Category: First Amendment

Posted on By Patrick Maines

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.

 

Posted on By Prof. Laurence H. Winer

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.

Posted on By Patrick Maines

Rationalizing Theft: The Technology Lobby’s Attack on Copyright Legislation

The technology crowd’s objections to the copyright protection bills, now moving their way through Congress, put one in mind of H.L. Mencken’s crack that criticism is prejudice made plausible.  This, because that industry’s leaders, scribes, and think tanks uniformly oppose every legislative initiative aimed at protecting copyrighted content, even as they frequently give lip service to the concept .

From the Digital Millennium Copyright Act (DMCA) in the late ’90s – which they fought tooth and nail, but cling to in today’s debates as though it were an uncle come to jail with money for the bail bondsman – to today’s Protect IP and Stop Online Piracy acts (good summaries of which are here and here), the techies profess all sorts of high-minded concerns, but never at the expense, you understand, of their business plans.

Take, for instance, Google, the 800-pound gorilla, inside and outside the Beltway, regarding all things digital.  The company’s executive chairman, Eric Schmidt, claims that attempts to crack down on rogue sites profiting from copyright infringement could set a “disastrous precedent” for freedom of speech, and also that they would encourage more restrictive Internet policies in countries like China.

This is serious stuff, and would be more serious still if (a) it were true, and (b) it issued from a company with any public policy credibility in this regard.  Alas, neither is the case.  Let’s start with the credibility problem first.

The best example of a U.S. policy that really would have (or might still) set a bad precedent regarding repressive regimes abroad is the FCC’s recently concluded Network Neutrality proceeding.  Indeed, in March of last year the U.S. Coordinator for International Communications & Information Policy at the State Department, Philip Verveer, had this to say about the subject at a Media Institute luncheon in Washington: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet … it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly.”

Though there are those, of whom I’m one, who think the FCC’s subsequently enacted Internet rules, though greatly watered down, still went too far, the more interesting thing to note in this regard is that Google was the leading figure among those lobbying in support of net neutrality.

In the summer of 2006, for instance, Eric Schmidt himself penned a note on Google’s Public Policy Blog that read in part:

The Internet as we know it is facing a serious threat.  There’s a debate heating up in Washington, D.C. on something called “net neutrality” – and it’s a debate that’s so important Google is asking you to get involved.  We’re asking you to take action to protect Internet freedom….

Creativity, innovation, and a free and open marketplace are all at stake in this fight. Please call your representative and let your voice be heard.  

And then there’s the argument, made by Google and lesser apologists of unfettered infringement, that the Protect IP and Stop Online Piracy acts undermine the speech guarantees of the First Amendment.  Whether it’s because they like the sound of the accusation, or because, not knowing any better, they actually believe it, there’s a lot of this nonsense going around the technocracy.

They might be more cautious about making such claims if they read the First Amendment analysis of the Protect IP Act written by the most distinguished First Amendment scholar of our age, Floyd Abrams.  In a 12-page letter sent on May 24 to Senate Judiciary Committee members Leahy, Hatch, and Grassley, Abrams lays out a compelling argument that the Act is consistent with the First Amendment, and concludes with these observations:

Among a range of objections, two core critiques stand out.  First, there is a recurring argument that the United States would be less credible in its criticisms of nations that egregiously violate the civil liberties of their citizens if Congress cracks down on rogue websites.  Second, there is the vaguer notion that stealing is somehow less offensive when carried out online….

I disagree.  Copyright violations are not protected by the First Amendment.  Entities “dedicated to infringing activities” are not engaging in speech that any civilized, let alone freedom-oriented nation protects.  That these infringing activities occur on the Internet makes them not less, but more harmful.  The notion that by combating such acts through legislation, the United States would compromise its role as the world leader in advancing a free and universal Internet seems to me insupportable.  As a matter of both constitutional law and public policy, the United States must remain committed to defending both the right to speak and the ability to protect one’s intellectual creations.  This legislation does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.

Abrams’ last point is especially noteworthy.  Not only is the current concern with copyright protection  nothing new, it is in fact as old as the country itself.  Reading the overwrought diatribes of the tech community one might get a different impression, but in fact it’s all there in black and white, among the “enumerated powers” in Article 1, Section 8 of the U.S. Constitution.

For those who have forgotten, or never knew, this so-called copyright clause empowers Congress “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”

Language and wisdom, that is to say, that is not the contemporary creation of the heads of the motion picture studios, but of the Founding Fathers more than 200 years ago.

                                  

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

Posted on By Patrick Maines

Hank Williams Jr.

