The Enduring Threat of Net Neutrality

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary. – H.L. Mencken

No regulatory issue in memory has been quite like that of “net neutrality.” A solution in search of a problem, bankrolled and of early and particular economic benefit to two companies, and a regulation that threatens to give government sway over an industry where it had none before, network neutrality by regulation defies logic, history, and the way the world works. Other than that it’s one terrific idea.

Net neutrality was conjured up by an alliance of left-wing activists, Democratic commissioners of the FCC, and certain Internet companies and their trade associations. The regulations that followed have been on a devolutionary path, such that what was merely bad (net neutrality under Title I) became, in 2015, very much worse – net neutrality under Title II. Continue reading “The Enduring Threat of Net Neutrality”

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.

The Koch Brothers’ Designs on Cato

Political gift giving, whether in support of candidates for public office or ideologically active nonprofit organizations, is fraught with the risk that activists of a different stripe (or journalists who are themselves of a different stripe) may take offense and retaliate. 

Such has been the experience of the wealthy Koch brothers, Charles and David, two long-time funders of libertarian policies, politicians, and organizations who have been attacked without surcease by activists and journalists for about two years.  

In part, of course, attacks on them have happened because they’re easy targets.  As politically active billionaires, the Kochs quite naturally attract attention, and for all its intellectual strengths, libertarianism is a long way from being the “people’s choice.” 

Additionally, the Kochs have borne some of the brunt of the criticism that’s accompanied the Supreme Court’s correct undoing, in its Citizens United decision, of aspects of the McCain-Feingold Act.  From that time to this, advocates of campaign finance “reform” have been shrilly condemning  PACs, and particularly those, like the Koch-controlled Americans for Prosperity, that favor Republicans.

The motives of their critics aside, there have long been aspects of the Kochs’ philanthropy that are tiresome.  Take, for instance, Koch Industries’ and the Koch Foundation’s embrace of what they call “Market-Based Management,” a management philosophy developed by Charles Koch, and one that, it’s claimed, “can provide great value to non-profit organizations.”

A thing of some complexity – MBM features 10 “Principles” and five “Dimensions” – it can seem like about nine principles and four dimensions too many when pushed on grantees.

Now, though, comes the remarkable news that the Kochs have filed a lawsuit against the venerable Cato Institute, something that goes beyond the merely annoying to the virtually incomprehensible.  In a word, they want to take over Cato and fire its president and co-founder, Ed Crane.

To be fair, the Kochs have an important history with Cato.  Like Crane, Charles Koch was also a founder of the think tank, and the Koch Foundation has given millions to Cato over the years.  So if this were simply a management issue – that they wanted to replace Crane with someone else, or put new people on the Board – they’d clearly have the right to propose the idea, and whatever the merits of it, it wouldn’t be seen as an impossibly chowderheaded scheme.

Alas, issues with management are not the apparent reason for their lawsuit.  Instead, the Kochs’ designs on Cato seem to be a desire to more closely align the think tank’s policy analyses with the Kochs’ partisan political efforts, through such as Americans for Prosperity.

Taking advantage of the unusual fact that the nonprofit Cato has “shareholders” with the authority to select members of Cato’s board, the Kochs have lately been attempting to gain a majority among the directors (they already have seven of 16).

In a blog published on the Volokh Conspiracy on March 3, a senior fellow at Cato provided some background by revealing what was said at a meeting in November of last year between a Koch delegation and the chairman of Cato, Bob Levy:

They told Bob that they intended to use their board majority to remove Ed Crane from Cato and transform our Institute into an intellectual ammo-shop for Americans for Prosperity….  They’ve frequently complained … that Cato wasn’t doing enough to defeat President Obama in November and that we weren’t working closely enough with grass roots activists like those at AFP.

During a recent interview, Crane expressed contempt for those of the Kochs’ critics whose motive is political or ideological, even as he spoke of the “insanity” in the Kochs’ attempt to turn Cato into a partisan outfit.  “Were they to do it,” he said, “it would undo overnight 35 years of work and hard-won respect.”

