It’s Not Section 230 President Trump Hates, 

It’s the First Amendment
BY ELLIOT HARMON
DECEMBER 9, 2020 EFF


President Trump’s recent threat to “unequivocally VETO” the National Defense Authorization Act (NDAA) if it doesn’t include a repeal of Section 230 may represent the final attack on online free speech of his presidency, but it’s certainly not the first. The NDAA is one of the “must-pass” bills that Congress passes every year, and it’s absurd that Trump is using it as his at-the-buzzer shot to try to kill the most important law protecting free speech online. Congress must reject Trump’s march against Section 230 once and for all.

Under Section 230, the only party responsible for unlawful speech online is the person who said it, not the website where they posted it, the app they used to share it, or any other third party. It has some limitations—most notably, it does nothing to shield intermediaries from liability under federal criminal law—but at its core, it’s just common-sense policy: if a new Internet startup needed to be prepared to defend against countless lawsuits on account of its users’ speech, startups would never get the investment necessary to grow and compete with large tech companies. 230 isn't just about Internet companies, either. Any intermediary that hosts user-generated material receives this shield, including nonprofit and educational organizations like Wikipedia and the Internet Archive.

Section 230 is not, as Trump and other politicians have suggested, a handout to today’s dominant Internet companies. It protects all of us. If you’ve ever forwarded an email, Section 230 protected you: if a court found that email defamatory, Section 230 would guarantee that you can’t be held liable for it; only the author can.

If you’ve ever forwarded an email, Section 230 protected you.

Two myths about Section 230 have developed in recent years and clouded today’s debates about the law. One says that Section 230 somehow requires online services to be “neutral public forums”: that if they show “bias” in their decisions about what material to show or hide from users, they lose their liability shield under Section 230 (this myth drives today’s deeply misguided “platform vs. publisher” rhetoric). The other myth is that if Section 230 were repealed, online platforms would suddenly turn into “neutral” forums, doing nothing to remove or promote certain users’ speech. Both myths ignore that Section 230 isn’t what protects platforms’ right to reflect any editorial viewpoint in how it moderates users’ speech—the First Amendment to the Constitution is. The First Amendment protects platforms’ right to moderate and curate users’ speech to reflect their views, and Section 230 additionally protects them from certain types of liability for their users’ speech. It’s not one or the other; it’s both.

We’ve written numerous times about proposals in Congress to force platforms to be “neutral” in their moderation decisions. Besides being unworkable, such proposals are clearly unconstitutional: under the First Amendment, the government cannot force sites to display or promote speech they don’t want to display or remove speech they don’t want to remove.

It’s not hard to ascertain the motivations for Trump’s escalating war on Section 230. Even before he was elected, Trump was deeply focused on using the courts to punish companies for insults directed at him. He infamously promised in early 2016 to “open up our libel laws” to make it easier for him to legally bully journalists.

No matter your opinion of Section 230, we should all be alarmed that Trump considers a goofy nickname a security threat.

Trump’s attacks on Section 230 follow a familiar pattern: they always seem to follow a perceived slight by social media companies. The White House issued an executive order earlier this year that would draft the FCC to write regulations narrowing Section 230’s liability shield, though the FCC has no statutory authority to interpret Section 230. (Today, Congress is set to confirm Trump’s pick for a new FCC commissioner—one of the legal architects of the executive order.) That executive order came when Twitter and Facebook began to add fact checks to his dubious claims about mail-in voting.

But before, Trump never took the step of claiming that “national security” requires him to be able to use the courts to censor critics. That claim came on Thanksgiving, which also happened to be the day that Twitter users starting calling him “#DiaperDon” after he snapped at a reporter. Since then, he has frequently tied Section 230 to national security. The right to criticize people in power is one of the foundational rights on which our country is based. No matter your opinion of Section 230, we should all be alarmed that Trump considers a goofy nickname a security threat. Besides, repealing Section 230 would do nothing about the #DiaperDon tweets or any of the claims of mistreatment of conservatives on social media. Even if platforms have a clear political bias, Congress can't enact a law that overrides those platforms’ right to moderate user speech in accordance with that bias.

What would happen if Section 230 were repealed, as the president claims to want? Online platforms would become more restrictive overnight. Before allowing you to post online, a platform would need to gauge the level of legal risk that you and your speech bring on them—some voices would disappear from the Internet entirely. It’s shocking that politicians pushing for a more exclusionary Internet are doing so under the banner of free speech; it’s even more galling that the president has dubbed it a matter of national security.

Our free speech online is too important to be held as collateral in a routine authorization bill. Congress must reject President Trump’s misguided campaign against Section 230.

Don’t Blame Section 230 for Big Tech’s Failures. Blame Big Tech.
BY ELLIOT HARMON  NOVEMBER 16, 2020 EFF


Next time you hear someone blame Section 230 for a problem with social media platforms, ask yourself two questions: first, was this problem actually caused by Section 230? Second, would weakening Section 230 solve the problem? Politicians and commentators on both sides of the aisle frequently blame Section 230 for big tech companies’ failures, but their reform proposals wouldn’t actually address the problems they attribute to Big Tech. If lawmakers are concerned about large social media platforms’ outsized influence on the world of online speech, they ought to confront the lack of meaningful competition among those platforms and the ways in which those platforms fail to let users control or even see how they’re using our data. Undermining Section 230 won’t fix Twitter and Facebook; in fact, it risks making matters worse by further insulating big players from competition and disruption.

While large tech companies might clamor for regulations that would hamstring their competitors, they’re notably silent on reforms that would curb the practices that allow them to dominate the Internet today.

Section 230 says that if you break the law online, you should be the one held responsible, not the website, app, or forum where you said it. Similarly, if you forward an email or even retweet a tweet, you’re protected by Section 230 in the event that that material is found unlawful. It has some exceptions—most notably, that it doesn’t shield platforms from liability under federal criminal law—but at its heart, Section 230 is just common sense: you should be held responsible for your speech online, not the platform that hosted your speech or another party.

Without Section 230, the Internet would be a very different place, one with fewer spaces where we’re all free to speak out and share our opinions. Social media wouldn’t exist—at least in its current form—and neither would important educational and cultural platforms like Wikipedia and the Internet Archive. The legal risk associated with operating such a service would deter any entrepreneur from starting one, let alone a nonprofit.

