Posts about firstamendment

Shifting the discussion to principles

The good news about the White House’s response to an anti-SOPA petition is that it raised the discussion to the level of principles, arguing against “disrupting the underlying architecture of the Internet.” That is where it needs to be.

The bad news, as Tim O’Reilly eloquently explores, is that the White House makes a gross and unsubstantiated assumption:

Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs. It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders.

O’Reilly responds:

In the entire discussion, I’ve seen no discussion of credible evidence of this economic harm. . . . In my experience at O’Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O’Reilly books would never have paid us for them anyway. . . .

As I wrote in What Would Google Do, novelist Paulo Coelho found that piracy spread his name and reputation and found him new readers in new lands …. so he pirated himself and sold more books. The man has sold more than 100 million.

This part of the discussion — the justification for SOPA and PIPA in whatever form — needs to be based on principles and on facts.

The question of fact is difficult to answer as it is an attempt to prove a negative: How do we know how many copies of a work pirates would have bought if they hadn’t pirated? How do we know how many more people discovered and bought a work because it was pirated? How do we differentiate between shrinking industry sales caused by piracy or by a new abundance of competition?

The matter of principles is this: Where will the White House and government put their priorities: in protecting the interests of a shrinking industry or in protecting the interests of innovation, entrepreneurship, and economic expansion? Will they favor protecting the interests of a closed industry or the freedom of speech?

That is why we must raise this discussion to the level of principles. That is why I wrote Public Parts, to help spark a discussion of principles. These, once more, are the principles of publicness and an open society I propose in the book:

I. We have the right to connect.
If we cannot connect, we cannot speak. That is a new and necessary preamble to our First Amendment. Finland has declared internet access—high-speed at that—as a right of citizens. Whether countries should subsidize and provide access is a separate question. But once access is established, cutting it off should be seen as a violation of human rights. That’s what a 2011 United Nations report said. “It’s now a basic human right to have internet,” [former] Thomson Reuters CEO Tom Glocer told media executives in the Middle East. “Systematic denial of freedom of accessing information will lead to a revolution.”

II. We have the right to speak.
Freedom of speech is our cultural and legal default in the United States. That First Amendment protection should extend not just to information and opinions delivered by text but also to information delivered by applications and data. Yes, there need to be ­limitations—on child pornography online, for example. But beware the unintended consequences of attacking a specific problem with an overly broad response. To fight child porn, Australia proposed mandatory filters to block content—filters that could be used against any content. We cannot manage everything to the worst case, to that which might offend someone, to that which could happen. We must not live by the lowest common denominator of fear and offense and the highest watermark of regulation, diminishing our most precious right of speech in the process.

III. We have the right to assemble and to act.
It is not enough to speak. Our tools of publicness enable us to organize, to gather together—virtually or physically—and to act as a group to demonstrate or to build.

IV. Privacy is an ethic of knowing.
We need protection of privacy. We also need to adapt our norms of privacy to new social tools and behaviors so we can better understand when something is said in confidence, when information should not be used without consent, what the harm is of spreading information, and how to give people more control of their information.

V. Publicness is an ethic of sharing.
The foundation of a more public society is the principle of sharing: recognizing the benefits of generosity, building tools that facilitate it, and protecting the product of it.

VI. Our institutions’ information should be public by default, secret by necessity.
Openness is a better way to govern and a smarter way to do business.

VII. What is public is a public good.
When public information or the public space is diminished, the public loses. Secrecy too often serves the corrupt and tyrannical.

VIII. All bits are created equal.
When anyone gains the power to decide which bits, words, images, or ideas can or cannot pass freely through our network, it is no longer free.

IX. The internet must stay open and distributed.
“Let’s give credit to the people who foresaw the internet, opened it up, designed it so it would not have significant choke points, and made it possible for random people including twenty-four-year-olds in a dorm to enter and create,” says Eric Schmidt.

Most relevant to the discussion of SOPA are the last two. If anyone restricts any bit — whether that is China restricting searches or India restricting what it says is offensive content or the U.S. restricting what someone calls piracy — then no bits can be assured to be free. If the architecture of the net is altered to enable the U.S. government to block alleged pirates, then any government can use that power to block anything.

My response to the White House’s response is to ask what is more important: protectionism for a fading industry or the future of speech?

The First Amendment wins one

Bravo. The Court of Appeals has struck down the FCC’s indecency rule — specifically, its fines for “fleeting expletives” — as “unconstitutionally vague.”

No shit.

Fox is the official victor here. The other networks also win. But we all win whenever the First Amendment does.

