Net Neutrality Decision: A Welcome Development

Tuesday’s decision by the D.C. Circuit Court of Appeals, striking down the FCC’s so-called “net neutrality” regulations, is a welcome development.  As noted by many, these regulations amount to a solution in search of a problem, with the only lasting and real-world effects being the creation of the precedent of governmental oversight of the previously unregulated Internet.

Moreover, and as argued in this space a little over a year ago, there is an international dimension to net neutrality, as the existence of these regulations in the U.S.A. advances the agendas of countries like Russia and China in regulating the Internet through the International Telecommunication Union.

Writing today in the Wall Street Journal, former FCC commissioner Robert McDowell makes a convincing case that, for this reason too, the FCC should abandon any further attempts to promote net neutrality.

For the new FCC chairman, Tom Wheeler, this development threatens the very real prospect of becoming his signature activity for the duration of his term.  This, because if, at the urging of Internet companies like Google, plus the Obama Administration, Wheeler is importuned to try to resurrect the net neutrality rules, he basically has but two options.  One is to appeal the Circuit Court’s decision, and the other is to attempt to reclassify broadband provision as a “telecommunications service,” rather than an “information service,” something that would allow the imposition of net neutrality regs (and who knows what else) by the same authority that the FCC regulates telephone service.

But if Wheeler goes the reclassification route, it will set off congressional fireworks of a sort that will land him and the FCC in a protracted war with telecom companies, and Republican legislators, without any guarantee of success.

Still, one can only imagine the angst among the net neutrality crowd following yesterday’s decision. As reported in The Hill by Kate Tummarello, Internet companies have “pushed net neutrality with an almost religious fervor.”  Indeed, one of the most ardent pushers, the ludicrous organization called Free Press, coined the sophomoric slogan: “Net neutrality, the First Amendment of the Internet.”

So it’s not at all clear what the FCC’s next step will be, but suffice to say that the Circuit Court’s decision is going to make for some very interesting times there … and elsewhere.

                                               

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

 

Internet Freedom in Peril

Not for the first time, FCC Commissioner Robert McDowell has issued a clarion call to all those interested in maintaining a free and open Internet.

In testimony before the House last week, Comm. McDowell made the following points:

(1)  Proponents of multilateral intergovernmental control of the Internet are patient and persistent incrementalists who will never relent until their ends are achieved;

(2)  The recently concluded World Conference on International Telecommunications (WCIT) ended the era of an international consensus to keep intergovernmental hands off of the Internet in dramatic fashion, thus radically twisting the one-way ratchet of even more governmental regulation in this space;

(3)  Those who cherish Internet freedom must immediately redouble their efforts to prevent further expansions of government control of the Internet as the pivotal 2014 Plenipotentiary meeting of the International Telecommunications Union quickly draws near;

(4)  Merely saying “no” to any changes is – quite obviously – a losing proposition; therefore, we should work to offer alternate proposals such as improving the long-standing and highly successful, non-governmental multi-stakeholder model of Internet governance to include those who may feel disenfranchised; and

(5)  Last year’s bipartisan and unanimous congressional resolutions clearly opposing expansions of international powers over the Internet reverberated throughout the world and had a positive and constructive effect.

Once again, a cogent and persuasive presentation by the FCC’s MFC (Most Favored Commissioner). Read the whole of his testimony here.

                                               

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

 

Google, the FTC, and ‘Plausible’ Justifiability

Though it was surely not its intention, the Federal Trade Commission’s conclusion last week of its investigation of Google invites the question: What useful function does the FTC serve?

Not content, after two years of investigation on the taxpayers’ dime, to largely look past the mountain of evidence of marketplace harm caused by Google’s search and advertising practices, the Commission compounded that error by declining to issue a formal consent order, leaving it in the hands of Google itself, without the prospect of penalty, to change some of its business practices.

As even Commissioner J. Thomas Rosch said in his statement of concurrence and dissent, the FTC’s “settlement” with Google “creates very bad precedent and may lead to the impression that well-heeled firms such as Google will receive special treatment at the Commission.”

In elaboration of his dissent from the settlement procedure, Comm. Rosch added this:

Instead of following standard Commission procedure and entering into a binding consent agreement to resolve the majority’s concerns, Google has instead made non-binding commitments with respect to its search practices….

Our settlement with Google is not in the form of a binding consent order and, as a result, the Commission cannot enforce it by initiating contempt proceedings.  The inability to enforce Google’s commitments through contempt proceedings is particularly problematic given that the Commission has charged Google with violating a prior consent agreement.

