The spirit if not the letter of the First Amendment prohibits both sophisticated and simple-minded violations of free speech, writes Bruce Fein.
Illustration from the 1758 edition of the “Index librorum prohibitorum” or “Index of Banned Books,” depicting the burning of books. (j4p4n, Openclipart)
By Bruce Fein
Special to Consortium News
As the name NewsGuard portends, its Orwellian purpose is to safeguard readers from news sources that it stigmatizes with a red label akin to a scarlet letter.
The organization is in apostolic succession to the pope’s Index of Forbidden Books, ended by Pope Paul VI in 1966 after a protracted run of more than four centuries. Freedom of expression does not look kindly on the Index.
Its list of banned authors is synonymous with the Enlightenment: John Milton, John Locke, Rene Descartes, Thomas Hobbes, Montesquieu, Voltaire, Rousseau, Edward Gibbon, John Stuart Mill and other luminaries.
NewsGuard’s predicate is dubious: namely, that its putative analysts unerringly separate unreliable and reliable news sources according to the yardstick Justice Potter Stewart applied for defining obscenity, “I know it when I see it.”
Without its training wheels, NewGuard implies that readers will tumble into error, like the victims of Spanish Grand Inquisitor Thomas de Torquemada.
NewsGuard’s website denies even a cameo appearance to the most trenchant and heralded paladins for free speech. The following is an in-exhaustive list:
- John Milton in Aeropagitica: “Let her and Falsehood grapple; who ever knew Truth to be put to the worse, in a free and open encounter?”
- John Stuart Mill in On Liberty opposing suppression of any view: “If the opinion is right, [the public] are deprived of the opportunity to exchange error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”
- Justice Oliver Wendell Holmes dissenting in Abrams v. United States: “[T]he ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
- Justice Louis Brandeis concurring in Whitney v. California: “If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
Somewhat like the Pope claiming infallibility in faith and morals, NewsGuard claims authority in grading news sources for accuracy and professionalism. But there seems more than ample room for doubt.
Fox News
NewsGuard has awarded Fox News Network its highest “green” rating” for truth and reliability. Fox has a reputation as the Pinocchio of the news industry, fortified, among other things, by the meticulous 52-page opinion of the Superior Court of Delaware in US Dominion Inc., et al., v. Fox News Network, LLC, C.A. No.: N21C-03-257 EMD (December 16, 2021).
US Dominion has alleged with countless specific examples that Fox knowingly, maliciously, repeatedly, and falsely claimed through its roster of All Star news broadcasters or guests that it provided voting systems services to state and local governments to rig the 2020 presidential election in favor of President Joe Biden.
The tip of the iceberg: On Nov. 8, 2020, Maria Bartiromo asked Sidney Powell, a Trump partisan, “Sidney, we talked about Dominion software. I know there were voting irregularities. Tell me about that.”
Powell answered,
“That’s putting it mildly … That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist … That’s when they had to stop the vote count and go in and replace votes for Biden and take away Trump votes.”
Not a crumb of evidence has been adduced to support the Bartiromo-Powell joint hallucination.
What is Sidney Powell’s reputation for truthfulness and honesty — at least regarding the 2020 presidential election? A federal judge on Aug. 25, 2021, sanctioned her, Lin Wood and seven other pro-Trump lawyers for pursuing a frivolous election fraud lawsuit to make Trump the winner of Michigan’s electoral votes.
Sidney Powell, January 2019. (Fox News screenshot)
U.S. District Court Judge Linda Parker found that Powell and her colleagues
“filed this lawsuit in bad faith and for improper purpose. Further, they presented pleadings that … contained factual contentions lacking evidentiary support or likely to have evidentiary support.”
NewsGuard features former director of the C.I.A. and N.S.A. Gen. Michael Hayden on its advisory board. Neither agency has a reputation for candor or truthfulness, for example, the C.I.A.’s imaginary WMD in Iraq or the N.S.A.’s concealment of warrantless, suspicion-less spying on the entire United States population exposed by Edward Snowden. In his Memoir Playing to the Edge, Gen. Hayden references the challenges of monitoring the “not-yet-guilty,” a concept alien to the rule of law.
One of NewsGuard’s analysts is Zach Fishman. He is doubtless an honorable man like all of Caesar’s assassins. Fishman previously was employed as a physical and life sciences reporter at The Academic Times and a finance reporter at Fastinform according to NewGuard’s website. He holds a master’s degree in health, environment and science journalism at Northwestern University, and a bachelor’s degree in engineering physics from the University of Illinois at Urbana-Champaign.
Despite being tabula rasa about Ukraine, Fishman was tasked to evaluate the correctness of statements in Consortium News that the United States in 2014 organized a coup against a democratically-elected government in Ukraine and that neo-Nazis enjoy significant influence in the country.
Isn’t this a little like sending an English major to investigate whether statements affirming Newton’s Laws of Motion are fair and accurate? In any event, Consortium News’ Joe Lauria demolished Fishman’s uninformed skepticism in a June 2 article, “US State-Affiliated NewsGuard Targets Consortium News” in the manner of Napoleon at Austerlitz.
