Crying Election Fraud in a Crowded Democracy

When the president is leading a disinformation campaign, what’s the press to do?

“Welming” by Richard Knight. (Used by permission of the artist.)

The First Amendment protects free speech but, as is said, does not allow one to cry “Fire!” in a crowded theater. Should people be allowed to cry “Election fraud!” in a crowded democracy?

Well, that famous quote about falsely crying fire in that crowded theater, from Justice Oliver Wendell Holmes, has been somewhat misinterpreted. It was an analogy he used in a case concerning censorship, an analogy that is still pertinent in saying that the First Amendment is not absolute. In the actual case, it was determined that the First Amendment held unless speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That also seems more than pertinent today.

Here’s another quote you’ll recognize, and it too has an interesting history:

Everyone is entitled to his own opinion, but not his own facts.

That line is credited to Senator Daniel Patrick Moynihan, who wrote those words in an opinion piece published in the Washington Post in 1983, though a form of it seems to have been uttered as far back as 1946 by financier Bernard Baruch, who said that “no man has a right to be wrong in his facts.”

Facts about quotes particularly matter. Defense Secretary James Schlesinger said essentially the same thing nearly a decade before the senator; Moynihan himself credited economist Alan Greenspan. In any case, it was Moynihan’s version that stuck in the minds of the public. Here is the slightly larger context of what he said, referring to the centrist’s approach to governing:

First, get your facts straight. Everyone is entitled to his own opinion, but not his own facts. Second, decide to live with the facts. Third, resolve to surmount them. Because, fourth, what is at stake is our capacity to govern.

Vice President Mike Pence turned to that chestnut, a couple times, in his debate with Vice President–elect Kamala Harris, which nearly made her laugh aloud, given the Trump administration’s track record of unflinching untruthfulness.

In thinking about the importance of basing decisions on facts and data, I was reminded of that scene from “It’s a Wonderful Life” in which George Bailey asks his guardian angel, Clarence, if he has the money George needs.

“Oh, no, we don’t use money in heaven!” Clarence chuckles, shaking his head at the absurdity of the question.

“Oh, that’s right. I keep forgetting.” George mutters, then exclaims: “Comes in pretty handy down here, bub!”

A journalist, an expert in any field, or a serious politician like Moynihan, might paraphrase it:

When it comes to decision making and crafting public policy, facts and data come in pretty handy down here, in the real world, bub!

Speaking of “It’s a Wonderful Life,” do Trumpists identify with Mr. Potter? I suppose they must.

But facts and data aren’t everything — remember, Moynihan wrote that the third step was to surmount them, which means “to stand on or place upon” — but they make for a handy reality-based start to a discussion. They represent the currency of our national discourse; everything else is just counterfeit bills — sometimes cunningly created but most often crude and obvious if held up to the light.

In other words, with facts and good data, you’re cooking in cast iron. I’m not sure what I mean by that, but it feels right — likely because there is no need for soaking or soap afterwards.

Roughly, the simple workflow of a fascist might look like this:

Appeal to Fear and Hatred=>Attack the Press=>Ignore Norms=>Relentlessly Gaslight to Destroy Sense of Reality=>Denounce and Fire Experts and Professionals=>Utilize the “Big Lie”=>Refuse to Accept Election Results=>Gather Loyalists in Military=>Imprison Dissenters

In doing their work as the “fourth estate” in a democracy, journalists try to alert the public to serious issues — corporate malfeasance, say, or the rise of a fascist leader among us — before it is too late for the public to act. In the workflow above, journalists are working at each step trying to pass the word along of danger ahead. But for this process to work, you must listen to them and seriously consider what they are saying.

That is why “Attack the Press” is an early step in the fascist’s workflow.

It would serve us well right now to remember that Donald Trump has never accepted the 2016 election results, he still claims that millions of votes were cast by illegal aliens and that he actually won the popular vote. Now he cries fraud again, with no evidence whatsoever. But that is the way of Donald Trump. He told us before the fact that he would say this, if he didn’t win. You think he will graciously concede now?

You are not actually entitled to your opinion if it isn’t based on facts. You can have an opinion, you can even spout an opinion, but don’t dress up something worthless with a big word like “entitled.” For example, the Trump campaign is bringing (strongly!) lawsuits about the election results in various states. Judges will apprise those suits to see if they have any merit, based on evidence of wrongdoing brought forward. At the moment it seems a baseless opinion that anything went awry with counting ballots in any state. They are not entitled to that opinion, and it is damaging to the country to keep repeating it.