As commentators of all political stripes have targeted large Internet companies with their ire, it’s become fashionable to blame Section 230 for those companies’ failings. But Section 230 isn’t why five companies dominate the market for speech online, or why the marketing and behavior analysis decisions that guide Big Tech’s practices are so often opaque to users.
The Problem with Social Media Isn’t Politics; It’s Power

A recent Congressional hearing with the heads of Facebook, Twitter, and Google demonstrated the highly politicized nature of today’s criticisms of Big Tech. Republicans scolded the companies for “censoring” and fact-checking conservative speakers while Democrats demanded that they do more to curb misleading and harmful statements.

There’s a nugget of truth in both parties’ criticisms: it’s a problem that just a few tech companies wield immense control over what speakers and messages are allowed online. It’s a problem that those same companies fail to enforce their own policies consistently or offer users meaningful opportunity to appeal bad moderation decisions. There’s little hope of a competitor with fairer speech moderation practices taking hold given the big players’ practice of acquiring would-be competitors before they can ever threaten the status quo.

Unfortunately, trying to legislate that platforms moderate “neutrally” would create immense legal risk for any new social media platform—raising, rather than lowering, the barrier to entry for new platforms. Can a platform filter out spam while still maintaining its “neutrality”? What if that spam has a political message? Twitter and Facebook would have the large legal budgets and financial cushions to litigate those questions, but smaller platforms wouldn’t.

We shouldn’t be surprised that Facebook has joined Section 230’s critics: it literally has the most to gain from decimating the law.

Likewise, if Twitter and Facebook faced serious competition, then the decisions they make about how to handle (or not handle) hateful speech or disinformation wouldn’t have nearly the influence they have today on online discourse. If there were twenty major social media platforms, then the decisions that any one of them makes to host, remove, or factcheck the latest misleading post about the election results wouldn’t have the same effect on the public discourse. The Internet is a better place when multiple moderation philosophies can coexist, some more restrictive and some more permissive.

The hearing showed Congress’ shortsightedness when it comes to regulation of large Internet companies. In their drive to use the hearing for their political ends, both parties ignored the factors that led to Twitter, Facebook, and Google’s outsized power and remedies to bring competition and choice into the social media space.

Ironically, though calls to reform Section 230 are frequently motivated by disappointment in Big Tech’s speech moderation policies, evidence shows that further reforms to Section 230 would make it more difficult for new entrants to compete with Facebook or Twitter. It shouldn’t escape our attention that Facebook was one of the first tech companies to endorse SESTA/FOSTA, the 2018 law that significantly undermined Section 230’s protections for free speech online, or that Facebook is now leading the charge for further reforms to Section 230 (PDF). Any law that makes it more difficult for a platform to maintain Section 230’s liability shield will also make it more difficult for new startups to compete with Big Tech. (Just weeks after SESTA/FOSTA passed and put multiple dating sites out of business, Facebook announced that it was entering the online dating world.) We shouldn’t be surprised that Facebook has joined Section 230’s critics: it literally has the most to gain from decimating the law.

Remember, speech moderation at scale is hard. It’s one thing for platforms to come to a decision about how to handle divisive posts by a few public figures; it’s quite another for them to create rules affecting everyone’s speech and enforce them consistently and transparently. When platforms err on the side of censorship, marginalized communities are silenced disproportionately. Congress should not try to pass laws dictating how Internet companies should moderate their platforms. Such laws would not pass Constitutional scrutiny, would harden the market for social media platforms from new entrants, and would almost certainly censor innocent people unfairly.

Then How Should Congress Keep Platforms in Check? Some Ideas You Won’t Hear from Big Tech

While large tech companies might clamor for regulations that would hamstring their competitors, they’re notably silent on reforms that would curb the practices that allow them to dominate the Internet today. That’s why EFF recommends that Congress update antitrust law to stop the flood of mergers and acquisitions that have made competition in Big Tech an illusion. Before the government approves a merger, the companies should have to prove that the merger would not increase their monopoly power or unduly harm competition.

But even updating antitrust policy is not enough: big tech companies will stop at nothing to protect their black box of behavioral targeting from even a shred of transparency. Facebook recently demonstrated this when it threatened the Ad Observatory, an NYU project to shed light on how the platform was showing different political advertising messages to different segments of its user base. Major social media platforms’ business models thrive on practices that keep users in the dark about what information they collect on us and how it’s used. Decisions about what material (including advertising) to deliver to users are informed by a web of inferences about users, inferences that are usually impossible for users even to see, let alone correct.

Because of the link between social media’s speech moderation policies and its irresponsible management of user data, Congress can’t improve Big Tech’s practices without addressing its surveillance-based business models. And although large tech companies have endorsed changes to Section 230 and may endorse further changes to Section 230 in the future, they will probably never endorse real, comprehensive privacy-protective legislation.

That the Internet Association and its members have fought tooth-and-nail to stop privacy protective legislation while lobbying for bills undermining Section 230 says all you need to know about which type of regulation they see as the greater threat to their bottom line.

Any federal privacy bill must have a private right of action: if a company breaks the law and infringes on our privacy rights, it’s not enough to put a government agency in charge of enforcing the law. Users should have the right to sue the companies, and it should be impossible to sign away those rights in a terms-of-service agreement. The law must also forbid companies from selling privacy as a service: all users must enjoy the same privacy rights regardless of what we’re paying—or being paid—for the service.

The recent fights over the California Consumer Privacy Act serve as a useful example of how tech companies can give lip service to the idea of privacy-protecting legislation while actually insulating themselves from it. After the law passed in 2018, the Internet Association—a trade group representing Big Tech powerhouses like Facebook, Twitter, and Google—spent nearly $176,000 lobbying the California legislature to weaken the law. Most damningly, the IA tried to pass a bill exempting surveillance-based advertising from the practices from which the law protects consumers. That’s right: big tech companies tried to pass a law protecting their own invasive advertising practices that helped cement their dominance in the first place. That the Internet Association and its members have fought tooth-and-nail to stop privacy protective legislation while lobbying for bills undermining Section 230 says all you need to know about which type of regulation they see as the greater threat to their bottom line.

