Free Speech Week: Much To Celebrate

Free Speech Week is upon us. Or, as the headline of a story about the week written by Amy Mclean in Cablefax puts it: “What a Time for Free Speech Week.” What a time, indeed.

Just last week we saw the president raising the specter of whether the government should revoke television licenses based on the content of televised news coverage. The same president has wondered aloud (via Twitter, of course) whether the National Football League should have federal tax benefits revoked if owners continue to allow players to kneel during the National Anthem.

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The Enduring Threat of Net Neutrality

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H.L. Mencken

No regulatory issue in memory has been quite like that of “net neutrality.” A solution in search of a problem, bankrolled and of early and particular economic benefit to two companies, and a regulation that threatens to give government sway over an industry where it had none before, network neutrality by regulation defies logic, history, and the way the world works. Other than that it’s one terrific idea.

Net neutrality was conjured up by an alliance of left-wing activists, Democratic commissioners of the FCC, and certain Internet companies and their trade associations. The regulations that followed have been on a devolutionary path, such that what was merely bad (net neutrality under Title I) became, in 2015, very much worse – net neutrality under Title II.
Among the several unique aspects of the net neutrality wars, perhaps the most significant is the fact that all of the ISPs are in favor of the concept. Indeed, their business models depend on it. This explains why there have never been any but the most trivial examples, and very few at that, of ISPs allegedly violating net neutrality.

Another distinguishing feature is the perfervid mindset, and resort to the most preposterous sloganeering (“Net Neutrality: The First Amendment of the Internet”), of its promoters. From the presumably learned (Tom Wheeler) to the crackpots (Free Press), comes a passion for the issue that smacks of the kind of fanaticism one would expect to see where a problem and its solution are things of such genuine importance they justify the most over-the-top words and tactics.

Not so net neutrality. Looked at in terms of its practical effects, Title II regulation will cause ISPs to not do precisely nothing that they wouldn’t have done without Title II. Which is not the same thing as saying Title II won’t have any effects. It will. It will invite future (Democratic) majorities at the FCC to use their leverage over the ISPs (with the implicit threat of rate regulation) to coerce practices that, sooner or later, will impinge on content. And it’s this, the threat to First Amendment values that, if the current regulation is not removed or amended, will be the hallmark of net neutrality.

Consider the warning issued by Laurence Tribe and Thomas Goldstein, in a paper they wrote in 2009:

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.

Like Floyd Abrams, whose unforgivable sin among progressives was to argue (and brilliantly) that Citizens United was unconstitutional, Tribe was criticized for his take on net neutrality. Consider, for instance, Columbia Law professor Timothy Wu, widely acknowledged as one of the leaders, if not the leader, of the net neutrality brigades. In 2015, Wu wrote in The New Yorker an article titled “Did Laurence Tribe Sell Out?”

Reminiscent, minus the eloquence, of Mark Antony’s funeral speech (“…and Brutus is an honorable man….”), Wu questioned, in the pose of a sympathetic inquiry, if Laurence Tribe had damaged his credibility by representing a number of corporations, including Time Warner Cable, for whom Tribe co-authored the 2009 piece. Quoth the Wu: “Tribe’s corporate work has created skepticism about where his views come from, even if they are sincere (which I believe they are), and this is what is creating the reputational damage.”

From the beginning, and to this very day, the Big Lie propagated by net neutrality’s promoters is that absent Title II regulation the cable and phone companies would discriminate against smaller and newer companies, favor their own competing content, and thereby “kill the Internet as we’ve known it.” It was a bad joke from the beginning and it’s even less funny now.

By all indications, FCC Chairman Pai and the other two Republican commissioners intend to eliminate Title II regulation perhaps as early as this year. In fact, it will be a simple thing for them, or any future FCC to do – in or out, depending on the majority of commissioners in place.

Which is why, when the dust settles after repeal and all the subsequent lawsuits have been resolved, there may then arise within Congress a genuine interest in finding some legislative solution that all parties can live with, and that comports with the spirit of the First Amendment.


