Media and Communications Policy : Media Policy & First Amendment Foundation : The Media Institute : Free Speech, Media Regulation, Content Controls

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With its peerage and royals, Beefeaters and such, Britain in the 21st century sometimes seems like a large theme park, but its historical influence on the USA is clear.  From language to culture, and above all to law, what’s happened in Britain hasn’t stayed in Britain.

Which is precisely why that nation’s new press law, which creates by “royal charter” a speech-suppressing media “watchdog,” is so much to be rued.  Briefly stated, the watchdog will have the power to oblige participating media to post apologies and take complaints into arbitration, thereby creating a system of government regulation of the press that hasn’t happened there since 1695.

It is commonly said that the tracks that led to this train wreck were laid by the misbehavior of Britain’s tabloid newspapers, and there’s truth in that.  Caught in the act after years of hacking into private e-mail and phone calls, and bribing public officials, the tabloids acted outside the bounds not just of ethical journalism, but of the law.

But the better explanation for why the British have now endorsed regulation of the press (rather than relying just on the enforcement of criminal laws already on the books) is because that country has no First Amendment. That, and also because there (as here?) there exist large numbers of people who value political correctness, and political advantage, over freedom of speech.

Indeed, though the new press rules are said to have become inevitable given the failures of Britain’s (recently extinct) Press Complaints Commission (PCC), another way of looking at it is to say that the very existence of the PCC inadvertently cleared the way for the more intrusive regulations.

Some years ago there existed in the United States a National News Council (NNC), whose charter was similar to the PCC.  It failed to take root for many reasons, but perhaps most notably because the New York Times’ Abe Rosenthal wisely refused to cooperate with it.  Rosenthal’s concern was that the NNC would fail to satisfy press critics, and that some sort of government program would then be invited to succeed it.

The British have long been accustomed to a significant degree of governmental oversight of their broadcasting companies’ content through what is called Ofcom (Office of Communications), but until now the print media have been spared that oversight.

Though billed by its parliamentary sponsors as a voluntary arrangement, the terms of the new press regulation carry onerous potential liabilities, specifically including “exemplary damages” in court, for media companies that don’t join the quango.  This may even include some companies that are based elsewhere. Indeed, one of the most powerful criticisms – from such as the New York Times and the Committee To Protect Journalists – is that the regulation assumes authority over bloggers and websites, large and small, foreign and domestic.

“In an attempt to rein in its reckless tabloid newspapers,” said the New York Times, “Britain’s three main political parties this week agreed to impose unwieldy regulations on the news media that would chill free speech and threaten the survival of small publishers and Internet sites.”

But the most compelling and powerful criticism has come from The Spectator, the British publication said to be the oldest continuously published magazine in the English language.  As Nick Cohen wrote on March 18:

The regulator will cover “relevant publishers.”  If they do not pay for its services and submit to its fines and rulings … they could face exemplary damages in the courts.  It is not just the old (and dying) newspapers, which the state defines as “relevant publishers” but “websites containing news related material.”

What “news related” material can get you into trouble?  It turns out to be the essential debates of a free society.  Dangerous topics to write about include “news or information about current affairs” and “opinion about matters relating to the news or current affairs.”  Any free country should want the widest possible range of opinions about current affairs.  As of tonight, Britain does not. 

There will be a temptation among many in this country to look past what the British have done as nothing more than the antics, as someone once put it, of an exhausted stock; not to worry about anything similar happening here.  And there’s some truth in that.  Because of our First Amendment and strong case law in defense of it, such regulation is unlikely in this country.

But it’s worth remembering that this happened in Britain at the hands of parliament and that we too have a “parliament,” and regulatory agencies, and that, as in Britain, we have organizations, like the cynically misnamed Free Press, that are constantly pushing for an expansion of government oversight of the media.

Thanks to the Founding Fathers we have some additional protection against the kind of thing that’s just happened in Britain, but vigilance is required, now more than ever.

                                             

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article titled "Keep U.K. media rules out of U.S." appeared in the print and online editions of USA Today on April 23, 2013, and can be viewed here.

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An important piece in the Wall Street Journal, profiling the president of a student free-speech group called the Foundation for Individual Rights in Education, spotlights the challenges facing free speech on the nation’s college campuses.

A recent incident at Fordham University, mentioned in the article, provides a good example.  There, the university’s College Republicans invited conservative columnist Ann Coulter to speak on campus.  Student groups opposed to Coulter and her politics protested the upcoming event, and on Nov. 9 the university’s president, Rev. Joseph McShane, S.J., weighed in on the matter in a letter addressed to the student body, faculty, and alumni:

To say that I am disappointed with the judgment and maturity of the College Republicans, however, would be a tremendous understatement.  There are many people who can speak to the conservative point of view with integrity and conviction, but Ms. Coulter is not among them.  Her rhetoric is often hateful and needlessly provocative – more heat than light – and her message is aimed squarely at the darker side of our nature.  

In the same letter, Father McShane said that the university would not stop Coulter’s appearance owing “to the Jesuit tradition of fearless and robust engagement.”  This tradition was apparently of scant comfort to the College Republicans, however.  Faced with the attacks issuing from students, faculty, and the university president, the CRs disinvited Coulter and apologized for having invited her in the first place, a development that McShane quickly and lavishly praised:

Late yesterday, Fordham received word that the College Republicans, a student club at the university, has rescinded its lecture invitation to Ann Coulter.

Allow me to give credit where credit is due: the leadership of the College Republicans acted quickly, took responsibility for their decisions, and expressed their regrets sincerely and eloquently.  Most gratifying, I believe, is that they framed their decision in light of Fordham’s mission and values.  There can be no finer testament to the value of a Fordham education and the caliber of our students.

Yesterday I wrote that the College Republicans provided Fordham with a test of its character.  They, the University community, and our extended Fordham family passed the test with flying colors, engaging in impassioned but overwhelmingly civil debate on politics, academic freedom, and freedom of speech.

Somewhere Thomas Jefferson weeps, while George Orwell is smiling.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

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In an age when, for many, political correctness (not to mention political opportunism) trumps free speech, one should be wary of assertions that specific kinds of speech have precipitated criminal conduct.

We saw false claims like this in the case of the shooting of Rep. Gabrielle Giffords (D-Ariz.), when such as the New York Times’ resident shrieker, Paul Krugman, immediately tied the crime to Republican and Tea Party rhetoric.  And we have seen it again in the wake of the murders in Libya, and the riots in other Arab countries.

The immediate reaction to the killing of the American ambassador, as announced by the State Department and the White House, was that it was an Arab reaction to a cheesy video distributed by YouTube called “Innocence of Muslims.”

Reminiscent of the Giffords shooting, though, it’s now clear that the YouTube video had nothing to do with the murders in Libya, and that if it had anything to do with subsequent anti-American demonstrations elsewhere in the region it was likely because of the prominence the American government assigned to the video in the first place.

Apart from the absence of any connection between the Libyan murders and the YouTube video, there is the question of what should be the reaction of American officials and American citizens, media included, if and when something like a YouTube video does lead directly to murderous acts here or abroad?

The answer to that question may not resonate with everyone, but it’s not difficult either.  All that’s needed is some knowledge of the First Amendment and of First Amendment case law.  If the speech in question is protected, as was clearly the case with the YouTube video, the correct response would be to regret the loss of life and to demand that those responsible be brought to justice.  If, as with “Innocence of Muslims,” the offending material was of little or no value in its own right, criticism of the material might also be appropriate.

But in all events – and particularly where the crimes committed were in foreign lands without free speech – it should also be said by our public officials that ours is a country that greatly values and protects the free-speech rights of individuals, even when such speech gives legitimate offense.

The administration’s early blaming of the Libyan killings on the YouTube video was either a rush to judgment or, worse, an attempt at the kind of misdirection as would guide the ensuing commentary away from questions about the success of U.S. policy in the Mideast and/or the adequacy of our intelligence and security operations.

Perhaps the single worst aspect of this affair was the attempt by the White House to persuade Google (which owns YouTube) to take down the offending video.  The administration’s press spokesman, Jay Carney, says they asked Google only to look into whether the video complied with YouTube’s terms of service, as though that is a distinction with a difference.

It is not, of course, and Google resisted the arm twisting and kept the “Innocence of Muslims” trailer on YouTube, though the company did take it down in a few Arab countries, a call that was and is entirely its to make.

The hounding of free speech is done these days not only by the right, but also, and more dangerously, by the left and by the adoption and overuse of terms like “hate speech.”  The threat in this becomes a matter of greater concern when public officials get in on the act.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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By guest blogger HAROLD FURCHTGOTT-ROTH, senior fellow at the Hudson Institute and a former commissioner of the Federal Communications Commission.

On September 11 and the following days, violent mobs attacked Americans and American property in Cairo, Benghazi, and cities throughout the Middle East.  Americans were murdered.  Embassies were ransacked.  Americans in the region, and even here at home, were threatened.

Many innocent victims have fallen in the path of recent violence; the First Amendment should not be among them.  Make no mistake: The violence around the world is aimed not at our country as an economic power, but at America as the champion of free speech.  Make America cower in fear, make us seek to silence unpopular voices, make us censor speech, and the First Amendment is not only destroyed.  So too is America.

America was founded not to allow mobs to destroy everything in their path, but for the opposite effect.  America is the triumph of the individual over the government, and with it the triumph of individual views, individual speech, and even repugnant individual views.  In America, we are protected from mob rule.  Those who truly hate America seek to destroy that triumph of the individual.  To see those who would destroy America, simply look at the mobs on television.

The motivations for each member of a violent mob need not be the same.  Some individuals may have a long-standing hatred of America.  Others may have been stirred to violence by an incendiary speech.  In the demonology of anti-American violence, the date September 11 is an unlikely coincidence.

But we in America have been repeatedly told a different story for the cause of violence against us.  We are told that the violence was sparked not by general anti-Americanism but by one video, supposedly made in America, and posted on one website.  The purportedly offending video was not produced by our government or placed on a government website.  So we are told, and perhaps even expected to believe, that a single video was the flame that ignited millions of people to protest, sometimes violently, against the United States.  The very story is an offense not merely to common sense but to the First Amendment.

The facts don’t support the story.  The Internet has more than 600 million websites, or about one for every 10 people in the world.  YouTube alone, the site of the allegedly offensive video, has more than 100 million videos.  For nearly 20 years, the Internet has made available more than enough content to offend just about anyone.  Yet over the same period, even the most virulently anti-American groups have not rationalized violence against America based solely on the content of a specific website.  Not until now.

Also troubling is the response of our government.  A clever government would not be ensnared in debates over the contents of documents or the views of individuals.  But rather than steer clear of judgments that impinge the First Amendment, our government has, likely unintentionally, fallen into a trap of taking positions that at best are troubling for the First Amendment.

For example, our embassies and even the State Department have issued statements that place our government in the awkward position of having opinions about the content of videos and even the intent of individuals.  Before the initial attack on September 11, the Cairo embassy issued the following statement: “The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings….”  The statement begs the questions of “Which efforts” and “Which individuals?”  The answers to these questions are not positions that our federal government should be taking.

Two days later, Secretary of State Hillary Clinton did little better when she stated: “To us, to me personally, this video is disgusting and reprehensible.  It appears to have a deeply cynical purpose to denigrate a great religion and provoke rage.  But as we said yesterday, there is no justification – none at all – for responding to this video with violence.”

First, Secretary Clinton appears to conclude that the video was in fact the cause of the violence.  Are we really to believe that but for that video, no violence would have occurred, no Americans would have been murdered, and peace would prevail in the world?

Second, while she is careful to state that it is her personal view that the video is “disgusting and reprehensible,” Secretary Clinton finds it difficult to separate her personal views from the views of the Office of the Secretary of State, an office that now appears to have views about the content of at least one video.

Perhaps even more troubling is the slippery slope the government places itself on when it comments on the content of publications, whether videos, books, magazines, newspapers, or Internet sites.  Even if the First Amendment permitted such governmental review and judgment – which it does not – does our government want to be in the position of having views about videos?

Not all offensive videos are low-budget and of poor quality.  The 1915 Hollywood film “Birth of a Nation” is repugnant in many ways.  It is commercially available on the Internet.  Does our government have a view about this movie, or any of the other of hundreds of millions of videos on the Web? 

Rather than proudly trumpet the First Amendment, the beacon of hope around the world for countless downtrodden people, including those who cannot practice religion at home, Secretary Clinton seems mildly apologetic about it: “I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.”

Yet people around the world fully understand why the United States does not “prevent these kind of reprehensible videos.”  There is no mystery.  The answer is not technology.  The answer is the First Amendment, at the core of our national values.  When the day comes that America submits to mob rule and begins censoring speech, America will have been destroyed.  And with it, the hopes and aspiration of people around the world who yearn for nothing more than the protection of the First Amendment, rights that are present nowhere else in the world.

In recent days, anti-American riots have continued around the world, purportedly aimed at one video.  International figures, even some considered “allies” of the United States, have asked us to prosecute those involved in the video.  President Morsi of Egypt is one of those leaders.  The head of Hezbollah in Lebanon has asked for continued protests against the United States over the video.

Amazingly, practically every American has seen images of a man, purported the producer of the offending video, embalmed in clothes and in police custody.  News reports tell of government officials looking into the details of the offending video.  Is this possible under the First Amendment?

One might expect ordinary Americans to stand up in outrage to the demands of foreign mobs to dictate censorship in America.  The First Amendment is under attack not from home but from abroad. 

In 1952, after being interrogated by the House Committee on Un-American Activities, Arthur Miller wrote The Crucible, one of the most powerful plays in the American canon.  It tells the story of individuals standing up to mobs and associated intimidation. 

But the reaction today is largely silence.  Many Americans join the mob.  Government officials denounce the video.  Law enforcement officials interrogate people associated with the video.  Media accounts rarely comment on the rights of individuals.

It is not merely the American media that have been silent.  The voices of America’s political leadership have provided no full-throated defense of the First Amendment.  We should not apologize for it.  We should not shrink from it.  What distinguishes America and what makes us the envy of the rest of the world is the First Amendment.  We should be proud of it.  When our loyal and dedicated government servants are murdered abroad, and murdered purportedly for America’s First Amendment, we should at least mention the liberties they helped protect.

President Lincoln in 1863 noted that the Civil War was a test of “whether that nation, or any nation, so conceived and so dedicated, can long endure.”  At the time, he was speaking of the proposition that all men were created equal.  Today, he might speak of whether a nation conceived and dedicated to the First Amendment can long endure.  We are engaged in that war now.  And we are not yet winning.

                                   

Mr. Furchtgott-Roth can be reached at hfr@furchtgott-roth.com.  The opinions expressed above are those of the writer and not necessarily of The Media Institute's Board, contributors, or advisory councils. 

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Ah, political correctness. It never disappoints.  Take, for instance, the latest eruption of civic broadmindedness brought on when the president of the restaurant chain Chick-fil-A professed his personal embrace, based on his religious views, of traditional marriage.

Outraged by the effrontery, the mayor of Boston and a Chicago alderman (Messrs. Menino and Moreno, respectively) immediately announced that they would ban the opening of the chain’s restaurants in their jurisdictions.

Never mind that Chick-fil-A had never practiced discrimination among its employees or customers, whatever their sexual orientation; it was enough for the mayor and the alderman that the head of the company expressed himself on this subject in a way that might give offense to those who disagree with him.

