties associated with voting, and “information regarding a voter’s registration status or eligibility” for at least 60 days before the election takes place. Those restrictions would also apply to false statements about endorsements a candidate has received.

Mistakes and benign errors wouldn’t fall under the provision’s scope; only falsehoods made with the “intent to impede or prevent another person from exercising the right to vote” would qualify. Other provisions would generally bar “hindering, interfering with, or preventing a person from voting, registering to vote, or aiding another person to vote.” Transgressors found guilty of violating the law could face a $100,000 fine and up to five years in prison.

Though the bill isn’t explicitly connected to the Russian cyberattacks on the American democratic system in 2016, lawmakers who introduced the bill referenced the climate of uncertainty it produced. “With our safe, fair and honest elections under attack from both outside our country and within, this bill is an attempt to codify what we all know should be the law,” Virginia Representative Donald McEachin, who introduced the bill’s House version, said in a statement. “No person should get away with providing false or misleading information about registering to vote or even voting.”

A complicating factor for the legislation is the Supreme Court, which has staked out a broad and expansive view on free-speech claims in the last 15 years, especially in cases involving restrictions on political speech. In its most recent term, for example, the court struck down a Minnesota law that banned certain types of political apparel in polling places, ruling that the state had “not supported its good intentions with a law capable of reasoned application.” The justices also overturned a 40-year precedent on public-sector union fees for non-members, which the court’s conservatives described as an unconstitutional form of compelled political speech.

How would the Roberts Court view a law that criminalizes falsehoods about elections? Rick Hasen, a UC Irvine law professor who specializes in election law, noted on Thursday that the majority of justices in last term’s Minnesota case about political apparel took an accommodating view toward banning election-related untruths. In an aside, the justices said that they “do not doubt that the state may prohibit messages intended to mislead voters about voting requirements and procedures.”

That approach could allow most of the bill’s provisions to survive. “This suggests that the part of the proposed law that would bar spreading wrong information about the time and place of elections as well as voter qualification and registration status would be constitutional, but the law barring false statements about campaign endorsements may well not be,” Hasen wrote.

The court has struck down laws that penalized falsehoods on free-speech grounds in other circumstances. Hasen pointed to United States v. Alvarez, a 2012 case where the justices weighed whether the Stolen Valor Act violated the First Amendment. At the time, the law imposed criminal penalties for lying about receiving the Congressional Medal of Honor and other military honors. Federal prosecutors used it in 2007 to bring charges against Xavier Alvarez, a fabulist who had previously claimed he had been a member of the Detroit Red Wings, for falsely identifying himself as a recipient of the nation’s highest military honor during a local water board meeting in California.

The justices overturned Alvarez’s conviction in a 6-3 vote, but no five justices could agree on the reasoning. Justice Anthony Kennedy and three of his colleagues simply held that the Stolen Valor Act violated the First Amendment by criminalizing a type of speech without providing sufficient justification. Justices Stephen Breyer and Elena Kagan also found the act unconstitutional, but suggested that a narrower version of it could survive judicial scrutiny. Justices Samuel Alito, Clarence Thomas, and Antonin Scalia found no constitutional violation whatsoever and dissented from the court’s decision.

Central to the justices’ analysis was the extent to which the First Amendment protected outright lies and other falsehoods. “The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection,” Kennedy wrote. “Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.” He also made clear to distinguish the act from laws involving fraud and defamation, where there are actual victims, and from those that prohibit perjury and false testimony, which impede basic government functions.

In response, Congress passed a new version of the Stolen Valor Act in 2013 that narrowed its application. As shown by Alvarez’s experience, the original iteration could be used to prosecute even harmless forms of lying about a military honor. In contrast, the new law only punishes those who make false claims to “receive money, property or other tangible benefit,” essentially transforming it into an anti-fraud statute.

The Deceptive Practices and Voter Intimidation Act can be said to perform a similar role. After all, the government has no interest stronger than preserving the integrity of the American democratic process. Those who mislead or deceive voters about exercising their right to cast a ballot also commit a fraud of sorts—one that harms not only each individual voter it affects, but the vitality of American democracy as a whole.