Section 230 has become a hot topic for politicians and commentators on both sides of the aisle. Whether it’s Republicans criticizing Big Tech for allegedly censoring conservatives or Democrats alleging that online platforms don’t do enough to fight harmful speech online, both sides seem increasingly convinced that they can change Big Tech’s social media practices by undermining Section 230. But history has shown that making it more difficult for platforms to maintain Section 230 protections will further isolate a few large tech companies from meaningful competition. If Congress wants to keep Big Tech in check, it must address the real problems head-on, passing legislation that will bring competition to Internet platforms and curb the unchecked, opaque user data practices at the heart of social media’s business models.

You’ll never hear Big Tech advocate that.

USA EFF

Federal and State Antitrust Suits Challenging Facebook’s Acquisitions are a Welcome Sight

BY MITCH STOLTZ AND KAREN GULLO
DECEMBER 10, 2020 EFF

Antitrust enforcers charged with protecting us from monopolists have awoke from decades-long hibernation to finally address something users have known, and been paying for with their private data, for years: Facebook’s acquisitions of rival platforms have harmed social media users by reducing competition, leaving them with fewer choices and creating a personal data-hoovering behemoth whose profiling capabilities only cement its dominance.

Now the government’s enforcers want Facebook broken up. The company’s acquisitions of Instagram in 2012 and WhatsApp in 2014 are at the center of lawsuits filed yesterday by the Federal Trade Commission (FTC) and forty U.S. states and territories that accuse the giant platform of having and illegally maintaining monopoly power in the “personal social networking” market. Facebook CEO Mark Zuckerberg, the lawsuits allege, strategized that it was better to buy rather than compete. Acquiring Instagram and WhatsApp, the lawsuits allege, deprives social media users of the benefits of competition—more choice, quality, and innovation.

The suits also focus on how Facebook treats companies that want to interoperate with its services. Facebook has long recognized that the ability to interoperate with an incumbent platform is a powerful anti-monopoly weapon. That’s why, say the lawsuits, Facebook attaches conditions when it allows app developers to use its APIs: they can’t provide services that compete with Facebook’s functions, and they can’t connect with or promote other social networks.

Like many antitrust suits, a key issue will be whether the court accepts the governments' definition of the relevant market that’s being monopolized. In other words, is “personal social networking services" a unique type of service that Facebook dominates? Or does Facebook compete head-to-head with everything from email to television as one player among many? That issue is sure to be hotly contested as the government and states grapple with Facebook about what other companies are part of the relevant market.

Facebook will probably also argue that its acquisitions were good for consumers and weren’t illegal from an antitrust standpoint because, even if they gave the company market dominance, they led to innovation that benefited users. Because no one can know for sure what would have happened if Instagram and WhatsApp had remained independent, Facebook will argue, the courts can do nothing now.

Tell that to former Instagram and WhatsApp users who saw the platforms they chose over Facebook be subsumed into Facebook’s ecosystem. Those users thought their preferred network, and their data, could be kept separate from Facebook’s; first because they were actually separate, and then because Facebook told them so, only to go back on its word, siphon off their data, and be opaque about the privacy implications to boot.

Antitrust regulators were mostly asleep at the wheel. Meantime, Instagram users saw the Instagram Direct logo disappear and be replaced with Facebook Messenger logo. Facebook continues to blur the lines between the two apps, we noted last month, as part of a broader plan to consolidate Instagram Direct, Facebook Messenger, and WhatsApp. In a recent messaging “update,” Facebook encouraged Instagram users take advantage of new “cross-platform messaging” features that in essence give you Facebook Messenger inside Instagram. But hey, you get innovations like colors in chats and new emojis.

Facebook will also have to defend its 2013 acquisition of VPN maker Onavo, which was specifically called out in the states’ lawsuit. Onavo’s data-gathering features were billed as a way for Facebook customers to keep their web browsing safe. But as it turns out, Facebook was using Onavo to gather intelligence about potential rivals by seeing how many messages users were sending through WhatsApp, which is what led it to buy WhatsApp. Facebook shut down the Onavo service after the practice was revealed. Whoops.

The enforcers aren’t asking that Facebook pay damages in the lawsuit. Rather, they want a court to require Facebook to divest Instagram, WhatsApp and possibly other acquisitions, and to limit the companies’ future mergers and acquisitions.

That’s the right approach. Even though company break-ups are hard to achieve—the last significant technology company to be broken up was AT&T in 1982—spinning off Facebook’s acquisitions could inject competition into a field where it’s been stifled for many years now. Even the pursuit of a break-up and restrictions on future mergers can create needed space for competition in the future. That’s why these lawsuits, though they won’t be easy to win, are a welcome sight.

Syrian refugees take citizenship oath on fifth anniversary of first arrivals

OTTAWA — A group of Syrian refugees took the Canadian citizenship oath in an online ceremony Thursday, the fifth anniversary of when the first plane carrying Syrian refugees arrived in Canada as part of the Liberal government's promise to resettle tens of thousands.

© Provided by The Canadian Press

Ibrahim Nafash, who was one of 29 Syrian refugees who participated, said he is happy it is finally happening after he and his family waited more than a year.

He said he submitted his citizenship application, along with those for his immediate family, in February 2019. They passed the exam that October, but his oath-taking was delayed until now due to the COVID-19 pandemic.

"We asked (the Immigration Department) when we will take the oath, and we were told we have to wait because of the COVID-19," he said in an interview, adding they were contacted recently to take part in the online ceremony.

Nafash, 48, said he came to Canada with his wife and two sons from Syria via Lebanon in December 2015.

Since then, he has been working as a chef for a Middle Eastern food supplier in Montreal after learning French and attending culinary school. His wife worked at a real estate company before she lost her job during COVID-19 pandemic.

When asked about the long delay in Nafash's case, Immigration Minister Marco Mendicino said Thursday that the pandemic has posed some new challenges.

"We want to welcome him and everybody else as quickly as possible," he said in an interview.

Mendicino said nearly 73,000 Syrian refugees have been resettled in Canada since 2015.

He said the 29 Syrian refugees who took the citizenship oath today are among over 43,000 new citizens participated in online citizenship ceremonies since April.

"I'm very optimistic about our ability to continue to meet a high service standard when it comes to citizenship ceremonies," he said.

Mendicino said his department is going to be moving citizenship exams online too.

