I’ve been trying to resist writing about the political situation in the United States for some time now — all the terrible decisions and the venal motivations and the chaos and misery that have come with the Trump-and-Musk show — in part because I don’t really know what to say that would make anything better, but also because this is a technology-focused newsletter and not a political one. That said, however, the name of this newsletter is The Torment Nexus, which feels like a pretty good description of the current moment to me. And technology is definitely playing a role in it — like the AI that Musk and his DOGE acolytes are reportedly using to detect inappropriate government spending (which seems to consist of doing a simple text search for words like “gay,” regardless of context).
My friend Mike Masnick, who runs an excellent tech commentary and analysis site called Techdirt, wrote recently that it is “now a democracy blog whether we like it or not,” because of the imminent threat that Trump and Musk and others in the current administration represent to some or all of the democratic principles we hold dear (and which used to be self-evident). Here’s how he described it:
While political reporters are still doing their view-from-nowhere “Democrats say this, Republicans say that” dance, tech and legal journalists have been watching an unfortunately recognizable plan unfold — a playbook we’re all too familiar with. We’ve seen how technology can be wielded to consolidate power, how institutional guardrails can be circumvented through technical and legal workarounds, and how smoke and mirrors claims about “innovation” can mask old-fashioned power grabs. It’s a playbook we watched Musk perfect at Twitter, and now we’re seeing it deployed on a national scale. When someone talks about free speech while actively working to control speech, that’s not a contradiction or a mistake — it’s the point.
Note: This is a version of my Torment Nexus newsletter, which I send out via Ghost, the open-source publishing platform. You can see other issues and sign up here.
Some may see this as an overreaction, but to me it feels less like one with each passing day. Take the recent arrest of Mahmoud Khalil, a former student at Columbia University who took part in pro-Palestine demonstrations. According to multiple news reports, Khalil was taken by agents of ICE — Immigration and Customs Enforcement, part of the Department of Homeland Security — and told that his visa was being revoked. When they were told that Khalil has a green card, making him a legal resident of the United States, the agents said that this was being revoked as well (something that is extremely rare and usually requires an order from an immigration court judge). Khalil appears to now be in a detention facility in Louisiana, and neither his wife — who is eight months pregnant — nor his lawyer have been able to reach him.
Note: In case you are a first-time reader, or you forgot that you signed up for this newsletter, this is The Torment Nexus. You can find out more about me and this newsletter in this post. This newsletter survives solely on your contributions, so please sign up for a paying subscription or visit my Patreon, which you can find here. I also publish a daily email newsletter of odd or interesting links called When The Going Gets Weird, which is here.
These are dangerous times
If all of this seems horrifying to you in multiple ways, I think that is the correct response. The notice given to Khalil said that he could be deported because “the Secretary of State has reasonable ground to believe that your presence or activities in the United States would have potentially serious adverse foreign policy consequences.” What is this based on? No evidence was provided. Did he throw any bombs? No. Did he shoot someone? No. Did he advocate violence against those of the Jewish faith? Not as far as we know. But isn’t participating in a peaceful protest protected by the First Amendment? It certainly used to be. But Marco Rubio, the Secretary of State, has said that Khalil’s detention is “not about free speech,” and that “no one has a right to a green card” (the deportation order has been suspended pending a court hearing).
All of this is terrible, needless to say. But it’s possible that things could get even worse. For one thing, the President said on X that ICE “detained a Radical Foreign Pro-Hamas student,” in “the first arrest of many to come.” For another — and this is where technology comes in — the government is reportedly going to use AI to monitor social media and then use posts as evidence of potentially un-American conduct (according to 404Media, Homeland Security has software that will monitor and analyze 200 different sources). Have you ever posted something even mildly supportive of Palestine? You could be flagged as an enemy of the state. At a recent meeting at Columbia, students were told “If you have a social media page, make sure it is not filled with commentary on the Middle East. Nobody can protect you. These are dangerous times.” Not to be too conspiratorial, but it’s worth noting that Facebook reportedly has the ability to capture the text you type on the site, even if you ultimately decide not to publish it.