Alderman Moreno is especially instructive.  Having earlier said he decided to pull the plug on the restaurant after learning about the company president’s “bigoted and homophobic comments” in a Baptist publication, Moreno has now pivoted, under pressure, to saying that he’s opposed to the opening of a restaurant in his ward because of “traffic concerns.”

There's been an unfortunate unevenness in recent years in the way that the media generally have opined on free speech and First Amendment issues. In the case of the Supreme Court’s decision in  Citizens United, for example, one has to look far and wide to find approving newspaper editorials, despite the fact that it was as pure a First Amendment case as has ever come before the Court.

Much of the media have also shown a kind of benign neglect when it comes to the myriad examples of campus “speech codes.”

This time, though, the nation’s editorialists got it right! From such journals as the Los Angeles Times, the Chicago Tribune, and the Boston Globe has come a virtual symphony of criticism of the words and actions of Menino and Moreno, and all of it based on the First Amendment.  As the Times put it: “Public officials have a responsibility to carry out their ministerial tasks fairly and evenhandedly – and to uphold the principle of free speech – whether or not they like a business executive’s social or political stances.”

Makes one proud to be the head of a group like The Media Institute.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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Very few columnists write as well, or as powerfully, as Peggy Noonan, and her piece last week in the Wall Street Journal titled “The Dark Night Rises” is no exception.  As with so many of Noonan’s commentaries, the strength in her column is not just in her way with words but in the fact that her opinions are well grounded in widely shared values.

So it is that when she alleges and bemoans the coarsening of popular culture, and the difficulty parents have these days in controlling the kind of things that their children get from the media, one guesses that few would disagree.

Even the ad hominem criticism in her piece – that Hollywood executives take care to insulate their own children from what they produce, and that they have “cabanas at the pool” at the Beverly Hills Hotel – doesn’t seem exorbitantly over the top given the thrust of her argument as a whole.

But when she suggests, by quoting from a writer at RealClearPolitics, that a “hundred studies have demonstrated conclusively that viewing violence on the screen increases aggression in those who watch it, children especially,” she is on shakier ground than she realizes.

In 2002, Jonathan Freedman, a professor of psychology at the University of Toronto, published a lengthy and devastating critique of this thesis titled “Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence.”  Some years later, Dr. Freedman wrote a paper on the same subject for The Media Institute.  That paper concluded with these words:

In sum there is no convincing scientific evidence that television violence causes children to be aggressive, or that any particular depiction of violence on television has this effect, or that it affects any particular type of children more than others … my conclusion is that either there is no effect of television violence on aggression, or, if there is an effect, it is vanishingly small.

Beyond the scientific literature, whatever its value, lie other aspects of the larger issue.  There is, for instance, the small matter of whether we, as a nation, should desire for everyone only that kind of programming that is fit for children.

And then there’s the issue of violence as a literary device.  Noonan is right to ridicule some past attempts by Hollywood executives to “rationalize and defend” what they produce.  But the problem with any wholesale denunciation of program violence is that it doesn’t allow much respect for programming that, though featuring violent portrayals, is terrific all the same.

A great case in point is the production, being shown on the AMC cable network, called “Breaking Bad.”  It is the story of one Walter White, a high school chemistry teacher who, having contracted terminal cancer, takes to making methamphetamine.  “Breaking Bad” has, in its fifth season, become increasingly violent as Walter, in addition to his meth cooking, has become a murderer in the company of murderers.  So violent?  Yes.  But this is also one of the most brilliant series, of any genre, ever shown on TV.

It may be cold comfort to parents overwhelmed by the programs and platforms accessible by their children, but the only practical solution to the problem is parental oversight and responsibility for what their children watch.  Everything else – from exhortations to put the cultural genie back in the bottle, to governmental policies that attempt to circumvent First Amendment case law – is doomed to frustrate and to fail.

But that’s the thing about free speech. It’s not a prophylactic to be deployed against pictures, words, or ideas, it’s a necessary precursor to every other freedom.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

I just had the privilege of participating in a panel discussion at an American Antitrust Institute conference.  My panel included such luminaries as Eli Noam of Columbia, Gene Kimmelman of the Antitrust Division of the Department of Justice, and Susan DeSanti of the Federal Trade Commission.  Unlike many of my colleagues on the panel, I’m far from being an antitrust expert.  My topic was a more familiar one – whether enforcement of antitrust law against a search and advertising provider would violate the First Amendment. 

The question arises because of a novel proposition being advanced by Google.  The Federal Trade Commission is investigating claims that Google has violated antitrust law by manipulating search results to favor its own services and bury the services offered by vertical search engines that might compete with Google.  Google has argued that it is absolutely immune from antitrust liability because its search results constitute speech protected by the First Amendment – in fact, it asserts that the First Amendment actually “blocks” the application of antitrust law to it.  Google analogizes its work to that of a newspaper editor selecting information for publication, and seeks the same “absolute” protection that a newspaper editor would receive under the First Amendment.

But wait – newspaper editors don’t receive absolute protection under the First Amendment.  If editors’ work is absolutely protected, why did I spend last night discussing a story with an editor to mitigate defamation risk?  Why did I defend a deposition last week of a reporter attempting to keep his source confidential?  Why have reporters gone to prison in the United States to protect sources?  Why are some in Congress talking about doubling down on legal restrictions to stop leaks to the press?

The First Amendment is not absolute, and never has been, for anyone, whether they run a newspaper, a blog, or a search-and-advertising business. False and deceptive speech, as Google’s manipulated search results are alleged to be, falls outside the protection of the First Amendment.  Jon Leibowitz, chairman of the FTC, made precisely this point in an All Things Digital interview just this month, and he’s precisely right as a matter of constitutional law.  Otherwise, the FTC would have no jurisdiction to enforce privacy laws or laws against false advertising and deceptive trade practices.

Of course, non-deceptive speech also may be regulated in many circumstances.  The antitrust laws, which regulate commercial behavior to promote competition, are an example of laws that may permissibly restrict certain kinds of speech.  The plain fact is that “the First Amendment does not provide blanket protection to restraints of trade effectuated through speech,” in the words of the Department of Justice.  This principle has been applied consistently since the Supreme Court affirmed an antitrust judgment against the Associated Press in 1945, and remains the law today.

Google’s arguments that it is uniquely immune from antitrust liability, regardless of how it has abused its massive market share, remind me of the quaint musings of early Internet pioneers that law cannot apply in “cyberspace.”  But the same law that applies offline generally applies online (in the absence of online-specific legislation such as Section 230), and damage to competition that may occur on the Internet can destroy real businesses in the real world.  No one is above the law – not even Google.  Whether any of the allegations against Google can be proved, of course, remains to be seen.  But to assert at the very outset that the First Amendment actually “blocks” liability, regardless of what the FTC or a court might find, ignores the law.

If you’d like to read more, the Media Institute has graciously agreed to host my paper (available here) that addresses these issues in more depth.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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Published reports suggest that the Department of Labor is poised to delay implementation of a policy announced in April that would require reporters working in the DOL’s “lock-up” room to use government computers and transmission lines when writing stories about DOL reports and data as they’re released.  The proposed policy caused a flurry of criticism from media outlets and prompted a June 6 hearing by the House Oversight and Government Reform Committee.  DOL will announce a new start date this week, according to reports quoting an e-mail from DOL media specialist Carl Fillichio.

We’re glad to see that DOL is at least planning to postpone the policy.  Media Institute President Patrick Maines was an early and outspoken critic of this bureaucratic folly, questioning the wisdom of such a move in his May 7 post.

Let’s hope that any delay becomes permanent, and that this attempt to extend the government’s hand into reporters’ notebooks is forever banished to the dust heap of bad ideas. 

                              

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. 

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Is it appropriate to defend free speech even when it’s harsh or degrading?  Whatever their political views, do people have a right to express them?  Not for the first time, such questions are being debated in the court of public opinion.

The proximate reason for the debate, this month, is some nasty things said about a law student by Rush Limbaugh, a man who – like Glenn Beck, Keith Olbermann, Michael Moore, Bill O’Reilly, Ed Schultz, Michael Savage, and Bill Maher – makes his living by saying provocative and sometimes ugly things through the media of TV, film, or radio.

For those who believe in freedom of speech, there’s a little bit of good news amid the bad in the Limbaugh kerfuffle, but a couple things demand to be acknowledged right from the start: Neither Rush, nor any of the other on-air opinionmeisters, are scholars, statesmen, or intellectuals.  They are, instead, political entertainers whose appeal reaches as far as those who share their political views, and not one inch further.

This, and one other thing: The coordinated attacks on Limbaugh and his show’s advertisers is the product of the calculated strategy of a group – Media Matters for America (MMA) – that was created precisely to try to silence, by whatever means, right-leaning organizations and individuals.

The bad news in the Limbaugh affair is that while some people are recommending that the FCC take him off the air (Jane Fonda and Gloria Steinem), or think he should be prosecuted (Gloria Allred), and after a number of his advertisers have been cowed into dropping his show, most of the media and journalism organizations one might expect to defend him have remained silent.

From the professional journalism societies to the university-based journalism reviews and the legacy “First Amendment” groups, virtually nothing has been issued in opposition to MMA’s tactics of intimidation.

It could, of course, be argued that MMA is merely exercising its own free speech rights, and that is certainly true, but that fact need not strike dumb those people who, exercising their free speech rights, could and should criticize MMA’s tactics.

According to an AP story, the next step in the war against Limbaugh is a radio ad campaign in eight cities, using as a template MMA’s earlier campaign against Glenn Beck.  Meanwhile, the head of Media Matters, David Brock, is gloating about the negative impact his organization’s efforts are having on Limbaugh’s advertisers.

In a piece published in Politico, titled “Ad exodus dooms Limbaugh’s model,” Brock says he is confident, “seeing the reaction over the previous two weeks, that sponsors will take their ad dollars elsewhere.”  He also says, in a sentence sure to be admired by fanatics and totalitarians everywhere, that MMA “along with numerous other groups, have begun to educate (emphasis added) advertisers about the damage their financial support of Limbaugh’s program can do to their brands.”

Looking beyond the campaign against Limbaugh per se,one can see that if this kind of thing persists it won't end well for freedom of speech.  Already, for instance, a piece in the American Spectator calls for Rush admirers to contact those of Limbaugh’s advertisers who have dropped his show, the kind of thing that, along with campaigns like MMA’s, may in time have the practical effect of moving advertisers out of radio altogether.

In addition, there’s the distinct possibility that conservative groups will ape the tactics used against Limbaugh, and begin themselves to use advertiser intimidation and/or government policy to effectively shut down speech they don’t like.  Just last week Brent Bozell, head of the conservative media watchdog group Media Research Center, which has used both tactics in the past, said of the MMA campaign: “We all have free speech.”

As mentioned at the outset, there’s a little bit of light breaking through the gloom of this matter.  Though he doesn’t reference the Limbaugh affair, liberal law professor Jonathan Turley penned a piece in the Los Angeles Times this month titled “Free speech under fire,” in which he bemoans the fact that “Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy, and discriminatory language.”

At about the same time, liberal icon Michael Kinsley wrote a piece for Bloomberg titled “Case Against Case Against Rush Limbaugh.”  Among other poignant observations, Kinsley says this:

Do we want conservatives organizing boycotts of advertisers on MSNBC, or either side boycotting companies that do business with other companies who advertise on Limbaugh’s show, or Rachel Maddow’s?...

As we all know, Limbaugh’s First Amendment rights aren’t involved here – freedom of speech means freedom from interference by the government.  But the spirit of the First Amendment, which is that suppressing speech is bad, still applies.  If you don’t care for something Rush Limbaugh has said, say why and say it better.

In a perfect world, one wouldn’t need to be a policy wonk or a constitutional expert to understand the wisdom in this. But in this world, who knows?                                             

                                               

This piece was first published in TVNewsCheck on March 26, 2012. The views expressed above are those of the writer and not those of The Media Institute, its Board, contributors, or advisory councils.

 

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Though the final chapter in the legislative history of the copyright bills hasn’t yet been written, a couple things are obvious even now: The tech industry has demonstrated great political clout through the mobilization of its users and fan base; and the industry lobby, led by Google, will say and do pretty much anything to advance its commercial interests.

This provides the background for what happened within just a few days last week, as Congress was flooded with calls and mail, and petitions were signed by millions, in opposition to bills whose intent was to provide an effective way to combat content infringement on rogue websites abroad.

Didn’t matter that most fans of social media, file-sharing, blogs, and the like know next to nothing about communications policymaking, or even the details of the laws they were moved to oppose.  They know what they like, and dislike, and when manipulated into seeing the copyright bills as a threat they responded in great numbers.

None of which, of course, is to wonder why people feel more of a kinship with things like the social media than they do with the mainstream media.  The one-way and “one-to-the-many” aspects of the old media don’t empower people, or allow for their personal expression, in the manner of blogs or social media like Facebook and YouTube.

But the reason so many people were disposed to dislike the copyright bills, and their knowledge of what was actually in them, are two different things.  What moved them to act on their dislike was yet another.  For these parts of the story we have to look to the tech industry lobby, and Google most importantly.  It was Google that floated the canard that passage of the bills would forever change “the Internet as we’ve known it.”

The irony in Google’s claim was apparently lost on most of the media, tech and mainstream, which may explain why so few reporters pointed out that this alleged threat is word-for-word what the company said, 13 years ago, in opposition to another copyright bill (the Digital Millennium Copyright Act), passage of which has since proven to be a positive boon to Internet companies.

It may also explain why so few reporters pointed out that Google’s claims about the copyright bills – as precursors to the regulation of the Internet – are not just over the top but hypocritical.  It was, after all, Google that successfully lobbied, with the active help of a majority of FCC Commissioners, for so-called “network neutrality” regulations, the precedent of which provides not for just speculative but “here and now” regulation of the Internet.

Still, if crass exaggeration and hypocrisy were all that Google displayed in this regard, one might be inclined just to dismiss it as boys being boys.  But it didn’t stop there.  Google, and other groups that should know better, also gave expression and currency to the bunkum that the copyright bills amounted to an assault on the First Amendment.

That this argument was utterly demolished by the country’s leading First Amendment expert, Floyd Abrams, didn’t give them a moment’s pause, with the upshot being that this nonsense was parroted by all sorts of people as a reason for rejection of the bills.

In August of last year, The Media Institute filed a white paper with the Federal Trade Commission titled “Google and the Media: How Google is Leveraging its Position in Search to Dominate the Media Economy.”  Among other things, the paper demonstrated the ways in which Google profits from copyright infringement; that indeed the use of other people’s content without their permission has been at the heart of the company’s business plan.

Though the paper didn’t recommend any particular remedy, it asked the FTC to intervene in a way that would prevent the media economy from being dominated by a single entity.  Google’s conduct regarding the copyright legislation shows that, far from pulling back, its interest in this kind of domination is growing apace.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This piece was first published in the Dallas Morning News on Jan. 25, 2012.

 

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By guest blogger LAURENCE H. WINER, professor of law, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.   