The federal Immigration Department has suspended citizenship exams since the pandemic began, creating a backlog, but it said recently it will launch a pilot project to begin holding exams online for about 5,000 applicants who mostly filed before the pandemic.

"This is a perfect example of how we have adapted and evolved to become even more efficient despite the very significant disruption that has been caused by COVID-19," Mendicino said.

"My hope is that following this pilot that we will be able to scale it up significantly and become even more efficient in the future," he said.

This report by The Canadian Press was first published Dec. 10, 2020

———

This story was produced with the financial assistance of the Facebook and Canadian Press News Fellowship.

Maan Alhmidi, The Canadian Press

It's time to change the way we measure pollution

Justin Onwenu and Nicholas Leonard, opinion contributors 1 hour ago THE HILL

For decades, Democrats and Republicans have disagreed on the role and size of government. No federal agency captures this fissure more than the Environmental Protection Agency (EPA) and the changing scope of environmental regulations.

© Getty Images It's time to change the way we measure pollution

However, as much as political parties have disagreed, President Donald Trump's actions are without parallel since the EPA was created 50 years ago by Richard Nixon, a Republican. Gutting more than 100 clean air, clean water and toxic chemical environmental protections, the Trump administration has taken a dangerous approach.

Many Americans are paying more for health care, experiencing decreased quality of life and are dying from COVID-19 at higher rates because of harmful pollution. Vulnerable communities in particular, continue to be disproportionately exposed to this pollution. Given this, as we honor and reflect on the EPA's 50th anniversary, we must envision a world in which the EPA not only protects our environment, but also our health and our neighborhoods. This will require new tools and new approaches. President-elect Joe Biden, will have the monumental task of not only reinstating many of the crucial environmental protections that have been cut and rebuilding the morale of the EPA and White House Council for Environmental Quality, but he will also have the task of furthering the cause of environmental justice in an unprecedented manner. In order to truly clean up our air and protect all communities from toxic pollution, regulators will need to fundamentally shift the way pollution is measured.

Years of redlining, residential segregation and other forms of injustice have disproportionately placed environmental burdens on minority communities. In Michigan, for example, these communities make up 25 percent of the state's population but two-thirds of those living next to hazardous waste facilities. Despite the fact that the EPA civil rights regulations prohibit environmental permit decisions that have a discriminatory effect, the agency has been slow to investigate complaints of racial discrimination. While addressing the legacy of environmental injustice will certainly require greater funding and increased capacity, root causes can be addressed if the EPA works to fundamentally shift the way pollution is measured and regulated. Adjusting the facility permitting process to be more community centered and to account for cumulative impacts of air pollution is a great way to address these long standing disparities.

When polluting facilities apply for state and federal permits, their permits are evaluated on an individual, facility by facility basis, despite the fact that neighboring communities experience pollution from multiple sources. That is, if Company A submits a permit to emit pollution under emissions standards, their permit is evaluated with limited to zero consideration for the fact that company A, B and C are all located right next to each other, also emitting pollution, with a community stuck in between. In this sense, air quality regulations are enforced to keep companies compliant, not to keep communities safe. This is misguided. Communities like Detroit's 48217 zip code, "Cancer Alley" in Louisiana and Houston's East End have been deemed "sacrifice zones" by researchers, scientists and advocates because they illustrate the shortcomings of measuring pollution facility by facility. Measuring cumulative impacts could help turn this tide and New Jersey, which recently passed landmark legislation to permit individual facilities by accounting for cumulative pollution and health impacts in overburdened areas, could provide a valuable roadmap at the federal level. Some may cry foul, but this is not a novel concept. It's harder to go to restaurants, nightclubs, and the movies when the building is already packed. If fire marshals can limit the number of attendees in a crowded building to prevent injury, environmental regulators should be empowered to limit industrial facility expansions when it places communities in harm's way.

EPA regulations that work to ensure that all communities have clean, healthy air to breath also need to be dramatically improved. Currently, guided by National Ambient Air Quality Standards, the EPA measures six chemicals that are said to impact health. These chemicals include particulate matter (PM), lead, sulfur dioxide, ozone, carbon monoxide, nitrogen dioxide and are associated with higher rates of asthma, cancer and other health conditions. Current standards dictate what the EPA considers safe concentrations of each pollutant to protect public health. One glaring gap is that these pollutants are regulated individually, despite causing common health impacts. For instance, a city could have near limit concentrations of sulfur dioxide and near limit concentrations of PM and still be compliant with EPA regulations even if these concentrations cause adverse health impacts when experienced together.

Imagine if dietary guidelines, which currently recommend 2,000 calories per day, allowed you to eat 1,999 calories worth of ice cream, 1,999 calories worth of apples and 1,999 calories worth of bacon all in one day. That is the current state of National Air Quality Standards. A good diet requires a full accounting of the calories a person eats in the day, even when it comes from multiple sources. Moving forward, rather than simply setting one standard for safe particulate matter exposure and another standard for safe levels of ozone or sulfur dioxide exposure, the EPA should set a health standard that accounts for exposure to several of these chemicals together, since they all can cause respiratory health effects. Much like dietary intake guidelines account for the fact that someone may eat several types of food to reach the recommended 2000 calories per day, the EPA should develop health standards that dictate safe maximum pollution exposure that accounts for exposure from several individual pollutants that cause similar health impacts.

No community should have to suffer increased asthma rates, cancer rates and other health burdens associated with pollution. To this end, the Biden administration's EPA regulators will have the task of better protecting public health and addressing deeply rooted disparities in every aspect of environmental and climate policymaking. While making these changes will require fundamental shifts in the way the EPA measures and regulates pollution, to address long standing environmental injustice and to secure clean air for all Americans, these are reforms worth making.

Justin Onwenu is an organizer for The Sierra Club in Detroit. He is also a Public Voices fellow of the OpEd Project and the Yale Program on Climate Change Communication. You can connect with him on Twitter at @JustinOnwenu

 
Nicholas Leonard is the executive director of the Great Lakes Environmental Law Center, a Detroit-based environmental law nonprofit. GLELC regularly represents Michigan residents and organizations confronting environmental injustice.

ACTIVISM AS COMMODITY FETISH

Opinion: Colin Kaepernick's activism moves to freezer section with Ben & Jerry's flavor

Nancy Armour, USA TODAY DEC. 10/2020


© Ben & Jerry's Colin Kaepernick's face, and his taste in ice cream, is featured as part of Ben & Jerry's latest flavor.