Even though he personally would be a certain casualty if the Kochs succeed in their takeover attempt, Crane betrays little concern about that aspect of the battle at hand.  One might suspect that this is because, after 35 years at the helm of Cato, he’s had a good run, or because, like many of us, he’s reached an age where, professionally speaking, he can see the tunnel at the end of the light.  Or maybe he’s just confident that the Kochs won’t prevail.

Whatever, a few things are clear.  It’s been on Crane’s watch that Cato has grown into a leading U.S. think tank, along the way becoming one of the stoutest defenders of free speech in the country.  And none of that would have been possible if Cato had been perceived as a political front group.

One of Market-Based Management’s "Principles" is humility, described this way: “Practice humility and intellectual honesty.  Constantly seek to understand and constructively deal with reality to create value and achieve personal improvement.”

One wonders how much the Kochs thought about this Principle before they embarked on such an intellectually dishonest and destructive campaign.


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

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.


‘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.

‘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.

Congressional (Mal)intent

Einstein’s Special Theory of Relativity postulates that it’s impossible for anything to go faster than the speed of light. More impossible still is the ability of Congress to honorably handle First Amendment issues.

The latest example of this dolorous state of affairs can be seen in the so-called DISCLOSE Act. Aimed at curbing what its Democratic sponsors claim are flaws in the Supreme Court’s campaign finance decision (Citizens United vs. FEC), the formal name of this legislation is the “Democracy Is Strengthened by Casting Light On Spending in Elections Act.” Seriously.

Not to put too fine a point on it, the difference between this Act’s intended impact and its stated goal is the difference between flapjacks and flapdoodle. In fact, the difference may be even greater than that. The Act is so dense and lengthy, who knows what’s in there? Could be anything. The only people who are going to know for sure are those communications lawyers who find gaping holes and contradictions in it–and don’t think for a second they won’t.

With this kind of opacity we can’t yet identify all of the Act’s “microflaws,” but its “macroflaws” are easily spotted: It burdens political speech in ways that are intended to discourage it, and it provides for the care and feeding of incumbents at the expense of challengers and the public at large.

We know the true intent of this legislation is to stifle political speech because the sponsor of the Senate bill, Charles Schumer, has admitted as much. As reported in Politico, though the legislation is “billed primarily as an effort to enable voters to determine who is behind ads attacking or supporting candidates, Senator Schumer…acknowledged that part of his goal is to limit the campaign spending newly legalized by the high court.”

“My view,” he said, “is that many CEOs of major organizations will air ads if they don’t have to disclose, but once they have to come up front and disclose, they will not do it…Anyone who wants to hide, will not do an ad after this legislation passes. And I think there are a lot of people who like to hide…so I think there will be many fewer of them.”

Apart from the DISCLOSE Act’s transparently fraudulent claim to a kind of “good government” motivation, the Act burdens business and nonprofit political speech by requiring so many on-air disclosures there would be little time left for a message of any kind, and by requiring CEOs of the sponsoring organizations and their major donors to do a kind of “I stand by this message” statement in the ad itself. The problem with this latter aspect is that this statement threatens to subject all such to retaliation and harassment by candidates, parties, and interest groups who disagree with whatever the message might be.

Another malevolent aspect of the Act, as analyzed by the Center for Competitive Politics (CCP), is that the legislation “would prohibit government contractors and U.S. subsidiaries of foreign companies from engaging in independent political expenditures.” This, from a group of politicians who, until the recent unpleasantness, were among the most fervent supporters of Acorn, an organization that attempted, in the name of “political inclusion,” to register the quick, the dead, and the never were.

A third macroflaw, and the one that shines a bright light on the sponsors’ true motives, is the provision that provides “candidates and parties the lowest advertising rate whenever an independent group airs ads in a given media market.” As the CCP observes, “This is a nakedly self-dealing attempt to punish independent groups for speaking out against Members of Congress.”

In a recent note, attorney Jan Baran, the esteemed election law expert at Wiley Rein, summarized this aspect of the DISCLOSE Act as follows: “The lowest unit rate provision manifests the politicians’ twofold strategy, which is as follows: first, do everything you can to burden and discourage public commentary about them; and if that doesn’t stop the speakers then give the political parties (which the politicians control) cheap TV and radio time at the expense of the broadcasters.”