What Comm. Rosch delicately calls “special treatment,” the more cynical of us would recognize as political influence peddling, a practice that Google has become quite adept at employing.  First it bankrolled the codification, at the Federal Communications Commission, of “net neutrality” regulations, thereby providing a solution to a nonexistent problem; then it led the successful opposition to the PIPA and SOPA copyright bills, the better to protect its investment in YouTube; now it has neutered the FTC, with the consequence being that it can continue to game its search results in ways that favor companies it controls.

So how has Google managed such political feats?  Well, would you believe that money has played a role?  In the FTC investigation alone Google reportedly spent some $25 million lobbying the matter.  To give an idea of the magnitude of this kind of spending, it equals 10 percent of the FTC’s total annual budget of $250 million.

But in addition to its FTC-specific lobbying, it’s well known that Google has cast its lot, through munificent campaign contributions and public policy support, with the current administration. Though it failed to come to pass, there was undoubtedly substance to the rumor that Google’s Eric Schmidt was being considered for a cabinet post in the Obama Administration.

Even so, there is evidence that the FTC commissioners know what they have done.  Their concluding statement about Google’s search practices, for instance, displays an almost comical defensiveness as they contend that, even if Google’s search practices favor its own companies, that is arguably okay:

In sum, we find that the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification.  Rather, we conclude that Google’s display of its own content could plausibly (emphases added) be viewed as an improvement in the overall quality of Google’s search product….  Although at points in time various vertical websites have experienced demotions, we find that this was a consequence of algorithm changes that also could plausibly be viewed as an improvement in the overall quality of Google’s search results….

Although our careful review of the evidence in this matter supports our decision to close this investigation, we will remain vigilant and continue to monitor Google for conduct that may harm competition and consumers.

Such limp-wristed rhetoric aside, there is a chance that Google will be brought to heel, just not by American authorities.  As it happens, the European Commission has also been investigating Google’s misdeeds, and the odds are good that, lacking the kind of political clout in Europe that it has in the USA, the company may actually receive from the Europeans something more than just a slap on the wrist.  On Dec. 18 the Commission gave the company 30 days to provide it with proposals to settle its complaints, something that could cost Google billions if it fails to do so.

Whatever the Europeans do, however, there remains the FTC’s foozled play, well put in a Bloomberg News editorial:

The FTC missed an opportunity to explore publicly one of the paramount issues of our day: Is Google abusing its role as gatekeeper to the digital economy?  Lawmakers, economists, other regulators, and consumers should all be in on this important debate over whether Google is leveraging its overwhelming dominance of search into unassailable market power in other areas. 

                                               

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

The ITU and the Internet

In 1971, when China was first admitted to the United Nations, William Rusher quipped that it was "a case of loosing a China in the bullshop.”  Such is the first thought that comes to mind in reflection on the latest bit of mischief to issue from the UN, in this case courtesy of that body’s International Telecommunications Union (ITU).

The second thought is of the power of precedents in law and policymaking.  Policywise, precedents can be likened to the engine of a train, the caboose of which is incremental or galloping movement in the same direction.

So the take-away from the vote last week in Dubai by 89 countries, including such freedom-loving regimes as those of China, Russia, Iran, and Venezuela (you know, the usuals), is that it’s just a matter of time before many of those same countries claim the right, under the UN charter, to control the Internet through such things as filtering, identifying users, and surveillance.

Defenders of last week’s vote, like the head of the ITU, disingenuously claim that “The conference was not about Internet control or Internet governance….  And indeed there are no treaty provisions on the Internet.”  The key word here is “treaty,” since tucked away in the appendices, as reported by Ars Technica, is this sentence:

[WCIT-12 resolves to invite member states] to elaborate on their respective positions on international Internet-related technical, development and public-policy issues within the mandate of ITU at various ITU forums including, inter alia, the World Telecommunications/ICT Policy Forum, the Broadband Commission for Digital Development and ITU study groups. 

So for the first time, the precedent has been established that the UN is an appropriate body for the deliberation of policy issues affecting the Internet.  Never mind that this resolution is not binding on those countries, like the United States, which voted against the International Telecommunications Regulations.  The point survives: From this time forward the UN’s ITU will provide cover for those nations that wish to wall their citizens off from the open Internet.

Nor is this the only dangerous precedent to be noted in the context of the WCIT.  As warned two years ago by Ambassador Philip Verveer, the adoption by this country of so-called “net neutrality” regulations itself provides an opportunity for international mischief making.

