Podcast: Supreme Court Protects Student Right to Free Speech!

Welcome to Light On Light Through, Episode 183, in which I discuss the importance of the Mahanoy Area School District v. B.L. US Supreme Court decision yesterday, which found that a high school's attempt to punish a student for using obscene language on her Snapchat violated the student's  (Brandi Levy's) First Amendment rights.

Read the Supreme Court decision here.

Read blog post about the decision here. 

Check out this episode!

Why Republicans Continue to Support Trump

Here's my best explanation/theory about why those 126 Republican members of the House of Representatives, and 17 Republican state attorneys general, signed amicus curiae briefs in support of the attempt by Texas to get the U. S. Supreme Court to disallow the votes in swing states Pennsylvania, Michigan, Wisconsin and Georgia that went for Biden in the Presidential election.

Republicans were traumatically horrified when Obama won not once, but twice, and against two mainstream, highly regarded, mainstream candidates. When Trump beat Hillary, even more loathed by Republicans than Obama, Trump won the inchoate love of many otherwise sane Republicans. They support Trump now because they want, against all odds, to somehow hold on to that evil magic.  To keep that sick hope alive.

The Supreme Court wisely threw out the Texas attempt to overthrow the election.   Biden will take the oath of office on January 20, 2020.  But it will take a lot more than one Supreme Court decision to put the fascist, racist rage back in the hole from which it emerged.

The Deuce 3.2: The First Amendment!

Abby easily had the best line in tonight's episode 3.2 of The Deuce, when she explains that if you don't use the First Amendment to protect porn movies, "it's not gonna be there for the ideas".   The geniuses on the Supreme Court didn't get this in 1915, when they decreed in Mutual Film v. Ohio that film was not protected by the First Amendment, since it was a form of entertainment not an expression of ideas.   It wasn't until Burstyn v. Wilson in 1952 that this was overturned.  Good to see that Abby got the full gist of this in 1985.

Otherwise, almost no one, including Abby, is very happy in tonight's episode.  Abby loses her friend.  Lori in California objects to a stalk of corn being used in her porn scene.  Neither Vincent nor Frankie are too thrilled in their separate proceedings, though they do give us a good scene together face-to-face, nice trick photography.

But there is more good news on the fringes.   Looks like Candy may be on the way to finding true love or at least pretty good love with Corey Stoll's character Hank.  And Bobby doesn't have AIDS.  All of which says there's room for at least some happy endings on The Deuce.

Given that this its final season, whatever endings we get this year will be the final words on the series.   I'm hoping that, at very least, both twin brothers are thriving, as are Candy and Lori.  But I'm an optimist, and The Deuce has always been about unvarnished not rose-colored reality.   You know what, I still hope those characters and even a few others survive.

See also The Deuce 3.1: 1985

And see also The Deuce Is Back - Still Without Cellphones, and that's a Good Thing ... The Deuce 2.2: Fairytales Can Come True ... The Deuce 2.3: The Price ... The Deuce 2.4: The Ad-Lib ... The Deuce 2.6: "Bad Bad Larry Brown" ... The Deuce 2.9: Armand, Southern Accents, and an Ending ... The Deuce Season 2 Finale: The Video Revolution

And see also The Deuce: NYC 1971 By Way of The Wire and "Working with Marshall McLuhan" ... Marilyn Monroe on the Deuce 1.7 ... The Deuce Season 1 Finale: Hitchcock and Truffaut 

  
It all starts in the hot summer of 1960, when Marilyn walks off the set
of The Misfits and begins to hear a haunting song in her head,
"Goodbye Norma Jean" ..

Making a Murderer 2: The Very Pits of Justice

My wife and I binge-watched the second season of Making a Murderer on Netflix the past few evenings.  In an America brought to new levels of injustice and anger and despair courtesy of Trump, and commitment to vote him and his Republicans out of office as soon as possible, the story of what happened to Steven Avery and Brendan Dassey provides yet another totally separate example of the decline and miscarriage of justice in America, in this case due to police, prosecutors, and judges, including the U. S. Supreme Court.