“As you know,” he said, “the history of ‘reform’ is the history of politicians seeking to control political debate.”

The particulars of this legislation to one side, there is another woeful aspect of the campaign to reverse the Supreme Court’s Citizens United decision, and that is the lack of integrity in the debate.

One of the (very few) advantages in growing old is that you get to personally observe a bit of the sweep of history. In my case that history goes back to the Warren Court, and to the frequent conservative criticisms of that Court’s decisions.

Back in those days such criticism was said, by all the right people, to be an attack on the Constitution itself. But fast forward to the present time and what do we find? The New York Times publishing an editorial, in the wake of Citizens United, titled “The Court’s Blow to Democracy;” the president excoriating those Supreme Court justices who were in attendance at a State of the Union address; and the Senate sponsors of the DISCLOSE Act announcing their legislation on the front steps of the Supreme Court, ironically enough in the same week that the Court announced, for security reasons, that the front entrance will no longer be available to the public.

Time will tell whether any or all of the Act’s provisions, if enacted, will survive judicial scrutiny, but in the meantime, and in the interest of “truth in labeling,” the Act should be formally renamed. A more accurate title would be the Hyper-Partisan Old Claptrap Reveling In Temerity Act.

The acronym? You figure it out.

First posted on Broadcasting & Cable, May 6, 2010

Citizens United and the Commentariat

Nothing’s quite so inspiring as the sight of journalists, in high dudgeon, trashing the First Amendment.  Such has been the rule since last Thursday, when the Supreme Court issued its opinion in the campaign finance case called Citizens United.

For the uninitiated, the cause of the hysteria, at places like The New York Times and The Washington Post, is the Court’s entirely correct decision to liberate political speech from the clutches of the Federal Election Commission, such that labor unions, for-profit and nonprofit corporations will hereafter be able to spend general funds on the placement of issue ads and other kinds of what the FEC refers to as “electioneering communications.”

Because campaign finance “reform” has always been a hotly politicized issue, it’s not surprising that politicians, from the White House to Congress, have weighed in on this issue with more heat than light.  But it’s something else again to see journalists – all of whom zealously guard and enjoy their own First Amendment rights – turn a blind eye to those same rights where they’re someone else’s.

The journalists’ criticism of the Court’s decision is (1) that it is unnecessarily overbroad; and (2) that it will allow corporations (by which they mean large for-profit corporations) to dominate the political environment by the fact, or threat, of campaign advertising.

Even if one takes these journalists at their word – that their motive is a value-free concern for the political process rather than a tawdry reflection of their own political biases – we can say without fear of contradiction that, at least in this regard, they value the political process more than they value free speech.

Among the citizenry generally, such sentiments would be neither unexpected nor especially hurtful, but when they issue from journalists they are both.  This, because as people who are professionally engaged in such matters know, the Speech Clause of the First Amendment is not divisible by its applications.  It doesn’t apply just to the print media or broadcasting, news or entertainment, professional journalists or people at large, but to all of these and then some.

And the simple truth is that if you weaken the First Amendment in any area you weaken the whole of it.  This comes about because of the way that precedent is applied, not just in the courts but in policymaking venues as well.

Corporations enjoy constitutionally protected speech rights even where the speech in question is just commercial speech (speech that does no more than propose a commercial transaction.)  There’s no question about this.  There is lots of case law, most notably in Central Hudson.  Given this, how much greater is the value, under the Constitution, of their political speech?

The constitutional weakness in the journalists’ criticism of Citizens United to one side, they are also wrong on its political effects.  Corporations, particularly large and publicly owned corporations, are loath to spend their general funds on election campaigns.  This, because they know that, by doing so, they will inevitably attract criticism from some of their stockholders, and from the disfavored party and candidate(s), in any given election.  Corporations much prefer to stay out of election contests, and to allocate even their PAC money to incumbents, or to both incumbents and challengers.