The Appeals Court, to its credit, notes how much media and the country have changed since George Carlin first uttered his seven dirty words on radio and the Supreme Court blushed. Says the appeals panel:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed lives of all Americans.”

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or
satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. The
internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. As the FCC itself acknowledges, “[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago.”

Nonetheless, the Supreme Court’s doctrine in the Carlin decision stands. But this court is not reinterpreting that rule of law. Instead it finds that the FCC’s police is “impermissibly vague.” That is: “A law or regulation is impermissibly vague if it does not ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.’” And the First Amendment requires extra attention to protection from such vagueness. The court said:

We agree with the Networks that the indecency policy is impermissibly vague. The first
problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive…. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a conew offensive and indecent words are invented every day….

The same vagueness problems plague the FCC’s presumptive prohibition on the words “fuck” and “shit” and the exceptions thereto. Under the FCC’s current policy, all variants of these two words are indecent unless one of two exceptions apply. The first is the “bona fide news” exception, which the FCC has failed to explain except to say that it is not absolute. The second is the artistic necessity exception, in which fleeting expletives are permissible if they are “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.”

That’s how Saving Private Ryan got away with “fuck” and “shit” while on The Blues, they were dirty. In other words: when white people say them, the words are clean, but not when black people say them. Says the court: “The FCC created these exceptions because it words would raise grave First Amendment concerns.” Yup.

The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently. Thus, it found the use of the word “bullshitter” on CBS’s The Early Show to be “shocking and gratuitous” because it occurred “during a morning television interview,” before reversing itself because the broadcast was a “bona fide news interview.” In other words, the FCC reached diametrically opposite conclusions at different stages of the proceedings for precisely the same reason – that the word “bullshitter” was uttered during a news program. And when Judge Leval asked during oral argument if a program aboutthe dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollarAmendment values at stake, “I suspect” is simply not good enough.

Importantly, the court recognizes that the FCC has chilled speech. CBS affiliates would not air a 9/11 documentary because it contained curse words — and I can’t imagine a better cause for them. As I argued in this column, bullshit is political speech. Sandra Loh was fired from an NPR station because she said a bad word. “Broadcasters,” the court says, “may well decide not to invite controversial guests on to t heir programs for fear that an unexpected fleeting expletive will result in fines.” A station did not air Pat Tillman’s funeral because of family members’ grief and language. Fix didn’t air a repeat of a That ’70s Show episode — a Kaiser Family Foundation award winner — that dealt with masturbation. They were no longer masters of their domain.

Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion topics at the broadcaster’s peril has the effect of promoting wide self-censorship material which should be completely protected under the First Amendment.

All is not won. The Appeals Court says the FCC could create constitutional policy — this just isn’t it. And this could return to the Supreme Court. But for now, let’s all say a celebratory “BULLSHIT.”

First, kill the lawyers – before they kill the news

Following the frighteningly dangerous thinking of Judge Richard Posner – proposing rewriting copyright law to outlaw linking to and summarizing (aka talking about) news stories – now we have two more lemming lawyers following him off the cliff in a column written by the Cleveland Plain Dealer’s Connie Schultz.

First note well that Schultz is married to U.S. Senator Sherrod Brown as she calls on her newspapers and employer (my former employer, Advance Publications) and fellow columnists to influence Congress to remake copyright. She should be registered as a lobbyist. No joke.

Schultz says that David Marburger, an alleged First Amendment attorney for her paper, and his economics-professor brother, Daniel, have concocted their own dangerous thinking, proposing the copyright law be changed to insist that a newspaper’s story should appear only on its own web site for the first 24 hours before it can be aggregated or retold.

Incredible. So if the Plain Dealer reported exclusively that, say, the governor had just returned from a tryst with a Argentine lady, no one else could so much as talk about that for 24 hours. A First Amendment lawyer said this.

They make vague reference to the hot news doctrine theAP has been trying to dig up from its very deep grave. Note that their definition of hot is the cycle of newspaper publishing, not the cycle of news itself. Look at how fast the Michael Jackson news spread. Under these guys’ scheme, TMZ would have had exclusive right to publish his death for a day. Well, except it’s not a newspaper. And what they care about is protecting newspapers.

Schultz and the Marbergers complain about what they call the “free-riding” of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

These newspaper people are the ones trying to act as if they own the news and can monopolize it. Those days are over, thank God.

: LATER: Schultz has responded in the comments here. I have responded in turn. And I have just sent this message to the office of her husband:

Please consider this a press inquiry:

I want to know Sen. Brown’s stand on his wife’s column in the Plain Dealer on attempting to rewrite copyright law to give newspapers a 24-hour period of exclusivity on the news they report.

