Category: Uncategorized

Posted on By Patrick Maines

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.

 

Posted on By Patrick Maines

Fordham’s Take on Freedom of Speech

An important piece in the Wall Street Journal, profiling the president of a student free-speech group called the Foundation for Individual Rights in Education, spotlights the challenges facing free speech on the nation’s college campuses.

A recent incident at Fordham University, mentioned in the article, provides a good example.  There, the university’s College Republicans invited conservative columnist Ann Coulter to speak on campus.  Student groups opposed to Coulter and her politics protested the upcoming event, and on Nov. 9 the university’s president, Rev. Joseph McShane, S.J., weighed in on the matter in a letter addressed to the student body, faculty, and alumni:

To say that I am disappointed with the judgment and maturity of the College Republicans, however, would be a tremendous understatement.  There are many people who can speak to the conservative point of view with integrity and conviction, but Ms. Coulter is not among them.  Her rhetoric is often hateful and needlessly provocative – more heat than light – and her message is aimed squarely at the darker side of our nature.  

In the same letter, Father McShane said that the university would not stop Coulter’s appearance owing “to the Jesuit tradition of fearless and robust engagement.”  This tradition was apparently of scant comfort to the College Republicans, however.  Faced with the attacks issuing from students, faculty, and the university president, the CRs disinvited Coulter and apologized for having invited her in the first place, a development that McShane quickly and lavishly praised:

Late yesterday, Fordham received word that the College Republicans, a student club at the university, has rescinded its lecture invitation to Ann Coulter.

Allow me to give credit where credit is due: the leadership of the College Republicans acted quickly, took responsibility for their decisions, and expressed their regrets sincerely and eloquently.  Most gratifying, I believe, is that they framed their decision in light of Fordham’s mission and values.  There can be no finer testament to the value of a Fordham education and the caliber of our students.

Yesterday I wrote that the College Republicans provided Fordham with a test of its character.  They, the University community, and our extended Fordham family passed the test with flying colors, engaging in impassioned but overwhelmingly civil debate on politics, academic freedom, and freedom of speech.

Somewhere Thomas Jefferson weeps, while George Orwell is smiling.

                                               

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

Free Speech and That YouTube Video

In an age when, for many, political correctness (not to mention political opportunism) trumps free speech, one should be wary of assertions that specific kinds of speech have precipitated criminal conduct.

We saw false claims like this in the case of the shooting of Rep. Gabrielle Giffords (D-Ariz.), when such as the New York Times’ resident shrieker, Paul Krugman, immediately tied the crime to Republican and Tea Party rhetoric.  And we have seen it again in the wake of the murders in Libya, and the riots in other Arab countries.

The immediate reaction to the killing of the American ambassador, as announced by the State Department and the White House, was that it was an Arab reaction to a cheesy video distributed by YouTube called “Innocence of Muslims.”

Reminiscent of the Giffords shooting, though, it’s now clear that the YouTube video had nothing to do with the murders in Libya, and that if it had anything to do with subsequent anti-American demonstrations elsewhere in the region it was likely because of the prominence the American government assigned to the video in the first place.

Apart from the absence of any connection between the Libyan murders and the YouTube video, there is the question of what should be the reaction of American officials and American citizens, media included, if and when something like a YouTube video does lead directly to murderous acts here or abroad?

The answer to that question may not resonate with everyone, but it’s not difficult either.  All that’s needed is some knowledge of the First Amendment and of First Amendment case law.  If the speech in question is protected, as was clearly the case with the YouTube video, the correct response would be to regret the loss of life and to demand that those responsible be brought to justice.  If, as with “Innocence of Muslims,” the offending material was of little or no value in its own right, criticism of the material might also be appropriate.

But in all events – and particularly where the crimes committed were in foreign lands without free speech – it should also be said by our public officials that ours is a country that greatly values and protects the free-speech rights of individuals, even when such speech gives legitimate offense.

The administration’s early blaming of the Libyan killings on the YouTube video was either a rush to judgment or, worse, an attempt at the kind of misdirection as would guide the ensuing commentary away from questions about the success of U.S. policy in the Mideast and/or the adequacy of our intelligence and security operations.

Perhaps the single worst aspect of this affair was the attempt by the White House to persuade Google (which owns YouTube) to take down the offending video.  The administration’s press spokesman, Jay Carney, says they asked Google only to look into whether the video complied with YouTube’s terms of service, as though that is a distinction with a difference.

It is not, of course, and Google resisted the arm twisting and kept the “Innocence of Muslims” trailer on YouTube, though the company did take it down in a few Arab countries, a call that was and is entirely its to make.