Maines is president of The Media Institute. The opinions expressed are his alone and not those of The Media Institute, its board, advisory council, or contributors. This article appeared here in the Daily Caller on Oct. 10, 2017.

The Real Crisis of Campus Free Expression

College campuses should be bastions of free speech.  Today, they often seem to be the very places in American society where there is the least tolerance for controversial ideas.  Unfortunately, much of the discussion of why this has occurred is based on the ad hoc experiences of a few campuses, including Berkeley, Claremont McKenna, and Middlebury that briefly gained national attention when lecturers were harassed or prevented from speaking by unruly and, occasionally, riotous crowds.

Systematic public opinion polling and anecdotal evidence suggests that the real problem of free expression on college campuses is much deeper than episodic moments of censorship: With little comment, an alternate understanding of the First Amendment has emerged among young people that can be called “the right to non-offensive speech.”  This perspective essentially carves out an exception to the right of free speech by trying to prevent expression that is seen as particularly offensive to an identifiable group, especially if that collective is defined in terms of race, ethnicity, gender, or sexual identity.

A Gallup survey sponsored by the Knight Foundation and the Newseum illustrated the emerging views of a new generation.  In fact, most college students (73 percent in our survey) are confident about the security of free speech, and even more (81 percent) believe that the free press is secure.  They are actually much more sanguine than older adults about both the current state of free speech (only 56 percent of adults believe speech is secure) and free press (64 percent for adults).

However, the same survey found that today’s college students also favor restrictions on free speech when it comes to slurs and other language that is deliberately upsetting to some groups.  Sixty-nine percent favor limitations on this kind of speech, while 63 percent support policies that restrict the wearing of costumes that stereotype particular groups.  Notably, all student subgroups – including whites, men, and Republicans – support restrictions on slurs and costumes.  Students view these restrictions as consistent with their understanding of the First Amendment.

The result, not surprisingly, are campus climates shaped by policies designed to reduce offensive speech but that also discourage expression.  Our survey found that 54 percent of students agree that their campus climate “prevents some people from saying things they believe because others might find them offensive.”

Of course, high-level observations about an entire age cohort are by definition difficult and care must be taken in making generalizations.  However, to ignore the different view that many of today’s students have on free speech would be to doom any effort to promote intellectual exchange on campus.

The effort to promote free speech on campus cannot simply focus on how many speakers are allowed.  Rather, a systematic effort must be undertaken to educate young people about the importance of free speech.  Most notably, the case for free speech will be especially persuasive to young people if it is repeatedly and powerfully argued that free expression especially benefits minorities and those alienated from society.  Young people themselves are the best ambassadors for this message.  Such an approach will depoliticize the discussion and thereby build a larger constituency for free speech.  Absent such efforts, we may continue to speak past each other. Other critical steps include:

  • Elementary and secondary schools must educate students on the First Amendment, how far the right of free expression extends, and the opportunities it affords to those who want to change society.  Students carry attitudes with them to college so we must address young people when their views on free speech are first being formed.
  • Colleges and universities must make an absolutist case for speech to a generation of students who have more complicated views.
  • Colleges and universities will have to become much more deliberate about encouraging advocates of free expression.

Generational attitudes develop over long periods of time and it will require sustained attention to ensure that tomorrow’s leaders understand that the long-standing understanding of our First Amendment freedoms is critical to the functioning of our democracy.


Guest author Jeffrey Herbst is President and CEO of the Newseum in Washington, D.C.  This paper is excerpted from “Addressing the Real Crisis of Free Speech,” which can be found at: http://www.newseuminstitute.org/wp-content/uploads/2017/04/WhitePaper_Herbst_FreeExpressionOnCampus.pdf.  The Free Speech on Campus project – including two conferences and this paper – was supported by a grant to the Newseum Institute from the John S. and James L. Knight Foundation.