Activism takes many different forms. A knee bent in protest. Donations to organizations that promote social justice. A group devoted to educating Black and brown children on their rights.

And, sometimes, a pint of ice cream. Caramel, with fudge chips and swirls of graham crackers and chocolate cookies.

By giving Colin Kaepernick his own flavor, Change the Whirled, Ben & Jerry’s is honoring the work the former San Francisco 49ers quarterback has already done to bring attention to police brutality against people of color. But it’s also giving his message the mass-market treatment, softening it for those who remain resistant to Kaepernick’s fight in a way only the iconic ice cream maker can, one spoonful at a time.

“That very much is our approach, this idea we can help normalize and reinforce these ideas to a more mainstream, general population audience,” Chris Miller, Ben & Jerry’s head of global activism strategy, told USA TODAY Sports ahead of Thursday’s unveiling of the new flavor.

“It’s not a particularly radical notion to suggest that police forces and policing probably are not the best way to handling things like mental health crises and substance abuse, and contextualize them for people what a different vision of public safety looks like,” Miller said. “We sit in a unique place where, I think, we’re able to do some of that work that speaks to this more mainstream audience.”

Colin Kaepernick attends Tyler Perry Studios grand opening gala at Tyler Perry Studios on Oct. 5, 2019 in Atlanta. 1/13 SLIDES © Paul R. Giunta, Getty Images REST ARE AT THE END

Kaepernick had input on Change the Whirled – which is technically a non-dairy dessert, with a vegan, sunflower butter base – and it will be a full-time flavor, available in grocery stores and at Ben & Jerry’s shops beginning in 2021. Kaepernick is donating his portion of the proceeds to his Know Your Rights Camp, which aims to “advance the liberation and well-being of Black and brown communities.” 

SWEET SUPPORT: Ben & Jerry's to stop product ads on social media, to support racial justice

"We believe our partnership with Ben & Jerry’s can serve as a model for other businesses to take uncompromising and principled positions in support of Black and brown people and their futures," Patricia Robinson, spokeswoman for Know Your Rights Camp, said in an email.

Activism and social justice are not new for Ben & Jerry’s. It has been speaking up for more than three decades now, on everything from climate change to marriage equality to eradicating racism, often long before it was fashionable to do so. When co-founders Ben Cohen and Jerry Greenfield sold the company to Unilever in 2000, one of the conditions was that it continue putting money – at least $1.1 million a year, according to The Huffington Post – toward activism.

Nor does the company water down its message so as not to offend consumers, as so many do.

When George Floyd was killed by a white police officer, setting off nationwide protests, most companies were very careful with their responses, calling for racial equality without directly indicting white Americans. Ben & Jerry’s was unflinching, putting out a statement that read, in part, “The murder of George Floyd was the result of inhumane police brutality that is perpetuated by a culture of white supremacy.”

Mixed in with product promotions on its social channels are tutorials on the role of prosecutors, qualified immunity and the gender pay gap.

“We don’t do stuff just to do it. Our goal is really to be constructive and to be a part of movement building,” said Jay Curley, Ben & Jerry’s head of global integrated marketing. “Sometimes that means we need to be out leading ... and serve as, to a degree, a beacon for folks to find their own courage to join us and, more importantly, join the movement.

“Which is really how we see change happen.”

All of which made partnering with Kaepernick a natural fit. While it was a donation to Know Your Rights Camp’s COVID-19 assistance fund that led to Change the Whirled, Curley said Ben & Jerry’s had been talking with Kaepernick’s people over the past few years.

Long before the deaths of Floyd and Breonna Taylor forced white America to have a reckoning with systemic racism, Kaepernick has been trying to draw attention to police brutality, along with the economic and social disparities that ensure the proverbial deck remains stacked against people of color.

People who challenge power and the status quo are rarely embraced right away, though, and Kaepernick was no different. His protest was twisted into a criticism of the flag or the military – a necessity in order to ignore or discredit his actual message. President Donald Trump used him to rile up his base. The NFL blackballed him. 

But Kaepernick had right on his side, and society is already coming around to see that. Polls earlier this year showed that majorities of the country now support athlete protests, and NFL Commissioner Roger Goodell has acknowledged the league mistreated Kaepernick.

By giving Kaepernick his own flavor, and putting his face on the carton where it will be seen in millions of grocery stores, Ben & Jerry’s is telling those Americans still resistant, “See? His ideas aren’t so scary.” By helping fund Know Your Rights Camp, it ensures his work continues.

"We believe in the power of representation and hope that Black and brown youth can see themselves in Colin through Change The Whirled," Robinson said. "While representation is important, history tells us that it alone cannot liberate Black and brown people. That’s why we’ll continue to build Know Your Rights Camp around political education, mass-mobilization and the creation of new systems that radically change how resources and opportunities are produced, accessed and distributed."

One pint at a time.

Follow USA TODAY Sports columnist Nancy Armour on Twitter @nrarmour. 

This article originally appeared on USA TODAY: Opinion: Colin Kaepernick's activism moves to freezer section with Ben & Jerry's flavor

Joe Biden's centrist dilemma: Police groups say he's gone too far left; activists say he hasn't gone far enough

Kristine Phillips, USA TODAY DEC. 10/2020

WASHINGTON – As President-elect Joe Biden nears inauguration, he faces pressure from opposing factions: One group believes he has shifted too far to the left; the other believes he's not progressive enough.

On one side are the more conservative-leaning law enforcement groups and unions – Biden's longtime allies after three decades in Washington – that now say the former vice president has and will continue to abandon the pro-police policies he championed as a senator.

© David J. Phillip, AP Democratic presidential candidate, former Vice President Joe Biden speaks via video link as family and guests attend the funeral service for George Floyd at The Fountain of Praise church Tuesday, June 9, 2020, in Houston.

"We're expecting to see a hard lurch to the left from the incoming administration," said Bill Johnson, executive director of the National Association of Police Organizations, which backed President Donald Trump.

On the other side are social justice activists who are skeptical of an establishment politician like Biden, are uncompromising in their call to defund the police and have already amped up pressure on the incoming administration. 

"We want something for our vote," Black Lives Matter co-founder Patrisse Cullors said in a letter last month asking to meet with Biden and Vice President-elect Kamala Harris. 

