The Illogical Defense of Net Neutrality

Just to be clear:  I'm in favor of net neutrality.  I want everything to be easily available on the Web.  I don't want to pay "tolls" for access to anything.  I don't know who, other than a short-sighted greedy business person, who would want otherwise.

But I've just seen two illogical defenses of net neutrality on Keith Olbermann's Countdown.   First, Josh Silver of the Free Press told Olbermann that net neutrality is crucial because, otherwise, the Internet will come under the control of big corporations, and look what big corporations did to banking, and oil (BP oil spill) in America.

Wrong on both counts.   Information is not the same as money (banking).  As every Intro to Comm and Media Studies student should know (mine do, because I teach this), there's a world of difference between between money and information.  If you take my money, I have less money.  If you take my information, I at very least still have that information, and may indeed end up with more information, as I get feedback from your use of my information.   The equation of oil and information is even more absurd.   Although leaks of information can cause damage, just as often they can be valuable in a democracy, as in the case of the Pentagon papers (and draw your own conclusions about the Wiki-leaks).   In contrasts, oil leaks only do damage.

Next, Senator Al Franken opined that, although the First Amendment has thus far attempted to protect us from government control of information, the issue of net neutrality will test the First Amendment on how well it can protect us from corporate control of information.

Really?   The history of the world is filled with tragic examples of what happens when government controls information.   Nazi Germany and The Soviet Union are the big examples in the 20th century.  Thomas Jefferson and James Madison correctly saw that government control of information is antithetical to democracy.   Ability to know about the government was precisely what the First Amendment was designed to protect, or prevent the goverment from blocking.

Appropriately, there is nothing in the First Amendment about corporations - Congress is the entity restricted from abridging freedoms of speech and press.   And that makes sense, given that corporate control of information and news has never led to totalitarian societies, as government control did in Nazi Germany and The Soviet Union.

A little logic, and some knowledge of history, would be helpful when considering these issues.  Empowering the FCC to exercise government control over the Internet is precisely the way we do not want to go in our democracy.   Thus far in the world, freedom of information and therefore freedom itself has been given a lot more to fear from governments than corporations.

Concerns about Kagan's First Amendment Position

President Obama has for the second time nominated someone to the US Supreme Court whose views on the First Amendment and its role in our society give cause for concern.

Unlike Sonia Sotomayor, who's Appellate Court ruling in the Doninger case held that First Amendment protections did not extend to high school students writing criticism of their school officials, off-campus, Elena Kagan has never served as a judge.  This, in itself, is not a problem - neither had Hugo Black or William O. Douglas before their appointments to the Supreme Court, and they were the greatest champions of the First Amendment in the 20th century.   But Kagan's opinions on First Amendment matters, expressed in at least one article, show that she may be closer to Sotomayor than Black and Douglas on the First Amendment.

On the one hand, as James Doty points out in a generally supportive piece in Salon, Kagan wrote in an article that the Supreme Court made the "correct decision"when it struck down in a 5-4 vote a law that prohibited mutilating the U.S. flag.   In the same article, Kagan also cautioned law enforcement about "hastily" cracking down on "disfavored speech" to maintain public order.   Those views are certainly heartening to Americans who view the First Amendment as the cornerstone of our freedoms.

On the other hand, however, Jonathan Turley cites with concern what Kagan wrote in another article about how to combat pornography and hate speech:  "new solutions ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment."  Turley wonders what such a "nuanced view of the First Amendment" portends for Kagan's Supreme Court rulings.   To put a finer point on this, I would say that the best, most effective way of supporting the "core principles of the First Amendment" is not to find ways of working around them on specific issues, but employ those principles as a guide and injunction against government censorship of any kind, whether the target is pornography (nobody's business, especially not the government's, if consenting adults are involved) or the most heinous hate speech (not the government's business, either, but certainly a matter of social concern).

There is never a guarantee of how anyone will rule after ascending to the Supreme Court, but if ever there was a need for careful, substantive questioning of a nominee's views in Senate hearings,  Kagan and her views of the First Amendment would be it.  Unfortunately, the Sotomayor hearings were typically big on political maneuvering and low on substance.  The best questions came from Senator Al Franken.   I hope he can rise even further to the occasion with Kagan.

One wonders why Obama is now two for two on First Amendment myopia in his appointments to the Supreme Court.  I'm beginning to think - actually, I've been thinking for a while - that Obama has a certain kind of near-sightedness or tone-deafness about communication and its crucial role in our democracy.

Just this past Sunday in an address at Hampton University, Obama remarked that "with iPods and iPads, and Xboxes and PlayStations ... information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation."  This is not a call for censorship per se, but it shows a distressing ignorance of the value of what I call new new media in education and the growth of knowledge.   Neither is entertainment antithetical to education and empowerment, as the boost to literacy engendered by everything from Harry Potter to texting demonstrates.

It's difficult to appreciate the centrality of the First Amendment to our democratic society when your knowledge of media and communication is based on popular misconception not facts.  But to the matter at hand - I hope that Elena Kagan is carefully questioned in the Senate, and, if she is confirmed, that she expresses this appreciation for the First Amendment on the Court.


11-min podcast discussion of Kagan, Obama, and the 1st Amendment

Sen. Franken vs. Judge Sotomayor on the Internet and the First Amendment

Kudos to Senator Al Franken for bringing up the importance of the Internet and First Amendment today in his questions to Judge Sotomayor in her Senate confirmation hearings.

Franken asked Sotomayor if she agreed with the importance of keeping "the Internet the Internet" - or free, as it has been.

Sotomayor replied that she recognizes the crucial importance of the Internet in our society - but that the Supreme Court's role is to rule on the basis of Congressional law.