The spirit if not the letter of the First Amendment prohibits both sophisticated and simple-minded violations of free speech. In Bantam Books v. Sullivan, for example, the United States Supreme Court condemned Rhode Island’s Commission to Encourage Morality in Youth by circulating a list of allegedly “objectionable” books to bookstores with an implied threat of prosecution if they were not removed.
NewsGuard is similar. It seeks to suppress facts or opinions that diverge from its gospel by threatening a scarlet letter in hopes of diminishing the dissenter’s readership.
In sum, NewsGuard is treasonous to the philosophy of the First Amendment and the journalist creed of letting readers decide without any thumbs on the scale.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Ronald Reagan and is author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. @brucefeinesq.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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GREAT to see the distinguished Mr. Fein join this fray! That NewsGuard “seeks to suppress facts or opinions that diverge from its gospel by threatening a scarlet letter in hopes of diminishing the dissenter’s readership” might imply only that “[it] is treasonous to the philosophy of the First Amendment and the journalist creed of letting readers decide without any thumbs on the scale.”
Not only the First Amendment but a more lenient standard that NewsGuard, as a website, also fails to meet might interest attorneys here: Sec. 230 of the (misnomered!) Communications Decency Act, which exempts ISPs from the tougher ‘actual malice’ libel standards of print media. It distinguishes between ‘web hosts ‘ and ‘content providers,’ largely immunizing the former but allowing (e.g.) discrimination suits versus the latter. See Christine Padhi: hxxps://www.lawfareblog.com/ted-cruz-vs-section-230-misrepresenting-communications-decency-act
NewsGuard plays both roles, to nefarious (intended!) effect, declaring itself an exception to the First Amendment in journalistic practice. Padhi cites Fair Housing Council v. Roomates.com, which found that a housing website violated the Fair Housing Act because it “force[d] subscribers to divulge protected characteristics and discriminatory preferences” (namely, preferences regarding roommates’ sex and family status) as a condition of registration. Section 230 protects only “neutral” as opposed to tools that themselves encourage discrimination on the basis of a protected category. NewsGuard pushes exactly such a ‘condition’ – ‘the US military uber alles’ – for its ‘green-check’ admission policy.
Padhi continues, ‘Roommates.com was [not only] an interactive service provider: it acted as an information content provider by developing the potentially discriminatory tool,’ hence ‘Section 230 would not immunize it for the discriminatory nature of its own actions.’ Application here is obvious: their Red Letter is libelous both in ‘personal’ and ‘trade libel’ (professional) senses.
I have 100+ pages of more detailed notes on the shape of such a possible legal case, starting with injunctive relief against such malevolent ‘arbiters’ of truth. Any lawyers interested?
Let’s not fetishize the Constitution. It was reactionary when it was written and the regime it enables now stands as possibly the greatest threat to the survival of humanity. Conventional histories tell of the opposition of powerful men to the new government but almost invariably omit the protests of Continental Army veterans who rallied to publicly burn the document, which they condemned as a betrayal of what they had sacrificed so much to achieve.
The story behind the First Amendment is told in Pulitzer Prize-winning author Leonard Levy’s book “Emergence of a Free Press” (Ivan Dee, 1985). The author documents how the concepts of freedom of speech and of the press evolved in England and the colonies. He convincingly demonstrates that the framers never intended to overthrow the common law of seditious libel that was the traditional English tool for stifling dissent. Indeed, both John Adams and Thomas Jefferson vigorously prosecuted editors of periodicals who criticized their administrations, and awarded lucrative government printing contracts only to those newsmen who faithfully printed their propaganda. Even Ben Franklin had grown prosperous with subsidies from the colonial Pennsylvania Assembly, not for dissenting against it, but for printing in his Pennsylvania Gazette newspaper just what the legislature wanted the people to believe.
Barbara Clark Smith’s book “The Freedoms We Lost: Consent and Resistance in Revolutionary America” (New Press, 2010) also details the Faustian bargain colonial Americans made in 1776 when they abandoned their allegiance to their lawful king. Wealthy New Englanders beguiled them with the siren song of “human rights and liberty,” a radical doctrine they appropriated from atheist French philosophers of the era. But these inflated promises were little more than a cover for their burning ambition to replace the English aristocracy as the sole rulers of the peoples of North America and to claim ownership of the vast continent’s untapped storehouse of natural wealth for themselves alone.
And the government they essentially forced on the American people in 1789 in is still working exactly as it was intended: to be strong enough to serve their needs but not powerful enough to compel the elite to cede any power or privilege should the empty promise to “promote the common welfare” require it.
Jefferson indeed lamented what he saw as a lack of ethics in many publishers. But he let the Alien & Sedition Act lapse, and said he would rather have a free press with no government than a government with no free press. We are somewhat freer than England because of the 1st Amendment, so I’ll take it.
That said, I would like to see the corporate monopoly that controls our mainstream press broken up.
Last night I watched a movie version of Orwell’s 1984. I was stunned at the parallels with today.