Biden seeks a diverse Cabinet: Here's who will join his administration and who might be top contenders

The conflicting interests will test Biden's reputation as a centrist politician and a negotiator at a critical time for law enforcement and policing in the United States. The deaths of George Floyd and Breonna Taylor at the hands of police and the prolonged civil unrest that followed exposed a deepening distrust in law enforcement and led to calls for significant reforms. Biden, as a candidate, drew from their deaths to call for meaningful change. 

Yet social justice activists believe any reform from the Biden administration will not go far enough. Police groups, meanwhile, believe Biden has already gone too far. 

During a townhall in Miami in early October, Biden promised to bring together stakeholders – "peaceful protesters, police chiefs, police officers, police unions as well as civil rights groups" – for conversations at the White House. 

"I do not believe we have to choose between law and order and racial justice in America. We can have both," Biden said in Gettysburg, Pennsylvania.

Those who have known and worked with Biden on criminal justice issues are optimistic that he will be able to leverage his longstanding ties with law enforcement to chart some kind of middle ground. 

"That's what he's done historically. He's brought people to the table," said Chuck Wexler, executive director of the think-tank Police Executive Research Forum. "They don't always agree with each other, (but) he's been very good at letting them express themselves."

Still, whatever Biden does, he's bound to disappoint people from both sides, said Jason Johnson, president of the Law Enforcement Legal Defense Fund. 

"If he approaches crime reducing using policing as a center point, that will upset people on the left," Johnson said. "By the same token, if he goes and implements certain reforms, there are going to be people on the policing side and pro-law-enforcement side who will be disappointed."

More: Liberals push for bold Biden agenda. They might have to work around Congress to get it

From center-right to center-left

© Charles Dharapak, AP President Barack Obama is joined by Vice President Joe Biden as he makes a statement Wednesday, Dec. 19, 2012, at the White House about policies he would pursue after the massacre at Sandy Hook Elementary School in Newtown, Conn. Obama tasked Biden, a longtime gun control advocate, with spearheading the effort.

After the mass shooting that killed more than two dozen students and teachers at Sandy Hook Elementary School in Newtown, Connecticut, in 2012, the Obama administration convened a task force of cabinet members and law enforcement leaders to weigh gun control reform.

Biden, then the Obama administration's point person on criminal justice, led the task force. 

"I remember thinking that there's only one person in the room that knows everybody," said Wexler, who was one of the several law enforcement leaders who met with Biden and other administration officials at the White House. "You can't have been in Washington and worked on criminal justice issues for the last 20, 25 years and not know … Biden. He may be the first president that's had as much experience on policing issues as any incoming president ever has."

But Biden's relationships with police groups have since fractured as his rhetoric and policies on criminal justice and policing have moved further to the left. 

"I think that he has … moved from a center-right position over time to center-left position. At the same time, police officers, by and large, have tended to move from a more center-right position to a right position," said Jim Pasco executive director of the Fraternal Order of Police, which also endorsed Trump. "Our respect for President-elect Biden has not flagged, but our disagreement in some policy areas is a new ingredient in the stew."

Jockeying for jobs: Tensions simmer inside Biden transition as new administration takes 

shape 

© BRENDAN SMIALOWSKI, AFP via Getty Images US President Donald Trump and National President of the Fraternal Order of Police Patrick Yoes speak during a "Make America Great Again" campaign rally at Harrisburg international airport in Middletown, Pensylvania on September 26, 2020.

As a senator, Biden's policies added more police officers on the streets and built more prisons.

As a presidential candidate, Biden called for more mental health services and substance abuse treatment as an alternative to imprisonment. He championed policies that would rein in legal protections for police and ban chokeholds. He promised to create a national oversight commission that would examine police departments' hiring and de-escalation practices.

"Most cops meet the highest standards of their profession. All the more reason that bad cops should be dealt with severely and swiftly," Biden said last summer in Philadelphia.

And he vowed to restore federal investigations of possible civil rights abuses at police departments – power that Biden's 1994 crime bill gave the Justice Department, but which the Trump administration significantly curtailed. 

But beefing up such investigations is bound to further alienate law enforcement groups that see them as too costly and burdensome.

Most pressing for law enforcement – and an issue the Biden administration will have to face – is rising violent crime in several cities this year, said Wexler, the think-tank executive director whose group surveyed law enforcement agencies and found that the majority of the country's largest largest police departments are seeing an increase in homicides and shootings. 
‘We know who he is’  

© Godofredo A. Vasquez, Pool Photo-USA TODAY NETWORK via Joe Biden gives a videotaped message during the funeral for George Floyd on June 9 at the Fountain of Praise church in Houston. Floyd died after being pinned by a Minneapolis police officer May 25.

On the campaign trail, Biden aligned himself with progressive causes. He talked about the need to weed out systemic racism in policing. He acknowledged that too many Black Americans die after their lives intersect with the criminal justice system. He drew from his own personal loss, telling George Floyd’s family during his funeral that he knows what it’s like to bury a loved one.

Yet, Black activists remain skeptical.

Biden was not their first choice in the Democratic presidential primary. They're relieved that Trump lost, but they're also not enthusiastic about a Biden presidency. And his role in the 1994 crime bill that critics say led to the incarceration of a disproportionate number of Black Americans remains an indelible stain on his record. 

“We know who he is. We know that he hasn’t been a strong advocate for Black people,” said Melina Abdullah, a co-founder of Black Lives Matter. “Even though there’s individual relationships that he can point to, that’s not the same thing as setting policies that make a difference on the lives of Black people.”

Biden’s campaign website, which has a page dedicated to policies for Black America, points to his sponsorships of bills that fought employment discrimination and protected Black Americans’ right to vote. In his victory speech, Biden said: “The African American community stood up again for me. You’ve always had my back, and I’ll have yours.”

But his relationship with some of the loudest voices in the Black community, specifically those who are calling for significant police reforms, seems to be off to a rough start. 

Abdullah said "it's disappointing" that Black Lives Matter has not heard from Biden's team about its request for a meeting with Biden and Harris.

"President-elect Biden and Vice President-elect Harris both understand the need for criminal justice and police reform so all people are protected and treated fairly under the law. Maintaining open lines of communication with groups committed to reform and law enforcement is paramount in achieving meaningful outcomes that make a difference in so many lives," Biden transition spokesman Cameron French said in a statement.

