Tag: First Amendment

Posted on By Patrick Maines

Seeking Shared Values Amid the Scandals

Reflecting our fractured political landscape, much of the discussion of the recent scandals erupting from the Executive Branch of government has been thoroughly politicized.

It’s understandable, but it’s also myopic and deeply troubling for those who believe that our civic life depends crucially on free and unfettered speech, and on the shared understanding by all parties that the First Amendment belongs to everyone, even those with whom we disagree.

Some of the things done by the State Department, the Justice Department, and the IRS – no matter who did, or did not, order them – are patently offensive, and can’t be allowed to stand.

When the State Department attributed the atrocity in Benghazi to a YouTube video, they weren’t just making a mistake, they were trafficking in the all-too-familiar refrain that “the media did it.”

When the Justice Department subpoenaed the phone records of AP reporters in search of a leaker – and in a related matter, when a FOX reporter was accused by the FBI of being a co-conspirator in the leaking of a confidential report – they weren’t just exceeding their constitutional authority, they were criminalizing investigative reporting itself.

And when the IRS decided to slow-walk the applications for tax exempt status of conservative groups, because they were conservative groups, and leaked to progressive media outlets information about conservative groups (as with the “Tea Party” applications delivered to ProPublica), they weren’t just injecting politics into what should be a value-free process, they were poisoning the well of what we as a nation have long considered to be the highest and most protected form of speech: political speech.

None of this can be tolerated.  But more important still is that people and organizations of all persuasions condemn it.  That way lies the preservation of our most precious freedom, and the civic virtue of shared values.  If, in the alternative, people in Congress and the press treat these matters as political footballs, we’ll all be the losers.

Going forward it will be easy to tell which path the players have taken.

                                            

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils. A version of this article titled "Seeking shared values amid the IRS, AP scandals" was published online in the May 24, 2013 issue of USA Today, and can be viewed here.

Posted on By Patrick Maines

Britain Opts To Censor the Press

With its peerage and royals, Beefeaters and such, Britain in the 21st century sometimes seems like a large theme park, but its historical influence on the USA is clear.  From language to culture, and above all to law, what’s happened in Britain hasn’t stayed in Britain.

Which is precisely why that nation’s new press law, which creates by “royal charter” a speech-suppressing media “watchdog,” is so much to be rued.  Briefly stated, the watchdog will have the power to oblige participating media to post apologies and take complaints into arbitration, thereby creating a system of government regulation of the press that hasn’t happened there since 1695.

It is commonly said that the tracks that led to this train wreck were laid by the misbehavior of Britain’s tabloid newspapers, and there’s truth in that.  Caught in the act after years of hacking into private e-mail and phone calls, and bribing public officials, the tabloids acted outside the bounds not just of ethical journalism, but of the law.

But the better explanation for why the British have now endorsed regulation of the press (rather than relying just on the enforcement of criminal laws already on the books) is because that country has no First Amendment. That, and also because there (as here?) there exist large numbers of people who value political correctness, and political advantage, over freedom of speech.

Indeed, though the new press rules are said to have become inevitable given the failures of Britain’s (recently extinct) Press Complaints Commission (PCC), another way of looking at it is to say that the very existence of the PCC inadvertently cleared the way for the more intrusive regulations.

Some years ago there existed in the United States a National News Council (NNC), whose charter was similar to the PCC.  It failed to take root for many reasons, but perhaps most notably because the New York Times’ Abe Rosenthal wisely refused to cooperate with it.  Rosenthal’s concern was that the NNC would fail to satisfy press critics, and that some sort of government program would then be invited to succeed it.

The British have long been accustomed to a significant degree of governmental oversight of their broadcasting companies’ content through what is called Ofcom (Office of Communications), but until now the print media have been spared that oversight.

Though billed by its parliamentary sponsors as a voluntary arrangement, the terms of the new press regulation carry onerous potential liabilities, specifically including “exemplary damages” in court, for media companies that don’t join the quango.  This may even include some companies that are based elsewhere. Indeed, one of the most powerful criticisms – from such as the New York Times and the Committee To Protect Journalists – is that the regulation assumes authority over bloggers and websites, large and small, foreign and domestic.

“In an attempt to rein in its reckless tabloid newspapers,” said the New York Times, “Britain’s three main political parties this week agreed to impose unwieldy regulations on the news media that would chill free speech and threaten the survival of small publishers and Internet sites.”

But the most compelling and powerful criticism has come from The Spectator, the British publication said to be the oldest continuously published magazine in the English language.  As Nick Cohen wrote on March 18:

The regulator will cover “relevant publishers.”  If they do not pay for its services and submit to its fines and rulings … they could face exemplary damages in the courts.  It is not just the old (and dying) newspapers, which the state defines as “relevant publishers” but “websites containing news related material.”

What “news related” material can get you into trouble?  It turns out to be the essential debates of a free society.  Dangerous topics to write about include “news or information about current affairs” and “opinion about matters relating to the news or current affairs.”  Any free country should want the widest possible range of opinions about current affairs.  As of tonight, Britain does not. 

There will be a temptation among many in this country to look past what the British have done as nothing more than the antics, as someone once put it, of an exhausted stock; not to worry about anything similar happening here.  And there’s some truth in that.  Because of our First Amendment and strong case law in defense of it, such regulation is unlikely in this country.

But it’s worth remembering that this happened in Britain at the hands of parliament and that we too have a “parliament,” and regulatory agencies, and that, as in Britain, we have organizations, like the cynically misnamed Free Press, that are constantly pushing for an expansion of government oversight of the media.