Franken pressed her, pointing out the importance of the First Amendment, as a part of the Constitution in effect superior to what Congress may do. (He could have also said, but, after all, only an Amendment to the Constitution can change the First Amendment - not a law enacted by Congress.)

Sotomayor replied that the First Amendment is not necessarily superior to "property rights" and other compelling interests.

I think Franken has the right of this. He might have further replied, if he had more time, that the Supreme Court has to follow the First Amendment, regardless of what Congress does.

Unfortunately, this is not what the Supreme Court has consistently done. The Supreme Court wisely struck down the Communications Decency Act in the late 1990s, but supported the FCC's censure of WBAI Radio in the late 1970s.

As I've indicated in my discussions of Sotomayor and the Doninger case, I'm concerned about her support - or lack of - of the First Amendment. Her response to Franken was not very reassuring.

She has comported herself very well at the hearings, however, and will likely be confirmed.

It's good to know that the First Amendment will at least have Senator Al Franken on its - and our - side.



See also The Flouting of the First Amendment.

Al Franken Sings the Rolling Stones

Gotta love this ... Here's Al Franken, back in the 1980s, doing a super fine Mick Jagger, singing "Under My Thumb" ... Tom Davis, Franken's Saturday Night Live partner, is on stage playing Keith Richards and his face and guitar, too...

Good to know there's that kind of talent coming to the US Senate. Kudos to the state of Minnesota.

Voter Switches from Al Franken to 'The Lizard People' in Minnesota

I was unable to speak when I saw this real ballot in the Coleman-Franken Minnesota Sentate race on Chris Matthews' Hardball tonight...



Clearly, this Minnesota voter changed his or her vote from Al Franken to The Lizard People. Minnesota Public Radio today offered the following helpful details...

This Beltrami County voter cast their ballot for Al Franken, but also put "Lizard People" as a write-in candidate, not only in the U.S. Senate race, but for several others. The county auditor/treasurer ruled that the vote should not be counted because it's considered an overvote. Representatives for Franken challenged that decision. (MPR Photo/Tom Robertson)

Two important points -

1. Even though a radio is involved in this report, it is not a "War of the Worlds" Orson Welles hoax - this ballot was really cast.

2. Although I do want Al Franken to win, it could be even more important to determine who, exactly, are "The Lizard People," and why this "Beltrami" voter wrote in their name...

Theories abound -

a - Reports of The Lizard People go back at least as far as 1933, Los Angeles...

b - On the science fiction side, there may be a Dr. Who connection ...

c - But, my favorite, and what I see as most likely, explanation hearkens back to Ken Johnson's brilliant 1982 V mini-series. In an age just before cable, this hard-hitting series of invading reptile aliens who took the shape of humans - but still swallowed mice whole and live as snacks - was just the thing for an audience starved and hard-bitten for good science fiction on television. V's sequel mini-series and then regular series were not quite as good, but all-in-all the V saga provided a much needed bridge between Star Trek: The Original Series, and Star Trek: The Next Generation, the new Battlestar Galactica and all the great science fiction that we now know so well...

So what was that "Beltrami" voter trying to tell us? I believe it was a plea for V - possibly a play on words on the "V" in True Blood, short for vampire blood, which in that series is a powerful drug - but more likely a shout-out for Kenneth Johnson's 2008 novel, V: The Second Generation, which came out this past February ...

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The Plot to Save Socrates

"challenging fun" - Entertainment Weekly

"a Da Vinci-esque thriller" - New York Daily News

"Sierra Waters is sexy as hell" - curled up with a good book

more about The Plot to Save Socrates...





Read the first chapter of The Plot to Save Socrates .... FREE!

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The States of Sarah Palin and the First Amendment

It's not, as, well, insane, as not being able to name a newspaper you read, or a single US Supreme Court decision with which you disagree (other than, if you disagree with it, Roe v. Wade), but here's Sarah Palin on the First Amendment:

If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations," Palin told host Chris Plante, "then I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.

As Glenn Greenwald on Salon and many others have pointed out, the First Amendment protects the media from government officials, not vice versa.

Now, to twist yourself into a pretzel to give Palin her due, or to try to make a modicum of sense of what she is saying, the First Amendment does protect the speech of everyone, including government officials and candidates for any office. They are indeed entitled to be as critical as they like about their opponents, without fear of governmental reprisal. But this protection is not from media reporting and commentary, but, again, from the government shutting down, preventing, or punishing this speech. So Palin is wrong, again.

But let's continue in the twisted pretzel mode a little further, just to be fair. We do have laws against libel and slander, which allow anyone to sue anyone else, in a civil court, for defamatory, untrue statements. Liddy Dole is being sued by her Democratic opponent Kay Hagan about one of Dole's ads in North Carolina, and Norm Coleman is suing his Democratic opponent Al Franken for defamation in Minnesota. But these are civil suits - one citizen or candidate or candidate's campaign suing another - and the government, in the form of the courts, is acting as a referee, not a censor. Therefore these are also not First Amendment issues.

By no stretch of logic, then, does Sarah Palin's bizarre reasoning on the First Amendment make sense. But here's something that may be of comfort to Palin: she is not alone in misunderstanding the First Amendment. Well meaning people misunderstand the First Amendment all the time, when they say that a private organization does not have the right to control the speech on its premises. The First Amendment has nothing to say about what private or any organizations do, other than that the government can't interfere with their speech. And government officials and people in Congress misunderstand the First Amendment, when they say the Fairness Doctrine should be reinstated, or when they support FCC fines for broadcasts found objectionable. The First Amendment expressly prohibits such government actions.

In sum: Sarah Palin apparently does not comprehend the First Amendment. But its defenders have their work cut out for them, even if Obama wins by a landslide, which I hope he does.