Even the most basic facts are in dispute.  Was Hank Williams Jr. fired by ESPN or did he quit?  Was Williams’ comment (Obama playing golf with Boehner like Hitler playing golf with Netanyahu) a comparison of Obama to Hitler, or was it an analogy of the irony in meetings between enemies?  And if it was in fact a comparison of the men in question, rather than an analogy, how do we know that Williams wasn’t comparing Obama to Netanyahu, or Boehner to Hitler?  Or was Williams’ separation from ESPN, whether he resigned or was fired, a consequence of other things he said?

We may never know the answers to these questions, but there are some things we can know.  We can, for instance, know to the point of a moral certainty that this flap is not a First Amendment issue.  No court in the country would adjudicate this matter along the lines of First Amendment case law.

There is no doubt that ESPN was within its First Amendment rights to do what(ever) it did.  There was no governmental involvement in this matter, and though Mr. Williams certainly has his own First Amendment rights, they do not extend, under constitutional law, to his continued employment by ESPN.

All this said, nobody who believes deeply in freedom of speech, both as an individual right and as a vital and salutary aspect of citizenship in a democracy, can be happy about any of this.  It is, sad to say, just another example of the steady erosion of freedom of expression in an age of political correctness.

As written on an earlier such occasion, one wonders where the push to sanitize speech along PC lines will end.  There’s no gainsaying that some kinds of speech are ugly and hurtful.  But increasingly, political correctness seems to be working in a way that shuts off honest debate and discussion, and seeks to isolate politically those people whose views or statements are seen not just as offensive but as undermining aspects or elements of the status quo.

Most people with knowledge of the matter understand that the actions of the MSM, regarding issues like those in the Williams affair, can be explained by the media’s fear of damage to their “brands,” often in consequence of retaliation by organized single-issue and special-interest groups, who frequently mount campaigns against the offending media’s advertisers.  Looked at this way, the MSM’s acquiescence in things PC is understandable, but history may show that understandable was not good enough.

Media companies depend on more than the constitutional protection of the First Amendment for their free rein – they rely crucially on the goodwill they create with the public.  The problem with giving lip service to freedom of speech, while breaking it to the saddle of political correctness, is that over time this can erode the public’s confidence in the media as faithful stewards of free-speech rights broadly speaking.

Several years ago, The Media Institute created and launched a national celebration called Free Speech Week, which this year begins today. That we decided to name it this, rather than, say, First Amendment Week, was no accident.  We put free speech in the name of it because we wanted to celebrate and promote not just those kinds of speech that are constitutionally protected, but those that are not as well.  Episodes like the Hank Williams affair demonstrate why it’s so important that this movement grow and prosper.

                                  

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

 

Posted on By Patrick Maines

Dodging a Bullet: The FCC’s Report on the Future of the Media

Seventeen months ago the FCC teed up what until last Thursday was known as the “Future of Media” project.  For all practical purposes the project’s report, now called “The Information Needs of Communities,” is likely to be forgotten in half that time.

On the face of it this sounds like a criticism.  Far from it!  For its thoroughness and level-headed analysis, and especially for its acknowledgment of the constitutional limits on governmental involvement in the media, this report, and its principal personnel – most notably the man brought in to oversee the effort, Steven Waldman – are owed a debt of gratitude.

Before this project began there arose a powerful network comprised of ideologically motivated activist groups like Free Press; academic institutions and their publications, like Columbia University’s CJR; and deep-pocketed grant-giving groups, most importantly the Knight Foundation; all in the vanguard of what is euphemistically called the “media reform” movement.

And as Chairman Genachowski himself acknowledged, it was the work of these players – most notably the Knight Commission (a creation of the Knight Foundation, which two years earlier released a similarly titled report) that prompted the FCC’s own project.

So with this as its provenance, who would have been surprised if the report had embraced the media reform crowd’s recommendations?  But, mirabile dictu, it did not!  Instead, the report effectively dismisses the worst aspects of the media reformers’ governmental agenda.  Missing or explicitly rejected, for instance, are increased funding of public broadcasting, a “Geek Corps” for local democracy (patterned after AmeriCorps), federal tax credits for investigative journalism, and calls for a halt to media consolidation.

In fact, one of the few “action elements” in the report was a call for less government regulation.  As remarked by media reporter John Eggerton, the report “recommended scrapping the FCC’s ascertainment rules … as well as closing the localism proceeding without taking steps like creating community advisory boards to weigh in on public interest programming.”

There are those of us who believed that it was a mistake for the FCC to engage in this project at all – first out of conviction that the FCC had no authority to venture so far afield, and second out of fear that the report might provide the impetus for intrusive and unconstitutional regulations or legislation.  But in light of what the project report says, and doesn’t say, the feeling now is that some good will come of it.