“You taught me language, and my profit on’t is I know how to curse.”  – Caliban in The Tempest

Here’s a question the late language maven, William Safire, might have pondered listening to the recent Supreme Court oral argument in the Fox and ABC broadcast indecency cases.   What is truly “indecent” in the normative, Webster’s Third sense of the word as “not conforming to generally accepted standards of morality”:

(a) “crush videos” depicting actual, gruesome torture and killings of animals for purposes of sexual titillation;

(b) violent video games encouraging a player’s virtual infliction of grotesque mayhem on realistic human avatars;

(c) purveyors of vicious hate speech shamelessly exploiting military funerals to garner media attention; or

(d) fleeting, meaningless uses on television of commonly used expletives and the brief showing of a naked human buttocks to dramatize an awkward family setting?

Hint for those challenged since high school by multiple-choice tests: The answer is not (d).  Yet, the same justices who very recently, and most appropriately, have had no trouble deciding that the First Amendment robustly protects each of the first three categories of expression seem strangely conflicted about so-called “indecency” in the broadcast media.  George Carlin must still be laughing.

To be sure, for many years broadcasters have been their own worst enemy.  Before the 1978 Pacifica case, mainstream broadcasters shunned controversy, bowing to advertising dollars and what they assumed their audiences would not accept in adult entertainment programming.  So terrible precedent was set by the repeated “verbal shock treatment” of the Carlin monologue even when broadcast as a serious commentary on societal language taboos.  More recently, rather than forcing the issue in a favorable posture (and, perhaps, preserving their competitive position versus cable and satellite) by routinely presenting in prime time, with appropriate notice of the content, critically acclaimed adult dramas, broadcasters wound up before the Supreme Court defending inane comments of sophomoric “actresses” (that last term being used advisedly).

To be fair, however, such timidity may be understandable by a media industry anomalously denied full First Amendment protection throughout its history and at risk for increasingly large fines from the government agency that holds its license.  The Supreme Court, however, has no comparable excuse for not finally disavowing Pacifica.

In oral argument of the Citizens United case, Chief Justice Roberts noted: “[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  In U.S. v. Stevens, the “crush videos” case, he wrote for eight justices: “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.  We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”  And in Snyder v. Phelps, the military funeral case, his majority opinion eschews reliance on a “highly malleable” regulatory standard with “an inherent subjectiveness about it which would allow … impos[ition of] liability on the basis of … tastes or views, or perhaps on the basis of … dislike of a particular expression” (quoting Hustler Magazine Inc. v. Falwell).  Yet, in support of the FCC’s attempt to avoid a vagueness attack through its generic “context matters” approach to defining indecency – an indefensibly inconsistent approach that Justice Kagan justly summarized as, “nobody can use dirty words or nudity except for Steven Spielberg” – the chief justice made a telling slip of pronoun: “All we [sic] are asking for, what the government is asking for, is a few channels where you can say I’m [sic] not going to – they are not going to hear the S word, the F word.  They are not going to see nudity. “

Justice Scalia’s majority opinion in Brown v. Entertainment Merchants Association, the violent video games case, reaffirms that “disgust is not a valid basis for restricting expression” and warns of the “precise danger … that the ideas expressed by speech – whether it be violence, or gore, or racism – and not its objective effects, may be the real reason for governmental proscription.”  But Justice Scalia was very quick to endorse the “symbolic value” articulated in Justice Kennedy’s question as to whether there is “value, an importance, in having a higher standard or different standard for broadcast media on the television … an important symbol for our society that we aspire to a culture that's not vulgar in – in a very small segment?”  So, per Justice Scalia, FCC commissioners presumably may not enforce their own tastes and standards regarding violence, or gore, or racism, but anything touching on sex (well, actually, even just profanity or nudity) is forbidden.  What fate now (pace former attorney general John Ashcroft and the “Spirit of Justice”) for the bare buttocks in the marble friezes adorning the Court itself to which Seth Waxman, representing ABC, called Justice Scalia’s surprised attention?

Justice Kennedy’s remark was by way of prodding the government’s position and well may not reflect his own approach toward mandating mere symbolic value.  After all, Justice Kennedy is the staunchest protector of free speech ever to sit on the Court.  And early in his tenure, his respect for the symbolism of the American flag did not keep him from providing a fifth vote in Texas v. Johnson to overturn a conviction for burning the flag as a political protest, despite the justice’s own, expressed distaste for the result, one that his view of the Constitution demanded.

Justice Alito (who dissented in Snyder and Stevens and concurred only in the judgment in Brown), perhaps searching for an easy way out, observed (to the dismay of attorney Carter Phillips and his client FOX) that “broadcast TV is living on borrowed time.”  So, rather than intervening, perhaps the Court should let the indecency issue “die a natural death.”  But such avoidance of a current constitutional problem because the future supposedly will take care of itself is reminiscent of Justice O’Connor’s controversial majority opinion in the 2003 law school affirmative-action case (Grutter v. Bollinger), an approach that it is difficult to imagine Justice Alito joining there.  

Perhaps the most dismaying aspect of the oral argument was the scant, almost non-existent, reference to the First Amendment and the appropriate standard of review, which in any non-broadcasting context would have to be strict scrutiny for a content-based restriction of pure speech.  The government relied, with encouragement from some justices, on the old shibboleth of broadcasters enjoying a special privilege in the free, licensed use of the public airwaves for which they may be made to pay through public interest obligations, including indecency controls.  So 20th century!  And an argument well characterized even then as a mere “trope” lacking serious analytical basis. 

The only specific rationale advanced to justify the continuing, chilling intrusion on broadcasters’ and the public’s First Amendment rights was the desire to maintain a “safe haven” on broadcast television, in addition to other dedicated family channels already available, where concerned parents may leave their children without fear they may encounter what five commissioners later determine was indecent content.  (Ads, however, for erectile dysfunction medication, with warnings about “an erection lasting more than four hours,” apparently are fine, despite the questions they could prompt in young children mystified by this adult condition but not at all phased by hearing other words with which they are fully conversant.)  Even if such a “safe haven” were desirable, the justices favoring the FCC’s position showed little inclination to consider the dubious constitutionality of forcing it upon broadcasters.

Kudos, however, to advocate Phillips who reminded the Court that the FCC was relying on “thousands of ginned-up computer-generated complaints,” and did not hesitate to tell the Court that it should overrule Pacifica (though this is not necessary to rule in favor of the broadcasters).  In the constitutional highlight of the Court’s unenlightened engagement with fundamental free speech issues, Phillips definitively rebutted Roberts’s reliance on carving out a small safe haven within broadcasting because so many other unrestricted channels are available: “[T]he notion that one medium operates in a certain way in the exercise of its First Amendment rights can be used as an explanation for taking away or for restricting the First Amendment rights of another medium is flatly inconsistent with what this Court has said across the board in the First Amendment context.  You don’t balance off one speaker against another and give one favored status and give another unfavored status.”  Amen.

The usual caveat about trying to prognosticate an eventual decision from oral argument naturally applies.  Justices Ginsburg and Kagan were skeptical of the FCC’s position, as Justice Thomas has been previously, and Justice Breyer was searching for his usual noncommittal, middle-of-the-road resolution.  It is doubtful a majority will emerge to overrule Pacifica, but the FCC’s current indecency policy also is unlikely to emerge intact.  Even a 4-4 split (Justice Sotomayor recused herself) would uphold the lower rulings against the Commission.  Pacifica, unfortunately, may not be as dead as the other broad categories of recent speech restrictions, but it may be left in a vegetative state.

                                  

The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.  Prof. Winer is a member of The Media Institute's First Amendment Advisory Council.

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The technology crowd’s objections to the copyright protection bills, now moving their way through Congress, put one in mind of H.L. Mencken’s crack that criticism is prejudice made plausible.  This, because that industry’s leaders, scribes, and think tanks uniformly oppose every legislative initiative aimed at protecting copyrighted content, even as they frequently give lip service to the concept .

From the Digital Millennium Copyright Act (DMCA) in the late ’90s – which they fought tooth and nail, but cling to in today’s debates as though it were an uncle come to jail with money for the bail bondsman – to today’s Protect IP and Stop Online Piracy acts (good summaries of which are here and here), the techies profess all sorts of high-minded concerns, but never at the expense, you understand, of their business plans.

Take, for instance, Google, the 800-pound gorilla, inside and outside the Beltway, regarding all things digital.  The company’s executive chairman, Eric Schmidt, claims that attempts to crack down on rogue sites profiting from copyright infringement could set a “disastrous precedent” for freedom of speech, and also that they would encourage more restrictive Internet policies in countries like China.

This is serious stuff, and would be more serious still if (a) it were true, and (b) it issued from a company with any public policy credibility in this regard.  Alas, neither is the case.  Let’s start with the credibility problem first.

The best example of a U.S. policy that really would have (or might still) set a bad precedent regarding repressive regimes abroad is the FCC’s recently concluded Network Neutrality proceeding.  Indeed, in March of last year the U.S. Coordinator for International Communications & Information Policy at the State Department, Philip Verveer, had this to say about the subject at a Media Institute luncheon in Washington: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet … it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly.”

Though there are those, of whom I’m one, who think the FCC’s subsequently enacted Internet rules, though greatly watered down, still went too far, the more interesting thing to note in this regard is that Google was the leading figure among those lobbying in support of net neutrality.

In the summer of 2006, for instance, Eric Schmidt himself penned a note on Google’s Public Policy Blog that read in part:

The Internet as we know it is facing a serious threat.  There’s a debate heating up in Washington, D.C. on something called “net neutrality” – and it’s a debate that’s so important Google is asking you to get involved.  We’re asking you to take action to protect Internet freedom….

Creativity, innovation, and a free and open marketplace are all at stake in this fight. Please call your representative and let your voice be heard.  

And then there’s the argument, made by Google and lesser apologists of unfettered infringement, that the Protect IP and Stop Online Piracy acts undermine the speech guarantees of the First Amendment.  Whether it’s because they like the sound of the accusation, or because, not knowing any better, they actually believe it, there’s a lot of this nonsense going around the technocracy.

They might be more cautious about making such claims if they read the First Amendment analysis of the Protect IP Act written by the most distinguished First Amendment scholar of our age, Floyd Abrams.  In a 12-page letter sent on May 24 to Senate Judiciary Committee members Leahy, Hatch, and Grassley, Abrams lays out a compelling argument that the Act is consistent with the First Amendment, and concludes with these observations:

Among a range of objections, two core critiques stand out.  First, there is a recurring argument that the United States would be less credible in its criticisms of nations that egregiously violate the civil liberties of their citizens if Congress cracks down on rogue websites.  Second, there is the vaguer notion that stealing is somehow less offensive when carried out online….

I disagree.  Copyright violations are not protected by the First Amendment.  Entities “dedicated to infringing activities” are not engaging in speech that any civilized, let alone freedom-oriented nation protects.  That these infringing activities occur on the Internet makes them not less, but more harmful.  The notion that by combating such acts through legislation, the United States would compromise its role as the world leader in advancing a free and universal Internet seems to me insupportable.  As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one’s intellectual creations.  This legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.

Abrams’ last point is especially noteworthy.  Not only is the current concern with copyright protection  nothing new, it is in fact as old as the country itself.  Reading the overwrought diatribes of the tech community one might get a different impression, but in fact it’s all there in black and white, among the “enumerated powers” in Article 1, Section 8 of the U.S. Constitution.

For those who have forgotten, or never knew, this so-called copyright clause empowers Congress “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”

Language and wisdom, that is to say, that is not the contemporary creation of the heads of the motion picture studios, but of the Founding Fathers more than 200 years ago.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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Even the most basic facts are in dispute.  Was Hank Williams Jr. fired by ESPN or did he quit?  Was Williams’ comment (Obama playing golf with Boehner like Hitler playing golf with Netanyahu) a comparison of Obama to Hitler, or was it an analogy of the irony in meetings between enemies?  And if it was in fact a comparison of the men in question, rather than an analogy, how do we know that Williams wasn’t comparing Obama to Netanyahu, or Boehner to Hitler?  Or was Williams’ separation from ESPN, whether he resigned or was fired, a consequence of other things he said?

We may never know the answers to these questions, but there are some things we can know.  We can, for instance, know to the point of a moral certainty that this flap is not a First Amendment issue.  No court in the country would adjudicate this matter along the lines of First Amendment case law.

There is no doubt that ESPN was within its First Amendment rights to do what(ever) it did.  There was no governmental involvement in this matter, and though Mr. Williams certainly has his own First Amendment rights, they do not extend, under constitutional law, to his continued employment by ESPN.

All this said, nobody who believes deeply in freedom of speech, both as an individual right and as a vital and salutary aspect of citizenship in a democracy, can be happy about any of this.  It is, sad to say, just another example of the steady erosion of freedom of expression in an age of political correctness.

As written on an earlier such occasion, one wonders where the push to sanitize speech along PC lines will end.  There’s no gainsaying that some kinds of speech are ugly and hurtful.  But increasingly, political correctness seems to be working in a way that shuts off honest debate and discussion, and seeks to isolate politically those people whose views or statements are seen not just as offensive but as undermining aspects or elements of the status quo.

Most people with knowledge of the matter understand that the actions of the MSM, regarding issues like those in the Williams affair, can be explained by the media’s fear of damage to their “brands,” often in consequence of retaliation by organized single-issue and special-interest groups, who frequently mount campaigns against the offending media’s advertisers.  Looked at this way, the MSM’s acquiescence in things PC is understandable, but history may show that understandable was not good enough.

Media companies depend on more than the constitutional protection of the First Amendment for their free rein – they rely crucially on the goodwill they create with the public.  The problem with giving lip service to freedom of speech, while breaking it to the saddle of political correctness, is that over time this can erode the public’s confidence in the media as faithful stewards of free-speech rights broadly speaking.

Several years ago, The Media Institute created and launched a national celebration called Free Speech Week, which this year begins today. That we decided to name it this, rather than, say, First Amendment Week, was no accident.  We put free speech in the name of it because we wanted to celebrate and promote not just those kinds of speech that are constitutionally protected, but those that are not as well.  Episodes like the Hank Williams affair demonstrate why it’s so important that this movement grow and prosper.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

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Seventeen months ago the FCC teed up what until last Thursday was known as the “Future of Media” project.  For all practical purposes the project’s report, now called “The Information Needs of Communities,” is likely to be forgotten in half that time.

On the face of it this sounds like a criticism.  Far from it!  For its thoroughness and level-headed analysis, and especially for its acknowledgment of the constitutional limits on governmental involvement in the media, this report, and its principal personnel – most notably the man brought in to oversee the effort, Steven Waldman – are owed a debt of gratitude.

Before this project began there arose a powerful network comprised of ideologically motivated activist groups like Free Press; academic institutions and their publications, like Columbia University’s CJR; and deep-pocketed grant-giving groups, most importantly the Knight Foundation; all in the vanguard of what is euphemistically called the “media reform” movement.

And as Chairman Genachowski himself acknowledged, it was the work of these players – most notably the Knight Commission (a creation of the Knight Foundation, which two years earlier released a similarly titled report) that prompted the FCC’s own project.

So with this as its provenance, who would have been surprised if the report had embraced the media reform crowd’s recommendations?  But, mirabile dictu, it did not!  Instead, the report effectively dismisses the worst aspects of the media reformers’ governmental agenda.  Missing or explicitly rejected, for instance, are increased funding of public broadcasting, a “Geek Corps” for local democracy (patterned after AmeriCorps), federal tax credits for investigative journalism, and calls for a halt to media consolidation.