'Changing the tone' is key: Civil rights groups urge Biden to make COVID-19, racial justice top priorities

'Feeling of abandonment'

Bill Johnson, the National Association of Police Organizations executive director, said there's some disappointment and a "feeling of abandonment" among law enforcement leaders after hearing Biden's policy proposals and rhetoric on the campaign trail.

He notes Biden's suggestion during a meeting with church leaders in Delaware this summer, when he said officers should be trained to shoot suspects in the leg instead of in the chest or abdomen. He said the comment disregards the difficulty of hitting a much smaller, moving target at a moment of extreme stress for a police officer. 

"I think that he knows better," said Bill Johnson, who also has known Biden and worked with him for years. "He made it look like officers are trained to kill."

Still, police groups are confident they will be heard. Pasco said he expects, "at a minimum," to have a dialogue with the Biden administration.

"The underlying affection and respect (for Biden) is there to be rekindled," Pasco said. "He's been in town a long time. He knows that in Washington, some of the best results that have ever come out of Washington have come as a result of compromise."

© Jeff Roberson, AP Then-Democratic presidential candidate Barack Obama, D-Ill., and his choice for a running mate, Joe Biden, appear together outside the Old State Capitol on Aug. 23, 2008, in Springfield, Ill.

Some were also heartened by Biden's assurance that he does not support defunding the police. 

"I think the president-elect … is generally a pro-law enforcement person, (but) he is going to have to respond to elements within his own party that are going to be asking him to be very focused on police accountability," said Jason Johnson, the Law Enforcement Legal Defense Fund president.

Where there may be some wariness is around what kind of reform the Biden administration will pursue and what it means for police. 

'Strongly and loudly, defund the police'

Equally wary are social justice activists, who see Biden's longstanding ties with law enforcement and his proclivity to compromise as a cause for concern. 

"Compromise happens at the expense of progressive ideals," an organizer for Black Lives Matter in Philadelphia. "That's exactly what my worry is. It's that compromise … is going to cut out anything that is actually transformative or would represent systemic change."

Ideally, Washington wants to see a world that has shifted from policing in favor of social services that address the root causes of crime and targets programs to those who are at most risk of becoming victims or criminals.

Realistically, under the Biden administration, "what we're going to get is a bunch of reforms that are going to be sold as the answer to police misconduct, but, again, are not going to go far enough," Washington said

Biden has proposed $300 million to reinvigorate a community policing program that was enacted as part of his 1994 crime bill. The money would fund hiring and training for officers on the condition that police departments mirror the racial diversity of their communities. © VALERIE MACON, AFP via Getty Images Civic leader and co-founder of the Black Lives Matter Los Angeles chapter, Melina Abdullah, poses for a photo after voting at the Staples Center early on November 3.

Biden's transition team pointed to widespread support from civil rights groups and leaders for the program, which the Trump administration had not sufficiently funded.

Still, the increase in funding for police departments is a problem for a group like Black Lives Matter.

"We want to make sure that Biden understands that we're in a new era, and this era understands public safety as much more broadly than policing and sometimes in contrast to policing," Abdullah said. "We say, strongly and loudly, defund the police. Joe Biden doesn't have to like it."

She added: "You can’t utter the name George Floyd, as he has done, you can’t speak the name Breonna Taylor as he has done … and still stand by a system of policing that stole their lives."

Ocasio-Cortez: Biden agenda 'a little hazy'

Rep. Alexandria Ocasio-Cortez (D-N.Y.) on Wednesday said that she thinks President-elect Joe Biden's White House agenda is "a little hazy" based on his Cabinet selections.

© Greg Nash Ocasio-Cortez: Biden agenda 'a little hazy'

The New York progressive told reporters at the Capitol that Biden's incoming Cabinet needs "a more cohesive vision."

"You have an individual appointment here, an individual appointment there," Ocasio-Cortez said. "We can wrestle about whether they are bold enough or ambitious enough, especially given the uncertainty and what kind of Senate we're going to have."

"But aside from that, I think one of the things I'm looking for, when I see all of these picks put together is: What is the agenda? What is this overall vision going to be? And to me, I think that's a little hazy," she added.

Ocasio-Cortez told the reporters that she's trying to understand "the overall message" from Biden's team "in this entire Cabinet put together."

"We have a person who has a more conservative history, that's one thing, but what is the mission that they are being given in their individual agency, whether it's Transportation, Defense, OMB [Office of Management and Budget], etc.?" she asked. "What is the mandate here?"

"I just think that's something that we're looking to see is - it's something that I hope will be pushed," she added.

The progressive firebrand's comments come as Biden, who has vowed to have the "most diverse Cabinet" in American history, has announced his nominees for a number of top administration positions.

Some picks, including his choice for secretary of the Department of Health and Human Services - California Attorney General Xavier Becerra - and for director of the Office of Management and Budget - CEO of Center for American Progress Neera Tanden - have received pushback from Republicans.

Biden's nominee to lead the Pentagon - retired Gen. Lloyd Austin - has received bipartisan criticism as a recently retired military officer, which means he will require approval from Congress to have the position less than seven years since retiring from the military in addition to the standard Senate confirmation.

"Amid the crises facing the country, President-Elect Biden is building a team of qualified and competent leaders to get things back on track and advance his bold agenda to build back better," Biden transition spokesman Sean Savett said in a statement to The Hill on Thursday.

"Each of these nominees are forward-thinking, crisis-tested and experienced, and they are ready to quickly use the levers of government to make meaningful differences in the lives of Americans and help govern on day one," Savett added.

THE ORIGIN OF MY DOG ATE MY HOMEWORK

Isaac Newton’s occult homework sells for US$500K — despite dog damage

The dog didn't eat Isaac Newton's homework. It burned it.

© Sotheby's A scorched page from Isaac Newton's notes is shown.

A scorched bundle of the famous scientist's notes has sold for more than US$500,000 at auction, despite a bit of fire damage caused by his pyro pooch.

The so-called "homework" was a collection of partially burned, unpublished notes that Newton wrote about the Great Pyramids of Egypt. Newton had been trying to find a secret code in the pyramids' measurements, amid one of his fruitless plunges into the realms of alchemy and the occult.