Sunshine Week: A Timely Celebration

Sunshine Week, a nationwide event taking place this week (March 12-18), is an annual reminder that access to government information is not something we can take for granted. In fact, prior to July 4, 1967, when the Freedom of Information Act (FOIA) took effect, access to federal government information was not a given at all. It took an act of Congress to counteract the tendency of government bureaucrats to over-classify, obfuscate, and procrastinate when it came to making even innocuous information available to the public.

Sunshine Week was created by the American Society of News Editors in 2005 and is now coordinated by that group in partnership with the Reporters Committee for Freedom of the Press. With these groups heading the effort, it would be easy to think of Sunshine Week as something primarily by and for journalists. Of course having access to public information is of great interest to journalists. That kind of access is essential if the press is to perform its role as a watchdog of government at all levels in this great democracy.

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Obama’s Legacy: The Trashing of Free Speech

No administration in memory has more thoroughly undermined freedom of speech and of the press than that of President Obama.  From the White House itself, as well as the independent and executive branch agencies, have come a steady stream of policies, initiatives, and pronunciamentos that have threatened or compromised both of these constitutional rights.

Indeed, the Administration’s example has inspired like-minded actions outside of the White House.  For example, those Democratic members of Congress who actively encouraged IRS action against conservative nonprofit organizations before Lois Lerner turned to the task.

And the 16 state attorneys general, Democrats all, who have recently embarked on a campaign designed to silence people who are skeptical of the evidence of anthropogenic global warming and/or its effects and remediation.

But it’s the example of the Administration itself that is most notable.  Who could forget the performance of then-UN ambassador Susan Rice who, five days after the Benghazi attack that took the life of the American ambassador, went on national TV and blamed the attacks on an anti-Islam video shown on YouTube?

This followed by two days Secretary of State Hillary Clinton’s similar claim, and all of it despite the fact that senior Administration officials knew at the time that Benghazi was a premeditated attack that had nothing to do with the video.  >>Read More

Maines is president of The Media Institute.  The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Hill on July 13, 2016.

The Overblown Backlash Against Peter Thiel for Destroying Gawker

The news that pro wrestler Hulk Hogan’s lawsuit against Gawker has been financed by Silicon Valley billionaire Peter Thiel has sparked many opinions, some of them erroneous, some duplicitous, and some deeply shameful.

Before providing examples of each, a little background.  In 2007, Valleywag, a now-defunct blog site then owned by Gawker Media, outed Thiel, against his express wishes, as a homosexual.  Though he is in fact gay, Thiel was angry about this, and angry too about what he saw, and sees, as Gawker’s bullying journalism in its coverage of Silicon Valley’s tech industry.

For some apparent combination of these reasons, Thiel subsequently offered to covertly pay for Hogan’s legal fees in connection with the wrestler’s invasion of privacy suit against Gawker.  The gravamen of Hogan’s suit is that Gawker published online a secretly taped video of Hogan having sex with the wife of a friend of his.  At trial the jury awarded Hogan $140 million.

So right off the bat a couple of things are clear: Neither Hogan’s lawsuit nor Thiel’s payment of his legal fees are First Amendment issues, despite allegations to that effect in stories published by such as the New York Times>> Read More

Maines is president of The Media Institute.  The opinions expressed are his alone and not those of The Media Institute, its board, advisory councils, or contributors.  The full version of this article appeared in The Daily Caller on June 9, 2016.

Campus Protests and Blatant Attacks on Free Speech

The blatant attacks on free speech seen recently on college campuses pose a special challenge to Democrats and liberals.  This, because the illiberalism inherent in the conjuring up by campus progressives of things like “trigger warnings,” “microaggressions,” and “safe spaces” is an outgrowth of the identity politics and victim culture that have been promoted by Democrats and liberals generally.

Take, for instance, immigration and our changing racial demographics.  In a demonstration of the most corrosive kind of stereotyping, Democratic strategists like Stanley Greenberg triumphantly wave the “demographics is destiny” meme like a sword.  Whether there is any predictive value in Greenberg’s recent claim that racial minorities are “supporting Hillary Clinton by more than 2 to 1 in today’s polls,” how is it helpful to profile them as bloc voters, politically defined by their ethnicity?