In fact, one of the few “action elements” in the report was a call for less government regulation.  As remarked by media reporter John Eggerton, the report “recommended scrapping the FCC’s ascertainment rules … as well as closing the localism proceeding without taking steps like creating community advisory boards to weigh in on public interest programming.”

There are those of us who believed that it was a mistake for the FCC to engage in this project at all – first out of conviction that the FCC had no authority to venture so far afield, and second out of fear that the report might provide the impetus for intrusive and unconstitutional regulations or legislation.  But in light of what the project report says, and doesn’t say, the feeling now is that some good will come of it.

After all, the “media reformers” will never have a better setup than they had here. With a Democratic majority on the Commission, a substantial infrastructure of activists and their financial enablers, and a media industry that is in fact struggling, if ever there were a time when the reformers’ wish lists might find policy traction this was it.  And now they have their reward: an exhaustive report that almost completely ignores that part of their agenda requiring governmental action.

During the Clinton era, many of the same kind of people who today support media reform helped man a presidential commission that came to be known as the Gore Commission.  Its focus was on the “public interest obligations of broadcasters in the digital age.”  And like the agenda of today’s media reformers, it encouraged government action in ways that undermined the First Amendment.

In the end, the Gore Commission produced its own report, a document that was as dense as it was feckless, and the whole enterprise sank from public consciousness almost immediately – as well it should have, since it produced nothing of value.  The guess here is that the FCC’s Information Needs of Communities report will also sink from public consciousness – not because it lacks value (its scholarship and usefulness as a research document are undeniable, for instance), but because it wisely steered clear of recommendations advanced by the more feral elements within the media reform community – people, for instance, like Commissioner Copps, a long-time spear carrier in that army, who immediately released an impassioned denunciation of the report.

Had the report endorsed radical (and preposterous) things, like a federal tax credit for investigative journalism, it would have attracted more ink, and been the subject of conversation far longer.  But it's a credit to its authors, and to Chairman Genachowski, that it did not do so, because it shows they possess both a realistic view of the scope of the FCC’s limited authority and a healthy respect for the First Amendment.

                                  

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

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In yet another demonstration that the human race is not yet won, Congressman Jim Moran (D-Va.), no stranger to political funding controversies himself, will soon be headlining what its organizers call the "Rally Against Citizens United."

Subtitled the "Campaign To End Corporate Dominance of Our Democracy," the rally is cosponsored by Washington-area Democratic party groups, MoveOn, and the AFL-CIO.  So in other words, it’s a completely disinterested group of people, whose opinions about Citizens United are the result solely of idealism and objective cerebration – without even so much as an itsy bitsy teeny weeny hint of a political motive.

And it’s a good thing, too!  Because, you know, were people to subject a Supreme Court decision, decided on constitutional grounds, to rude political pressure it might seem to some like an assault on the independence of the judiciary itself.

Happy to report, literature distributed by the organizers makes ominous reference to the “increasing and pervasive corporate takeover of American politics,” a warning that, despite evidence of the precise opposite (see: Tea Party), consists of precisely that amount of ideological fanaticism that the times require.

So, thanks in advance to everyone involved for your selfless, not to say scholarly, contribution to our national discourse.  May an awakened nation be your reward.

                                   

The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

 

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For the most part, objections to the FCC’s new “network neutrality rules” – codified in December to preserve a “free and open” Internet despite a lack of evidence that anything less was the ongoing condition already – have centered on the probable negative impact on investment in the broadband space, and on the ability of Internet service providers (ISPs) to manage their networks efficiently.

And why not?  After all, this is a time when even President Obama is recommending regulatory reform, and the net neutrality regulations impose substantial new reporting obligations, even as they fail to provide a clear understanding of what network management practices are acceptable.

Important as these concerns are, however, there is another problem with these rules, and that is the degree to which they conflict with the First Amendment.  Though this argument has been propounded by such notables as Laurence Tribe and FCC Commissioner Robert McDowell (who dissented from the FCC’s Order), it has gotten very little coverage in news or opinion stories.

But that may change if a lawsuit filed in federal court last month by Verizon survives the FCC’s motion to dismiss.  Indeed, if this case were to reach the Supreme Court, it might provide yet another example, a la Citizens United, of laws or regulations undone because of their constitutional infirmities.

So what are the First Amendment problems with the net neutrality regulations?  Broadly speaking, there are two: The regulations fail to recognize that broadband ISPs are speakers for First Amendment purposes; and they interject the government into private decisions about speech.

Commissioner McDowell elaborated on this first point in some detail in delivering his dissenting opinion.  “I question,” he said, “the Order’s breezy assertion that broadband ISPs perform no editorial function worthy of constitutional recognition.”

It is undisputed that broadband ISPs merit First Amendment protection when using their own platforms to provide multichannel video programming services and similar offerings.  The Order acknowledges as much but simply asserts that the new regulations will leave broadband ISPs sufficient room to speak in this fashion – unless, of course, hints elsewhere in the document concerning capacity usage come to pass.  So while the Order concedes, as it must, that network management regulation could well be subject to heightened First Amendment review, it disregards the most significant hurdle posed by even the intermediate scrutiny standard.  The Order devotes all its sparse discussion to the first prong of the intermediate scrutiny test, the “substantial” government interest, while wholly failing to address the second and typically most difficult prong for the government to satisfy: demonstrating that the regulatory means chosen does not “burden substantially more speech than is necessary.”

In comments submitted to the FCC by Time Warner Cable, Harvard constitutional scholar Laurence Tribe, who served as a judicial adviser to President Obama’s election campaign, made a number of kindred observations about net neutrality and the Constitution.  Two paragraphs, in particular, are of special note:

Net neutrality proposals rest on the mistaken premise that the Constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.  In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.  Inconsistent with that purpose is any notion that government might properly limit private decisions, such as those by BSPs (broadband service providers) regarding the control of their networks, in order to widen the access of some to the avenues of speech or to swell the aggregate amount of speech beyond whatever would result from the decisions of private speakers enjoying “absolute freedom from First Amendment constraints.”...

Many net neutrality proponents argue that BSPs are not actually engaging in speech that implicates the First Amendment.  But they are incorrect.  The Constitution applies equally even outside traditional print or electronic media, so that, for example, the government cannot require an individual to open his doors and turn his home into a forum for protesters.  Further, like a newspaper, a BSP has a limited capacity to distribute information and accordingly enjoys the right to decide how to apportion that space.  And as noted, BSPs make decisions about the delivery of particular content as they continue to innovate in the products, services, and business models they employ.

Quite apart from net neutrality’s First Amendment problems in the United States, there is an international aspect that is also troubling to those who recognize the importance of free speech around the world.
 
In remarks delivered in Washington last year to The Media Institute, the State Department’s Coordinator for International Communications and Information Policy, Ambassador Philip Verveer, said the following: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet ... it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly....”

For his candor, Ambassador Verveer received criticism from net neutrality proponents inside and outside the administration, but his point survives. It's really not such a difficult concept to apprehend: When governments acquire regulatory authority over media and communications they are that much closer to being able to control the content and distribution of those media and communications, however benign the rationale for their regulatory authority may seem.

As mentioned at the outset, the First Amendment aspects of net neutrality have gone largely unreported, and there is little doubt that most of the briefs filed in support of Verizon’s case will accentuate other problems with the regulations.  But for those of us who follow free speech issues closely, the constitutional baggage is a thing of great interest and possibly great consequence.

                                           
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

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OK, so right off the bat let’s deal with what NPR’s firing of Juan Williams is, and what it is not.  It is a free speech issue, but it is not a First Amendment issue.  This is an important distinction because while many First Amendment issues involve freedom of speech, and many free speech issues involve the First Amendment, it is not the case that all free speech issues are First Amendment issues.

At bottom, the Speech Clause of the First Amendment is a proscription on what government can do to the media, not on what the media can do themselves.  As a practical matter what this means is that NPR’s management had the right to do what they did, and that, were this matter to go before a court, its resolution would not turn on First Amendment case law.

This said, the wisdom of the action taken, and what it suggests about the future of freedom of expression generally, are very much at issue here.

People of a certain age may remember the sad case of Jimmy (the Greek) Snyder, who was fired by CBS for some bizarre off-the-cuff comments he made about black athleticism while having a meal at a Washington restaurant.  Other similar cases are those of Don Imus, and more recently Helen Thomas and Rick Sanchez.

So while there are some important differences in these cases, we’re beginning to see a pattern here: When reporters and commentators say things that arguably offend minorities (and thereby disturb the politically correct equilibrium) they get fired.  And the question is whether this is the right, or even the intelligent, way to deal with such issues, especially for media companies?

It used to be believed that the best way to handle speech that is unfair or false was for more speech, not less, and by that measure a better way to have resolved many of these matters would have been for management to issue comments that mock, or directly challenge the falsities, in the offending comments.

Though the dust hasn’t even begun to settle, it’s already clear what many people, of varying political stripes, think of the way NPR has handled the Williams affair: They think it’s a disaster.  As Howard Kurtz, formerly of the Washington Post, put it in a Daily Beast piece: “His firing has backfired, handing FOX a victory and making Williams a symbol of liberal intolerance — on the very day NPR announced a grant from George Soros that it never should have accepted.”

Indeed, the Soros revelation, combined with Republican and (especially) conservative antipathy for taxpayer support of PBS and NPR, guarantee that the Williams flap is not going away any time soon.  As lamented here, there has been a coordinated and richly financed effort underway for months that has, as part of its aim, a substantial increase in government funding for public media generally, and that would oblige PBS member stations to redirect their news programs to more local coverage — the very thing that Soros’s contribution is designed to facilitate at NPR.

But that is a story that will play itself out in days to come.  Front and center now is the question of the impact of the Williams affair on NPR, in which regard it might be useful to examine a couple statements; the offending one, made by Williams, and another, made after his firing, by the president of NPR, Vivian Schiller.

Here’s Williams’s comment: “Look, Bill, I’m not a bigot.  But when I get on a plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.”

And here’s Schiller’s: “Juan Williams should have kept his feelings about Muslims between himself and his psychiatrist or his publicist.”

Under pressure, Schiller later apologized for her remark, but going forward that may not mean much.  Put it this way, of these two comments which one do you think is the most mean-spirited and intemperate?  And of the acts at issue — Williams’s comments or his firing – which one do you think does more damage to NPR?

Yes, I think so too.

                                                                           

The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

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This week, Oct. 18 to 24, is National Freedom of Speech Week (NFSW).  The Media Institute created NFSW in 2005 in cooperation with the National Association of Broadcasters Education Foundation as a chance for groups and individuals to celebrate the free speech and press that we enjoy thanks to the First Amendment, which protects most speech from government censorship.

The event has grown every year as more organizations have joined the celebration.  This year, however, we have seen a real spike in participation.  Much of this has come from colleges and universities, where professors of communications and law, in particular, see NFSW as an opportunity to host debates and discussions on freedom of speech.

We’re also seeing a big jump in persons writing about National Freedom of Speech Week, and free speech generally.  Much of this is happening in blogs and tweets, as opposed to traditional news stories, by all sorts of people with all sorts of interests who have at least two things in common: They take full advantage of their ability to speak freely, and they generally do so through digital means of communication.

And this is precisely what National Freedom of Speech Week is meant to celebrate.  We are all speakers, and we all have the ability to speak our minds without fear of government censorship.  Many of our large Partnering Organizations are conducting innovative programs, contests, and activities to raise awareness of free speech.  We salute them – and we will do our best to compile a list of their activities to document NFSW 2010.  

In the meantime, we tip our First Amendment hat to the bloggers and tweeters who are using their digital devices to create a new and exciting dialogue about freedom of speech and the First Amendment.  Their free speech is truly the language of America.

The National Freedom of Speech Week website is at freespeechweek.org.   

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The Yale Law Journal has just published online an article by Floyd Abrams.  In language that is stirring in the power of its logic and elegance, yet solemn as a wake, the famed constitutional lawyer writes of his dismay over the way so many scholars and journalists have treated the Supreme Court’s decision in Citizens United, which largely overturned the law commonly called McCain-Feingold.

Abrams is neither surprised nor disappointed that these critics didn’t like the decision; his despair stems from their failure even to acknowledge the most obvious First Amendment aspects of the case.  They have, he says, treated the ruling “as a desecration.”

Many people will review this article narrowly, in that they will focus their comments, pro and con, on the law and facts of the case at issue.  But I view it from a wider perspective.  I think it’s one of the grandest examples in recent memory of the courage that’s required these days to defend and promote free speech even-handedly.

More than this, I think it guarantees, if any such were needed, that Floyd Abrams will go down in history as the greatest First Amendment champion of our era.

In part it has to do with the gentleman’s style.  Far from engaging the critics with language (like their own) that vilifies, Abrams flatters some of them for their scholarship.  Rather than retreat to the safety of quiescence or worse, he calls out even such as The New York Times, his client in the celebrated Pentagon Papers case.  And rather than indulge in any sort of self-pity, Abrams doesn’t even mention the scurrilous attack on him (because he wrote an amicus brief in opposition to McCain-Feingold) by Keith Olbermann, who predicted that Abrams “will go down in history as the Quisling of freedom of speech in this country.”

Summing up the essence of his argument, Abrams writes: “When I think of Citizens United, I think of Citizens United.  I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency.  And I ask myself a question: If that’s not what the First Amendment is about, what is?”

But enough of this.  Abrams’s piece is so powerful that nothing I say can embellish it.

Read it, and learn.
                                   
                
The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.

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There’s no intelligent life elsewhere in the universe, but chowderheads abound there.  We can infer this from the cosmologists’ predictions of Earth-like planets, and from the way our elected leaders demonstrate the density of Homo sapiens.

Take, for instance, Sen. Al Franken.  In an opinion piece written last week for CNN.com, the gentleman unburdens himself of what may be a record number of non sequiturs per column inch.  For those of you who’d like to judge this for yourself, here’s the whole of the thing as written.

For those who haven’t got the patience (and you know who you are), here’s an abridged version with commentary.

 “Our free speech rights,” says Al, “are under assault — not from the government but from corporations seeking to control the flow of information in America.”

(And what’s the evidence of that?)  “Telecommunications companies want to be able to set up a special high-speed lane just for the corporations that can pay for it.”

(And what has that got to do with our free speech rights?)  “Perhaps,” says Al, “those companies will discriminate based on whose political point of view conforms to their bottom line.”

(And what’s the evidence of that?)  “In the 1990s, Congress rescinded rules that prevented television networks from owning their own programming,” and afterwards the networks started favoring their own entertainment programs.

(And this is evidence that telecom companies will discriminate on the basis of non-conforming political views?)  With all these mergers “we’ll end up with a few megacorporations in control of the flow of information.”

(And so, Senator, what’s the moral here?)  “Net neutrality … it’s the most important First Amendment issue of our time.”

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Now that FCC Chairman Julius Genachowski has proposed what Broadcasting & Cable’s John Eggerton artfully calls a “Title II Lite” approach to broadband regulation, it’s a good time to take a second look (or maybe your first) at a recent paper by Robert Corn-Revere.

Bob wrote a Perspectives policy paper for The Media Institute titled “Defining Away the First Amendment,” which we released May 4.