Newton's dog, Diamond, apparently didn't grasp the gravity of his work. Legend has it that Diamond once jumped up on Newton's desk, toppling a candle onto the notes and partially burning them before the scientist could put the fire out.

The scorched notes constitute three pages of Newton's handwriting and date back to the 1680s, according to Sotheby's. The auction house sold the notes on Tuesday for £378,000, or approximately US$504,700.

"All three leaves have suffered fire damage with loss of paper and text at the edges, and have been expertly conserved and stabilized," Sotheby's wrote in the listing.

The notes show Newton puzzling over the Great Pyramids' measurements in cubits, and trying to find connections between those numbers and Biblical prophecies. Newton hoped the numbers would help him predict the timing of the Apocalypse or perhaps reveal proof of his theory of gravity, according to Sotheby's.

The man is perhaps best-known for his academic writings, his theory of gravity and his encounter with a falling apple, but he also explored all manner of religious, magical and pseudo-scientific concepts that didn't pan out.

"Newton was not the first of the Age of Reason," economist John Maynard Keynes once said. "He was the last of the magicians."

The notes offer a glimpse into Newton's magical investigations.

Newton believed that ancient humans had measured the Earth with secret methods that had since been lost. He hoped to unlock that secret by calculating the exact value of a cubit, which was a rough form of measurement used long ago. In the Bible, for instance, the measurements of Noah's ark are given in cubits.

The notes show that Newton was trying to find the value of a cubit by examining the measurements of tunnels, rooms and bricks inside the Great Pyramids at Giza. He suspected that the value had been passed down from ancient philosophers through the ages, and from the Egyptians to the Greeks.

"It is likely that when making these notes he hoped that the pyramid would give him the measure of the earth and prove gravitational theory," Sotheby's says.

Newton gave up on his investigation before publishing the Principia, his landmark work. He did not publish his occult investigations, and they only came to light in the 1930s after some of his papers were made public.

“It is not surprising that he did not publish on alchemy, since secrecy was a widely held tenet of alchemical research, and Newton’s theological beliefs, if made public, would have cost him (at least) his career,” Sotheby’s wrote.

“He left behind vast manuscript writings on biblical exegesis and other theological subjects, presumably in the hope that his secret knowledge would reach a select and receptive readership in future generations.”

It's unclear who the select reader was who purchased the notes, but hopefully they'll keep them away from dogs and open flame.

31 species now extinct, according to updated endangered list

An update to the International Union for Conservation of Nature's Red List of Threatened Species has declared 31 animal and plant species extinct

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© Fernando Trujillo/IUCN via AP This undated photo, issued by the International Union for Conservation of Nature, shows the Tucuxi (Sotalia fluviatilis) dolphin.

That total includes the lost shark, listed as critically endangered or possibly extinct, as it was last recorded in 1934, the ICUN announced on Thursday. The lost shark's habitat in the South China Sea, one of the world's most exploited marine regions, has been extensively fished for more than a century.

MORE: Humans 'likely' contributed to extinction of dodo bird, giant tortoise on Madagascar and the Mascarene Islands, researchers say

It's unlikely the lost shark's population could have persisted under current conditions, so it's probably already extinct, according to the ICUN.

Out of 17 freshwater fish species in Lake Lanao and its outlet in the Philippines, 15 are now extinct and two are critically endangered or possibly extinct, the ICUN announced. The extinctions were caused by predatory introduced species as well as overharvesting and destructive fishing methods.

© IUCN Freshwater fish species from Lake Lanao in the Philippines.

In Central America, three frog species have now been declared extinct. Another 22 frog species across Central and South America are listed as critically endangered or possibly extinct -- with the driver of the declines identified as chytridiomycosis disease, an infectious disease caused by a fungus that affects amphibians worldwide.

MORE: Back from the abyss: These are the animal species that resurfaced in 2019 after they were feared lost

In addition, all of the species of freshwater dolphin in the world are now threatened with extinction, with the addition of the tucuxi, a freshwater dolphin species found in the Amazon river system, to the list, according to the ICUN. The tucuxi population has been "severely depleted" by deaths linked to fishing gear, damming rivers and pollution. The priority actions to recover the species include eliminating the use of gillnets -- curtains of fishing net that hang in the water, reducing the number of dams in its habitat and enforcing the ban on deliberately killing them

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© IUCN The tucuxi (Sotalia fluviatilis) moved to the Endangered list.

© Fernando Trujillo/IUCN via AP This undated photo, issued by the International Union for Conservation of Nature, shows the Tucuxi (Sotalia fluviatilis) dolphin.

In the plant world, the ICUN has found that nearly a third of oak trees around the world are threatened with extinction, with the highest numbers in China and Mexico, followed by Vietnam, the U.S. and Malaysia. Land clearance for logging and agriculture are the most common threats, as well as invasive alien species and diseases, and climate change.

Species that have recovered include the European bison, the largest land mammal in Europe, which has progressed from vulnerable to near-threatened. The population has grown from about 1,800 in 2003 to more than 6,200 in 2019 after surviving only in captivity in the early 20th century. It was reintroduced to the wild in the 1950s, and the largest subpopulations are found in Poland, Belarus and Russia.

© IUCN European bison moved to the Near Threatened list.

Currently, there are 47 free-ranging European bison herds, but they're largely isolated from one another and confined to suboptimal forest habitats, according to the ICUN. Only eight of the herds are large enough to be genetically viable in the long term, so the species will remain dependent on conservation efforts, such as moving them to more optimal, open habitats, and reducing conflicts with humans.

MORE: Tortoise thought to be extinct for more than 100 years discovered in Galapagos Islands

The outlook for 25 other species has also improved, which demonstrates "the power of conservation," IUCN Director General Dr. Bruno Oberle said in a statement. The growing list of extinct species is a "stark reminder that conservation efforts must urgently expand" and that conservation needs to become incorporated in all sectors of the economy to tackle global threats, such as unsustainable fisheries, land clearing for agriculture and invasive species.

"The conservation successes in today's Red List update provide living proof that the world can set, and meet, ambitious biodiversity targets," Dr. Jane Smart, global director of IUCN's Biodiversity Conservation Group, said in a statement. "They further highlight the need for real, measurable commitments as we formulate and implement the post-2020 global biodiversity framework."