As Robert McDowell, than whom no other FCC commissioner in memory has been right more often, put it in congressional testimony earlier this month:

Should the FCC’s regulation of Internet network management be overturned by the court, in lieu of resorting to the destructive option of classifying, for the first time, broadband Internet access services as common carriage under Title II, the FCC should revive a concept I proposed nearly five years ago – that is to use the tried and true multi-stakeholder model for resolution of allegations of anti-competitive conduct by Internet service providers….

If we are going to preach the virtues of the multi-stakeholder model at the pending World Conference on International Telecommunications (WCIT) in Dubai, we should practice what we preach.  Not only would the U.S. then harmonize its foreign policy with its domestic policy, but such a course correction would yield better results for consumers as well. 

                                               

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

 

Defending the First Amendment in the 21st Century

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                   

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

FCC Denies Stay of Its Political File Rules

In a decision that landed a country mile from being a surprise, the FCC yesterday denied a stay requested by the NAB of its new political file rules, under which broadcasters are required to post online their spot-by-spot ad rates for candidates for federal office.

As readers of this blog will recall, a dozen broadcast station groups recently suggested an alternative approach in which the required information about political and issue ads would be posted online, but aggregated in a way that would not reveal the stations’ ad rates.  (The alternative proposal would also have provided information about political and issue ads in state and local races, something that the FCC’s new rule does not require.)

The stations were concerned that, because the political ad rates are based on the rate they charge their best commercial advertisers, the effect of posting their political ad rates online would be to encourage other commercial advertisers to demand the same low rates for their products and services.  (Broadcasters also chafed at the fact that cable and satellite companies would not have to provide this information.)

Yesterday’s denial of the NAB’s requested stay mentioned the alternative proposal only in passing, but in language that speaks volumes.  “Requiring the public to view aggregated data online and separately review complete political rate data in the paper file,” they said, “would not provide the efficiencies presented by online disclosure.”

What is missing here is what part of the “public,” other than broadcasters’ competitors and advertisers, would want to view the spot-by-spot ad rates.  The simple fact is that the proposed aggregated data would actually be more helpful to journalists and interested citizens than the disaggregated data that the FCC rule now requires.

But the best in the language of the FCC’s decision was yet to come.  In a sentence that is sure to have broadcasters rolling in the aisles with laughter, the FCC writes that “as an additional basis for rejecting the alternative proposal, the Commission finds that it would be significantly more burdensome on broadcasters because it would require both the maintenance of paper files with detailed spot-by-spot information and the creation and uploading of new aggregated files.”

In other words, the FCC denied the broadcasters own proposal because the Commission was concerned that it would be too burdensome on them – surely the first time in recent memory that the FCC has been moved to act out of concern for broadcasters’ welfare.

                                  

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

 

Reconsidering the FCC’s Political File Rule

The FCC’s recently minted rule requiring certain broadcast stations to post their political ad files online rather than, as is currently the case, in their local public inspection files, is not the kind of issue that is likely to stir the nation’s passions.Regardless of how challenges to the rule pan out, very few people are going to run off and join the circus if things don’t go a certain way.

Still, it’s a more interesting issue than, on its face, it would appear to be – and there’s evidence that defenders of the rule, along with reporters, are not paying attention to some of the finer points being made in opposition to it.

As of today there are three separate challenges to the rule – one at the FCC, one at the Office of Management and Budget, and one in the U.S. Court of Appeals for the D.C. Circuit.  The petition for reconsideration at the FCC, signed by 12 TV station groups, is the most nuanced of the complaints.

As with the others, the FCC petitioners are mostly concerned about having to reveal online their spot-by-spot ad rates, but with this difference: The petitioners propose to aggregate such data in a way that would not reveal their ad rates but would actually make it easier for everyone, journalists included, to understand who is contributing to whom, and in what amounts, and in addition to include online the same kind of information for state and local candidates, something the FCC rule does not require.

Why the broadcasters are opposed to having to reveal online their political ad rates, when they already provide this information in their local public files, takes a little explaining.

Currently, broadcasters are required by law to offer political advertising to candidates for federal office at the “lowest unit rate,” which is the rate they charge their best commercial advertisers.  But these data are not that user friendly, and in any event requires that someone physically go to a TV station for the purpose.  (For anyone so disposed, the cumbersomeness in this only grows, as the date of an election draws near, because TV stations update their political files more frequently at that time.)

Campaign representatives sometimes do check these files to ensure that their candidates are not being charged more than their opponents, but commercial advertisers do not, and that fact touches on one of the main worries among the broadcasters: They fear that if they have to reveal online their spot-by-spot ad rates, some of their commercial advertisers (knowing that the political rates are based on what the stations charge their best commercial customers) will demand these rates for themselves.