This noted First Amendment attorney makes a crucial point – but a point that has not received adequate attention: “The FCC’s current ability to change the level of First Amendment protection for a medium simply by changing its regulatory definition is quite limited, if not nonexistent.”

Whoa, you mean there’s a First Amendment dimension to this reclassification debate?  You’d never know it by listening to the FCC, or to “net neutrality” supporters like Free Press.  Maybe that’s not surprising, since the First Amendment could very well prove an unwelcome stumbling block for Chairman Genachowski and his net-neutrality ilk.  Easier for them just to ignore it.

But, I would suggest to you, the First Amendment is far too important to ignore here.  In his issue paper, Bob Corn-Revere has shed some much-needed light on a pivotal concern that the FCC has tried to keep in the shadows.  Taking a “lite” approach to Title II reclassification doesn’t absolve the FCC of its constitutional obligations.  If anything, we need more “light” from Bob and others who are willing to hold the FCC accountable for the First Amendment ramifications of its regulatory agenda.

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Christian theologians refer to the first three books of the New Testament as the synoptic gospels.  This, because of their similarities in content and order.  The new religion of “media reform,” whose principal tenet is that government needs to “save” journalism, is developing its own synoptic gospels – the gospel according to the Knight Foundation, Free Press, and just now rounding into view, the FCC.

For those who, until now, have enjoyed the luxury of knowing little about the handiwork of this threesome, a few words are in order:

The Knight Foundation (the vestigial remains of the defunct Knight-Ridder newspaper empire) is one of the country’s largest grant-giving foundations, with assets in the neighborhood of $2 billion.  Like Glenn Close in "Fatal Attraction" ("I won’t be ignored, Dan"), the Knight Foundation is not going away.

Through its gifts to educational and nonprofit organizations, the foundation funds journalism programs as its “signature work.”  It recently joined forces with the Aspen Institute to create the Knight Commission, the product of whose labor is the recently released report on the Information Needs of Communities in a Democracy (not to be confused with the information needs of community Democrats), an opus that, as reported here, is trivial and irrelevant, about 50-50.

Free Press is the absurd name of a paleoleftist organization that sees government influence over the media as a way to advance its larger political views, a point made both explicitly and inadvertently in the published opinions of the group’s founder and Maximum Leader, Professor Robert McChesney.  Free Press (or its lobbying arm, the Free Press Action Fund) convenes national “media reform” conferences; encourages laws and regulations that aim to increase the role of public media and reduce that of the commercial media; and coins amusingly infantile slogans like “Net neutrality: the First Amendment of the Internet.”

The FCC, of course, is the regulatory agency with sway over the affairs of the media, which, under chairman Julius Genachowski, has embarked on a number of “media reform” initiatives that parallel, if they aren’t in actual collaboration with, those of Free Press and the Knight Foundation.

Genachowski, for instance, was presented with a copy of the Knight Commission report at a publication ceremony at the Newseum, and in an interview with Broadcasting & Cable, the head of the FCC’s Future of Media initiative made explicit reference to the Knight Commission in answer to a question about what form his recommendations would take.

So what “media reform” policy positions do these organizations share?  As shown in their own comments or testimony, that of groups they fund, and/or that of others writing about them, at least three items can be identified.  They favor “net neutrality,” increased funding for public media, and an expanded role, through explicit tax breaks or other changes in the tax laws, for nonprofit organizations.

Looked at one at a time, and from a distance, none of these may seem like an unreasonable objective.  But taken together, and examined closely, they constitute a profound assault on some of our most cherished ideals about the media and its role in our national affairs.

Take “net neutrality,” for instance.  In both the literal and figurative sense of the term, network neutrality is the condition that obtains today.  Nobody is being favored or denied by ISPs of anything worth talking about.  But the proponents of net neutrality don’t want to leave well enough alone.  At the prospective cost of a reduced build-out of the broadband infrastructure (and the guaranteed intrusion of government into the affairs of the hitherto unregulated Internet), Free Press, the Knight Foundation, and the FCC want to codify and extend the Commission’s so-called Internet principles.

But by putting the camel’s nose of government under the tent of the Internet, codified net neutrality regulations would threaten the independence of the freest communications sector in the country, and thereby pose a direct challenge to both the letter and the spirit of the First Amendment, as well briefed by constitutional scholar Lawrence Tribe.

Proposals to change the tax laws so as to permit for-profit media companies to operate, in whole or in part, as nonprofits, or to explicitly authorize gifts to commercial media from nonprofit grant-giving foundations, or (as the Knight Commission recommends) to provide tax credits for investigative journalism, are similarly problematical.

As with net neutrality, the threat in amending the tax laws along these lines is that by doing so one lets the fox in the hen house.  How, for instance, would it be possible to insulate the media from charges of bias, and the concomitant threats to their tax-exempt status, when their political coverage offended one party or the other?  Might this not have the practical, if not the intended, effect of reducing the amount and kind of political coverage, like candidate endorsements?

Calls for greater funding of public media like NPR and PBS, through the Corporation for Public Broadcasting, are not so much constitutionally objectionable as they are ludicrously untimely.  Here we are as a nation, teetering on the brink of insolvency and with millions unemployed, and the recommendation is that we spend more taxpayer dollars on... public broadcasting?  Even without obliging PBS stations to commit suicide by requiring them to reorient their news programming toward local news (as all of the media reform advocates recommend), surely this idea is going nowhere soon.

Nor should it. News coverage by the public media in the United States represents a tiny, and because of that tolerable, adjunct to the vastly more important commercial media, whose independence from government is the sine qua non of its editorial independence.

Whatever one’s qualms or fears about the media of the future, the importance of independent (read: commercial) media is clear.  For this reason, the crisis in “medialand” is no cause to throw the baby out with the bath water, particularly where the “solutions” offered – like those of the media reform crowd – ignore decades of experience in the way the world works.

There are some people who understand this and some who don’t, but should.  An example of the former is FCC Commissioner McDowell who, in obvious discomfort by the direction the agency’s media initiative appears headed, has questioned the “constitutional, legal, and policy implications” of any government effort to “preserve or change journalism.”

Those who, in large numbers, do not get it include much of the “netroots nation” and progressives generally.  But here’s an exercise that might provide a cure for this.  Imagine a time, not too many years in the future, when the GOP controls the presidency, the House, and the Senate.  The Republican president has appointed a majority of the commissioners at the FTC and the FCC, and has, like all presidents, substantial influence with the independent agencies.

In this environment, how confident would progressives be that the Republicans would not attempt to use the FCC’s oversight of the Internet, as established through the years-earlier codification of net neutrality rules, or sway over the committees of Congress (and through it of the CPB), to influence the content of the media, commercial and public?

It is, of course, a rhetorical question.

First published here on The Huffington Post, Feb. 22, 2010.

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Nothing’s quite so inspiring as the sight of journalists, in high dudgeon, trashing the First Amendment.  Such has been the rule since last Thursday, when the Supreme Court issued its opinion in the campaign finance case called Citizens United.

For the uninitiated, the cause of the hysteria, at places like The New York Times and The Washington Post, is the Court’s entirely correct decision to liberate political speech from the clutches of the Federal Election Commission, such that labor unions, for-profit and nonprofit corporations will hereafter be able to spend general funds on the placement of issue ads and other kinds of what the FEC refers to as “electioneering communications.”

Because campaign finance “reform” has always been a hotly politicized issue, it’s not surprising that politicians, from the White House to Congress, have weighed in on this issue with more heat than light.  But it’s something else again to see journalists – all of whom zealously guard and enjoy their own First Amendment rights – turn a blind eye to those same rights where they’re someone else’s.

The journalists’ criticism of the Court’s decision is (1) that it is unnecessarily overbroad; and (2) that it will allow corporations (by which they mean large for-profit corporations) to dominate the political environment by the fact, or threat, of campaign advertising.

Even if one takes these journalists at their word – that their motive is a value-free concern for the political process rather than a tawdry reflection of their own political biases – we can say without fear of contradiction that, at least in this regard, they value the political process more than they value free speech.

Among the citizenry generally, such sentiments would be neither unexpected nor especially hurtful, but when they issue from journalists they are both.  This, because as people who are professionally engaged in such matters know, the Speech Clause of the First Amendment is not divisible by its applications.  It doesn’t apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some.

And the simple truth is that if you weaken the First Amendment in any area you weaken the whole of it.  This comes about because of the way that precedent is applied, not just in the courts but in policymaking venues as well.

Corporations enjoy constitutionally protected speech rights even where the speech in question is just commercial speech (speech that does no more than propose a commercial transaction.)  There’s no question about this.  There is lots of case law, most notably in Central Hudson.  Given this, how much greater is the value, under the Constitution, of their political speech?

The constitutional weakness in the journalists’ criticism of Citizens United to one side, they are also wrong on its political effects.  Corporations, particularly large and publicly owned corporations, are loath to spend their general funds on election campaigns.  This, because they know that, by doing so, they will inevitably attract criticism from some of their stockholders, and from the disfavored party and candidate(s), in any given election.  Corporations much prefer to stay out of election contests, and to allocate even their PAC money to incumbents, or to both incumbents and challengers.

And what if, despite the general aversion, it sometimes happens that corporations do spend general funds on election campaigns?  Given their reluctance to get involved in this way, perhaps the public ought to hear what they have to say.  It’s not, after all, as though such corporations are without their constituencies.

Indeed, when you consider the vast number of stakeholders that any large company has among its employees, stockholders, vendors, and customers, the company’s views are vastly more representative and diverse than those, say, of the editorial board of The New York Times.

As for the argument that the Supreme Court overreached in this case, a couple of observations.  First, while a number of commentators are now saying that the Court should have allowed the Citizens United film ("Hilary: The Movie") to be broadcast without going further, that’s a point they didn’t make before the decision came down.

Much more importantly, this criticism ignores the history of this case, most importantly oral argument when it first came before the Court, on March 24 of last year.  It was at that time that the government, which was there to defend McCain-Feingold in the person of deputy solicitor general Malcolm Stewart, inadvertently spelled out just how speech-killing our campaign-finance system might be.

Asked by Justice Alito if the government believed McCain-Feingold would permit like restrictions were the product distributed on the Internet, or as a DVD or a book, Stewart responded that it could be applied to all of those, that it could even require banning a book that made the same points.

As Bradley Smith, writing in National Affairs, put it:

There was an audible gasp in the courtroom.  Then Justice Alito spoke, it seemed, for the entire audience: ‘That’s pretty incredible.’  By the time Stewart’s turn at the podium was over he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In other words, it wasn’t until after they had heard this – straight from the horse’s mouth as it were – that the Court issued, in June, its surprising order that the case be reargued and expanded to include two of the Court’s earlier rulings.

Viewed from a First Amendment perspective, McCain-Feingold was the worst piece of legislation ever enacted and subsequently upheld as constitutional.  That so many journalists are unhappy with its undoing is a black mark on their profession and on them as individuals.

First published here on The Huffington Post, Jan. 26, 2010.

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If you’re a “net neutrality” critic, and dabble in schadenfreude, things are looking up!  First, there was oral argument in the D.C. Circuit Court of Appeals (Comcast v. FCC), during which the panel clearly appeared to reject the notion that the FCC had authority to pursue its ambitions in this regard.

Then, just last week, there was the White Paper filed at the FCC on behalf of Time Warner Cable by constitutional scholar Laurence Tribe, arguing that net neutrality as proposed is likely unconstitutional under the First Amendment.

Last but not least is the report, debated but out there, that the Administration is cooling on net neutrality because it fears that it might depress the amount of capital the private sector invests in broadband deployment — an argument also made here — thereby defeating the goal of ubiquitous broadband access and stunting job growth as well.

One can only imagine the anguish such a turn would engender in the net neutrality crowd.  A conflict between Free Press and the Administration?  How could they reconcile it?  What manner of prose could they summon to express their innermost feelings?  The “vituperative retreat” perhaps, or maybe something more stylish, like an Olbermannesque commentary.  Perhaps they’d initiate, simultaneously, 100 diary threads on DailyKos.

Well, we don’t know for sure but we can dream.  What we do know is that Chairman Genachowski’s plan of extending and codifying the FCC’s "Internet principles,” announced with such confident fanfare not so long ago, is now coming under heavy fire from lots of quarters.

Laurence Tribe’s brief is particularly noteworthy, both for its line of argument and for the road map it lays out for a court challenge on constitutional grounds, should net neutrality be formally adopted.  To quote just one of several poignant passages therein:

Net neutrality proposals rest on the mistaken premise that the constitution gives the government a role in ensuring that the voices of various speakers receive equivalent attention and that audiences receive equal access to all speakers.  In fact, a central purpose of the First Amendment is to prevent the government from making just such choices about private speech, including decisions about what amount of any given kind of speech is optimal.

That Tribe was an active supporter of the candidacy of President Barack Obama, and served as a judicial adviser to Obama’s campaign, suggests that he has the Administration’s ear on such matters.  This, coupled with speculation about the reason for the departure of Susan Crawford, a strong proponent of net neutrality, lends weight to the notion that the Administration may be reconsidering its erstwhile support of net neutrality regulation.

If so it would just be another example, as H.L. Mencken put it, that for every complex problem there is an answer that is clear, simple, and wrong.

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Despite their general lack of experience or expertise in law, commerce, finance, or technology, people with journalistic backgrounds are these days testifying before Congress and regulatory agencies, sponsoring seminars, and writing papers in a broadly coordinated effort to influence laws and regulations that govern the media.

They are doing this, they say, out of a concern for the “future of journalism,” but to the extent that policymakers act on the journalists’ recommendations they may do damage to the commercial media, old and new, and great violence to the First Amendment.

For the most part, journalists’ understanding of and support for the First Amendment is limited to their parochial interests.  They want access to government information, protection from libel laws, and the right not to have to reveal their sources.

As it happens, all of those things are of benefit not just to journalists but also to the news-consuming public, which is why legislation creating a federal shield law for reporters, to give one example, is a good idea.  But the point remains: Reporters and the commentariat generally have a very blinkered view of the scope of the Speech Clause of the First Amendment.

This explains why journalists report and opine so infrequently on the myriad First Amendment issues that impact people and institutions other than themselves.  Things, for instance, like commercial speech.

State and federal courts, including the Supreme Court, have adjudicated many cases wherein they have ruled that advertising and other kinds of promotional speech is entitled to First Amendment protection, but these cases are rarely covered, other than in the media trade press, to any significant degree.

In similar fashion reporters – aside from such notable exceptions as George Will – have raised very few objections, along First Amendment or any other lines, to the speech-curtailing aspects of so-called campaign finance reform, as in McCain-Feingold’s restrictions on issue ads.

Nor have they objected much to the “speech codes” that have been implemented on so many college campuses, or to the right of government to regulate the media in ways, as with some of the broadcasters’ “public interest” obligations, where such regulations have the practical effect of undermining the broadcasters’ editorial freedom.

As with commercial speech, all of these issues implicate the First Amendment, and all have been considered by the courts as such issues, but not to the interest or concern of many reporters.

Given this track record it’s shocking but not surprising, as the saying goes, that journalists are these days recommending so many ill-considered ways that government might “save” or “restructure” American journalism.

