Is China Big Enough for Free Speech?

The Olympics are now in full swing in Beijing after a spectacular opening ceremony that displayed many of the Chinese people’s finest attributes.  The Chinese government and free speech, however, are another matter.

Our friend Kurt Wimmer has written an excellent piece for us on this topic titled “The Beijing Olympiad: A Fleeting Opportunity for a Freer China.”  Kurt notes that by July, Chinese officials had imprisoned almost 50 Chinese writers whose opinions the government found subversive or threatening.  And the clampdown was not limited to native Chinese.
 
Western journalists were ordered out of the ravaged Sichuan province following the earthquakes there, and at least 10 foreign journalists covering Tibet have had their lives threatened since March.  Meanwhile, the “Great Firewall of China” blocks access to Internet content that criticizes the government, lest Chinese citizens hear anything untoward about their leaders.

The drumbeat continued in the days just prior to the games with stories about journalists denied access, activists deported, and even the U.S. press corps plane being delayed for a baggage search.  Subtlety is not in the playbook of Chinese censors, from all indications.

Still, Kurt finds a glimmer of hope in all of this.  If the United States and other nations can bring enough media pressure to bear, perhaps the will of the Chinese people can prevail and usher in a new era of greater transparency, he says. 

It’s a big “if,” as Kurt acknowledges.  There are no guarantees that free speech will take root just because the Chinese are hosting the Olympics.  But as the Games focus the world’s attention on China, they do provide an opportunity – however fleeting – to begin a process that could just lead to greater freedom of speech and press. 

Of Men and Machines

You know that idealism has taken an odd turn when it’s associated more with the function and marketing of machines than with the creative work of human beings.  That is, or should be, the take-away from the latest copyright flap — MPAA’s petition to the FCC for a limited waiver of that agency’s so-called SOC rules.

For those of you who don’t follow such things, the point of the petition is the film studios’ desire to market Video on Demand, high definition movies earlier than DVDs, and closer to their release date in theaters.  This would be done through deals the studios would make with video programming distributors like satellite TV, cable TV, and telecom companies like AT&T and Verizon.

Problem is that the program distributors are not allowed, without a waiver for the purpose, to market such films in the way (with SOC-enabled content) that would prohibit illegal copying and distribution, something the studios have reason to fear greatly.

In the grand tradition of all such, the petition has attracted not just the attention of the primary players — the studios and program distributors on one side, and the video equipment manufacturers on the other — but also the usual coterie of self-professed public- and consumer-interest organizations.

Seven such, led by the Washington group Public Knowledge, filed comments last week in opposition to the waiver, and their arguments speak volumes not only about their mindset toward such matters, but in a way that parallels the lack of regard for copyright in the larger universe of academia, much of the technology press, and among the digerati generally.

By all appearances, the biggest issue Public Knowledge et al. have with the waiver petition is an alleged frustration of “consumer expectations” that would ensue when owners of “legacy devices” (older high-def TVs that, unlike all of the more recent models, do not come equipped to recognize SOC data) find that they cannot order the movies at the earlier release date.

Though not guaranteed, both the logic and the language of the MPAA petition strongly suggest, however, that these same movies would still be available for purchase, VoD, at the later date that obtains today.  And in any case, they would also be available through premium subscription services, like HBO and Showtime, during the usual release window, about 9-12 months after their theatrical debut, and as DVDs in half that time.

Public Knowledge and company strain to characterize this matter in compelling language: “Users who purchase expensive multi-component HD-capable entertainment systems,” they say, “are likely to consider them generally future proof…. Even if early-release films do not appear on the list of VoD offerings for these users, customers will be left wondering why neighbors and friends — those who subscribe to the same MVPD service at the same price, and have near-identical setups using different cables — are not offered the same movies.”