Some of you may see this as fear-mongering, and I honestly hope that it is. But I am afraid that it might not be. Trump, for one, has made his thoughts on free speech known for some time, even before he took the White House for the first time. He said he was planning to “open up libel laws” to make it easier for people like him to sue for libel and defamation. More recently, it has become clear that what Trump and his cronies (including at least one Supreme Court justice) are after is the reversal of New York Times v Sullivan, a landmark libel case that helped create what is known as the “actual malice” standard. In practice, it means that journalists and others can write critically about politicians and other public figures without worrying about being sued for libel. If this were to be overturned by a Trump-friendly Supreme Court, the door would be wide open for lawsuits against news outlets for factual reporting on Trump’s behavior.
The First Amendment is under attack
Meanwhile, the FCC under chairman Brendan Carr is also pushing the bounds of normal conduct where the First Amendment is concerned. Last fall, Trump sued CBS for $10 billion, alleging that the network misled the public in the way it edited an interview with vice-presidential candidate Kamala Harris, using a Texas law on deceptive conduct (Trump later doubled the damages to $20 billion). The former chairman of the FCC rejected this and other claims against news networks for political reporting during the campaign, but Carr revived them in January, saying the previous orders were made “based on an insufficient investigatory record,” and that the claims required further consideration by the commission. The complaints were made under the FCC’s rules for broadcast licenses, which prohibit what is called “news distortion” — another concept that is poorly defined, and therefore open to politically-motivated interpretation.
Although both legal and media analysts believe the Trump lawsuit has zero merit, Paramount — which owns CBS — is said to be considering settling the lawsuit because otherwise its proposed sale to Skydance (an entertainment company run by the son of Oracle software billionaire Larry Ellison) might not be approved by the FCC. As the New York Times described it, a settlement of such a matter would be “an extraordinary concession by a major U.S. media company to a sitting president, especially in a case in which there is no evidence that the network got facts wrong or damaged the plaintiff’s reputation.” Disney and Meta have already settled similar lawsuits involving Trump, by paying a combined total of $40 million towards the funding of a presidential library.
It isn’t just Democrats and free-speech activists who find Carr’s conduct troubling. Al Sikes, a former Republican FCC chairman, told Vanity Fair that Carr’s revival of the complaints against the news networks was “shocking.” Sikes said that the FCC has historically avoided rendering judgments about news coverage or pursuing a “news distortion” case out of respect for broadcasters’ First Amendment rights. “In my time, we stayed out of the free-speech business,” he said. The traditional barriers that democracies have against certain kinds of action by government entities like the FCC appear to have disappeared.
Who defines the public interest?
Earlier this year the FCC also launched an investigation of an all-news San Francisco radio station over its coverage of a federal immigration raid in San Jose in January. Carr said on Fox News that the station, in relaying reports from persons at the scene, had identified the locations and car models of ICE officials while the raid was in progress. The alleged justification for the investigation is the clause in a radio or TV station’s FCC license that states it must pursue its activities “in the public interest,” which as the CATO Institute points out is a term whose definition can also shift depending on who is in power.
Going along with the Trump administration’s approach to speech represents a historical retreat from democratic principles, said Sonja West, a University of Georgia law professor who specializes in the First Amendment. For decades, she said, powerful and well-financed news organizations fought to protect their rights and defend their reporting, but now the news industry isn’t quite as powerful or as well-financed. “What we’re seeing today is a concerning shift in that dynamic,” she told Vanity Fair. “Our democracy depends on the press to serve as a check on powerful people, not just to cut them checks.” On a related note, an international civic society group has put the US on a watchlist because of the Trump government’s “assault on democratic norms.”
In New York Times v. United States, the 1971 Pentagon papers case, the Supreme Court ruled that even on issues of national security, the government had to clear a high bar when it came to intervening in matters of a journalistic nature. But the power to interpret the phrase “in the public interest” is so vague that it invites a politically motivated interpretation. Mike Masnick points out that Trump also seems interested in weaponizing the Take It Down act, which was supposed to make it easier to get platforms like Instagram to remove non-consensual images. Trump has said he plans to “use that bill for myself too, because nobody gets treated as badly as I do online.” Does this sound like a First Amendment problem? It definitely did to lots of the people who criticized the law when it was first proposed, including a number of legal experts.
As Masnick noted in his democracy post, it is true that there have been times in the past when people have overreacted to things happening in Washington DC, but “this is not one of those times. If you do not recognize the mass destruction of fundamental concepts of democracy and the US Constitution happening right now, you are either willfully ignorant or just plain stupid.”
Got any thoughts or comments? Feel free to either leave them here, or post them on Substack or on my website, or you can also reach me on Twitter, Threads, BlueSky or Mastodon. And thanks for being a reader.
Reposts
Likes