After all, the “media reformers” will never have a better setup than they had here. With a Democratic majority on the Commission, a substantial infrastructure of activists and their financial enablers, and a media industry that is in fact struggling, if ever there were a time when the reformers’ wish lists might find policy traction this was it.  And now they have their reward: an exhaustive report that almost completely ignores that part of their agenda requiring governmental action.

During the Clinton era, many of the same kind of people who today support media reform helped man a presidential commission that came to be known as the Gore Commission.  Its focus was on the “public interest obligations of broadcasters in the digital age.”  And like the agenda of today’s media reformers, it encouraged government action in ways that undermined the First Amendment.

In the end, the Gore Commission produced its own report, a document that was as dense as it was feckless, and the whole enterprise sank from public consciousness almost immediately – as well it should have, since it produced nothing of value.  The guess here is that the FCC’s Information Needs of Communities report will also sink from public consciousness – not because it lacks value (its scholarship and usefulness as a research document are undeniable, for instance), but because it wisely steered clear of recommendations advanced by the more feral elements within the media reform community – people, for instance, like Commissioner Copps, a long-time spear carrier in that army, who immediately released an impassioned denunciation of the report.

Had the report endorsed radical (and preposterous) things, like a federal tax credit for investigative journalism, it would have attracted more ink, and been the subject of conversation far longer.  But it’s a credit to its authors, and to Chairman Genachowski, that it did not do so, because it shows they possess both a realistic view of the scope of the FCC’s limited authority and a healthy respect for the First Amendment.

                                  

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

Posted on By Patrick Maines

Idealists on the March

In yet another demonstration that the human race is not yet won, Congressman Jim Moran (D-Va.), no stranger to political funding controversies himself, will soon be headlining what its organizers call the "Rally Against Citizens United."

Subtitled the "Campaign To End Corporate Dominance of Our Democracy," the rally is cosponsored by Washington-area Democratic party groups, MoveOn, and the AFL-CIO.  So in other words, it’s a completely disinterested group of people, whose opinions about Citizens United are the result solely of idealism and objective cerebration – without even so much as an itsy bitsy teeny weeny hint of a political motive.

And it’s a good thing, too!  Because, you know, were people to subject a Supreme Court decision, decided on constitutional grounds, to rude political pressure it might seem to some like an assault on the independence of the judiciary itself.

Happy to report, literature distributed by the organizers makes ominous reference to the “increasing and pervasive corporate takeover of American politics,” a warning that, despite evidence of the precise opposite (see: Tea Party), consists of precisely that amount of ideological fanaticism that the times require.

So, thanks in advance to everyone involved for your selfless, not to say scholarly, contribution to our national discourse.  May an awakened nation be your reward.

                                   

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

 

Posted on By Patrick Maines

‘Net Neutrality’ Goes To Court (Again)

For the most part, objections to the FCC’s new “network neutrality rules” – codified in December to preserve a “free and open” Internet despite a lack of evidence that anything less was the ongoing condition already – have centered on the probable negative impact on investment in the broadband space, and on the ability of Internet service providers (ISPs) to manage their networks efficiently.

And why not?  After all, this is a time when even President Obama is recommending regulatory reform, and the net neutrality regulations impose substantial new reporting obligations, even as they fail to provide a clear understanding of what network management practices are acceptable.

Important as these concerns are, however, there is another problem with these rules, and that is the degree to which they conflict with the First Amendment.  Though this argument has been propounded by such notables as Laurence Tribe and FCC Commissioner Robert McDowell (who dissented from the FCC’s Order), it has gotten very little coverage in news or opinion stories.

But that may change if a lawsuit filed in federal court last month by Verizon survives the FCC’s motion to dismiss.  Indeed, if this case were to reach the Supreme Court, it might provide yet another example, a la Citizens United, of laws or regulations undone because of their constitutional infirmities.

So what are the First Amendment problems with the net neutrality regulations?  Broadly speaking, there are two: The regulations fail to recognize that broadband ISPs are speakers for First Amendment purposes; and they interject the government into private decisions about speech.

Commissioner McDowell elaborated on this first point in some detail in delivering his dissenting opinion.  “I question,” he said, “the Order’s breezy assertion that broadband ISPs perform no editorial function worthy of constitutional recognition.”