The facts are these:

Brendan Dassey confessed, when he was 16-years old,  to murdering Teresa Halbach.  There is no forensic evidence whatsoever to implicate him in the crime.  Yet he was convicted and sentenced to life in prison.  The video in which he gave his confession couldn't be more clear: he is not very bright, and he's fed imagined details of the crime by his questioners.   They told him what they needed to hear, over and over again, until he was able to mouth the words of his confession.  All of that is laid out, in detail sickening for justice, in Season 1.

Laura Nirider and Steven Drizin take up his defense in Season 2.  They get no justice for their client in Wisconsin courts.  Their only option is to appeal in Federal courts.  This has become very difficult, given AEDPA (Anti-Terrorism and Effective Death Penalty Act), passed overwhelmingly by Congress and signed into law by, yes, Bill Clinton in 1996.   This law instructs Federal judges to be extraordinarily careful in overturning convictions for murder in state courts.  Nonetheless, a Federal district court judge did just that for Dassey.  Wisconsin could have released him, but they chose to appeal.  A three-judge Appellate panel (7th Circuit) upheld the district judge.  Wisconsin appealed again, this time to the full 7th Circuit, which decided 4 to 3 that nothing untoward happened in Dassey's interrogation or subsequent conviction.  Nirider and Drizen took the case to the U.S Supreme.  Four justices were needed to get the High Court to consider the case.  That requisite number could be not attained, and the Supreme Court declined to hear the case, this past June.

The villains in this outrage: There are many, but I'd put at the top of the list, for various reasons, Wisconsin Attorney General Brad Schimel, the at-least six Justices on the U. S. Supreme Court who were uninterested in hearing Dassey's case, and Bill Clinton, who should have at least have had the integrity to veto AEDPA (even though Congress would've overridden his veto). 

The result: a young man, now in his late 20s, is on his way to spending most of his life in prison, based on a confession that one of the judges in the 7th circuit said makes her "skin crawl" due to how unfair it was.

I suppose, if Steven Avery's conviction is overturned, that Brendan Dassey may have another chance.  Avery served 18 years in prison for a rape he didn't commit - DNA evidence cleared him - before he was arrested and convicted for Halbach's rape and murder.  He never confessed.  He was convicted on forensic evidence that his new lawyer, Kathleen Zellner, has systemically shown was concocted and planted.  Scientific experts say the following:  Blood in the car in which Halbach's body was allegedly thrown has a splatter pattern totally inconsistent with that.  Same for blood that allegedly came from Avery.  A bullet fragment that allegedly passed through Halbach's skull and brain shows no traces of phosphorous which would be there if the bullet went through bone.   The burn pit on the Avery property in which her body was allegedly all but cremated could not have generated the heat necessary for that sort of total consumption in the flames.  Etc, etc.

Zellner has also suggested a variety of alternative suspects, including Brendan's brother Bobby and his step-father Scott.  When the final episode of the second season ends, she has achieved at least the positive result of an Appeals Court in Wisconsin ordering the lower court to have a new evidentiary hearing on the case.

The effect on the Avery family, as well as the Halbach family, has been devastating.  Steven's parents are in their 80s, and everyone worries, with due cause, that they may pass away before their son is released.  Zellner's pointing at Brendan's brother and stepfather as the possible murderers has, of course, set Brendan's mother against Zellner, and her brother Steven Avery, too.

But such is the state of justice in America in 2018.  It doesn't and shouldn't matter if I or anyone is 100% sure that Steven and Brendan didn't do this heinous crime.   I am 100% sure that there's more than enough reasonable doubt, in dozens of places.  Why more judges and Justices haven't seen that is cause for concern not only about out justice system, but about the human condition itself.

See also Making a Murderer 1: Showing Us the Truth about Our Unjust Justice System

The Path to Better Gun Control

Hillary Clinton gave an excellent talk in Connecticut earlier today about her commitment to sensible gun law reform.   I'm hopeful that, with Hillary as President, our country will finally be able to do this, starting with closing the loopholes to our current laws, including the so-called "Charleston loophole," which the allowed the young killer in Charleston to buy a gun even though his background check had not been concluded.