There are a number of examples of this trend, like Dan Rather’s embarrassing speech last year at an Aspen Institute symposium, where he asked President Obama to create a government commission to “save journalism,” or the recommendations of the risibly clueless Knight Commission, with its recent call for a “federal tax credit for the support of investigative journalism” and creation of a “Geek Corps for Local Democracy.”

But the mother lode of the literature in promotion of this unfortunate movement is a lengthy piece published last year in the Columbia Journalism Review.  Titled “The Reconstruction of American Journalism,” the article was co-authored by Michael Schudson, a Columbia University journalism professor, and Leonard Downie, Jr., the former executive editor of The Washington Post.

Among their recommendations:

• The IRS should explicitly authorize news organizations to be created or converted into nonprofit entities, regardless of their mix of financial support, including advertising.
• Public radio and television should receive increased funding from the Corporation for Public Broadcasting, for which their programming should be “substantially reoriented” so as to provide significant local news reporting.
• The FCC should create a “Fund for Local News” with money the Commission collects from fees imposed on broadcasters, telecom users, and/or Internet service providers, said funds to be distributed through grants from “Local News Fund Councils” to news organizations (commercial and nonprofit alike) that propose “worthy initiatives in local news reporting.”

Breathtaking.  And it begs the question: Is it too much to ask that a professor of journalism, and the former executive editor of a leading U.S. newspaper, have some understanding of the crucial need for a separation of government and the press?  Does it not occur to either of these gentlemen that it’s insufficient just to give lip service to that concept?

Though we live during a time when journalists spend more time reporting on corporate rather than governmental malfeasance, the greatest value of a free press is in its check on government.  The marketplace, after all, provides some control on the conduct of corporations (and particularly so where government regulators aren’t in bed with them) but without an independent and credible press there really is no check on government.

Journalists often speak, and wisely so, of “following the money trail.”  It’s a good practice, and one that immediately illuminates the profound error in any scheme that proposes to deliver funding from the government to the media.  It’s really pretty simple.  Where the media do not receive government funding – directly or indirectly – they are free to speak critically of the government without fear of a loss of revenue, a condition that is undone if they do receive funding.

Apart from the long-term effects, the mechanics of doling out government assistance itself invites abuse.  Take, for instance, the idea of taxpayer funds being funneled to the commercial press through the Orwellian-sounding “Local News Fund Councils.”  What kind of people, you might ask, would be appointed to serve on such councils?  The authors recommend journalists (?), educators, and diverse “community leaders.”  In practice what this would mean is a veritable Noah’s Ark of single-issue and special-interest groups (all of which would call themselves public interest groups) with strong political connections.  And woe to those would-be grant recipients who failed to successfully run the PC gauntlet laid down by this crew.

And what about those who did receive funding?  Well if, for instance, they happened to be broadcasters they could look forward to the day when their “Local News Fund Councils” hooked up to compare notes with their “Community Advisory Boards,” as some at the FCC are proposing be created.  Wouldn’t that be a great idea?  Democracy in action.

The headlines on some news stories suggest that schemes like these have appeal not just to “media reformers,” but to the very people that free press advocates should fear most: politicians.  Thus, from Reuters, this recent nugget: “Gov’t Will Need to Help Shape U.S. Media: Rep. Waxman”; and from Broadcasting & Cable: “FTC Will Team With FCC To Vet Journalism’s Future.”

Speaking before an FTC workshop in December, Rupert Murdoch made some remarks that ought to resonate with journalism professors and former editors.  Here is part of what he said:

“The future of journalism is more promising than ever – limited only by editors and producers unwilling to fight for their readers and viewers, or government using its heavy hand either to over-regulate us or subsidize us....

“In my view, the growing drumbeat for government assistance for newspapers is as alarming as overregulation.  One idea gaining in popularity is providing taxpayer funds for journalists.  Or giving newspapers ‘nonprofit status’ – in exchange, of course, for papers giving up their right to endorse political candidates....

“The prospect of the U.S. government becoming directly involved in commercial journalism ought to be chilling for anyone who cares about freedom of speech.”

Bad as the Schudson-Downie opus is on First Amendment grounds – and this is its worst aspect, to be sure – there are other problems, most importantly the commercial impact government subsidies would have on unsubsidized news organizations, whether old or new, that had to compete for readers, viewers, and advertisers with those who were subsidized, either directly or through tax breaks of one kind or another.

An example of this problem could arise in the prospects after launch of what is called mobile TV, or mobile DTV.  Made possible in part by broadcasters’ conversion from analog to digital transmission, the mobile TV service about to be test-marketed in Washington, D.C., will likely be free and interactive.

Consumer electronics companies and broadcasters, who are the principal players in the development of the technology, believe there may be a $2-billion market for it, gained through advertising.  If so, those funds would be helpful to an industry that has been reeling from the combined effects of the disastrous economy and competition from the Internet.

So here we have an industry – whose declining fortunes, along with those of newspapers, are most often cited as the reason for government to lend a hand – working to find a way to grow and prosper, without taxpayer dollars or other subsidies, as independent sources of news.

But standing on the sidelines are current and former journalists, and their financial enablers in the grant-making world, proposing to erect a national system as would invite competition from taxpayer-subsidized companies that would be crucially dependent on the goodwill of their governmental patrons.  Such is the idealism of journalism reformers and “reconstructors.”

Their perfunctory acknowledgment of the need to be wary of government funding notwithstanding (Schudson and Downie admit that “political pressure has played a role at times in the history of the arts and humanities endowments”), they show themselves to be pretty adept at knowing how to apply that pressure themselves.

Toward the end of their recommendation about the need for PBS to reorient its programming toward local news (through “significantly increased” appropriations for CPB), the authors write this: “The CPB should encourage changes in the leadership of public stations that are not capable of reorienting their missions.”

So in other words the plan here is that, if PBS stations won’t voluntarily submit to the kind of local news programming that Schudson and Downie want to see, the CPB should use its control over the purse strings to oust the management of those stations.

Yes, just so.  That’s it exactly.

First published here on The Huffington Post, Jan. 12, 2010.

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It shouldn’t come as any great revelation that when the government proposes regulations affecting the media, there very well might be implications for the First Amendment.  Raising such concerns, and then examining their validity, is a normal part of the regulatory process.

Kyle McSlarrow did just that last Wednesday in a speech to a Media Institute luncheon audience.  As president and CEO of the National Cable & Telecommunications Association,  McSlarrow was rightly concerned that the FCC’s proposed regulatory enforcement of “net neutrality” would impair the First Amendment rights of Internet service providers, especially to the extent that they offer other types of programming services apart from Internet access.  He also noted that such rules could impair the free speech of start-up content providers who are willing to pay extra for priority distribution of their content to better compete with established entities, and for others who use the Internet.  

The response to McSlarrow’s speech by many proponents of net neutrality regulation was nothing short of remarkable for its rancor.

The underlying assumption of this net neutrality crowd and their ilk was the tired old mantra: Big media are bad.  Corporations are bad.  Corporations don’t deserve First Amendment rights.  The bloggers from this camp (including a former Free Press lawyer) seemed at once incredulous and offended that anyone (except maybe Washington lobbyists) could assert with a straight face that media companies are speakers with First Amendment rights.  

The other underlying assumption involves the revisionist view that the First Amendment is a tool the government has an obligation to use affirmatively to promote diversity of speech, rather than what it was created to be: a protection against government censorship of speech.

It would be bad enough if the reactions to McSlarrow’s speech suffered only from flawed assumptions like these.  That wouldn’t even be so terrible, because one can always challenge another’s assumptions and hope to engage in something resembling a serious debate.

It’s possible to do that, for example, with the response offered by the ACLU, which noted that ISPs do have First Amendment rights when they’re providing their own content, but should function as common carriers (like phone companies) when they’re carrying the content of others.  Whether tiered pricing for different levels of service amounts to discrimination and implicates free speech is at least something that can be debated.    

But the level of vitriol is running so high among many in the net neutrality crowd that some writers are totally twisting what McSlarrow said, and attributing to him words he never uttered and positions he never (and I believe would never) take.  For example, blogger Marvin Ammori (with the Free Press connections) wrote: “According to the NCTA’s Kyle McSlarrow ... Americans (like you) don’t have rights to access or upload content on the Internet.”  FALSE.  McSlarrow never said any such thing.  Ammori calls McSlarrow’s reasoning “silly” and “offensive.”  But if anything is silly and offensive, it is Ammori’s fabrications.  

One is reminded of the Cold War, when the Soviet propaganda machine excelled at “disinformation” – false information which, if repeated enough and eventually picked up by a credible outlet, would be regarded as true.  Ordinarily I wouldn’t bother commenting on the more egregious responses to McSlarrow’s speech, because they’re just not worthy of serious comment.  But I’m taking the time because so much of what has been written needs to be identified for what it is – disinformation – that will only stifle meaningful debate and do a disservice to the First Amendment.   

And while we’re talking about this constitutional guarantee, let’s not forget the big picture, which can easily become obscured by the details (and heat) of the moment.  Do we really want the FCC regulating a whole new realm – the Internet – which heretofore has been a safe haven for free speech?  Virtually everyone in the net neutrality camp seems to think this is a great idea.  I do not.  In fact, I think it’s a terrible idea.  For speech to be truly free, government regulators should be kept as far away as possible, whatever the medium.  Maybe this is where the real debate over net neutrality and the First Amendment should focus.       

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By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
    
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

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Since 1985, the Public Broadcasting Service (PBS) has had a policy on the books stating that its member stations must offer a “nonsectarian, nonpolitical, noncommercial educational program service.”

It might be going a bit far to say that PBS has “adhered” to the policy.  Member stations routinely air presidential debates and weekly shows like “Washington in Review” that are nothing if not political.  The “enhanced underwriting credits” for big program funders like Boeing and Lockheed Martin look suspiciously like slick network TV commercials.   

And being British isn’t enough to make shows like “Are You Being Served?” and “As Time Goes By” educational.  Moreover, a handful of smaller stations run sectarian programs that include Catholic Masses and Mormon worship services.

Now, however, the PBS board is considering a revision to its so-called “Three Nons” policy that could force local religious programming off the airwaves of PBS member stations, or force those stations to give up their PBS membership.

A change in policy would likely affect stations like WLAE in New Orleans, which has aired a Sunday Mass since 1984, and Brigham Young University’s KBYU in Provo that carries Mormon worship services.

The proposed policy change is a bad idea.  A PBS committee “believes that if PBS or its Member Stations were perceived by the public to be ‘commercial,’ ‘political,’ or ‘sectarian,’ PBS could be hampered in its ability to carry out its mission.”  

Wait a minute – PBS seems to be carrying out its mission just fine with its members’ current mix of programming that includes all of the above.  

So why single out sectarian programming?  Some might argue that there should be a strict separation of church and state, since PBS member stations receive some funding from the federal government’s Corporation for Public Broadcasting, either directly or through PBS.  

But one need look no further than the FCC, which regulates both noncommercial and commercial broadcasting, to diffuse that argument.  As far back as 1929, the agency (then the Federal Radio Commission) said that broadcast licensees would meet their “public interest” obligations by offering a “well-rounded” mix of programming that included “religion, education and instruction.”  In a 1946 report, the FCC said it expected broadcasters to make free time available to “religious, civic, agricultural, labor, and educational groups.”

The FCC strayed from that policy briefly in 1999, when it issued a ruling that would have banned religious exhortation, proselytizing, and personal expressions of religious belief.  The resulting firestorm was so fierce (including the swift introduction of several bills in Congress) that the FCC deleted the provision a mere month later.

PBS should take its lead from the FCC.  PBS would do well to respect the local character of its member stations, and allow those stations to meet the needs of their audiences without injecting an anti-religion bias.

As it is, public broadcasting in this country is a strange and unlikely amalgam of governmental and private interests, with stations licensed to state and local governments, public and private universities, and even religious groups.  Its fragile equilibrium could easily be disrupted – say, by an untoward policy change.

Changing the “Three Nons” policy as proposed will accomplish nothing positive.  On the contrary, quite likely it will cause a firestorm of its own that might well ignite the now-simmering debate about the very existence of PBS, and whether a broadcasting system that receives even minimal government funding is still a good or necessary idea in this age of media abundance.    

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Two of the Supreme Court’s decisions most awaited by First Amendment advocates this term have landed with a thud.  Or maybe a whimper.  But certainly not with a bang.

On April 28, the Court upheld the FCC’s power to implement a tougher policy against so-called “fleeting expletives” on live television.  This was the Second Circuit’s case involving profanities uttered by Nicole Richie and Cher during music-awards shows in 2002 and 2003.

The other shoe dropped today when the High Court considered the Third Circuit’s case involving Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show.  The Supreme Court told the appeals court to consider reinstating the FCC’s $550,000 fine against CBS.  

In both cases the High Court skirted the constitutional question of whether the FCC’s content controls run afoul of the First Amendment.  Last week’s profanity decision, for instance, was decided on procedural grounds (upholding the FCC’s right to change its indecency policy) and only then by a slim 5-to-4 vote.

In both cases too, the courts of appeal had sided with the networks and against the FCC.  The First Amendment question will now most likely be addressed specifically at that appellate level and, one hopes, make its way back to the High Court for a definitive ruling.  

We know that the Supreme Court avoids reaching constitutional questions when a case can be decided on other grounds.  That’s exactly what happened here, so it shouldn’t come as a surprise.  But it’s still a disappointment.

On a bright note, however, Justice Clarence Thomas said in a dissent that he thinks it’s about time to reconsider the two cases at the heart of broadcast regulation: Red Lion, which creates a lower standard of First Amendment protection for broadcasters; and Pacifica, which turns on the FCC’s authority to regulate “indecent” broadcast fare.

The openness of Justice Thomas is both refreshing and hopeful.  But, with the First Amendment question presently back at the appellate level, it will be a long time (if ever) before the Supreme Court tackles the underlying premises of Red Lion and Pacifica.  And with a new, and as-yet-unnamed justice thrown into the mix following the retirement of Justice Souter, all bets could be off.
 

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By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
 
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument.  His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.

Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton.  During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.

The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.”  This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election.  Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.

We are used to media exceptionalism, at least with regard to broadcasting.  That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.  

Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting.  BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.

When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example.  To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.  

Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship.  Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”

BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right.  What great evil of political propaganda justifies this sort of censorship?  But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.  

These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print.  But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.

In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television.  The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media.  It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.

Professor Winer is also the Faculty Editor of Jurimetrics.

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If anyone has seen his share of First Amendment friends and foes over the years, it’s Floyd Abrams, that iconic New York attorney whose name can hardly be uttered without the words “First Amendment” somewhere in the same sentence.

But, as Floyd pointed out in a new Speaking Freely opinion paper this week, the real problem facing the First Amendment is not outright opposition – everyone claims to “care about” this constitutional guarantee, after all.  The problem lies with many of its “friends,” who invoke the First Amendment at their convenience to further their own agendas, without much regard for the underlying principle itself.  And who then sit out First Amendment challenges that don't suit their ideological taste. 

Liberals and conservatives are equally guilty of being fair-weather friends, Floyd notes.  “Liberals vigilantly seek to protect the rights of adults to receive not-quite-obscene materials on the Internet, but seem all but indifferent to UN-sponsored efforts to ban the supposed ‘defamation’ of Islam.  Conservatives care deeply about such efforts to stifle speech, but offer little if any protection to American students when they mouth off outside of their schools.”