The hounding of free speech is done these days not only by the right, but also, and more dangerously, by the left and by the adoption and overuse of terms like “hate speech.”  The threat in this becomes a matter of greater concern when public officials get in on the act.

                                               

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

Posted on By Harold Furchtgott-Roth

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. 

Posted on By Patrick Maines

Chick-fil-A and City Officials: A Whole Lotta Clucking Goin’ On

Ah, political correctness. It never disappoints.  Take, for instance, the latest eruption of civic broadmindedness brought on when the president of the restaurant chain Chick-fil-A professed his personal embrace, based on his religious views, of traditional marriage.

Outraged by the effrontery, the mayor of Boston and a Chicago alderman (Messrs. Menino and Moreno, respectively) immediately announced that they would ban the opening of the chain’s restaurants in their jurisdictions.

Never mind that Chick-fil-A had never practiced discrimination among its employees or customers, whatever their sexual orientation; it was enough for the mayor and the alderman that the head of the company expressed himself on this subject in a way that might give offense to those who disagree with him.

Alderman Moreno is especially instructive.  Having earlier said he decided to pull the plug on the restaurant after learning about the company president’s “bigoted and homophobic comments” in a Baptist publication, Moreno has now pivoted, under pressure, to saying that he’s opposed to the opening of a restaurant in his ward because of “traffic concerns.”

There’s been an unfortunate unevenness in recent years in the way that the media generally have opined on free speech and First Amendment issues. In the case of the Supreme Court’s decision in  Citizens United, for example, one has to look far and wide to find approving newspaper editorials, despite the fact that it was as pure a First Amendment case as has ever come before the Court.

Much of the media have also shown a kind of benign neglect when it comes to the myriad examples of campus “speech codes.”

This time, though, the nation’s editorialists got it right! From such journals as the Los Angeles Times, the Chicago Tribune, and the Boston Globe has come a virtual symphony of criticism of the words and actions of Menino and Moreno, and all of it based on the First Amendment.  As the Times put it: “Public officials have a responsibility to carry out their ministerial tasks fairly and evenhandedly – and to uphold the principle of free speech – whether or not they like a business executive’s social or political stances.”

Makes one proud to be the head of a group like The Media Institute.

                                               

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

After Aurora, Questioning Violent Programming (Again)

Very few columnists write as well, or as powerfully, as Peggy Noonan, and her piece last week in the Wall Street Journal titled “The Dark Night Rises” is no exception.  As with so many of Noonan’s commentaries, the strength in her column is not just in her way with words but in the fact that her opinions are well grounded in widely shared values.

So it is that when she alleges and bemoans the coarsening of popular culture, and the difficulty parents have these days in controlling the kind of things that their children get from the media, one guesses that few would disagree.

Even the ad hominem criticism in her piece – that Hollywood executives take care to insulate their own children from what they produce, and that they have “cabanas at the pool” at the Beverly Hills Hotel – doesn’t seem exorbitantly over the top given the thrust of her argument as a whole.

But when she suggests, by quoting from a writer at RealClearPolitics, that a “hundred studies have demonstrated conclusively that viewing violence on the screen increases aggression in those who watch it, children especially,” she is on shakier ground than she realizes.

In 2002, Jonathan Freedman, a professor of psychology at the University of Toronto, published a lengthy and devastating critique of this thesis titled “Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence.”  Some years later, Dr. Freedman wrote a paper on the same subject for The Media Institute.  That paper concluded with these words:

In sum there is no convincing scientific evidence that television violence causes children to be aggressive, or that any particular depiction of violence on television has this effect, or that it affects any particular type of children more than others … my conclusion is that either there is no effect of television violence on aggression, or, if there is an effect, it is vanishingly small.

Beyond the scientific literature, whatever its value, lie other aspects of the larger issue.  There is, for instance, the small matter of whether we, as a nation, should desire for everyone only that kind of programming that is fit for children.

And then there’s the issue of violence as a literary device.  Noonan is right to ridicule some past attempts by Hollywood executives to “rationalize and defend” what they produce.  But the problem with any wholesale denunciation of program violence is that it doesn’t allow much respect for programming that, though featuring violent portrayals, is terrific all the same.

A great case in point is the production, being shown on the AMC cable network, called “Breaking Bad.”  It is the story of one Walter White, a high school chemistry teacher who, having contracted terminal cancer, takes to making methamphetamine.  “Breaking Bad” has, in its fifth season, become increasingly violent as Walter, in addition to his meth cooking, has become a murderer in the company of murderers.  So violent?  Yes.  But this is also one of the most brilliant series, of any genre, ever shown on TV.