And what if, despite the general aversion, it sometimes happens that corporations do spend general funds on election campaigns?  Given their reluctance to get involved in this way, perhaps the public ought to hear what they have to say.  It’s not, after all, as though such corporations are without their constituencies.

Indeed, when you consider the vast number of stakeholders that any large company has among its employees, stockholders, vendors, and customers, the company’s views are vastly more representative and diverse than those, say, of the editorial board of The New York Times.

As for the argument that the Supreme Court overreached in this case, a couple of observations.  First, while a number of commentators are now saying that the Court should have allowed the Citizens United film ("Hilary: The Movie") to be broadcast without going further, that’s a point they didn’t make before the decision came down.

Much more importantly, this criticism ignores the history of this case, most importantly oral argument when it first came before the Court, on March 24 of last year.  It was at that time that the government, which was there to defend McCain-Feingold in the person of deputy solicitor general Malcolm Stewart, inadvertently spelled out just how speech-killing our campaign-finance system might be.

Asked by Justice Alito if the government believed McCain-Feingold would permit like restrictions were the product distributed on the Internet, or as a DVD or a book, Stewart responded that it could be applied to all of those, that it could even require banning a book that made the same points.

As Bradley Smith, writing in National Affairs, put it:

There was an audible gasp in the courtroom.  Then Justice Alito spoke, it seemed, for the entire audience: ‘That’s pretty incredible.’  By the time Stewart’s turn at the podium was over he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In other words, it wasn’t until after they had heard this – straight from the horse’s mouth as it were – that the Court issued, in June, its surprising order that the case be reargued and expanded to include two of the Court’s earlier rulings.

Viewed from a First Amendment perspective, McCain-Feingold was the worst piece of legislation ever enacted and subsequently upheld as constitutional.  That so many journalists are unhappy with its undoing is a black mark on their profession and on them as individuals.

First published here on The Huffington Post, Jan. 26, 2010.

A Unitary First Amendment – Redux

By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.

“[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  What an extraordinary statement for the Chief Justice of the United States to make when one considers the Supreme Court’s long history of allowing Federal Communications Commission (FCC) content-based regulation of broadcasting and other electronic media!

Chief Justice Roberts made this statement in last week’s oral argument of Citizens United v. Federal Election Commission.  Citizens United, involving “Hillary: The Movie,” is the little case that could – could just restore a strong measure of freedom of speech in the most critical of all contexts, namely political speech.

As described in an earlier post occasioned by the first round of oral argument in this case last spring, the narrow issue is the provision of the McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA) that bans the use of corporate funds for “electioneering communications” via broadcast, cable, or satellite close to an election.  In the earlier argument some members of the Court were astounded by the government’s contention that Congress also would have the constitutional power to similarly ban printed material, including books.
This apparently led those members of the Court who long have been troubled by limitations on political speech imposed in the guise of campaign finance reform to set re-briefing and rearguing for an unusual and extended one-day September session.  And, the Court broadened the issue for rehearing by asking the parties to discuss whether the Court should overrule not only that part of its 2003 opinion in McConnell v. F.E.C. upholding the specific BCRA provision, but also the Court’s 1990 opinion in Austin v. Michigan Chamber of Commerce.  In Austin, over strong dissents, the Court upheld a state’s restrictions on independent expenditures from general corporate funds for ads supporting or opposing a candidate for state elective office.

Not surprisingly, the Court’s actions with respect to Citizens United prompted more than 40 amicus briefs with what the New York Times called “an array of strange bedfellows and uneasy alliances” and set the stage for high drama.  How far will the Court go in affirming the political free speech rights of corporations?  

Arguing briefly for Senator Mitch McConnell as amicus, Floyd Abrams reminded the Court that in New York Times v. Sullivan the Court eschewed available narrow grounds to resolve the case and instead issued a broad ruling to fully vindicate the vital First Amendment interests at stake.  And he told Justice Sotomayor that, similarly here, this is the way the Court would do more good than harm.

Solicitor General Elena Kagan, making her debut appearance on behalf of the FEC, tried to reassure the Court that the government’s position on printed campaign speech had changed.  Don’t worry, she suggested, the FEC has never tried to ban a book, though when pressed she immediately stated a pamphlet might be different.  And this is when Chief Justice Roberts made his comment about not relying on FEC bureaucrats to protect the First Amendment.

