Tag: free speech

Remember, the FCC Is Our National Censor II

Last week, I referred obscurely to “folks wanting to install the FCC as the Internet’s regulator,” cautioning that this same Federal Communications Commission is our national censor.

A friendly correspondent points me to an article in Ars Technica about the demand for speech controls coming from the same groups that want the FCC to control the Internet’s infrastructure, groups such as Free Press, the Media Access Project, and Common Cause.

Is there a parry to the charge that this is a demand for censorship? The signatories to the regulatory filing “respectfully request[] that the FCC … inquire into the extent and effects of hate speech in media, and explore possible non-regulatory ways to counteract its negative impacts.”

The filing does not contain the words “First Amendment” or “free speech.” It means “non-regulatory” the way a cop eyeballing someone and slapping his palm with a billy club is “non-regulatory.”

The FCC is experienced with “non-regulatory” coercion. Hearings in Congress have explored how the agency uses arm-twisting to get what it wants outside of formal regulatory processes. As law professor Lars Noah testified in 1999:

Arm twisting refers to an agency’s use of threats either to impose a sanction or withhold a benefit in hopes of encouraging nominally voluntary compliance with a request that the agency could not impose directly on a regulated entity. This informal method of regulation often saddles parties with more onerous regulatory burdens than Congress had authorized, accompanied by a diminished opportunity to pursue judicial challenges.

An FCC with the power to regulate Internet access services would use it to control Internet content.  There’s no place for the FCC in monitoring or administering speech controls, nor in controlling our communications infrastructure, the Internet.

Libertarianism Hits the Big Time

Michael Crowley, late of the New Republic and now with Time magazine, writes thoughtfully about Ron Paul, Rand Paul, and libertarianism. Crowley notes that Rand Paul, “more politically flexible than his father,” has plenty of unlibertarian positions. But both of them are tapping into a real strain in contemporary politics:

But he, like his father, also knows well that a genuine libertarian impulse is astir in America…. polls show an uptick in both social permissiveness and skepticism of government intervention….[Ron Paul] has already waited a long time — and it appears the country is moving his way.

This is a current trend, but it’s also deeply rooted in the American political culture. As David Kirby and I wrote in “The Libertarian Vote”:

It’s no surprise that many Americans hold libertarian attitudes since America is, after all, a country fundamentally shaped by libertarian values and attitudes. In their book It Didn’t Happen Here: Why Socialism Failed in the United States, Seymour Martin Lipset and Gary Marx write, “The American ideology, stemming from the [American] Revolution, can be subsumed in five words: antistatism, laissez-faire, individualism, populism, and egalitarianism.”… Richard Hofstadter wrote: “The fierceness of the political struggles in American history has often been misleading; for the range of vision embraced by the primary contestants in the major parties has always been bounded by the horizons of property and enterprise. However much at odds on specific issues, the major political traditions have shared a belief in the rights of property, the philosophy of economic individualism, the values of competition; they have accepted the economic virtues of capitalist culture.”… McClosky and Zaller sum up a key theme of the American ethos in classic libertarian language: “The principle here is that every person is free to act as he pleases, so long as his exercise of freedom does not violate the equal rights of others.”…

Some people recognize but bemoan our libertarian ethos. Professors Cass Sunstein and Stephen Holmes complain that libertarian ideas are “astonishingly widespread in American culture.”

Much political change in America occurs within those guiding principles. Even our radicals, Lipset and Marks note, have tended to be libertarian rather than collectivist. America is a “country of classical liberalism, antistatism, libertarianism, and loose class structure,” which helps to explain the failure of class-conscious politics in the United States. McClosky and Zaller argue that many of the changes of the 1960s involved “efforts to extend certain values of the traditionalethos to new groups and new contexts”—such as equal rights for women, blacks, and gays; anti-war and free speech protests; and the “do your own thing” ethosof the so-called counterculture, which may in fact have had more in common with the individualist American culture than was recognized at the time.

In a broadly libertarian country most voters and movements have agreed on the fundamentals of classical liberalism or libertarianism: free speech, religious freedom, equality before the law, private property, free markets, limited government, and individual rights. The broad acceptance of those values means that American liberals and conservatives are fighting within a libertarian consensus. We sometimes forget just how libertarian the American political culture is.