Closing these loopholes has been vehemently opposed by the NRA, which is why someone with an "F" from the NRA, which Hillary has, is desirable (in contrast to Bernie Sanders' D-).   She promised in Connecticut to search for ways of tightening our gun laws every minute of her Presidency.  That's what we need.

Passing effective gun control laws will be more difficult than the Affordable Care Act, due to the Second Amendment.  New laws will require not only Hillary as President, but a Democratic Senate and House of Representatives, which is what it took to pass Obamacare.  But in order for the new health care law to stand, it needed to also pass Supreme Court muster.  And the country got lucky. The Republican-appointed Chief Justice Roberts decided to join the progressives in support of the law.

A new, strong gun-control law will not need such luck if Hillary is President, owing to the vacancy now on the Supreme Court with Antonin Scalia's passing.   If the Senate confirms Obama's appointment Merrick Garland, which seems highly unlikely, there will be a moderate progressive fifth justice on the Court.   If not, and Hillary wins, and the Senate goes Democratic, we'll either get Garland or an even more progressive new nominee from Hillary.

The possibility of a reliably progressive Supreme Court and a sensible, no-nonsense approach to gun control is one of the main reasons why the election of Hillary Clinton is so important.   Just as Obamacare got us on the road, at long last, to universal heath care, gun control laws under Hillary Clinton could finally put America on a path away from the deaths by guns that daily ravage our country.

Scenario after the Passing of Antonin Scalia

Barack Obama will no doubt make an appointment as soon as possible - after all, he has less than a year left as President.

The Republican controlled Senate will no doubt do everything it can to either prevent the nominee from getting a vote, or defeating the nominee, whomever she or he may be.  (And, sure enough, AP just reports that Senate Majority Leader McConnell says Senate should not act on any Obama nomination.)

The President will then have the option of taking the Senate to court over its intransigence, and this suit could well end up in the United States Supreme Court -

Which is now spit, 50/50, between progressives and conservatives.   A tie in the Supreme Court would leave nothing changed.

But possibly Justice Kennedy or Roberts would do the right thing, and strike down the Senate's failure to act on the President's appointment.

Interesting times ahead!

And here's a video of Hillary Clinton letting the Republicans know what the Constitution is about...

My Concern about Trump: A Scenario

Trump is now leading in the GOP polls, by as much as 20 percent over his Republican rivals.  One way of making ourselves feel not that worried about this is to point out that polls are not the same as ballots cast in an actual election, and polls have been wrong before.

So, what would happen if Trump were to lose the first few Republican primaries, despite leading in those states by sizable margins in the polls?   Again, a common prediction, that makes those who oppose Trump feel better, is that faced with such results, Trump would fold up and go home.  His ego would not allow him to continue in the race as a loser.

But what if his ego leads to another result?   Imagine Trump losing in Iowa, then in New Hampshire, then in South Carolina.  His supporters would go ballistic.  They might well scream that those elections had been rigged - that the votes were wrongly counted against Trump by the GOP establishment.

What would Trump's response be to such a groundswell of rage?  Would he tell his supporters, no, they need to calm down and accept the reality that Trump had lost?  Again, that is what we'd like to think, but -

Let's say Trump, still riding high on the adrenalin of all that vocal support, decides to buy into what his supporters would be screaming - that the elections he had lost had been rigged?  With his billions of dollars, he could go to court, and petition the courts to overturn the primary results.

Eventually, that could well go to the Supreme Court, which would need to hear those cases in a hurry.And, as in the election of 2000, the Supreme Court would again be in a position to decide on the American Presidency - who would next hold the office.

Far-fetched?  Probably ... maybe ... but it did happen once before.

The City of Conversation at Lincoln Center

My wife and I saw "The City of Conversation" at Lincoln Center last night - beautifully staged in a small theater in the round, and telling a powerful political and personal story.