Are not Hispanics, Asians, and African-Americans interested in having for themselves and their families secure middle-class lives?  And if so, might not some, perhaps many of them, come to see the governmental nostrums promoted by Democrats as being inimical to their ambitions?

The demographics-is-destiny meme crosses into the preposterous in the hands of people like the dyed-in-the-wool Democrat Chris Matthews….  >> Read More

                                   

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  The full version of this article appeared in The Hill on Nov. 25, 2015.

Free Speech Week: Time To Celebrate, Time To Reflect

As Free Speech Week gets underway today, it’s a good time to celebrate this fundamental freedom (as the week is intended to do) – but it’s also a good time to reflect on the state of free speech in America today.  Even the most cursory reflection, however, is sure to give one pause.

Freedom of speech remains under assault on many fronts.  And most people, when they think of free speech, think of the First Amendment. But it’s important to draw a distinction here.  The First Amendment only protects speech that is threatened by government control, and thus laws and regulations seeking to limit speech can be subjected to First Amendment challenges in the courts.

Paradoxically, however, the gravest threats to free speech today aren’t coming from government lawmakers and regulators, but from non-government groups and individuals who want to stifle the speech of others.  That type of speech suppression is, in its own way, even more insidious because there is no fail-safe defense against it like the First Amendment.

Media Institute President Patrick Maines has written numerous columns in this space decrying all manner of attempts to suppress free expression.  One of the most onerous threats is the political correctness (or “PC”) movement, whereby the “politically correct” try to stifle the speech of those with whom they disagree.  Nowhere is this more evident than on college campuses, which should be the ultimate marketplaces of ideas.

Examples abound of campus activist groups pushing to “disinvite” guest lecturers or even commencement speakers whose views they dislike – often with the tacit or overt support of university officials.  High-profile incidents at Fordham, Brown, and Brandeis universities have captured media attention, but they were hardly isolated occurrences.  In fact, an organization called the Foundation for Individual Rights in Education (FIRE) exists solely to fight these and other types of PC attacks on campus.

Speech suppression beyond the reach of the First Amendment takes other forms as well.  Activist groups and their “speech police” routinely try to intimidate speakers, especially through social media.  And even some journalists and editors in the mainstream media are prone to political correctness, though here the approach might be more subtle – a story presenting a PC point of view uncritically, or a story about a contrarian viewpoint never written at all.

Free Speech Week, then, offers the chance to celebrate the First Amendment as the protector of our speech (or the vast majority of it) from government interference.  The week also invites us to celebrate free expression in the broader sense.  Yet as we applaud freedom of speech generally, we need to be aware of the threats that continue to render this a fragile freedom.  There is a vocal opposition to these threats out there, including The Media Institute, FIRE, and others – but the voices challenging these threats and supporting truly free speech need to be more widespread.  We can indeed celebrate during Free Speech Week – but we can’t afford to be complacent.

Free Speech Week (FSW) is taking place Oct. 19 to Oct. 25.  You can learn more about how to get involved here: www.freespeechweek.org.

The First Amendment and Free Speech Under Assault

If you’re not alarmed by the assault on the First Amendment and free speech generally, you’re not paying attention.

Consider the list of offenses committed by the government.  They range, in recent times, from the Department of Justice’s spying on the phone records of reporters at the Associated Press, to the National Security Administration’s domestic call tracking, and from the IRS’s targeting of conservative nonprofit organizations, to the suggestion by the ranking Democrat on the Federal Elections Commission that political speech on the Internet should be regulated.

Other examples include the Obama Administration’s resistance to Freedom of Information Act requests, as documented in a study by the AP, and the issuance, by the CIA, of a subpoena to James Risen of the New York Times, demanding the identity of one of his confidential sources.