And of course American politics and policy deviate a great deal from those fundamental principles, which leaves libertarians feeling frustrated, even angry, and seeming extreme or radical to journalists and others. But as Conor Friedersdorf just wrote in Time’s longtime rival, Newsweek, the media have a bias toward the status quo and establishment politicians, even when current policies and the proposals of elected officials are at least as extreme as libertarian ideas:

If returning to the gold standard is unthinkable, is it not just as extreme that President Obama claims an unchecked power to assassinate, without due process, any American living abroad whom he designates as an enemy combatant? Or that Joe Lieberman wants to strip Americans of their citizenship not when they are convicted of terrorist activities, but upon their being accused and designated as enemy combatants? In domestic politics, policy experts scoff at ethanol subsidies, the home-mortgage-interest tax deduction, and rent control, but the mainstream politicians who advocate those policies are treated as perfectly serious people.

And Fareed Zakaria, the editor of Newsweek International, made the point a dozen years ago in a review of Charles Murray’s book What It Means to Be a Libertarian (in the Public Interest, not online)

The reason that libertarians seem extreme and odd is not that they are a furious minority, angry at a world that seems to have passed them by, but rather the opposite. They are heirs to a tradition that has changed the world. Consider what classical liberalism stood for in the beginning of the nineteenth century. It was against the power of the church and for the power of the market; it was against the privileges of kings and aristocracies and for dignity of the middle class; it was against a society dominated by status and land and in favor of one based on markets and merit; it was opposed to religion and custom and in favor of science and secularism; it was for national self-determination and against empires; it was for freedom of speech and against censorship; it was for free trade and against mercantilism. Above all, it was for the rights of the individual and against the power of the church and the state….

The reason that libertarianism seems narrow and naive is that having won 80 percent of the struggles it has fought over the last two centuries, it is now forced to define itself wholly in terms of the last 20 percent. Extremism in the defense of liberty is no vice if you were in Prussia in the 1850s, but in America in the 1960s? Libertarianism has become extreme because the world has left it no recourse.

Now, I don’t feel furious, angry, or extreme. I think that libertarianism is the philosophy of the American revolution, the basic ideology of America, and indeed the foundation of Western civilization. The concept of personal and economic freedom – giving people more power to pursue happiness in their own way by restricting the size, scope, and power of government – is not extreme. Nor is it reactionary. In fact, it is the direction in which civilization has been heading, with many digressions and blind alleys, since the liberal revolution of the 17th century. I am a progressive. I believe that the simple, timeless principles of the American Revolution – individual liberty, limited government, and free markets – are even more powerful and more important in the world of instant communication, global markets, and unprecedented access to information than Jefferson or Madison could have imagined.  Libertarianism is not just a framework for utopia, it is the indispensable framework for the future.

Initial Kagan Critiques Miss the (First Amendment) Point

As I’ve been re-reading Supreme Court nominee Elena Kagan’s publications – of which there are surprisingly few for someone of her achievements and reputation – I’ve had half an eye on the TV punditry.  It seems that the leading critique from both the right (e.g., Fox News, Senator Jon Kyl – who’s usually excellent on these things) and extreme left (e.g., Jane Hamsher) is that Kagan doesn’t have judicial experience. 

This just completely misses the point.  As a solicitor general (the “Tenth Justice”) and former dean of Harvard Law – where she did a magnificent job and gained the respect of scholars from across the political spectrum – not to mention senior roles in the Clinton White House, teaching at the University of Chicago and clerking for Justice Thurgood Marshall, Kagan absolutely has the credentials and intellectual chops to be a Supreme Court justice.  Indeed, as I said this morning, her scholarly persona means she’s probably better suited to being a justice than to being solicitor general – especially given that her performance as an oral advocate has left something to be desired.  And we’ve had plenty of non-judges on the Court, people coming from the executive branch (William Rehnquist), academia (Felix Frankfurter), private practice (Lewis F. Powell, Jr.), and politics (Hugo Black).

I actually agree with President Obama that it’s not a bad idea to have somebody with a “different” professional background on the Court – although Kagan’s time in the ivory tower is no more likely to give her a common touch than a nominee coming from the “judicial monastery.”  And, as the president said, Kagan “has won accolades from observers across the ideological spectrum, not just for her intellect and record of achievement, but also for her temperament.”  So the problem really isn’t her supposed lack of relevant experience.