But the Court has left countless First Amendment matters in the hands of the government bureaucrats at the FCC at least since Justice Frankfurter’s 1943 opinion in the seminal NBC v. U.S. case in which, in a single paragraph, he subordinated the First Amendment to the public interest standard of the Communications Act.  This later caused Professor Harry Kalven to comment that: “The passage catches a great judge at an unimpressive moment.”  

Over the years, the Court’s deference to the FCC has allowed all manner of infringements on free speech in the name of the amorphous public interest, from the now-defunct (but perhaps soon to be resurrected in some version) fairness doctrine, to the recent debacle over broadcast “indecency,” and maybe to a threatened similar campaign against violence in the media.

But members of the FCC, no less than of the FEC, have no expertise or competence in First Amendment matters.  This is not a comment on any present or former members as individuals; rather it is the basic recognition that the First Amendment disables any government bureaucrat from claiming or exercising any province over matters of free speech or free press.  “Congress shall make no law” is a straightforward “hands-off” policy for government bureaucrats.

During last week’s argument of Citizens United, Justice Breyer suggested to Ted Olson (representing Citizens United) that Congress had a compelling interest for the restrictions it enacted and thought it had narrowly tailored them.  So, the justice asked, should the Court really second-guess Congress?  Mr. Olson forthrightly replied, “You must always second-guess Congress when the First Amendment is in play.”  Exactly so, regardless of the medium of communication at issue, and a fortiori must courts stringently second-guess the FCC when it is infringing free speech, directly or indirectly, as it is wont to do all too frequently.

Whatever the ruling in Citizens United, we can only hope the chief justice’s words reverberate loudly the next time the FCC seeks to sustain an infringement on free speech or press in the name of the public interest.

Citizens United and ‘Hillary: The Movie’

If you’re feeling, like so many of us, that our life and times are too harmonious, smart, and principled, you might welcome something completely jumbled, uninformed, and hypocritical.  If so, here’s just the thing: an article by E.J. Dionne of The Washington Post.

The subject of Dionne’s piece is a case — Citizens United v. FEC — scheduled for oral argument today in the Supreme Court.  Like so many when reporting this story, Dionne employs the journalistic equivalent of the magician’s trick of misdirection when telling his tale.

Thus does he direct the reader’s attention not to the specifics of the case itself — which is whether the execrable campaign finance laws (read: McCain-Feingold) can constitutionally suppress free speech, and political speech at that — but to the imaginary threat that, if decided wrongly, the case “could surrender control of our democracy to corporate interests.”

What, you might wonder, could cause such fear and trembling?  A plot by corporate giants to make every man, woman, and child read The Wealth of Nations?

Well, not if it’s the Citizens United case.  Because that case isn’t about a corporate giant, but rather a small nonprofit activist organization, and its “crime” was the production and would-be distribution of a political film, called “Hillary: The Movie.” 

Now you might not like this film (if you’re a fan of Hillary you definitely wouldn’t like it), but nothing could be clearer than that this is political speech, the kind that, outside the confines of the election laws, has always occupied the highest reaches of constitutional protection under the First Amendment.

Dionne’s misdirection technique also turns a blind eye to another interesting fact: The campaign finance laws that prevent the airing of issue ads x number of days before federal elections don’t apply to newspapers, but only to the broadcast media, cable and satellite included.

Call it cynical, but some might wonder if this fact helps explain the embrace of McCain-Feingold by so many newspaper columnists and editorialists, and newspaper publishers, for that matter.

One of the problems attending any attempt to create what our associate, Professor Larry Winer, refers to as a “unitary” First Amendment is that so many people on the front lines of this battle, like reporters, demonstrate little or no interest in defending the First Amendment rights of anyone but themselves.

Thus can one count on one hand the number of mainstream media reports that have been critical of campus speech codes, or any manner of political correctness– or the suppression of political speech, as demonstrated in Citizens United.

It’s not a pretty picture.