Does the senator support this legislation?

What will the senator vote on this legislation?

Will the senator recuse himself from voting on this legislation, considering his wife’s role in lobbying Congress on the issue?

Is his wife registered as a lobbyist?

The sun sets on free speech

When I am in England and other countries speaking with journalists, I often take the opportunity to put in a plug for the First Amendment, begging them to that they should fight for one of their own — and for a Section 230, while they’re at it — because with global publishing we are all put at risk by bad libel laws and lesser protections of free speech thanks to libel tourism that exploits these laws to chill speech anywhere on earth (publish a book in the US and if one copy is sold in Britain, you can be prosecuted until its awful laws). What America should be exporting — more than Coke or troops — is an understanding of living with the ethic of free speech we have inherited and the realization that the internet is the First Amendment brought to life.

In the Guardian today, George Monbiot goes on a proper attack against British libel laws, calling them what they are: “a global menace to free speech.” He writes:

If someone launches a sustained and malicious campaign of false charges against another person, and that person is given no opportunity to demonstrate that he is being wronged, he should be allowed to seek redress.

See, parenthetically, this discussion about the notion that libel laws themselves are outmoded when the internet gives everyone the means of response.

But the libel laws of England and Wales are tilted so heavily against the defendant and involve such monumental costs that they amount, in effect, to censorship by private interests: a sedition law for the exclusive use of millionaires. While in the United States the plaintiff must prove that the claims against him are false, in English law the defendants’ claims are presumed false until proven otherwise: he has to demonstrate his innocence. . . .

Perhaps you don’t live in England or Wales, so you think this has nothing to do with you. You’re wrong. English libel law now applies to everyone on Earth. Make any accusation, anywhere in the world, and if the subject can demonstrate that a single person in England or Wales has read it, you could be sued here for every penny, cent, rouble, rupee or renminbi you possess. The internet and the global nature of publishing ensure that these medieval laws have become the most powerful extra-territorial legislation ever drafted.

Yesterday two men with whom I seldom agree, the US senators Arlen Specter and Joe Lieberman, launched a new bill, called the Free Speech Protection Act, to defend US citizens against English libel law. Our laws, they argue, threaten the “free-flowing marketplace of ideas” which “enables the ideals of democracy to defeat the totalitarian vision of al-Qaida and other terrorist organisations”. English libel law is an international menace, a national disgrace, a pre-democratic anachronism. It defends crooks, terrorists and tyrants from investigation. It threatens the free speech of people all over the world and causes untold damage to the reputation of this country. And neither the British government nor the British parliament gives a damn. . . .

On top of this, we are about to be subjected to a month of saccharine slathering over the grand progress of China, a nation that tramples the free speech of its citizens. We have endured the childish but murderous reaction to cartoons in Denmark (hear yesterday’s discussion on Morning Joe contrasting this with reaction to The New Yorker’s Obama cover; they brag, properly, that nobody’s going to be arrested at the magazine for a cartoon). We witness repression of speech in the Middle East, in Africa, in Asia, in South America.

Shouldn’t the UK, of all nations, stand up for free speech as an example to the world? If the US and UK are going to fight for anything together, let it be that. Perhaps my friends at the Guardian should take Monbiot’s call as inspiration to hold a campaign for a First Amendment in the UK.

The internet is the First Amendment

An important Adam Liptak story in today’s New York Times examines the American exceptionalism of our First Amendment as contrasted with Canada’s frightening prosecution of Macleans’s magazine for daring to print opinions that complaining Muslims found offensive.

Our risk in the world today is that we will be reduced to the lowest common denominator of speech as dictated by the worst regime. Libel tourism is endangering the publication of ideas and reporting that might cost financial damages under other countries’ wrong-way libel laws. Google censors its search results in China rather than exerting its moral influence there — don’t be evil — in favor of free speech.

Except there’s this: The internet is the First Amendment brought to life. Our First Amendment argues that it is both undesirable and impossible to contain speech and the marketplace of ideas. The internet enforces that idea. You simply can’t contain speech on it. Oh, governments will try. And those who favor rule by the offended will try to make them. And companies have become accomplices to regimes’ crimes against speech by handing over speakers’ identities (see Yahoo in China and Google in India). These are, of course, the areas where anonymity has its place (the ethic of identity in these cases is protecting the identity of speakers).

So we can treat the First Amendment and the moral of speech as exceptionalism, because it has been. Or we can recognize that the internet offers the openness of speech to anyone anywhere, though not without risk, and we who have this privilege can make it our mission to educate others about the inevitability and benefits of free speech.