It may be cold comfort to parents overwhelmed by the programs and platforms accessible by their children, but the only practical solution to the problem is parental oversight and responsibility for what their children watch.  Everything else – from exhortations to put the cultural genie back in the bottle, to governmental policies that attempt to circumvent First Amendment case law – is doomed to frustrate and to fail.

But that’s the thing about free speech. It’s not a prophylactic to be deployed against pictures, words, or ideas, it’s a necessary precursor to every other freedom.

                                               

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

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.

 

Posted on By Patrick Maines

The Koch/Cato Settlement

It was announced yesterday that, in return for some changes in its Board and the resignation of the Cato Institute’s co-founder and CEO, Ed Crane, the Koch brothers are withdrawing their lawsuits against the organization.  Given the negative effect that the lawsuits were having on Cato’s fundraising, it’s no surprise that the Institute would eventually be obliged to give up something important in order to move on. But in accepting Crane’s offer to go, they’ve given up a lot.

Organizations that are moved by idealism rather than commerce, and that persist and prosper against all odds, are often the creatures of their founders and long-time leaders.  The late Bill Baroody, founder of the American Enterprise Institute, comes to mind.  And so too with Crane, who has led Cato for 35 years, during which time it has become one of the leading think tanks in the United States.

If, 20 years from now, Cato is still the powerhouse it has become, people in the know will say that Crane’s successors were good, but that Crane was great.  And they’ll be right.

                                  

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

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.

Posted on By Kurt Wimmer, Esq.

Google and the First Amendment

By guest blogger KURT WIMMER, ESQ., partner at Covington & Burling LLP in Washington, D.C., and chairman of The Media Institute’s First Amendment Advisory Council.

I just had the privilege of participating in a panel discussion at an American Antitrust Institute conference.  My panel included such luminaries as Eli Noam of Columbia, Gene Kimmelman of the Antitrust Division of the Department of Justice, and Susan DeSanti of the Federal Trade Commission.  Unlike many of my colleagues on the panel, I’m far from being an antitrust expert.  My topic was a more familiar one – whether enforcement of antitrust law against a search and advertising provider would violate the First Amendment. 

The question arises because of a novel proposition being advanced by Google.  The Federal Trade Commission is investigating claims that Google has violated antitrust law by manipulating search results to favor its own services and bury the services offered by vertical search engines that might compete with Google.  Google has argued that it is absolutely immune from antitrust liability because its search results constitute speech protected by the First Amendment – in fact, it asserts that the First Amendment actually “blocks” the application of antitrust law to it.  Google analogizes its work to that of a newspaper editor selecting information for publication, and seeks the same “absolute” protection that a newspaper editor would receive under the First Amendment.

But wait – newspaper editors don’t receive absolute protection under the First Amendment.  If editors’ work is absolutely protected, why did I spend last night discussing a story with an editor to mitigate defamation risk?  Why did I defend a deposition last week of a reporter attempting to keep his source confidential?  Why have reporters gone to prison in the United States to protect sources?  Why are some in Congress talking about doubling down on legal restrictions to stop leaks to the press?

The First Amendment is not absolute, and never has been, for anyone, whether they run a newspaper, a blog, or a search-and-advertising business. False and deceptive speech, as Google’s manipulated search results are alleged to be, falls outside the protection of the First Amendment.  Jon Leibowitz, chairman of the FTC, made precisely this point in an All Things Digital interview just this month, and he’s precisely right as a matter of constitutional law.  Otherwise, the FTC would have no jurisdiction to enforce privacy laws or laws against false advertising and deceptive trade practices.

Of course, non-deceptive speech also may be regulated in many circumstances.  The antitrust laws, which regulate commercial behavior to promote competition, are an example of laws that may permissibly restrict certain kinds of speech.  The plain fact is that “the First Amendment does not provide blanket protection to restraints of trade effectuated through speech,” in the words of the Department of Justice.  This principle has been applied consistently since the Supreme Court affirmed an antitrust judgment against the Associated Press in 1945, and remains the law today.

Google’s arguments that it is uniquely immune from antitrust liability, regardless of how it has abused its massive market share, remind me of the quaint musings of early Internet pioneers that law cannot apply in “cyberspace.”  But the same law that applies offline generally applies online (in the absence of online-specific legislation such as Section 230), and damage to competition that may occur on the Internet can destroy real businesses in the real world.  No one is above the law – not even Google.  Whether any of the allegations against Google can be proved, of course, remains to be seen.  But to assert at the very outset that the First Amendment actually “blocks” liability, regardless of what the FTC or a court might find, ignores the law.

If you’d like to read more, the Media Institute has graciously agreed to host my paper (available here) that addresses these issues in more depth.

                                  

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