The national interest in envy-free neighborhoods notwithstanding, the fear that someone will be disadvantaged because he has a digital device that, being older, can’t do things that newer ones can, seems like kind of a wobbly rock on which to build the church of the public interest.  This, because the clearest thing in the world about the Digital Age is that not only is nothing forever, nothing is even for very long.  And this is true of all things digital, from computers, to cameras, to PDAs, to satellite radios, and yes, even to TV sets — all of which, in any case, are just machines!

The aspect of this, and related issues, that ought to be capturing the attention of public interest advocates, and “idealists” generally, is the human role.  In the making of films, for instance, it is human beings, not machines, who write the scripts, act the roles, design the sets, and direct the enterprise.   And it is these people, and their creative work, that should be at the forefront of our concern.

The issues raised by this particular MPAA petition aside, there is something these days that adds great poignancy, from an American perspective, to all things copyright related.  The United States faces international challenges that may be as daunting as those occasioned by the Cold War.  Specifically, we face the reality of global competition from countries both free and totalitarian, and with access to vital commodities, that is unlike anything we have ever known.

From behemoths like China, whose economy is projected to be bigger than ours in the foreseeable future, to countries like those in the Arab states, which are rich in oil, the USA is being challenged to find something it can do better than anyone else.  Because of our many freedoms, not the least of them freedom of speech and of the press, that thing is now intellectual property.  But it will need to be protected if it is to sustain us as a nation.

The FCC, Indecency, and the Rule of Law

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.
 

Tony Snow, RIP

Last October The Media Institute presented Tony Snow with our Freedom of Speech Award. It was, among some people, a controversial decision. Tony was a well-known conservative commentator even before he was press secretary to George Bush, facts seen by some as disqualifying him from receiving such an award.

The sad news of his passing reminds me of why we did it, and of how glad I am that we did it in time.

Truth be told, the seriousness of Tony’s illness factored into the decision. But that had more to do with when we gave it than with the reason for giving it. The reason we gave the award to Tony was because we thought he demonstrated such grace and courage in the face of an impossible situation.

How many people, even without suffering a life-threatening illness, could serve so well a president so unpopular? And isn’t that at the very heart of the virtue in freedom of speech?

As Tony’s presenter that night, the wonderful Ann Compton of ABC, put it: “In America’s history, it has often taken courage to defend freedom of speech. Courage to speak out. Courage to return day after day when you can expect scorn and repudiation…

“It also takes courage to step back in front of the lights and cameras, your hair grey and thinning, your suit loose and limp, and your heart anguished about what really means the most to you—your wife Jill and your three sweet children. In that courage, Tony, you have earned and will always have not only our respect, but our affection.”

The Problem With Google

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.

Those “Outlaw” Television Networks?

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. 

Some People “Get It.”

Imagine our relief, just when we thought that nobody cared, as we read the editorial in the Dallas Morning News.  Published on July 4th, and titled "All hail the First Amendment," it recounts the ordeal of Canadian journalist Mark Steyn, the subject of recent posts here. The editorial is reprinted below, with permission, in its entirety.

Editorial: "All hail the First Amendment"

On the Fourth of July, the day we celebrate America’s liberty and independence, it’s worth contemplating how much more free America is than most other nations in the West.

Why?  The First Amendment to the U.S. Constitution.  How very much depends on these 45 words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

"The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world," says writer Mark Steyn, who’s learning it the hard way.  Mr. Steyn and Maclean’s, the top-selling Canadian magazine, have faced human rights charges in British Columbia.  Their alleged offense?  Maclean’s published a Steyn essay critical of Islam, which prompted Muslim activists to
file formal charges accusing the writer and the magazine of violating Canada’s hate-speech laws.

Last Friday, the national Human Rights Commission dismissed the charges, but they’re still pending in front of a provincial panel.  The victory is less than what it appears.  For one thing, defending against the charges cost the magazine hundreds of thousands of dollars.  For another, it is frightening to think that a human rights panel has the right to decide what can and cannot be published in a
free country.