Floyd poses a telling question for each ideological camp: Would conservatives be so adamantly opposed to a return of the Fairness Doctrine if talk radio were leaning left?  Will liberals get over their long-held belief that money is inherently corrupting of political speech, now that candidate Obama raised staggering amounts of cash (while refusing federal funding) to reach the White House?   

The title of Floyd’s opinion paper says it all: “First Amendment Deserves More Than Fleeting Friends.”  Liberals and conservatives alike, take heed – even if it hurts.
 

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“If you bring up the First Amendment, you’re a racist.”  In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.     

The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media.  The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.

Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech.  Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.   

The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”  

Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent.  Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.

However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.   

Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”  

There are some narrow exceptions, like speech that incites immediate violence.  That seems to be the slim reed on which NHMC tries to build its case.  The petitioners say that there has been an increase in hate speech in the media.  Then they say that there has been an increase in the number of violent hate crimes against Hispanics.  By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.  

But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.”  Even a 1993 report by NTIA, which the NHMC petition quotes liberally,  “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”

So what’s going on here?  NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship.  Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.

But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings.  And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio ... who needs a Fairness Doctrine?

This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness.  Speech isn’t always pretty, or pleasing, or even palatable.  That’s why we have a First Amendment.

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By guest blogger ROBERT CORN-REVERE, partner, Davis Wright Tremaine LLC, Washington, D.C.

During the presidential campaign, and particularly since the election, conservative talk radio and the blogosphere have been abuzz with rumors that the Democratic agenda would include reviving the Fairness Doctrine.  Prominent media activists have labeled such claims as fantasy and asserted they have no interest in reviving the policy, which required broadcast licensees to air “controversial issues of public importance” and to do so in a “balanced” way.
    
That debate has now been joined in Washington by actual experts in communications law.  FCC Commissioner Robert M. McDowell, speaking at a Media Institute luncheon on Jan. 28, warned that there may be efforts to bring back the principles underlying the Fairness Doctrine, albeit in some modified form that may extend beyond the broadcasting medium.  In response, my friend Henry Geller, the venerable former FCC general counsel, criticized Commissioner McDowell’s views about the Doctrine and the concept of spectrum scarcity, and suggested instead that other new regulatory approaches may be appropriate.  

In a commentary written for Broadcasting & Cable, Henry acknowledged that “with the growth of cable, satellite, wireless, and, above all, the Internet, it is most unlikely that the fairness doctrine will return as a matter of general policy.”  But he also outlined other possible approaches, such as a spectrum fee to support meritorious programming, and suggested that the overriding issue is “the appropriate regulatory scheme for broadcasting in the 21st Century ... not this skirmish over the unlikely re-appearance of the fairness doctrine.”
    
This looks like a debate in which both sides agree on two fundamental premises: (1) that the Fairness Doctrine is not likely to be resurrected, at least not in the form that existed before 1987; and (2) the real issue going forward is what type of regulatory model should be applied to broadcasting and other electronic media.  

Commissioner McDowell identified and critiqued various ways in which the government may assert its authority over broadcasting and other electronic media (including the Internet), while Henry Geller highlighted ways in which the “public trustee obligation” might be “clarified and made more effective.”  In short, they agree on the central issue, but simply offer quite different perspectives on the desirability of enforcing “public trustee” requirements.  
    
This overriding question about the proper regulatory approach is not confronting us because a new administration has come to Washington.  The Republican FCC under Chairman Kevin Martin launched an unprecedented number of regulatory initiatives designed to bolster and perpetuate government control over broadcast content and to extend such policies to other media. 

These efforts included a single-minded campaign to restrict broadcast indecency and Chairman Martin’s overzealous efforts to require a-la-carte marketing of cable and satellite programming.  They also included the regulation of video news releases – on cable as well as broadcasting – and proposed new rules to restrict product placement.  
    
One of Chairman Martin’s most ambitious initiatives, the so-called “enhanced disclosure form” which requires detailed quarterly reports on broadcast news and public affairs programming, and his proposed “localism” guidelines, to be overseen by mandatory local “advisory committees” and enforced by licensing review, would give the government far greater control over private editorial judgment than ever existed under the Fairness Doctrine.  In fact, forget the Fairness Doctrine.  “Localism” is the new “fairness.”  
    
The common element in all of these initiatives is the assumption that the government should oversee broadcasters’ (and perhaps others’) editorial choices – a philosophy that is antithetical to traditional First Amendment principles.  The real question, then, is whether the FCC can continue to maintain the legal fiction, eroded by time, technology, and case law, that the media it regulates are not entitled to full Constitutional protection.

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By guest blogger BARBARA COCHRAN, president, Radio-Television News Directors Association, Washington, D.C.

Supporters of open government could hardly have asked for a better beginning to the Obama administration, when, as one of his first acts, the new president declared “the beginning of a new era of openness in our country” and signed documents reversing the secrecy policies that had been a hallmark of the Bush administration.

“Transparency and the rule of law will be touchstones of this presidency,” President Obama said at a meeting with his senior staff on his first full day in the White House.

Unfortunately, that promising start was marred within hours when still and video photographers were left out of the news media pool that was hastily summoned to cover Obama’s second taking of the oath of office.  The repeat performance was necessitated after Supreme Court Chief Justice John Roberts misspoke the words of the oath, which are prescribed in the Constitution, while administering the oath on Jan. 20.

The Radio-Television News Directors Association has joined with other media organizations and advocates of open government to seek more transparency from the new administration.  Obama signaled his intentions in his Inaugural Address when he called on those in government to “do our business in the light of day – because only then can we restore the vital trust between a people and their government.”

In the Presidential Memorandum on Transparency and Open Government and the Presidential Memorandum on the Freedom of Information Act, the president ordered all government agencies to operate under principles of openness and to release information to citizens whenever possible.

This directly counters the policy initiated by Bush’s first attorney general, John Ashcroft, who encouraged agencies to withhold information if there were any plausible reason and offered the full backing of the Justice Department to resist information requests.  After 9/11, the Bush administration created new categories of information that could be withheld and removed thousands of pages of government records from Internet access.

Obama also moved to free up information about his presidency or past presidencies by issuing the Executive Order on Presidential Records, which allows no one but the president to assert executive privilege to withhold documents.  He said he would consult legal counsel before any final decision to withhold information.

“Information will not be withheld just because I say so,” Obama said.  “It will be withheld because a separate authority believes it is well founded in the Constitution.”    

Nor has this been the only piece of encouraging news as the new administration takes shape.  In testimony during his confirmation hearing, Attorney General-designate Eric Holder breathed new life into hopes for a federal reporters’ shield law to protect journalists from being forced to disclose their confidential sources.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) asked Holder about his position on the shield bill, which was opposed by the Bush Justice Department.  Holder said he favors “the concept of a shield law” and would support “a carefully crafted law” that gives the Justice Department “the capacity to protect national security and to prosecute any leaks in intelligence that may occur.”

Holder’s comments were not a full-throated endorsement, but at least he left the door open to working on new legislation.  The last efforts failed when the bill never came to the Senate floor in the 2007-2008 session of Congress.

The previous bill included protections for national security concerns.  Now media groups, including RTNDA, want a law that will cover unpublished information, such as video outtakes, and protect bloggers who regularly gather news and report to the public. 

High-profile subpoenas in the Valerie Plame, Wen Ho Lee, and Stephen Hatfill cases have highlighted how often reporters are being threatened with fines or jail sentences in federal cases if they refuse to disclose their sources.  No one knows for sure how many subpoenas have been issued, but the Justice Department informed the Reporters Committee for Freedom of the Press that the attorney general had approved 65 subpoenas between 2001 and 2006.

The Obama administration is in its infancy and much remains to be fleshed out about its policies in a host of areas that affect media interests.  The incident with the media pool and the oath is troubling but may just be a hiccup as the new White House Press Office learns the ropes.  But, so far, it’s refreshing to see an administration that wants to let the sunshine into government activities and that understands the importance of protecting journalists’ ability to report on critical issues that depend on information from confidential sources.

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National Freedom of Speech Week – NFSW for short – is upon us.  This week of Oct. 20-26, 2008, marks the fourth year in which freedom of speech has been remembered with a commemorative  week of its own. 

When The Media Institute launched NFSW in 2005, we knew that the success of the week would depend on the participation of many organizations that would take the free-speech message to their constituents.  In that first year we partnered with the NAB Education Foundation and four other groups.

NABEF is still a stalwart, and those four groups have grown to many times that number.  Broadcasting, cable, newspapers, movies, electronics – virtually all of the major media platforms are represented this year in addition to educational institutions and a variety of other organizations.  That has always been the point – to make NFSW an open-ended collaboration rather than a proprietary event.

What I find exciting about NFSW’s evolution is the way in which a growing number of groups are taking the First Amendment message to young people and involving them in creative  and interactive ways. 

For example: NABEF is sponsoring a competition for college students, inviting them to produce public service announcements on free speech.  The Radio and Television News Directors Foundation is conducting a similar competition for high school and middle school students.  The Thomas Jefferson Center for the Protection of Free Expression is sponsoring a poetry and songwriting contest on free-speech themes.  And the National Communication Association is encouraging the members of its college chapters to publicize and celebrate the week on their campuses.  (See the NFSW website, www.freespeechweek.org, for more details.)

It’s a well-worn cliche that today’s youth are the future of our country.  A fact far less widely touted is that they’re also the future of the First Amendment and our precious freedoms of speech and press.  But we need to do a better job of making our young people aware of these freedoms.  The activities above are good starts, and these groups are to be commended.
   
Ultimately the success of National Freedom of Speech Week will be secured when Americans in general and young people in particular demonstrate a heightened awareness of the importance of free speech and free press – and are willing to stand up for those freedoms even if means protecting speech that is unpopular or unpalatable.  

Even as we pause to celebrate freedom of speech this week, let’s be mindful that we still have a long way to go.

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Imagine that someone came up with an idea to solve the “problem” of information overload (a.k.a. “too much information”) by levying a tax on the technologies that have sparked our information explosion.  Making it too expensive for many people to blog or otherwise send and receive information through digital and Internet-based technologies would not only reduce a lot of superfluous, self-indulgent electronic clutter, but would reverse the fragmentation of opinion threatening our democracy, the theory would go.

Well, someone has come up with just such a scheme.  An environmental attorney named Dusty Horwitt published his incredibly outlandish idea in the Aug. 24 Outlook section of the Washington Post.  (“If Everyone’s Talking, Who Will Listen?”)  He proposes a “progressive energy tax” that would “make the technologies that overproduce information more expensive and less widespread.”

Anyone who has the faintest sensibility about the free flow of information must find this notion not only preposterous, but repulsive.

Forget, for a minute, that such a scheme would be utterly unworkable.  (How, for instance, would the government tax the electricity going into your computer differently than the electricity keeping the beer in your refrigerator cold?)  And we’ll leave it to our economist friends like Harold Furchtgott-Roth to point out the fatal flaws from an economic standpoint.

From a First Amendment perspective, Mr. Horwitt’s proposal is simply horrendous.  Restricting the means of disseminating information is tantamount to restricting information itself.  And information is speech, almost all of which is protected from government interference by the First Amendment. 

It is freedom of speech, and the free flow of information, that distinguishes the United States from China, totalitarian regimes, and most third-world countries.  Restricting the availability of information is a totalitarian tactic that is the antithesis of democracy, not something undertaken in support of it, as Mr. Horwitt alleges. 

Under Mr. Horwitt’s scheme, who would decide how much information was enough? Perhaps we would need a Ministry of Information to make those decisions.  And if the quantity of information were regulated, would the regulation of content be far behind?

In an earlier age, maybe Mr. Horwitt would have favored a stiff tax on printing presses and newsprint.  It’s no coincidence that the Founding Fathers created the First Amendment, because taxing the means of producing speech was a form of government coercion they found utterly repugnant. 

And perhaps it’s no coincidence that Mr. Horwitt never mentions the First Amendment or acknowledges any constitutional concerns about his proposal.  I don’t see how his scheme could possibly pass constitutional muster under the Supreme Court’s O’Brien test, for instance.  Taxing speech isn’t the same as taxing cigarettes or gasoline.

The technologies that Mr. Horwitt would like to tax into oblivion, or at least into submission, are the latest iteration of what Ithiel de Sola Pool famously called the “Technologies of Freedom.”  Give me my newspaper and my traditional radio and TV, but also give me the rollicking, raucous world of the blogosphere, satellite and Internet radio, hundreds of cable and satellite TV channels, and the incredible wealth of information available on the Web.  These are today’s “technologies of freedom” that make our democracy what it is. 

How could anyone be fearful of “too much information”?  Information is the lifeblood of democracy, and the more the better.  The idea of restricting speech by taxing the messenger is repulsive indeed.    

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Call it a victory for the rule of law.  And a victory for common sense.

On July 21, the U.S. Court of Appeals for the Third Circuit overturned the Federal Communications Commission’s fine against CBS televisions stations for airing the Janet Jackson Super Bowl incident.

As you might remember, this was the so-called “wardrobe malfunction” involving Justin Timberlake that allegedly traumatized millions of children watching the Super Bowl halftime show.  Activist groups mobilized, Congress jumped in, and the FCC swiftly cracked down on “indecency” in an abrupt departure from its decades-long policy of restraint toward “fleeting” incidents.

However, the Third Circuit concluded that the FCC had reversed its policy in a manner that was arbitrary and capricious without adequate notice to broadcasters.  In doing so, the Commission had violated the Administrative Procedure Act, the court found.  In essence, the court told the FCC that it can’t do whatever it feels like doing in response to the winds of public opinion or the grandstanding of certain politicians.  

That’s the right decision.  Yet the ruling was greeted in many quarters with reactions ranging from keen disappointment to outrage, as if the indecency crackdown were an end that should be justified by any means.  As John Eggerton reported in Broadcasting & Cable, even the FCC chairman was “surprised” and “disappointed.”  In our judicial system, however, the rule of law trumps personal feelings and public opinion – even the “public opinion” of mass e-mail campaigns orchestrated by activist groups.

So far, the Second Circuit and now the Third Circuit have rebuked the FCC for its recent approach to indecency enforcement.  In response to the Third Circuit’s decision, FCC Chairman Kevin Martin noted “the importance of the Supreme Court’s consideration of our indecency rules this fall.”  He’s right about that – and we trust the Supreme Court will be the next judicial body to get it right.
 

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For a company whose corporate motto is “Don’t be evil,” Google has an unfortunate capacity to look past the most obvious things.

Take, for instance, its stance in favor of “net neutrality.” Insofar as this concept is more than a slogan it’s a bad idea, and especially so as a matter of policy.  Legislation like the Internet Freedom Preservation Act, for example, invites real government regulation of the Internet as a solution to an imaginary problem.

As seen in the title of the congressional legislation, the language of net neutrality proponents, always over the top, has lately taken on a kind of goofy grandeur, with some — like Save the Internet, a coalition coordinated by Free Press — trafficking in such pap as “Net neutrality, the First Amendment of the Internet.”  (Of course it is.)

But what’s the attraction in all of this for Google?

The critics’ answer is that Google wants to ensure, whatever the cost to the future development and independence of the Internet, its own dominant, and free riding, position.

Google’s approach to the problem of copyright infringement also calls into question the company’s high-mindedness.