It’s also bothersome to broadcasters that their media competitors, both in broadcasting and cable, would have access to this information, and it’s further been suggested that, as written, the FCC rule may encourage trial lawyers to file frivolous lawsuits against TV stations on behalf of losing candidates.

So in the case of the FCC petitioners, the question isn’t why broadcasters don’t want to provide their political files online (they are willing to do that), but why defenders of the FCC rule insist on requiring the online display of stations’ ad rates?

After all, one of the main goals of the campaign finance laws is to provide, in a timely way, information about candidate and issue expenditures.  It’s not the goal of these laws to compel TV stations to divulge their competitive secrets about ad rates and the like.

When asked about the unwillingness of the FCC to approve this simple modification to its rule – the Commission had this suggestion before it prior to its vote in late April – a communications lawyer prominently involved in the matter said that, in the wake of the Citizens United decision, everything touching on campaign finance has taken on a kind of “religious aspect,” such that advocates of campaign finance laws are these days unwilling even to grant such harmless accommodations as those presented by the petitioners.

Notable by their absence from the FCC petition are the station groups owned and operated by the Big Four TV networks.  Lawyers for the petitioners note that the networks supported the suggested “aggregation” approach prior to the FCC’s vote, and aver that they support the petition now.

That may be right, but if so it’s hard to confirm.  It may be, instead, that the networks don’t like the odds that the FCC will accommodate the petitioners, or that they are unhappy about the petitioners’ proposed inclusion of political ad information about candidates for local office.

For its part, the National Association of Broadcasters has appealed the FCC’s rule to the OMB, claiming that the obligation to put the political files online is unduly burdensome, and in conflict with the Paperwork Reduction Act.

There may well be real merit in these other concerns, and in the arguments to be fleshed out in the broadcasters’ lawsuit in the D.C. Circuit, but it’s the modest proposal made by the FCC petitioners that shines the brightest light on how hard it is these days to forge reasonable compromises in a deeply divided nation.

                                  

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

Julius Genachowski and Broadband Billing

Comments made earlier this week by FCC chairman Julius Genachowski have raised hackles at organizations like Free Press and kindred groups.  The occasion was the Cable Show in Boston, and the offending subject was what is called “usage-based billing” – the radical notion that people who use more of a thing should pay more than those who use less.

In a Q&A session with Michael Powell, former FCC chairman and current CEO of the National Cable and Telecommunications Association, Genachowski avowed that there was much to like about broadband providers basing their charges on usage (rather than on a one-size-fits-all basis).

This wasn’t the first time Genachowski had endorsed this practice – it was part of the net neutrality regulations that the FCC promulgated a couple of years ago – but it was enough to provoke the simple folk at Free Press into eruptions of their usual blather.

The last time broadband billing was discussed in this blog (April 2009), the news was Time Warner Cable’s decision, under fire from people and organizations like Free Press, Public Knowledge, and Sen. Charles Schumer, to suspend their trials of this kind of billing in a handful of cities.

As reported at the time, the air was thick with celebration as the “victors” issued triumphant statements on the occasion.  Triumphant no more, they have been reduced, in response to Genachowski’s comments on Tuesday, to broadsides and bromides like this one from Matt Wood, policy director of Free Press: “The data caps being pushed by the biggest cable companies are bad for consumers … and the FCC should be investigating these caps, not endorsing them.”

But enough about broadband billing per se.  The more noteworthy thing about Genachowski’s comment is that this marks at least the third time that he has demonstrated his independence from the louder voices among communications policy outfits.

The first time was with the FCC’s adoption of what came to be called “net neutrality lite,” and the second was when he hired Steve Waldman to head up the agency’s “future of media” report, a document that steered clear of the most intrusive and inappropriate kinds of recommendations that had been proposed for it.

None of this is to say – nor would the gentleman necessarily welcome our saying – that Mr. Genachowski is the very model of what one looks for in an FCC chairman.  Though the net neutrality regulations are much better than what they might have been, better still would be no such regulations at all.

Still, in an environment as divisive as Washington’s, it’s probably a good idea once in a while to step outside of it all and give credit where credit is due.  So props to Julius Genachowski for his embrace of usage-based broadband billing.  ’Tis a fine thing he’s done.

                                     

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

 

The Truth Behind Google’s Copyright-Bills Hysteria

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

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

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

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

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

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

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

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

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

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

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

                                  

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

 

A Court Strangely Conflicted About Indecency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                  

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