It’s not just Canadian critics of Muslims whose speech is under attack.  The Alberta Human Rights Commission ruled that the Rev. Stephen Boissoin had broken the country’s hate-speech laws by criticizing homosexuals.  Last month, the panel ordered the minister to pay damages, apologize and desist from criticizing homosexuality for the rest of his life.

Similarly, the Ontario Human Rights Commission recently ordered a large Christian social service ministry to abandon its statement of faith as discriminatory against gays and to send its employees to diversity training.

Free speech also is in trouble in Europe.  Last month, a French court fined actress and animal rights activist Brigitte Bardot $23,000 for violating hate-speech laws.  Complaining about Islamic sheep-slaughtering customs, Ms. Bardot had said Muslims were "destroying" France.  In May, British police arrested a teenager for calling Scientology a "cult" at a peaceful demonstration.

Also that month, police in The Netherlands arrested Dutch cartoonist Gregorius Nekschot on suspicion of incitement to hatred and discrimination for cartoons alleged to be anti-Muslim.  The Dutch police, who have established a branch to
investigate cartoons, recently brought in proprietors of a Website critical of multiculturalism to explain comments left on the site.

None of this could have happened in the United States, where the right to say what’s on your mind, no matter whose feelings it may hurt, is considered vital to the self-government of a free people.  The First Amendment means that in our liberal democracy, we have to tolerate speech many of us find obnoxious or offensive.  But it affirms that enduring hateful or distasteful oratory is far less dangerous than giving taboos on controversial speech the force of law.

It is not too much to say that all of our freedoms depend on the First
Amendment, for if we cannot speak and worship freely, we are on the road to tyranny.  On Independence Day, and every day, we must be grateful for the foresight of the Founders, who understood as no others in their position had before or have since, how sacred freedom of speech is.

When Thomas Jefferson famously said that he would rather have newspapers without a government than government without newspapers, he meant that freely and widely expressed opinions are the true foundation for a successful government of the people, by the people and for the people.

In an observation that cannot be improved upon, the Colonial-era Freeman’s Journal editorialized: "As long as the liberty of the press continues unviolated, and the people have the right of expressing and publishing their sentiments upon every public measure, it is next to impossible to enslave a free nation."

God bless America – and God bless the First Amendment, which protects and serves rich and poor, liberals and conservatives, secularists and believers, and all those privileged to call themselves Americans.


 

The Real Problem With Radio

Washington radio icon Chris Core was given the boot in February after 33 years behind the microphone at WMAL-AM in the Nation’s Capital.  He was part of a cost-cutting move by the station’s owners, who also fired the entire on-air staff of sister station WJZW-FM.

Marc Fisher, a Washington Post reporter who had written “The Listener” radio column since 1995, wrote his final column and signed off June 1, as he lamented the passing of “the kind of eccentric, iconoclastic voices that made radio so alluring from the 1950s into the ’80s.”  Now, Fisher says, the talent is “mostly anonymous and amateur.”  The implication: Radio in the Washington, D.C., market isn’t worth writing about anymore.

Critics of “media concentration” will be quick to seize on the tales of Core and Fisher to “prove” that big is bad.  They will tell us that the multiple-station ownership practiced by big companies like Clear Channel and Citadel (which now owns WMAL) is the root cause of all that is wrong with radio today, from the loss of “localism” to the homogenization of programming.

Unfortunately, these critics will be exactly wrong.  Media concentration is not the cause of radio’s problems – it is an effect of something else entirely: the fragmentation of audiences that has come about as exploding technology has given the public a whole new panoply of delivery platforms.

Listeners (and especially young listeners) are getting their audio fix via satellite radio, Internet radio, cell phones, and PDAs, and can create their own mix on iPods and MP3 players.  Don’t forget free HD radio and, soon, free Internet radio in cars.  The always-philosophical Core recognizes that “radio stations have to either evolve from their traditional ways or wither.” 