Speaking of dressing unfounded opinions up with big words, “We hereby claim the State of Michigan” will rank with the most absurdly stated claims in all of history. (Side note: I hope the Wolverine State is producing a lot of T-shirts with that statement because I want to be wearing one the next time we vacation there.)

Could there be a basis? Anything is possible. But study after study has found no appreciable fraud in voting in the United States. Trump’s own commission on fraud in voting found nothing and was disbanded. And the Trump campaign seems to want the judges themselves to find the evidence, which is not how things work in the real world. In remarks to Propublica, Professor Justin Levitt of Loyola Law School in Los Angeles puckishly noted that “a lawsuit without provable facts showing a statutory or constitutional violation is just a tweet with a filing fee.”

In other words, Donald Trump can claim that he won the election, but that opinion has no worth without facts to back it up. But it is worth it to him because he is not working for the country — and never has been. He may even take his show on the road again. He may never concede the election. He appears to be working up his base to raise money for a defense fund and to pay off campaign debt.

I keep thinking of a beloved Steve Miller tune with new lyrics:

Trump keeps on grifting, grifting, grifting, into the future.

Now, that is satire (not as fabulous as the professor’s). It is based on facts — it “surmounts” the facts, to make a joke and, hopefully, lodge a memorable point in your mind, in this case, an suggested earworm.

So, the First Amendment protects free speech but does not allow one to cry “Fire!” in a crowded theater. Should we allow people to cry “QAnon!” or “Election fraud!” in a crowded democracy?

As William Davies wrote in an excellent recent article in The Guardian, we may quibble over what journalists write about and how they frame it and how news organizations choose to present it — up front or downplayed. But in this era of data and social media and the onslaught of endless information, some framing, from experts and journalists, is more needed than ever. It is, in fact, “indispensable”:

“…as the quantity of data becomes overwhelming — greater than human intelligence can comprehend — our ability to agree on the nature of reality seems to be declining. Once everything is, in principle, recordable, disputes heat up regarding what counts as significant in the first place. It turns out that the “frames” that journalists and experts use to reduce and organise information are indispensable to its coherence and meaning.”

Real, trained journalists are not “the enemy of the people”; anyone who would say such a thing is the enemy, is by definition an authoritarian, a fascist. Journalists are biased, but their bias is a very strong preference for the facts, in the same way that a nurse’s or a physician’s strong preference is to heal the patient. Pretend journalists, faux journalists, on the other hand, can do much damage.

As the Trump presidency comes to a close, can we just stop with the endless psychological projection? The people who cry “cheat” are typically the ones cheating. The very people crying “fake news” are invariably the ones producing it.

We may still be a youngish country, but if we are to survive we need to seriously attempt to grow up.

Is this piece biased? Yes. Is it factual? I’ve done my best to ensure that it is, following the straightforward rules I recall from journalism school (even though I was busy skipping out from the newsroom as often as possible to hang out in the theater’s green room): Do your research from multiple sources, double-check all quotes, and triple-consider any of your own assertions — even if it is an opinion piece. Remember, the world is a nuanced place. (Oh, and if you drink a lot of coffee you type faster.)

But there can be no nuance between fact and falsehood. When Donald Trump spoke to the press in the early morning after election day, he spewed unfounded assertions of election fraud. In his typical aggressively pouting tone, he said, “We were getting ready to win this election. Frankly, we won this election.”

This was a small jolt of joy for me in this because it gave more credence to my theory that if a person uses “frankly,” he or she is almost certainly prefacing an untruth. The frankly is inserted, I guess, to somehow shut down the listener’s ability to critically think of the statement that follows.

Here’s how, in part, CNN’s Jake Tapper reacted:

“What a sad night for the United States of America to hear their president say that, to falsely accuse people of trying to steal the election, to try to attack democracy that way with his feast of falsehoods. Lie after lie after lie about the election being stolen.”

A “feast of falsehoods” sounds awfully unpalatable. In a democracy it should act as an emetic.

This feast was, unfortunately, not at all out of the norm for Trump. Tapper had some trenchant things to say; other news organizations — even Fox — also cut away, with apologies and a palpable shudder of disgust. That was a welcome sign.

We need more of this sort of courage in the media. Key to this is the need for re-codifying a standard of truth in media. A local NBC-affiliate news program in St. Louis has a fact-check feature they call “Verify,” and they do an excellent job in investigating controversial claims and explaining them to the public.