Thanks to the Founding Fathers we have some additional protection against the kind of thing that’s just happened in Britain, but vigilance is required, now more than ever.

                                             

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article titled "Keep U.K. media rules out of U.S." appeared in the print and online editions of USA Today on April 23, 2013, and can be viewed here.

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 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.

Posted on By Richard T. Kaplar

DOL Reportedly Postponing New ‘Lock-up’ Policy

Published reports suggest that the Department of Labor is poised to delay implementation of a policy announced in April that would require reporters working in the DOL’s “lock-up” room to use government computers and transmission lines when writing stories about DOL reports and data as they’re released.  The proposed policy caused a flurry of criticism from media outlets and prompted a June 6 hearing by the House Oversight and Government Reform Committee.  DOL will announce a new start date this week, according to reports quoting an e-mail from DOL media specialist Carl Fillichio.

We’re glad to see that DOL is at least planning to postpone the policy.  Media Institute President Patrick Maines was an early and outspoken critic of this bureaucratic folly, questioning the wisdom of such a move in his May 7 post.

Let’s hope that any delay becomes permanent, and that this attempt to extend the government’s hand into reporters’ notebooks is forever banished to the dust heap of bad ideas. 

                              

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 Is Real Loser in Rush Kerfuffle

Is it appropriate to defend free speech even when it’s harsh or degrading?  Whatever their political views, do people have a right to express them?  Not for the first time, such questions are being debated in the court of public opinion.

The proximate reason for the debate, this month, is some nasty things said about a law student by Rush Limbaugh, a man who – like Glenn Beck, Keith Olbermann, Michael Moore, Bill O’Reilly, Ed Schultz, Michael Savage, and Bill Maher – makes his living by saying provocative and sometimes ugly things through the media of TV, film, or radio.

For those who believe in freedom of speech, there’s a little bit of good news amid the bad in the Limbaugh kerfuffle, but a couple things demand to be acknowledged right from the start: Neither Rush, nor any of the other on-air opinionmeisters, are scholars, statesmen, or intellectuals.  They are, instead, political entertainers whose appeal reaches as far as those who share their political views, and not one inch further.

This, and one other thing: The coordinated attacks on Limbaugh and his show’s advertisers is the product of the calculated strategy of a group – Media Matters for America (MMA) – that was created precisely to try to silence, by whatever means, right-leaning organizations and individuals.

The bad news in the Limbaugh affair is that while some people are recommending that the FCC take him off the air (Jane Fonda and Gloria Steinem), or think he should be prosecuted (Gloria Allred), and after a number of his advertisers have been cowed into dropping his show, most of the media and journalism organizations one might expect to defend him have remained silent.

From the professional journalism societies to the university-based journalism reviews and the legacy “First Amendment” groups, virtually nothing has been issued in opposition to MMA’s tactics of intimidation.

It could, of course, be argued that MMA is merely exercising its own free speech rights, and that is certainly true, but that fact need not strike dumb those people who, exercising their free speech rights, could and should criticize MMA’s tactics.

According to an AP story, the next step in the war against Limbaugh is a radio ad campaign in eight cities, using as a template MMA’s earlier campaign against Glenn Beck.  Meanwhile, the head of Media Matters, David Brock, is gloating about the negative impact his organization’s efforts are having on Limbaugh’s advertisers.

In a piece published in Politico, titled “Ad exodus dooms Limbaugh’s model,” Brock says he is confident, “seeing the reaction over the previous two weeks, that sponsors will take their ad dollars elsewhere.”  He also says, in a sentence sure to be admired by fanatics and totalitarians everywhere, that MMA “along with numerous other groups, have begun to educate (emphasis added) advertisers about the damage their financial support of Limbaugh’s program can do to their brands.”

Looking beyond the campaign against Limbaugh per se,one can see that if this kind of thing persists it won’t end well for freedom of speech.  Already, for instance, a piece in the American Spectator calls for Rush admirers to contact those of Limbaugh’s advertisers who have dropped his show, the kind of thing that, along with campaigns like MMA’s, may in time have the practical effect of moving advertisers out of radio altogether.

In addition, there’s the distinct possibility that conservative groups will ape the tactics used against Limbaugh, and begin themselves to use advertiser intimidation and/or government policy to effectively shut down speech they don’t like.  Just last week Brent Bozell, head of the conservative media watchdog group Media Research Center, which has used both tactics in the past, said of the MMA campaign: “We all have free speech.”

As mentioned at the outset, there’s a little bit of light breaking through the gloom of this matter.  Though he doesn’t reference the Limbaugh affair, liberal law professor Jonathan Turley penned a piece in the Los Angeles Times this month titled “Free speech under fire,” in which he bemoans the fact that “Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy, and discriminatory language.”

At about the same time, liberal icon Michael Kinsley wrote a piece for Bloomberg titled “Case Against Case Against Rush Limbaugh.”  Among other poignant observations, Kinsley says this:

Do we want conservatives organizing boycotts of advertisers on MSNBC, or either side boycotting companies that do business with other companies who advertise on Limbaugh’s show, or Rachel Maddow’s?…

As we all know, Limbaugh’s First Amendment rights aren’t involved here – freedom of speech means freedom from interference by the government.  But the spirit of the First Amendment, which is that suppressing speech is bad, still applies.  If you don’t care for something Rush Limbaugh has said, say why and say it better.

In a perfect world, one wouldn’t need to be a policy wonk or a constitutional expert to understand the wisdom in this. But in this world, who knows?                                             

                                               

This piece was first published in TVNewsCheck on March 26, 2012. The views expressed above are those of the writer and not those of The Media Institute, its Board, contributors, or advisory councils.