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

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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.”