The party-line passage, by the Federal Communications Commission, of its so-called “Net Neutrality” regulations is another example.  In addition to inaugurating the regulation of the formerly unregulated Internet, the Title II approach adopted is certain, as FCC Commissioner Pai has warned, to open the door to attempts to use this regulation for purposes that, both intended and unintended, undermine free speech.

The most recent example of governmental speech suppression is the subpoena served on the online version of Reason magazine by the U.S. Attorney’s Office for the Southern District of New York.  The subpoena, which for a time came with a gag order, demanded to know the identity of a handful of commenters that, angry about the life sentence handed down to the founder of the drug trading site, Silk Road, wrote denunciations of the judge who presided over the trial.

An example of one of the comments that occasioned the U.S. Attorney’s subpoena for the identification of that commenter: “I hope there is a special place in hell reserved for that horrible woman.”

So there it is.  Your taxpayer dollars at work!  And not just by a few bureaucrats, but by a veritable army of them: DOJ, NSA, CIA, IRS, FEC, FCC.  As Everett Dirksen might have put it, an agency here and an agency there, and pretty soon you’re talking about some real government.

Making matters worse and infinitely more depressing is the assault on free speech being committed by people wielding the bludgeon of political correctness, a concept that from the beginning symbolized the very opposite of free speech.

The venues of choice for the PC speech police are mainly the media (social media especially) and college campuses, and 2014 was a banner year for such stuff.

Take, for instance, the petition generated by two “climate change” groups in February of last year.  Having collected 110,000 names, the groups demanded that the Washington Post stop publishing “editorial content denying climate change.”  The Post refused, but the Los Angeles Times happily adopted a policy that was similar to what the groups were demanding.

And then, of course, there are the campuses.  Last year’s examples of campus “disinvitation” campaigns against speakers such as Ayaan Hirsi Ali, Condoleeza Rice, and Christine Lagarde have been widely chronicled, but the beat goes on.

In its 2015 Spotlight on Speech Codes, the Foundation for Individual Rights in Education (FIRE) found that 54 percent of some 400 public colleges and universities it sampled maintain speech codes that violate the First Amendment.

FIRE’s response to this state of affairs has been to create a free speech litigation program that threatens offending colleges and universities with legal action, and the organization has had some notable successes.  But it’s doubtful that legal action alone will put the brakes on a concept that’s never depended on the law for its foundational principles or propagation.

Incubated on campus by activists and ideologues, and disseminated through the media, half-baked theories like “white privilege” and “microaggressions” and practices like “trigger warnings” and “speech codes” need to be challenged in those same venues by arguments based on logic, history, and science.

Absent this, and without congressional action to rein in the out-of-control federal agencies, free speech in the United States is at risk of becoming a dead letter; extant in the Constitution but without force or meaning.

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

Is This What Net Neutrality Is Really About?

Recent congressional hearings held in the wake of the Federal Communication Commission’s (FCC) net neutrality ruling provide a glimpse into what is so deeply wrong with this regulation, and why so many activist groups were behind it.

It’s an aspect of this matter of which you were perhaps unaware while the FCC was considering its regulatory strategy. Perhaps you thought net neutrality meant what was said of it: that it was intended to prevent the blocking or throttling of websites, or of “paid prioritization.”

Silly you.  Actually, those were the interests of those companies — like Google and Netflix — that saw in governmental sway over the Internet commercial benefits for themselves.  But what about those groups and individuals who had political or ideological interests, and who played such outsized roles in the deal?

You know, groups like Free Press, Media Matters, Public Knowledge and New America’s Open Technology Institute?  Or what about the large grant-giving foundations, like Ford, MacArthur, Knight, and George Soros’s Open Society Institute that, in addition to munificently funding third-party net neutrality activists, directly lobbied the FCC themselves?

It should now be clear, even to those who weren’t paying attention earlier, that the primary interest these groups had, and have, in net neutrality is their desire to insinuate government in the regulation of speech on the Internet.  >> Read More