It is now obvious that all the mainstream news outlets act in unison to (1) cover up crucial facts, and (2) promote false narratives. The probability that so many news outlets would make exactly the same mistakes simultaneously is near zero. So we must conclude they are being coordinated by a single source. In business terms, they are functionally a monopoly.
Further, the extreme level of deception proves that this coordinating source does not have the best interests of American citizens at heart. Just the opposite, it shows this monopoly source is surely an enemy of the American people.
Finally, reasonably intelligent and educated reporters and editors in the mainstream news cannot possibly be unaware that they are persistently self-censoring on such topics as Israel’s crimes and the Western Oligarchy’s 2014 violent coup in Ukraine.
So is it possible that some of those reporters and editors will feel moved by shame, justice, and freedom to throw off their shackles of fear and tell Americans (and Brits, etc) the truth? Can we make that happen?
If I am not mistaken, the first amendment applies to government censorship of free speech, not the private censorship of free speech. While I agree that NewsGuard strikes me as Orwellian, and is financed by the US government, at least in part, it still remains a private organization. Therefore, it would seem that attempts to address its maleficence should be consistent with its status. I think that giving Fox News an approving score would be a clear sign that NewsGuard is extremely biased. Anyone watching Fox News for any period of time should quickly realize that they are primarily dealers in deception.
Bruce Fein, in praise of American law, as it pertains to U.S. constitutional, and international law.
Hip, hip, hip for Hypocrisy, as it comes back to haunt us, where it hurts the most: in the misrepresentation of the truth in the malpractice of realpolitik.
Having “Not a crumb of evidence” in a particular court case does not mean that ‘rigging’ of the system has not occurred in a particular judicial process.
Likewise having ‘legal’ evidence to prove that a journalist has not committed a crime by accurately and factually publishing reported documentary truth about U.S. international crimes; so too can the same U.S. laws be applied by surreptitious government, to abuse the law, in not wanting the general public – its citizenry, to be made aware of its years of curtailing/censoring freedom of speech through so-called legitimate judicial processes.
Merely because a prosecution ‘files a lawsuit yet which is recognized by the general public as in bad faith, and for improper purposes … further presenting pleadings that … contain knowingly illegitimate factual contentions, lacking evidentiary support, this same U.S. legal system wants to extradite Julian Assange, claiming he is not a real journalist despite the evidentiary support to the contrary’.
Short, yet perhaps too succinct!
“Oliver Wendell Holmes dissenting in Abrams v. United States: “[T]he ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Unfortunately, in the US there is no ‘free trade in ideas’. The most prominent example is Marxism. Sure, you can buy Marx’s books – but the idea of Marxism as a valid analysis of capitalism – and especially US capitalism – is trashed at every opportunity, by every feasible outlet, from 1st grade school to post-University classes. The result is that you get infantile associations from the general public of the ‘far-left’ and the Democratic Party – a party that is as rabidly pro-capitalism as the Republican Party. There can be no real political activity (as generally understood) in the US until this puerile level of discourse is overcome.
And of course there is a lot more to overcome, but most importantly the MIC.
Also I should add that Marxism is not just a “valid analysis of capitalism” – it is also a proposal for the organisation of society – and this idea is also part of the wholesale trashing process in the US. (To be fair, to a substantially lesser degree [at least in some circles] this process also goes on in Europe).
excellent!
The article strikes me as incoherent, urging censorship of those who believe that there were irregularities in the 2020 elections, while asserting that censorship is inappropriate. I agree that NewsGuard is maleficently Orwellian but have no idea what relevance to the argument posited the materials concerning Fox News and distrust of the electoral system add. Rather, they make it seem politicized.
This article in no way urges censorship of any kind and it is inchoherent to say so. It puts forward Fox News as an example because NewsGuard gave it a green check even though Fox has demonstrably published false content. The example given is that Fox broadcast Sydney Powell’s lies which were proven to be so in court. The author cites the cases. Fox also joined the entire MSM in pushing the lies of WMD in Iraq, as another example.
Did you read the same article I did? Maybe you should try re-reading it.
Love this wonderful takedown of NewsGuard as companion to Joe Lauria’s masterful response to that Orwellian organization. And from a “card-carrying” Conservative no less.
As a Catholic boy growing up in the Bronx in the 60’s (oops, I dated myself), I’ll add something to the infamous Index that NewsGuard is successor to. As some of CN readers of a certain age and similar background will remember, there was also the Legion of Decency, which rated movies. The ratings were A to C. Anything that might not make it past the Vatican censors (I suppose especially us teenage, hormone-flowing boys in mind) got a C, CONDEMNED, rating. Each year our parochial school classes were marched into church, and we all stood and recited the Legion of Decency Pledge in unison. Mortal sin if one violated the pledge and went to one of the C movies!
Holding conservative or liberal beliefs doesn’t determine anyone’s integrity. I’ve listened to Mr. Fein on the Ralph Nader Radio Hour and admired his consistency in upholding certain principles, regardless of the actors involved. On the other hand, a Free Press advocacy group I’d supported for years came out in favor of censorship during the Trump years.
Love the John Stuart Mill quote.