No Decision Decision
May 7, 2021
In 1919, Supreme Court Justice Oliver Wendell Holmes, Jr. wrote in his decision for Schenck vs. United States, one cannot shout fire in a crowded theater. Some fifty years later, in Brandenburg vs. Ohio, the Court clarified that decision to specify one cannot falsely shout fire in a crowded theater. That has been the standard by which free speech has been tested ever since. If the language being used is false and can be reasonably expected to cause imminent lawless action, it is not protected. Fast forward another fifty years and we find ourselves faced with a similar conundrum, but updated for the times.
Earlier this year, Facebook and other social media platforms took the unprecedented step of banning a sitting president for speech deemed as inciting lawless action. Facebook, having created its own oversight board, submitted their decision for review. The board was created specifically to deal with these plexing issues. And, in keeping with good corporate governance, the oversight board came back with a no decision, decision.
There’s the old saying about only two things being certain in life, death and taxes. But I’d suggest a third certainty exists - life will continually become more complicated and more difficult decisions are necessary. The problem is, who makes those decisions when no one (at least no one who actually grasps the magnitude of those decisions) wants the job?
Kicking the can down the road, which is what Facebook’s oversight board did, is an expedient solution. It’s a political hot potato issue no one wants to get stuck with. However, kicked cans are just waiting down the road a bit, in need of confronting. So why not make a decision and see how it works?
We don’t have to get it right the first time. In Brandenburg, the Court had to clarify a ruling from half a century earlier. A decision made today can be revisited tomorrow if necessary. Punting an issue for six months that needs an answer sooner than later is not an answer.
I wish I had a simple answer for this, but I don’t. There is no simple answer. Whatever answer we do come up with will undoubtedly upset some. And, fifty years from now, I’m sure we’ll again need to deal with a more contemporary iteration of the issue. We can look at this issue as a problem, opportunity or both. At the end of the day though, this is a question in need of an answer.
Options involve risk and are not suitable for all investors. Please read Characteristics and Risks of Standardized Options before deciding to invest in options.
tastytrade content is provided solely by tastytrade, Inc. (“tastytrade”) and is for informational and educational purposes only. It is not, nor is it intended to be, trading or investment advice or a recommendation that any security, futures contract, transaction or investment strategy is suitable for any person. Trading securities can involve high risk and the loss of any funds invested. tastytrade, through its content, financial programming or otherwise, does not provide investment or financial advice or make investment recommendations. Investment information provided may not be appropriate for all investors, and is provided without respect to individual investor financial sophistication, financial situation, investing time horizon or risk tolerance. tastytrade is not in the business of transacting securities trades, nor does it direct client commodity accounts or give commodity trading advice tailored to any particular client’s situation or investment objectives. Supporting documentation for any claims (including claims made on behalf of options programs), comparison, statistics, or other technical data, if applicable, will be supplied upon request. tastytrade is not a licensed financial advisor, registered investment advisor, or a registered broker-dealer. Options, futures and futures options are not suitable for all investors. Prior to trading securities products, please read the Characteristics and Risks of Standardized Options and the Risk Disclosure for Futures and Options found on tastyworks.com.
tastytrade is a trademark/servicemark owned by tastytrade.
tastyworks, Inc. ("tastyworks") is a registered broker-dealer and member of FINRA, NFA and SIPC. tastyworks offers self-directed brokerage accounts to its customers. tastyworks does not give financial or trading advice nor does it make investment recommendations. You alone are responsible for making your investment and trading decisions and for evaluating the merits and risks associated with the use of tastyworks’ systems, services or products. tastyworks is a wholly owned subsidiary of tastytrade, Inc (“tastytrade”).
tastyworks, Inc. (“tastyworks”) has entered into a Marketing Agreement with tastytrade (“Marketing Agent”) whereby tastyworks pays compensation to Marketing Agent to recommend tastyworks’ brokerage services. The existence of this Marketing Agreement should not be deemed as an endorsement or recommendation of Marketing Agent by tastyworks. tastytrade is the parent company of tastyworks. tastyworks and Marketing Agent are separate entities with their own products and services. tastytrade has different privacy policies than tastyworks.
Quiet Foundation, Inc. (“Quiet Foundation”) is a wholly-owned subsidiary of tastytrade The information on quietfoundation.com is intended for U.S. residents only. All investing involves the risk of loss. Past performance is not a guarantee of future results. Quiet Foundation does not make suitability determinations, nor does it make investment recommendations. You alone are responsible for making your investment and trading decisions and for evaluating the merits and risks associated with the use of Quiet Foundation’s systems, services or products.
Small Exchange, Inc. is a Designated Contract Market registered with the U.S. Commodity Futures Trading Commission. The information on this site should be considered general information and not in any case as a recommendation or advice concerning investment decisions. The reader itself is responsible for the risks associated with an investment decision based on the information stated in this material in light of his or her specific circumstances. The information on this website is for informational purposes only, and does not contend to address the financial objectives, situation, or specific needs of any individual investor. Trading in derivatives and other financial instruments involves risk, please read the Risk Disclosure Statement for Futures and Options. tastytrade is an investor in Small Exchange, Inc.