One might say that it doesn’t matter to the people who will not watch or will not listen, but we must always strive to correct the record.

Clarity and fact from the press, in all its forms, is the way it must be. A local affiliate of a major network in a large city may regularly do fact checking, but one cannot hope for that from, say, news programs run by the conservative Sinclair Broadcast Group, which owns or operates nearly 300 stations across the country, largely in the south and midwest. The free press must stand by the people, to ensure they remain informed and are not duped (or, you know, gently led into some conspiracy rabbit hole or, say, a death cult).

The late Roger Ailes, who ran the Fox News Corporation, is credited for coming up with the original slogan, “Fair and Balanced.” (I could be wrong, but I believe his personal motto was “Traumatizing Female Journalists Daily.”) The old “O’Reilly Factor” show on Fox claimed it was “the no spin zone” which was appropriate in that what he was doing was far beyond mere spin. And that is largely still the case with Fox News, depending on which “show” one watches.

Rush Limbaugh’s bloviations have polluted the public radio airwaves for decades, leading people to believe in things that are just not true — and he has made a fortune doing it. Alex Jones promulgates conspiracy theories and reportedly makes the bulk of his living on the “merch.” These evangelical leaders of the Church of Disinformation have done irreparable damage to this democracy by helping create a massive group in this country that functions more like cult members than as citizens.

Why are they allowed to remain on the air? Should the invisible hand of the market decide, or is there just a lot of profit to be had in dividing us?

Perhaps our only hope remains in an educated public and bolstering comprehension of civics and the place of journalism in a democratic society.

Facts, data, news, opinion, satire — all are necessary to a democracy, as distinct from disinformation. Misinformation implies an error made that may be rectified; disinformation is misinformation on purpose, it’s our polite, businessese way of saying propanganda. Here are pretty simple, but crucial, distinctions in a land where the rule of law must prevail. And critical to our ability as Americans to engage with each other and move forward as a nation.

Though they disagreed on many things, both John Adams and Thomas Jefferson knew how critical an educated public was to the survival of the democratic enterprise. “The whole people must take upon themselves the education of the whole people and be willing to bear the expenses of it,” wrote Adams. “There should not be a district of one mile square, without a school in it, not founded by a charitable individual, but maintained at the public expense of the people themselves.”

An open sewer pipe of disinformation spewing onto the body politic from this part of the mainstream media (yes, they are very much part of the mainstream in the United States) like Fox News and Rush Limbaugh and OAN, can cause an awful rash, so this might be seen as an issue for the Environmental Protection Agency (EPA) to deal with.

Both Fox and Limbaugh amplified Trump’s shameful and disastrous approach to the pandemic, and it is horrifying to think of the tens of thousands of lives likely lost as a result and the massively increased workload placed on health care workers, who in many parts of the country are now overwhelmed again with cases of COVID-19.

Now citizens trained to count ballots — essential workers at any time — are being derided by Trump and his Republican supporters, to the point that many feel threatened. And the longer Trump is able to cry “Election fraud!” the worse it gets, the more he erodes trust essential for our democracy to work.

In an attempt to escape scrutiny, supporters of Limbaugh and his ilk will claim they are entertainers, not journalists. This “entertainment” is not like what the late-night talk show hosts do, which is largely satire; this is ceaseless propaganda that can have dire consequences for the public and for the country. Rush’s “Dittoheads” have become today’s “Trumpists.” The president himself skips his daily briefing to get his to-do list from the gang at “Fox & Friends” and Fox News “personalities” Tucker Carlson and Sean Hannity.

Cult members do not make for good citizens, or good leaders.

For our democracy to survive, we need the FCC (and I keep thinking the EPA) to do something.

That may be the best thing we can hope for — along with better, more equable public education — that the FCC stand back (and stand by) while the EPA places warnings on specific shows on Fox or before Rush’s bloviations begin. Something on the order of a “toxic informational sludge warning.” Maybe make it an educational moment: This program may contain conspiracy theories and less-than-subtle racism. See if you can spot it! Social media like Twitter and Facebook are finally responding to calls for some level of fighting propaganda — so much so that people who thrive on a steady diet of disinformation are apparently moving to another platform not to be named here.

As Senator Moynihan said clearly, we must create policy that surmounts, or stands on, the facts. What is at stake is our capacity to govern — at this moment, our democracy itself.

Kirk Swearingen is an independent journalist living in St. Louis. His work has most recently appeared on Salon.

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