First Amendment – Media & Communications Policy

December 4, 2024December 3, 2024 By Adonis Hoffman, Esq.

A New Era at the FCC: What’s Ahead

Media have become more important and invasive in our lives than ever. Whether online, TV, video, wireless, or wearable devices, Americans can’t seem to survive more than a few minutes without them.

It thus stands to reason that a newly established Federal Communications Commission led by incoming Chairman Brendan Carr will expand the agency’s reach into areas where more and more Americans are engaged. As such, it could become as important and involved in our lives as the very media it regulates.

September 6, 2024September 5, 2024 By Guest Author Gary Shapiro

Tech’s Role in Driving Innovation: Why Over-Regulation Stifles Progress

Recently, The Media Institute shared a commentary by Adonis Hoffman suggesting tech should be highly regulated, blaming it for many problems faced by traditional media. On behalf of the Consumer Technology Association’s (CTA)^®1,300 tech company members, many of which are leading competitors around the world and collectively are driving economic and stock market growth, I strongly disagree with this perspective. The notion of using government to “tear down” one industry to “boost” another is misguided and harmful to the competitive spirit that drives American innovation and economic success.

Tech is tackling global challenges and improving lives for billions of people. Indeed, CTA and CES^® partnered with the United Nations to provide and promote solutions for clean water, clean air, health care, and food availability. As innovators develop solutions saving lives, some media industry lobbyists whose businesses lost market share to innovative competitors push for unnecessary taxes and restrictions on tech – simply because it has disrupted traditional models.

December 15, 2023December 14, 2023 By Stuart N. Brotman

Threats on Campuses Need To Be Dealt With Directly

The recent explosive congressional hearing with presidents from among some of the nation’s most elite universities – Harvard, MIT, and the University of Pennsylvania – nearly broke the Internet. All three academic leaders could not clearly state that advocating genocide against Jews might violate their campus codes of conduct. Politicians of all stripes – along with students, faculty, alumni, and prominent donors – were shocked that what seemed like something defined by a bright line of morality would be portrayed as requiring nuance in response.

Elizabeth Magill, Penn’s president, created the most memorable soundbite while under intense questioning by Rep. Elise Stefanik, (R-N.Y.). When asked by Stefanik whether calling for the genocide of Jews constituted bullying or harassment, Magill soberly replied, “It is a context-dependent decision, congresswoman.”

October 11, 2023 By Stuart N. Brotman

The Important Formative Years of a Legendary First Amendment Advocate

The new PBS “American Masters” documentary, Floyd Abrams: Speaking Freely, chronicles legendary First Amendment lawyer Floyd Abrams. It largely focuses on the amazing trajectory of his career in this vital area of constitutional law.

As a young law firm associate on Wall Street, Abrams was a pivotal member of the legal team that successfully argued before the U.S. Supreme Court that the national security concerns advanced by the U.S. Department of Justice did not justify a publication prior restraint of the Pentagon Papers by The New York Times.

September 8, 2023September 7, 2023 By Stuart N. Brotman

Explicitly Addressing College Self-Censorship in the New Academic Year

With the beginning of the college academic year, those of us teaching this fall are drafting various course syllabi – seeing what might be worth revisiting, such as new readings that might be added.

But all too often, the upfront syllabus boilerplate sections are overlooked since they are cut and pasted from previous versions of the same course or similar ones. Unfortunately, a section dealing with free expression in the classroom is missing in many.

April 10, 2023 By Stuart N. Brotman

Stanford Law’s Free Speech Teachable Moments

I am a lawyer, First Amendment scholar, and an endowed journalism and electronic media enterprise and leadership professor at a major research university. Given these multiple professional identities, my thoughts on a recent headline-grabbing incident at Stanford Law School cannot be summarized by a pithy tweet, which is the coin of the realm in the social media world.

A recent Stanford Law event sponsored by its Federalist Society, a conservative and libertarian legal organization, has received widespread national media attention for the chaos it caused in real time, and more importantly, the threat to free speech that it represents.

March 30, 2023April 19, 2023 By Stuart N. Brotman

The Ticking Clock on Legally Restricting TikTok

Amidst the growing concern over TikTok’s massive availability in the United States, Congress now is ramping up its public scrutiny of that company, which is owned by China’s ByteDance. That foreign ownership has raised serious concerns regarding whether the company might constitute a national security threat that warrants an outright nationwide ban.

Such a ban, which has been advocated by Rep. Cathy McMorris Rodgers (R-Wash.), chair of the House Energy and Commerce Committee, raises First Amendment concerns that the government may not be able to justify under the constitutional strict scrutiny test of the Supreme Court that likely would apply in this case. It is unclear, and at this point unlikely, that a sufficient showing could be made to convince a federal court that the gravity of the national security risk in practice would justify restricting the ability of 150 million Americans to use the app for sending and receiving information.

January 13, 2023January 13, 2023 By Stuart N. Brotman

Let C-SPAN Have Unrestricted Camera Access to U.S. House Proceedings

After the chaotic process that led to the 15th-round election of Rep. Kevin McCarthy (R-Calif.) as the new Speaker of the House of Representatives, there is much talk about how much power he needed to give up in order to achieve his narrow-majority victory. But even with the new rule changes for the 118th Congress – such as allowing for a single member to make a motion to vacate, triggering a vote on retaining the Speaker – there is one clear power that Speaker McCarthy has not forfeited. That’s the power to let C-SPAN have unrestricted camera access to House proceedings, as it did during the dramatic events leading up to the final vote tally.

January 6, 2023 By Stuart N. Brotman

Why Elon Musk’s Digital Town Square Model for Twitter Remains Elusive

When Elon Musk acquired Twitter in October, he sent a prominent virtue signal. Musk indicated that under his ownership, Twitter would be “a common digital town square, where a wide range of beliefs can be debated in a healthy manner.”

This notion was quickly picked up in numerous glowing tweets, then amplified by media worldwide. But we have learned in the ensuing months that there never was and never will be a digital town square.

December 20, 2022December 20, 2022 By Stuart N. Brotman

Two Teachable First Amendment Moments

Since Election Day 2022, we have experienced two extraordinary teachable moments about the First Amendment. Those all along the political spectrum should review them as a crash-course refresher for the clear red line that our nation’s Founding Fathers envisioned when they crafted this bedrock of the Constitution’s Bill of Rights.

Elon Musk, Twitter’s new owner, has decided to lift a nearly three-year ban on using the popular social media platform that had been imposed on Donald J. Trump during the final days of his presidency. Musk indicated this reversal represented “the will of the people,” based on a quick, unscientific online poll he posted that indicated a slim majority approved of former president Trump being allowed to use Twitter again to reach the 88 million people who had been his followers at the time of his banishment.