It is undisputed that broadband ISPs merit First Amendment protection when using their own platforms to provide multichannel video programming services and similar offerings.  The Order acknowledges as much but simply asserts that the new regulations will leave broadband ISPs sufficient room to speak in this fashion – unless, of course, hints elsewhere in the document concerning capacity usage come to pass.  So while the Order concedes, as it must, that network management regulation could well be subject to heightened First Amendment review, it disregards the most significant hurdle posed by even the intermediate scrutiny standard.  The Order devotes all its sparse discussion to the first prong of the intermediate scrutiny test, the “substantial” government interest, while wholly failing to address the second and typically most difficult prong for the government to satisfy: demonstrating that the regulatory means chosen does not “burden substantially more speech than is necessary.”

In comments submitted to the FCC by Time Warner Cable, Harvard constitutional scholar Laurence Tribe, who served as a judicial adviser to President Obama’s election campaign, made a number of kindred observations about net neutrality and the Constitution.  Two paragraphs, in particular, are of special note:

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.  Inconsistent with that purpose is any notion that government might properly limit private decisions, such as those by BSPs (broadband service providers) regarding the control of their networks, in order to widen the access of some to the avenues of speech or to swell the aggregate amount of speech beyond whatever would result from the decisions of private speakers enjoying “absolute freedom from First Amendment constraints.”…

Many net neutrality proponents argue that BSPs are not actually engaging in speech that implicates the First Amendment.  But they are incorrect.  The Constitution applies equally even outside traditional print or electronic media, so that, for example, the government cannot require an individual to open his doors and turn his home into a forum for protesters.  Further, like a newspaper, a BSP has a limited capacity to distribute information and accordingly enjoys the right to decide how to apportion that space.  And as noted, BSPs make decisions about the delivery of particular content as they continue to innovate in the products, services, and business models they employ.

Quite apart from net neutrality’s First Amendment problems in the United States, there is an international aspect that is also troubling to those who recognize the importance of free speech around the world.
 
In remarks delivered in Washington last year to The Media Institute, the State Department’s Coordinator for International Communications and Information Policy, Ambassador Philip Verveer, said the following: “The net neutrality proceeding is one that could be employed by regimes that don’t agree with our perspectives of essentially avoiding regulation of the Internet … it could be employed as a pretext or as an excuse for undertaking public policy activity that we would disagree with pretty profoundly….”

For his candor, Ambassador Verveer received criticism from net neutrality proponents inside and outside the administration, but his point survives. It’s really not such a difficult concept to apprehend: When governments acquire regulatory authority over media and communications they are that much closer to being able to control the content and distribution of those media and communications, however benign the rationale for their regulatory authority may seem.

As mentioned at the outset, the First Amendment aspects of net neutrality have gone largely unreported, and there is little doubt that most of the briefs filed in support of Verizon’s case will accentuate other problems with the regulations.  But for those of us who follow free speech issues closely, the constitutional baggage is a thing of great interest and possibly great consequence.

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

Posted on By Patrick Maines

Juan Williams and NPR

OK, so right off the bat let’s deal with what NPR’s firing of Juan Williams is, and what it is not.  It is a free speech issue, but it is not a First Amendment issue.  This is an important distinction because while many First Amendment issues involve freedom of speech, and many free speech issues involve the First Amendment, it is not the case that all free speech issues are First Amendment issues.

At bottom, the Speech Clause of the First Amendment is a proscription on what government can do to the media, not on what the media can do themselves.  As a practical matter what this means is that NPR’s management had the right to do what they did, and that, were this matter to go before a court, its resolution would not turn on First Amendment case law.

This said, the wisdom of the action taken, and what it suggests about the future of freedom of expression generally, are very much at issue here.

People of a certain age may remember the sad case of Jimmy (the Greek) Snyder, who was fired by CBS for some bizarre off-the-cuff comments he made about black athleticism while having a meal at a Washington restaurant.  Other similar cases are those of Don Imus, and more recently Helen Thomas and Rick Sanchez.

So while there are some important differences in these cases, we’re beginning to see a pattern here: When reporters and commentators say things that arguably offend minorities (and thereby disturb the politically correct equilibrium) they get fired.  And the question is whether this is the right, or even the intelligent, way to deal with such issues, especially for media companies?

It used to be believed that the best way to handle speech that is unfair or false was for more speech, not less, and by that measure a better way to have resolved many of these matters would have been for management to issue comments that mock, or directly challenge the falsities, in the offending comments.

Though the dust hasn’t even begun to settle, it’s already clear what many people, of varying political stripes, think of the way NPR has handled the Williams affair: They think it’s a disaster.  As Howard Kurtz, formerly of the Washington Post, put it in a Daily Beast piece: “His firing has backfired, handing FOX a victory and making Williams a symbol of liberal intolerance — on the very day NPR announced a grant from George Soros that it never should have accepted.”