One problem is precisely her very short paper trail – though there are no indications she’s anything but a conventional modern liberal, on which more in future – but something to tease out of that trail, combined with her year as SG, is a certain hostility to the freedom of speech.  For example, in her article “Regulation of Hate Speech and Pornography After R.A.V.,” she attempts to find a constitutional way to restrict the sorts of speech that she personally finds offensive.  And in her defense of the federal “depiction of animal cruelty” statute – which the Supreme Court struck down 8-1 – she argued for a balancing test weighing the value of speech against its social harm.  Not to mention her arguments in Citizens United, the campaign finance statute that, until it was struck down could have banned books, flyers, and movies that contained political speech.  (Interestingly, in Citizens United, she abandoned the very “level political playing field” argument the president invokes to criticize the decision.)

I’m of course not criticizing her appearance as an advocate defending the federal laws at issue in Stevens and Citizens United – that’s her job as solicitor general – but if you read the argument transcripts, you see that she could have done so in ways less sweepingly inimical to free speech. There is other evidence to this effect (see her First Amendment articles here, here, and here, plus others lacking public links), but you get the idea.

Students Have the Right to Free Speech, Too

A northern Texas school district attempted to banish all religious expression from its schools by prohibiting virtually all non-verbal student speech in any school-related context.  Officials used this broad policy to promote an anti-religious orthodoxy and root out any and all religious speech. The Supreme Court made clear, however, in its seminal school speech case, Tinker v. Des Moines Independent Community School District, that students enjoy First Amendment rights, and that core political and religious speech cannot be suppressed without showing that the speech will “materially and substantially disrupt” the educational process.

Here, the Fifth Circuit upheld all of the district’s regulations and found that Tinker did not supply the relevant legal standard.  It instead applied the intermediate scrutiny “time, place, and manner” test of United States v. O’Brien. At issue is whether the school district’s speech policy should be evaluated under Tinker’s “substantial disruption” standard or under O’Brien’s intermediate scrutiny.

Cato, joined by three groups that promote religious liberty, filed a brief asking the Supreme Court to take up the case because the Fifth Circuit’s approach permits schools to enforce sweeping speech codes by which virtually all speech may be prohibited.  Permitting a wholesale content- and viewpoint-neutral ban on all speech or a form of speech as an alternative to the Tinker standard will result in the erosion and eventual elimination of student speech rights.

The name of the case is Morgan v. Plano Independent School District; the Court will likely decide by the end of June whether to hear the case this fall.


John Paul Stevens, Defender of High-Tech Freedom

I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high-tech freedom.

Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:

  • Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
  • Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5-4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
  • Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software-controlled rubber-curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent-friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high-tech firms being forced to spend large sums on litigation rather than innovation.

So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.

Free Speech in Canada

Free speech isn’t exactly free in Canada, and even Glenn Greenwald and Mark Steyn agree on this point. When conservative commentator Ann Coulter (who can be uncivil, but shouldn’t be muzzled by the state for it) tried to give a speech at the University of Ottawa, she was warned by the political correctness police not to hurt anyone’s feelings:

I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or “free speech”) in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.

You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind… .

So much for inalienable rights.

Steyn highlights the view of the lead investigator of Canada’s “Human Rights” Commission: “Freedom of speech is an American concept, so I don’t give it any value.”

I would offer a rebuke, but Ezra Levant has done it better than I ever could. Crank your volume up, sit back, and enjoy:

Google Execs Convicted in Italy

Google executives who had nothing to do with the creation, uploading, review, or display of a video have been criminally convicted in Italy for its brief appearance on a Google site.

The video, which showed Italian children taunting an autistic schoolmate, was promptly taken down after Italian authorities notified Google. The company assisted the authorities in locating the girl who uploaded it, according to Google’s account. (Her subsequent conviction makes it safe to assume that Google was cooperating with a criminal investigation as required by Italian law.) But four Google employees were charged with criminal defamation and failure to comply with the Italian privacy code.

That can’t happen here—unless we let it happen here.

This is a good time to review and extoll the Communications Decency Act—not because it attempted to censor Internet speech (that part was overturned), but because it protected providers of interactive services (like Web sites) from having to become gatekeepers over Internet content.  The law shielded them from liability for what users of their services do.

I believe common law would have eventually reached that result had the statute not been passed, but without protections like that in the CDA’s section 230, the wide-open, rollicking, soapbox-for-all Internet we know would not exist—it would be just a plussed-up television because everything uploaded would have to get a professional’s review for potential liability.

That’s what Italy stands to end up with if it allows liability against providers of interactive services. It’s what we stand to end up with if the many threats to CDA section 230 get traction.