“I’m very concerned that Russia will be fighting very hard to have an impact on the upcoming election,” President Donald Trump tweeted on Tuesday. “Based on the fact that no President has been tougher on Russia than me, they will be pushing very hard for the Democrats. They definitely don’t want Trump!” He followed that up on Friday by tweeting that “the only Collusion with Russia was with the Democrats.”

This might be news to the Democrats, and to Russia, too. The consensus of the intelligence community, and all available evidence, shows that Russia—at the behest of President Vladimir Putin—interfered in the 2016 election to help Trump, not the Democratic Party. Trump, who as a candidate called on Russia to hack Hillary Clinton, has downplayed this fact—perhaps for fear his victory would be seen as illegitimate, or in the hopes that Russia will interfere on his behalf again. The press conference with Putin in Helsinki, where Trump said he saw no reason why Russia would have meddled in the election, only seemed to confirm suspicions that he still sees Russia as a personal ally, or at least not an enemy of American democracy.

Trump’s posturing could have dangerous knock-on effects. Tom Bossert, Trump’s former homeland security advisor, told Yahoo News on Wednesday that the administration has “no clear muscle memory” when it comes to cyber security. “And so, yes, if you’re asking me do I have any concerns? The concern would be who’s minding the store in the coordination and development…of new and creative cyber policies and strategies,” he said.

Is the White House’s cyber security weakness due to malfeasance or incompetence? It’s a familiar question under Trump, but regardless of the answer, the fallout likely will be the same. Whether or not Trump’s willing to admit reality, the White House seems entirely unprepared for another round of Russian electoral interference in the midterm elections in November. While Trump may think that’s a good thing—Democrats are polling well on generic ballots—it could backfire in ways he does not expect. And it isn’t just the midterms at stake; the consequences could be felt well beyond 2018.

A half-dozen experts interviewed by Vanity Fair in June speculated that Russian agents would likely step up election-interference efforts this year—the midterms serving, Nick Bilton wrote, as “a testing ground for 2020. Many of the tactics that Russia experiments with could (and likely will) be enacted on a much larger scale two years from now.” There may be more Facebook groups, veering either right or left; more fake protests organized via Facebook; more Twitter bots. But there may also be new tactics. “This time, for example, fake video and audio will start circulating through the social stratosphere, all with the intended purpose of trying to make real news seem fake, and fake news seem real.”

Deepfakes, or manipulated video and audio, have become increasingly realistic, and they don’t require much effort to make. The definition of what constitutes a deepfake varies, but there are some consistent features. “One baseline characteristic is that some part of the editing process is automated using AI techniques, usually deep learning,” The Verge explained in March. “This is significant, not only because it reflects the fact that deepfakes are new, but that they’re also easy.” In theory, it would be incredibly easy for bots to circulate deepfakes. As The Atlantic’s Franklin Foer wrote in May, “soon this may seem an age of innocence. We’ll shortly live in a world where our eyes routinely deceive us. Put differently, we’re not so far from the collapse of reality.” It’s not hard to see the political implications of this.

More rudimentary methods of interference are already underway. Microsoft’s vice president for customer security, Tom Burt, told Aspen Institute attendees earlier this month that Russian agents had attempted to hack three 2018 candidates for Congress. According to Burt, the hackers had employed a familiar tactic: They’d set up a fake Microsoft domain. Anyone directed to it would infect their devices and leave their accounts open to hackers. It’s similar to how Russian agents were able to access and then leak emails, to Wikileaks, from the Democratic Congressional Campaign Committee, the Democratic National Committee, and Clinton’s 2016 campaign. Burt said that Microsoft stopped the attack, working in conjunction with the U.S. government. One of those candidates could be Democratic Senator Claire McCaskill of Missouri: The Daily Beast reported on Thursday that Russian hackers had targeted McCaskill’s staff in 2017, after Trump had urged a crowd to vote her out of office. It doesn’t appear that the attack was successful.

It isn’t clear that Russia influenced the outcome of the 2016 election—that the leaked emails, and a coordinated social-media campaign of incendiary comments and fake news, were enough to swing 78,000 votes. But it seems increasingly likely that there will be more hacks, and the consequences could be more explosive than John Podesta’s risotto recipe. The Senate Intelligence Committee concluded in May that Russian hackers had targeted the election systems of at least 18 states and that they were “in a position” to add or delete voter registrations. Even if hackers left registrations alone, chaos itself creates risk, and throws electoral results into doubt. And next time, registrations could be altered; perhaps even votes could be changed.