We see a family, already a bit dysfunctional but what family isn't, at three crucial points in American political history:  September 1979, October 1987, and January 2009.

The 1979 segment is about the final sunset on the progressive 1960s.   The heroine, Hester Ferris, has to defend her Kennedy-esque views against her son and his fiance, who surprisingly turn out to be Reagan conservatives.   Hester is still hoping that Teddy can save the day.   I thought so, too, in those days, but history said otherwise.

The Vietnam War and the damage it did to the American spirit was still very much in the air.   On that subject, my wife picked up this brief rendition about the Vietnam War from a gentleman explaining it to someone sitting in the row behind her.   "JFK started it, LBJ expanded it, and Nixon tried to get us out it." I guess two out of three ain't bad - Nixon's way of "trying" was to bomb North Vietnam and extend the bombing to Cambodia.  (If you'd like see to a truthful hour on the Vietnam War, watch the CNN episode of the "The Sixties".)

Back to the play on the stage, the other really powerful character is the son's fiance, Anna Fitzgerald, who provides an eloquent defense of Reagan and the hard-hat everyday American whom, she is sure, was bypassed in civil rights progress of the 1960s.   In the second era of the play, 1987, she has moved to an even more provocative position:  she prefers Republican men, she says, because they don't apologize for looking at her "ass".   What's at stake in this segment of the play is the end of Reagan era, as epitomized in the impending failure of his Bork nomination to the Supreme Court.

This part of the play was astonishingly relevant last night, given the Hobby Lobby decision, in which the swing voter Anthony Kennedy went with conservatives on the Court.  Kennedy was the nominee after Bork failed to attain Senate confirmation, and although he has been better than Bork on some decisions, his decisions on Bush v. Gore and now Hobby Lobby have been egregious.

In the play, Anna wants Hester to not publicly attack Bork, lest it hurt Hester's son, now working for a Republican Senator, and of course Anna, who is working for the Reagan Justice Department.   Anna eventually plays the ultimate card: she will not let Hester see her grandson, Ethan, if Hester continues with her plan to denounce Bork in the newspapers.   It's an exquisite moment in the play, as Hester refuses to be blackmailed by her daughter-in-law.

In the last segment, on the night of Obama's first inauguration, Ethan, now grown and gay, comes to visit his grandmother, with his partner - an African-American man who is a graduate student at Columbia. Ethan campaigned for Obama, and is going with his partner to the inaugural balls, so the tension we see with his grandmother is not political, but comes from his belief, stoked by his parents, that his grandmother didn't want to see him all of these years.   Their rapprochement was another emotional highpoint of this excellent play.

Written by Anthony Giardina (who has touches of Arthur Miller and David Mamet), well acted all around - with tour-de-force performances by Jan Maxwell as Hester and Kristen Bush as Anna - "The City of Conversation" was a perfect play to see in the eve of July 4, and indeed any time.

Supreme Court Aereo Decision Won't Stop Mobile Television Viewing

The Supreme Court's Aereo decision today was a tough one - pitting the people's right to view television that is already free, versus the networks' right to control and profit from their content. By finding that Aereo violates the Copyright Act, the Supreme Court sided with the networks. But the decision does not mean that the viewing of network content on smartphones, tablets, etc will not be easily available. Indeed, the networks themselves and cable carriers are already making their programs available on digital devices via all kinds of apps. The future of television on mobile devices looks bright, even if independent companies such as Aereo may not be a part of it.

By and large, and indeed with one big exception, the Supreme Court has done well by television viewers over the years.   Especially significant was the Court's 1984 ruling in the "Betamax case" (Sony v. Universal City) against the networks, which held that home recording of television programs by viewers for their personal use did not violate the Copyright Act. This opened the golden age of on-demand television viewing that we're now enjoying.

The exception to the Supreme Court's good rulings about television has been its failure to strike down once and for all the FCC's unconstitutional fining of television stations that broadcast "objectionable" content.   The Court correctly struck down fines for "fleeting expletives" in 2009 (FCC v. Fox), which was an important step in the right direction. But it needs to yank the FCC 100% out of its meddling with television content, and the serious violation that entails of the First Amendment.