As charged in the case of Viacom v. YouTube,  Google is accused of flagrant violation of copyrighted material on the website of its YouTube subsidiary.  Google’s defense is that it takes down offending posts after being notified, and that this is sufficient under the safe-harbor provisions of the DMCA.

But in its complaint Viacom makes a compelling case that the takedown process is an endless loop of notifications and re-postings, and that, in fact, copyright infringement is at the heart of YouTube’s business plan.

A number of observers have suggested that Viacom’s lawsuit is just an attempt to win a favorable licensing agreement, and that in the end the parties will work out some satisfactory arrangement between themselves.

Perhaps, but copyright infringement is not a crime against humanity, it’s a crime against copyright holders, and if a negotiated settlement is the result, so be it.  This said, much might be usefully clarified if the dispute goes all the way through trial.

In any case, the point is that, as with net neutrality, Google’s posture regarding copyright infringement seems to be driven more by its own interests than by any sense of a community of interests.

By the standards of those of us at The Media Institute, which is primarily a First Amendment organization, Google’s lack of any meaningful concern or action regarding freedom of speech and of the press is the most troubling aspect of the company.

We would not have this concern if Google were just a small affair, or if the legacy media were fat and sassy.  But neither is the case.  Google is a giant while newspapers, for instance, are in a fight for their very survival.

Just to establish a frame of reference, as this post is being written (midday, July 10), here are the market capitalizations of some leading media companies: Time Warner, $50B; Disney, $56B; Washington Post, $6B; Gannett, $4B; New York Times, $2B; and McClatchy, $427M. And Google’s market cap?  It is just in excess of $172B!

In other words, the market values Google more than it values Time Warner, Disney, Washington Post, New York Times, Gannett, and McClatchy put together!  In fact a lot more — 45 per cent more.

And the rub in this is that, as an historical matter, the most important players in promoting and defending the First Amendment have been Hollywood and newspapers.  Yet these are two industries much beleaguered by the Internet, of which Google is the leader.

Against this background one might expect a company determined not to be evil to mount a major effort, if not in assistance to the old media, then in lending a hand in promotion of the First Amendment. Sorry to say, Google’s record in this regard is a blank slate.

It’s in the nature of the way the world works that one can “be evil” in more than one way.  One can do it by acts of commission, and one can do it by acts of omission.  Judging by the examples above, Google does it both ways.

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George Carlin’s death on June 22 came only days before the 30th anniversary of what has become his legacy in Washington policy circles: The U.S. Supreme Court’s Pacifica decision.

That ruling centered on Carlin’s comedy bit "Seven Words You Can Never Say on Television" (commonly known as the “Seven Dirty Words” routine), and guided the FCC’s enforcement of so-called “indecent” broadcast content for the next 30 years.

The Parents Television Council took the opportunity of Pacifica’s anniversary July 3 to hammer the networks for daring to challenge the FCC’s indecency-enforcement regime.  “The broadcast medium remains uniquely pervasive," said PTC President Tim Winter.  “It’s time for the broadcast networks to obey the law instead of undermining it.”

The networks have indeed challenged a number of FCC indecency findings in recent years, reaching U.S. Courts of Appeal in the Second and Third circuits, and now the Supreme Court.

But the challenges have revolved, for the most part, around how the FCC defines and then goes about enforcing its indecency standards (now with a new emphasis on profanity as well) – rather than on the underlying law. 

The question has generally been whether the FCC’s interpretation of the law is valid, and whether the FCC is applying that interpretation in a way that is not arbitrary and capricious.  The networks have every right to challenge the FCC’s interpretation and actions, as they are presently doing.  That does not make the networks lawbreakers, as Mr. Winter disingenuously implies. 

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Note to American journalists: Step across the border into Canada and you will give up every vestige of your right to free speech and free press. If you write a piece that someone finds offensive or that merely hurts his feelings, you may end up facing trial before one of Canada’s “human rights” tribunals that collectively boast a conviction rate in the range of 100%.

Hard to believe?   Just ask Mark Steyn, widely regarded as one of Canada’s finest journalists.  He recently went on trial before one of these kangaroo courts in British Columbia because a group called the Canadian Islamic Congress didn’t like a book excerpt of his that appeared as an article in Maclean’s magazine. 

The Islamic group claimed that the excerpt from Steyn’s book America Alone engaged in “spreading hatred against Muslims” – despite praise from other journalists such as Rich Lowry, who calls the piece “a sparkling model of the polemical art” and lauds its “profound social analysis.”

No matter.  Before the national Canadian Human Rights Commission and its provincial counterparts, truth is no defense.  And there is no requirement to prove harm.  All you have to do is disagree with the writer’s point of view.  Forget freedom of speech.  Lowry quotes one of the national commission’s principal investigators as saying: “Freedom of speech is an American concept, so I don’t give it any value.”

It is incomprehensible to think that freedom of speech and press have been so thoroughly brutalized within the borders of our northern neighbor.  Equally unbelievable, however, is the fact that the plight of Mark Steyn has been greeted with such a stunning and nearly universal silence by U.S. media.  With a handful of exceptions like Lowry, American journalists have completely ignored this travesty to the north. 

It’s true that Steyn and Lowry both are conservatives – Lowry is editor of National Review  – but I don’t want to say the deafening silence is driven by ideology.  (One of the few other Americans to break the silence, for example, is New York Times reporter Adam Liptak, writing in the International Herald Tribune.)  I think it’s a matter of journalistic indifference to something that’s not happening here.

Yes, it’s a Canadian matter.  But threats to free speech and free press transcend borders.  Especially when the threat is this serious, and the border this close.  That makes it our matter, too. 

Final note to American journalists:  WAKE UP!!

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Unless you hang in the fever swamps of the hard Left, you’re probably not aware that the group calling itself Free Press hosted last weekend the fourth annual National Conference for Media Reform.  Like the name of the host organization,  “media reform” is more a euphemism than a description of the group's real agenda.  Mostly, what they’re interested in is using government to yoke the media — broadcasting in particular — to their ideology.

And what an ideology it is!  The president and founder of Free Press is one Robert McChesney, a professor of “communications” at the University of Illinois.  And he writes books. His latest, published by the book-publishing arm of what Wikipedia calls “an independent Marxist journal” (Monthly Review, of which McChesney was co-editor from 2000 to 2004), is titled The Political Economy of Media (PEM).

I recently sprang for the purchase of PEM because I saw that the good professor had written a chapter about the First Amendment.  Titled “The New Theology of the First Amendment: Class Privilege Over Democracy,” this chapter reveals, in remarkably transparent language, how real is the threat to the First Amendment from the Left.

But judge for yourself.  Herewith, some of McChesney’s observations on the subject, in a chapter that deals primarily with his unhappiness with the ACLU for its advocacy of what he characterizes as “extensions” of the First Amendment:

"In the hands of the wealthy, the advertisers and the corporate media, the newfangled First Amendment takes on an almost Orwellian caste.  It defends the right of the wealthy few to effectively control our electoral system, thereby taking the risk out of democracy for the rich, and making a farce of it for most everyone else.  These semi-monopolistic corporations that brandish the constitution as their personal property eschew any public service obligations, and claim that public efforts to demand them violate their First Amendment rights, which in their view means their unimpeded ability to maximize profit regardless of the social consequences....

"The job for progressives and activists, then, is to raise holy hell about our corrupt electoral system and our bogus corporate media system, and make it a key target of a social movement that takes direct aim at social inequality and class privilege....  And in the process of doing so we need to pressure the ACLU to return to its roots as a force for justice and democracy, or expose it as a liberal fig leaf for plutocracy."
 
PEM features more of the same — lots more — but you get the idea. The class struggle, the proletariat versus the bourgeoisie, the whole nine yards.  So the question you may be asking is why?  Why even mention Free Press or Robert McChesney? It’s not, after all, as though views such as his, or missions like that of Free Press, hoary and ludicrous though they are, are all that rare among academics in the liberal arts, or among left-wing activist organizations.

Sorry to say, the explanation is that Free Press is gathering strength among policymakers and regulators, many of whom (one hopes) are unaware of the group’s ideological underpinnings.  This, because the mainstream press have told us virtually nothing about the organization.  No I-teams or investigative reporters; no “following the money trail” here.  Though the group was only formed in 2002, it is these days accorded a matter-of-fact acceptance by mainstream journalists that is breathtaking.

Though Free Press is said to be the beneficiary of substantial funding from George Soros, the billionaire currency speculator and serial hypocrite, you can’t prove it by anything either party has divulged.  The only clue, shown in an IRS filing, is that the Soros-funded Open Society Institute is listed as a contributor.

Through its lobbying arm, the Free Press Action Fund, the group worked the halls of Congress recently in an ongoing campaign to undo the modest liberalization of media ownership rules recently enacted by the FCC.  And just last weekend, two FCC Commissioners, Michael Copps and Jonathan Adelstein, were featured speakers at the above-mentioned National Conference for Media Reform.

If, as appears to be the case, liberalism in the U.S. is on the rise, it’s going to be interesting, and perhaps of some moment, to see how, and in what ways, liberals deal with hard Left activists like the Free Press crowd.

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One of the most underreported stories in the country today is the extent to which media bashing--formerly the almost exclusive preserve of conservatives--is these days being waged by liberals and leftists.

From blogs like DailyKos and the Huffington Post, filled to the gunwales with attacks on “corporate media,” to “media reform” groups like Free Press, Media Matters for America, and the Orwellianesque  FAIR (Fairness and Accuracy in Reporting), liberal activists are sounding and acting more and more illiberal. Indeed, they sound and act like conservatives.

Hardly a day goes by that at least one of them fails to fault the mainstream media for their coverage, or non-coverage, of some issue in which they have an ideological investment. And when that’s not enough they don’t hesitate to call on policymakers for laws or regulations they think would help promote their political views.

In this and in other ways, the Left’s assault on the media is virtually indistinguishable from that of the Right. The conservative Parents Television Council petitions the FCC for sanctions on TV indecency; the left-leaning Free Press petitions the FCC to stop media consolidation. Media Matters purports to expose “conservative misinformation” in the  media; the Media Research Center “leads in documenting, exposing, and neutralizing liberal media bias.”

Both sides incorporate “content analysis” as a research tool, and both organize letter-writing campaigns aimed at Congress and the FCC.

But it’s the rise of liberal media bashing that is the newer and more worrisome thing, because liberals have a past history of tolerance for free speech.

The transparent lie among all organized media bashers is that their attacks are objective and selfless. They are not. Ideologues see the media as a kind of blackboard on which to write and spin their political opinions. This, and nothing else. Not fairness. Or accuracy. Or a free press.

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There they go again. No, not the FCC.  This time it’s the U.S. Senate, still worried after all these years that the same company might own a newspaper and a TV station in the same market.  The Senate recently passed Senate Joint Resolution 28, which cancels a very modest attempt by the FCC to relax the newspaper-broadcast cross ownership rule in the nation’s top 20 media markets.

In effect, the Senate is saying that ownership of newspapers and TV stations should be restricted just as it was in 1975 when the rule was adopted – when viewers in big cities were lucky to get six over-the-air channels, and “cable” was still the “community antenna” in rural areas.

The effort to relax or even eliminate the cross ownership ban has gone on for years, even as the FCC was repealing virtually all of its other ’70s-era ownership restrictions.  The FCC’s action on Dec. 18 wasn’t much, but it was still too much for a Senate that’s apparently afraid to move out of the 1970s.

John F. Sturm, president and CEO of the Newspaper Association of America, summed it up when he said: “It is incomprehensible that Congress would shackle local newspapers – and only newspapers – with a ban that fits the eight-track era, but not the iPod world we live in.”

There is no logical reason for the Senate to act this way.  Could the reason be political?  Congress and the FCC are routinely barraged with mass e-mails orchestrated by various interest groups.  The magnitude of these mailings can appear far greater to policymakers than it really is.  Think of the man behind the curtain in "The Wizard of Oz."

A popular policy target of such groups has been “media consolidation,” always portrayed as a looming evil.  But in today’s economic environment, multiple ownership of media outlets has become an economic necessity – a matter of survival. 

Critics fear that “consolidation” will result in fewer voices and viewpoints reaching the public.  The real danger, however, is that media voices will be lost as struggling newspapers and broadcast outlets are forced out of business, suffocated by antiquated rules that prevent them from taking advantage of the economies of scale that come with multiple ownership.

It will be ironic indeed if the anti-consolidation forces triumph, leaving us with less rather than more media diversity.  The politically timid Senate is playing right into the critics' hands.  It’s time for our solons to pitch their eight-tracks and reach for an iPod. 

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First Amendment advocates must acknowledge a stark reality:  Too many players in the new generation of digital media either do not understand the First Amendment, or think the First Amendment is irrelevant to their piece of the digital action, or both.    
   
This is a dangerous situation because these digital gurus are the future of America’s media.  Are they eager to uphold constitutional principles like freedom of speech?  No.  Their interests revolve around technological innovation, software and hardware applications, content availability, distribution platforms, consumer acceptance, cost per unit ... business considerations wherein technology and the marketplace trump policy concerns.  What does this bode for the future of free speech and free press as we know it?
   
Right now, the equipment manufacturers appear to be the standard bearers for the First Amendment rights of the new media.  Their Washington reps at the Consumer Electronics Association aren’t afraid to invoke free-speech arguments in policy circles.  But even within this industry, and certainly among the new media generally, we have yet to see emerge an entrepreneur or company head willing to lead the First Amendment fight in the way that William Paley championed freedom of speech in an earlier era.
   
We need a new generation of First Amendment champions.  They must, of necessity, be recruited widely from the ranks of the new media.  Before they can be champions, however, they must be educated about the First Amendment.  They must realize that the First Amendment will prove utterly and crucially relevant to all manner of digital media in coming years.  And they must be willing to embrace our cherished constitutional guarantee of free speech and free press as their unqualified ally.  

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The challenges facing broadcasting as an industry have been told so often there’s no need to recite them all here. Unfortunately, broadcasters’ understandable focus on business issues is being offered up by some as an excuse for doing little to protect the First Amendment, even in matters directly related to broadcasting, like FCC v. Fox Television Stations.

There’s no doubting the industry’s need for communications policies--in areas like ownership, public interest obligations, and carriage-- that are broadcaster friendly. But that is emphatically not a good reason for broadcasters to diminish the fervor with which they promote their own, and everyone’s, freedom of speech.

Just the opposite. As policymakers consider laws and regulations governing things commercial and technological, it is all the more important that broadcasters rigorously defend constitutional principles, lest they too be swept up in the general mayhem.

Going forward, broadcasters are going to be much more in the content business than the signal distribution business. And as the Internet, like cable and satellite before it, takes on more content distribution (including broadcast content) it is going to be very important for broadcasters to be free to incorporate programming that they think best.

This is exactly what is at stake in the Supreme Court’s review of the FCC’s crackdown on indecent speech.  The FCC is looking to impose content controls on broadcasters that they would not, and cannot, impose on the Internet. This, despite the fact that actual pornography, as distinguished from “fleeting expletives,” is ubiquitous on the Net.

Broadcasting faces a commercial and technological future with which it may, or may not, be able to adapt. But there is no scenario under which broadcasting survives if its content is controlled by government, or dictated by special interest groups masquerading as “media reformers.”