For these reasons, the intelligence community is worried. As real as the threat is, though, neither Trump nor his party appear willing to do anything about it. On July 19, House Republicans rejected a Democratic proposal that would have allocated $380 million in grants to ensure election security. Republicans claimed that the real threat came from illegitimate voters. “I know what we need for safe and secure elections, and that’s voter ID,” Representative Jim Jordan said at the time. But there’s no evidence that voter fraud immediately imperils American democracy. Most studies have shown that it’s largely a myth, and others show that voter ID, in fact, suppress voter turnout—among people of color, who tend to vote for Democrats.

Hackers threaten American democracy more than voter fraud, yet Republicans cling to their obsession with the latter. “It’s not Russia’s fault the country got to this point,” Slate’s Lili Loofbourow wrote on Thursday. “The devolution of Republican interest in electoral legitimacy has been a multigenerational journey—but one stoked by its current leader without any help from abroad.” After Trump was criticized from all quarters for his comments in Helsinki, he said, “I accept our intelligence community’s conclusion that Russia’s meddling in the 2016 election took place.” But then he added, “Could be other people also. There’s a lot of people out there.” America’s upcoming election is at risk, and that will remain true as long as the president remains in denial about the last one.

I am visibly Jewish. I wear a yarmulke; I have a beard. My tzitzit—ritual fringes—occasionally sneak out from under my shirt. I speak Hebrew-inflected English with my wife and children, all of whom have non-English names. I am an easy mark for anti-Semites. As a descendant of those who fled the Russian Pale of Settlement in the 1890s, I am also visibly Caucasian. With a cap, I look like many bearded white hipster dads in the San Francisco Bay area.

All of this is to say that I appear both white and “other” at the same time. I carry with me privilege constructed by the peculiarities of American history, the great possibilities provided for my people in 20th-century America, while also carrying the millennium-old consciousness of marginalization. I could easily hide my Jewishness, but choose not to, as a result visibly presenting my Jewishness while also enjoying the benefits of white privilege. When someone I do not know points out my identity, even simply by calling out, “Shalom,” I immediately tighten up. Will this be another encounter in which I am publicly harassed or screamed at? Last year, a car slowed down and a passenger yelled, “Fuck you, Jew!” Even when the person simply wants to extend an open hand, public attention toward my minority identity brings risk and baggage.

It’s this baggage that often complicates American Jews’ attempts to reflect on their relative privilege. In the current environment, many Ashkenazi Jews—i.e. those tracing their heritage through the Jews of Central and Eastern Europe—struggle to acknowledge their whiteness and role in broader systems of racism because anti-Semitism from the Left and Right distracts them, clouding their judgment, creating little space for them to exercise the vulnerability necessary for reflection.

Two recent examples illuminate the ways Jews are being squeezed by anti-Semitism from both sides of the political spectrum, complicating efforts at introspection. When Emily Bazelon wrote in The New York Times Magazine in June about the ways whites are finally noticing their whiteness and associated privilege, she was inundated with responses from right-wing Twitter trolls insisting that she was not white, but Jewish. The very same day, leftist activist Shaun King tweeted an article from the Israeli daily, Haaretz, about a Jewish group in Israel protesting an Arab family that had moved into a Jewish neighborhood. Rather than pointing out Jewish racism, he called the protesters “white supremacists” who only wanted “white Jews” in their neighborhood, ignoring the racial diversity within the accompanying picture as well as the Mizrahi (North African and the Middle Eastern Jewish) names of the Jewish organizers. In both of these cases, critics defined Jews for their own purposes.

Right-wing anti-Semites see Jews only as insidious ethnic people whose Ashkenazi members try to assimilate, muddling the purity of the white race. Paradoxically, some of the more moderate anti-Semites in this group have found friends on the anti-assimilationist and Zionist Jewish Right, who also believe Jews should be separate—Steve Bannon spoke at last year’s Zionists of America gala and, more recently, Richard Spencer tweeted his full support of Israel’s Jewish nation law. For some right-wing Americans, the existence of Israel is not just okay, but good, both because this is where the Jews “belong”—an anti-Semitic version of certain Zionist tropes—and also because Israel’s strident nationalism represents a type of ethnic purity white nationalists would like to see in Europe and the United States. Others are just straight-up Jew-haters who would be happy for Jews to go to the gas chambers.