Kenneth J. Goldstein, president of Communications Management Inc., presciently observes that fragmentation not only is the cause of consolidation (as station owners try to re-aggregate audiences), but also of cost pressures, less localism, content sharing, and stretching the boundaries of taste. 

Regrettably, policymakers are being bombarded with the big-is-bad “concentration myth” by critics of multiple ownership.  However, until policymakers understand the issue correctly (i.e., realize that media consolidation is merely one effect of technology-driven fragmentation), the debate is fated to be an uninformed waste of time.  And any policy “solutions” that spring from such a spurious debate are almost sure to be catastrophic.

Continue reading “The Real Problem With Radio”

The Silence of the Lambs

The failure of mainstream U.S. journalists even to mention the abominable trial of Canadian journalist Mark Steyn speaks volumes about the state of the industry, and about the speech-killing nature of political correctness.

As my colleague Rick Kaplar posted here last week, Steyn is being tried in Canada by one of that country’s “human rights” tribunals.  His crime?  He wrote a book, subsequently excerpted in the Canadian journal Maclean’s, to which members of the Canadian Islamic Congress took offense.

Never mind for a minute the impact of this on Mr. Steyn, or on those Canadians who, even without the benefit of a First Amendment, understand and believe in freedom of speech.  The stomach-turning aspect of this affair is the ovine response of virtually the entire U.S. press corps.

With the exception only of a handful of conservative journalists, plus a New York Times reporter writing for the International Herald Tribune, the saga of Mark Steyn and his persecution by a kangaroo court, formed under the auspices of Canada’s Human Rights Commission,  has been completely ignored.

In private conversation, a number of explanations have been offered for this phenomenon: It is a foreign affair; the U.S. media, newspapers particularly, are preoccupied with more pressing matters; worse things are happening to journalists, and to freedom of speech, all over the world.

I don’t buy any of it.  In the first place, we’re talking about Canada, not Eritrea.  Secondly, how much effort or money does it take to write an editorial, news, or feature story?  And as for worse things happening, well, that may be, but this one is quite bad enough.

A better explanation would be that, second perhaps only to the academy, U.S. media are the most politically correct institution in American life.  And few people are more politically incorrect than Mark Steyn.

In February of this year Christopher Hitchens wrote a piece for Slate called “To Hell With the Archbishop of Canterbury.”  Written in the saucy style for which he’s well known, Hitchens’s ire was prompted by a speech given by the Archbishop in which he suggested that  aspects of sharia, or Islamic law, should be adopted in Britain as it would ‘help maintain social cohesion.’

There is little doubt that, had Hitchens’s piece been published in a Canadian newspaper or magazine, it would have given offense to the same people who have initiated the proceeding against Mr. Steyn.  The difference, of course, is that Hitchens’s piece wasn’t published in Canada, and so therefore neither he nor his publisher can be fined or sanctioned.

As shown in the link above, the excerpt from Steyn’s book is disturbing and provocative.  But it is also unmistakably political speech — the kind, in other words, generally accorded the highest value by those who believe the press is indispensable to a democratic society. 
 
Fortunately, there are some Canadians who understand that point.  In a press release issued last month, the British Columbia Civil Liberties Association announced it had applied for leave to intervene in Steyn’s trial.  In the language of the president of the association: “Freedom of expression is a fundamental democratic value.  Citizens of a democracy should be trusted to form their own judgments about the views expressed by others, including controversial and offensive comments.  The BCCLA will seek to protect basic Charter rights so that opinions on all matters, including religion, can continue to be debated freely and without fear through all media of communication.”

Despite the mounting evidence of the harm it causes, political correctness in the U.S. has so far escaped the opprobrium it  deserves.  Far from being the language of the enlightened, political correctness is the lingua franca of those who believe in control rather than debate, the very essence of totalitarianism.

The Threat to Free Speech Is Just Across the Border

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!!