Indeed, the Soros revelation, combined with Republican and (especially) conservative antipathy for taxpayer support of PBS and NPR, guarantee that the Williams flap is not going away any time soon.  As lamented here, there has been a coordinated and richly financed effort underway for months that has, as part of its aim, a substantial increase in government funding for public media generally, and that would oblige PBS member stations to redirect their news programs to more local coverage — the very thing that Soros’s contribution is designed to facilitate at NPR.

But that is a story that will play itself out in days to come.  Front and center now is the question of the impact of the Williams affair on NPR, in which regard it might be useful to examine a couple statements; the offending one, made by Williams, and another, made after his firing, by the president of NPR, Vivian Schiller.

Here’s Williams’s comment: “Look, Bill, I’m not a bigot.  But when I get on a plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.”

And here’s Schiller’s: “Juan Williams should have kept his feelings about Muslims between himself and his psychiatrist or his publicist.”

Under pressure, Schiller later apologized for her remark, but going forward that may not mean much.  Put it this way, of these two comments which one do you think is the most mean-spirited and intemperate?  And of the acts at issue — Williams’s comments or his firing – which one do you think does more damage to NPR?

Yes, I think so too.

                                                                           

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

Posted on By Richard T. Kaplar

Free Speech: It’s Catching On

This week, Oct. 18 to 24, is National Freedom of Speech Week (NFSW).  The Media Institute created NFSW in 2005 in cooperation with the National Association of Broadcasters Education Foundation as a chance for groups and individuals to celebrate the free speech and press that we enjoy thanks to the First Amendment, which protects most speech from government censorship.

The event has grown every year as more organizations have joined the celebration.  This year, however, we have seen a real spike in participation.  Much of this has come from colleges and universities, where professors of communications and law, in particular, see NFSW as an opportunity to host debates and discussions on freedom of speech.

We’re also seeing a big jump in persons writing about National Freedom of Speech Week, and free speech generally.  Much of this is happening in blogs and tweets, as opposed to traditional news stories, by all sorts of people with all sorts of interests who have at least two things in common: They take full advantage of their ability to speak freely, and they generally do so through digital means of communication.

And this is precisely what National Freedom of Speech Week is meant to celebrate.  We are all speakers, and we all have the ability to speak our minds without fear of government censorship.  Many of our large Partnering Organizations are conducting innovative programs, contests, and activities to raise awareness of free speech.  We salute them – and we will do our best to compile a list of their activities to document NFSW 2010.  

In the meantime, we tip our First Amendment hat to the bloggers and tweeters who are using their digital devices to create a new and exciting dialogue about freedom of speech and the First Amendment.  Their free speech is truly the language of America.

The National Freedom of Speech Week website is at freespeechweek.org.   

Posted on By Patrick Maines

‘Citizens United and Its Critics’

The Yale Law Journal has just published online an article by Floyd Abrams.  In language that is stirring in the power of its logic and elegance, yet solemn as a wake, the famed constitutional lawyer writes of his dismay over the way so many scholars and journalists have treated the Supreme Court’s decision in Citizens United, which largely overturned the law commonly called McCain-Feingold.

Abrams is neither surprised nor disappointed that these critics didn’t like the decision; his despair stems from their failure even to acknowledge the most obvious First Amendment aspects of the case.  They have, he says, treated the ruling “as a desecration.”

Many people will review this article narrowly, in that they will focus their comments, pro and con, on the law and facts of the case at issue.  But I view it from a wider perspective.  I think it’s one of the grandest examples in recent memory of the courage that’s required these days to defend and promote free speech even-handedly.

More than this, I think it guarantees, if any such were needed, that Floyd Abrams will go down in history as the greatest First Amendment champion of our era.

In part it has to do with the gentleman’s style.  Far from engaging the critics with language (like their own) that vilifies, Abrams flatters some of them for their scholarship.  Rather than retreat to the safety of quiescence or worse, he calls out even such as The New York Times, his client in the celebrated Pentagon Papers case.  And rather than indulge in any sort of self-pity, Abrams doesn’t even mention the scurrilous attack on him (because he wrote an amicus brief in opposition to McCain-Feingold) by Keith Olbermann, who predicted that Abrams “will go down in history as the Quisling of freedom of speech in this country.”

Summing up the essence of his argument, Abrams writes: “When I think of Citizens United, I think of Citizens United.  I think of the political documentary it produced, one designed to persuade the public to reject a candidate for the presidency.  And I ask myself a question: If that’s not what the First Amendment is about, what is?”

But enough of this.  Abrams’s piece is so powerful that nothing I say can embellish it.

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