Besides the obvious problem this brand of anti-Semitism presents for Jews, it also inspires a backlash of Jewish victimhood that undermines any attempt to reckon in a thoughtful and rigorous way with simultaneous Jewish privilege: Jews can’t be racist, the thinking goes, because they aren’t allowed to be white. Any time an Ashkenazi Jew begins to sort through their role in American white supremacy, the flurry of anti-Semitic noise in response causes many Jews to revert to victim mentality—a mentality which makes it very hard to think clearly about the full range of social justice. As the late Rabbi David Hartman wrote in his seminal 1982 essay, “Auschwitz or Sinai,” the person who sees the Holocaust in every anti-Semitic barb begins to think that “We need not take the moral criticism of the world seriously, because the uniqueness of our suffering places us above the moral judgment of an immoral world.”

Meanwhile, on the Left, Jews are seen as a religious minority within the superstructure of European Christian colonialism that has dominated the globe since Columbus. Yes, Jews have faced oppression, this narrative acknowledges, but they are ultimately a European byproduct: They are white people with a little flair—a belief system draped over the same racial material. When King tweeted about the “White Jews” who protested against the sale of a home in Afula (inside the Green line) to Palestinians with Israeli citizenship, he was following in this tradition, and in so doing erasing Jewish peoplehood. This was not Jewish racism against Arabs, in his view: It was white colonialist racism.

Jewish history, in fact, profoundly complicates the idea that all conflicts can be boiled down to modern Western European “white” Christian imperialism. But this trend on the left is increasingly strong. The term supersessionism has traditionally referred to the primacy of the New Testament for Christians, its teachings taking precedence over the Old Covenant between God and the Jews featured in the Old Testament. Recently, Bryan Cheyette, an English professor specializing in textual representations of Jewish identity, suggested that the insistence on a specifically postcolonial lens for evaluating oppression is a new kind of supersessionism: Kicked off by venerable postcolonial studies founder Edward Said, who believed Palestinians were the new Jews, it is now carried forward by progressives such as King, or Women’s March founders Tamika Mallory and Linda Sarsour, the latter of whom recently said Jews who feel unwelcome among today’s progressives “are going to have to come to terms with being uncomfortable,” because the Palestinian cause is too important—akin to South African apartheid. Implicitly, the story of the Palestinians and the story of African Americans are part of the same story of injustice, and the injustice against them has superseded Europe’s Holocaust. Cheyette instead suggested we move away from seeing these histories as exceptional: supersessionism “makes it impossible to find connections in the past and our most urgent present between different forms of dehumanization—Orientalism, anti-Semitism, and Islamophobia—and between shared forms of suffering (not least as refugees) alongside an often-violent agency.”

The 20th century demonstrated the tremendous capacity humans have to disregard and extinguish others’ lives, and the 21st century has yet to break that pattern. It is possible to recognize the persecution and violence, in modern memory, of Jews while recognizing the racism that exists within Jewish communities. It is also possible to recognize the deep and violent history of marginalization, oppression, and enslavement faced by African Americans and other people of color in America; and to see that both Israelis and Palestinians have been traumatized by wars, military occupation, and terrorist campaigns.  The existence of each of these traumas does not delegitimize the others. In her intellectual history of intersectionality, gender studies professor Ange-Marie Hancock Alfaro argued that in making an intersectional shift, one begins to take subaltern communities as seriously as the mainstream. But doing so also means recognizing that “one is neither purely an oppressor nor purely oppressed”—a lesson both Jews and their critics have yet to internalize.

Ultimately, we must correctly identify racism in order to tackle it—something an overreliance on the postcolonial lens does not allow. (Instead of taking King’s demand for justice seriously and hearing his prophetic call, American Jews can callously disregard his arguments: Why listen to someone who does not see you?) But tackling racism also requires that the group involved recognize their position of relative power—nearly impossible in the face of continued and widespread anti-Semitism.

On both sides of the aisle, notions of Jewishness get constructed for political gain—a symptom of a broader political environment in which blame and trauma are too often simplified into crude stereotypes.  Jews can certainly be racist, yet some of us want to investigate our role in the structures of injustice that define our world. The question is whether non-Jews on the left and right will help or hinder that effort. 

Conservatives have spent years arguing that tech platforms are biased against them and suppressing their voices. On Wednesday, they appeared to get some damning proof. Vice News reported that Twitter was “shadow banning” prominent Republicans, meaning Twitter had effectively limited their visibility to the public. This is how Vice’s Alex Thompson described the situation:

The Republican Party chair Ronna McDaniel, several conservative Republican congressmen, and Donald Trump Jr.’s spokesman no longer appear in the auto-populated drop-down search box on Twitter, VICE News has learned. It’s a shift that diminishes their reach on the platform — and it’s the same one being deployed against prominent racists to limit their visibility. The profiles continue to appear when conducting a full search, but not in the more convenient and visible drop-down bar. 

The uproar was immediate. “The notion that social media companies would suppress certain political points of view should concern every American,” McDaniel told Vice News in a statement. “Twitter owes the public answers to what’s really going on.” Republican Representative Matt Gaetz said he felt “victimized and violated.”  The Drudge Report featured as many as three links to the story. And on Thursday morning, President Trump tweeted that it was “discriminatory and illegal.”

Twitter “SHADOW BANNING” prominent Republicans. Not good. We will look into this discriminatory and illegal practice at once! Many complaints.

The problem is that Twitter wasn’t “shadow banning” anyone. It was just a glitch—an error that occurred as Twitter attempted to roll out new features to make the service “healthier.” On Thursday Vice reported that Twitter had fixed the issue the previous night. It was a “side effect of Twitter’s recently stepped up attempts at improving ‘conversation health’ and limiting ‘troll-like behaviors.’” 

But the damage was done. The Vice article, which followed a similarly dubious article by the same author claiming that Google had listed “Nazism” as the ideology of the Republican Party, fed the suspicion that conservatives are being persecuted by tech companies. Conservatives were more than happy to play along, since the whole debate is an exercise in bad faith designed to undermine Twitter’s ability to police its own platform.

Shortly after Vice published its attempted exposé, it became clear that its claims were overblown. Twitter officials, including CEO Jack Dorsey, tried to explain the glitch. It also started to dawn on people that McDaniel and Trump Jr.’s spokesperson aren’t exactly household names. (If you’re curious, the spokesperson is Andrew Surabian.) Some of the congressman affected, like Freedom Caucus head Mark Meadows and the scandal-embroiled Jim Jordan, have a better claim to prominence.

Furthermore, in Vice’s own story, NYU Law professor Ezra Waldman states the obvious: “This isn’t evidence of a pattern of anti-conservative bias, since some Republicans still appear and some don’t. This just appears to be a cluster of conservatives who have been affected. If anything, it appears that Twitter’s technology for minimizing accounts instead of banning them just isn’t very good.” That’s basically the story: Far from being an example of widespread censorship, shoddy technology limited the reach of people who aren’t particularly famous to begin with. The president’s tweets are still more than visible, as are those of the president’s eldest son. Is anyone really being oppressed if Surabian’s tweets are a little bit harder to find?

All of this has been ignored by the conservative media, which is acting as if this is the smoking gun they have spent months looking for. They are also seizing on the scandal to discourage Twitter’s roll-out of programs aimed at curbing abuse and the spread of fake news, making it clear that anything that smacks of “censorship” will be met with wall-to-wall conservative media coverage.

Twitter, like Facebook, has tried to steer clear of these controversies by insisting that it is an ideologically neutral platform committed to free speech. This is an impossible standard, given the reality that a lot of fake news and abuse comes from right-wing sources. Twitter can’t exactly say that without taking another PR hit from the right. So it instead accepts the premise of a bad faith argument and tries to move on.

However, Facebook’s efforts to deal with this exact problem have shown that this will be a serious long-term challenge for Twitter. For the last two years, Facebook has been dealing with accusations that its News Feed “curators” suppressed conservative news, all because the curators were populating the platform’s trending topics section with credible outlets like The New York Times instead of partisan shops like The Daily Caller. Still, the accusation stuck, so much so that it has become a serious obstacle in the company’s efforts to clean up its own platform. No matter how many times Twitter defuses these controversies, these complaints are not going to stop, because the whole point is to gum up efforts to make the site better.