As for Aereo, it might have been better off to work out some kind of deal with the networks and cable, perhaps allowing itself to be purchased by one or more of them, as Google and Facebook have done with some of their competitors.  As powerful as the digital revolution is, it has not overturned copyright and the power of the networks, and at least some of that is a good thing.

The Newsroom and The Hour

I just saw the first season - or, first series, as the say in the U.K. - of The Hour, the 2011 BBC2 show about a news show struggling to be news worthy, during the Suez Crisis and the Soviet Union's invasion of Hungary (to crush its attempt to leave the Soviet block) in the Fall of 1956.  The show, which has been renewed for a second season, is superb on many levels, including a primer on the self-destructiveness of any democratic government trying to regulate its media.  The United Kingdom has no First Amendment, as was made clear regarding coverage of the Suez War in 1956 and the Falklands War in 1992, when the British government, well, dictated what UK media could report and criticize about those war efforts.

That makes England a very different news environment than what we have here in the United States, where the Supreme Court has by and large struck down any attempt on the part of the government to muzzle reporting (not so much when it comes to perceived "indecent" language).  But the dynamics of news shows striving to be cutting edge, aiming at the ideal of presenting the truth to the people, regardless of what the government (or, in the U.S., corporate masters) may want, is much the same, and makes The Hour a great older sibling to The Newsroom.

And there are other family resemblances, including love affairs between the dynamic female producer and the male anchor (played by Dominic West of The Wire in The Hour), and their ability to put on a great show despite or maybe in part because of this.  Are such relationships a staple of news rooms in real life, or were Abi Morgan (writer of The Hour) and Aaron Sorkin (The Newsroom) just similarly inspired?

Since The Hour was on last year - or a year before the debut of The Newsroom this year - there is a fair likelihood that Sorkin was inspired by The Hour, and that's ok.  The Hour, taking place in the 1950s, could be seen as inspired by Mad Men, and that's just the way television works.  There is sufficient difference between the two series.   The Newsroom, currently situated in 2011 in its story, addresses a wider array ethical issues, including the quintessentially 21st century problem of the anchor as bully (not as in bully pulpit, but in bullying guests on the shows).

And the topic of news show fighting to be free is so important, so crucial to our democracy, that it more than deserves two superbly written, superbly acted shows on both sides of the Atlantic.

See also The Newsroom and McLuhan

Why CNN and Fox Wrongly Reported the Supreme Court Health Care Ruling

The initially incorrect reporting by Fox and CNN of the US Supreme Court health care ruling yesterday will go down in history and long be cited in journalism courses along with Dewey beating Truman in 1948 according to the infamous Chicago Tribune banner headline and other examples of premature breaking news.  It was the most enjoyable part of the ruling other than the ruling itself.

But why did this happen?  The superficial answer, true enough, is that neither Fox nor CNN read far enough in Chief Justice Roberts' opinion to see he was upholding the mandate in the Affordable Health Care law as a tax, after rejecting its constitutionality under the commerce clause.

But there are deeper reasons.

CNN has fallen to a weak third place in the 24/7 all-news cable line-up.  It attracts not only the lowest number of viewers but likely staff and interns at all levels who would rather be someplace else.  Marshall McLuhan observed this sinking ship phenomenon in media when major newspapers began going on strike in the 1960s - they were going on strike, temporarily shutting down, McLuhan noted, as prelude to their permanent shut down, because fewer people were reading them, anyway.  Lack of audience and lack of production acumen feed one another in a vicious, downward, mutually destructive cycle. McLuhan not only saw the decline of newspapers in response to the screens of television, but accurately foresaw their decline in response to 21st century social media, which are now also challenging cable.

CNN is not about to shut down, but it is already in this cycle of decline, and needs to take special care not to feed it.

Fox, still in first place in cable news land, made the miscall for a very different reason.   Fox, despite its "fair and balanced" moniker, has long seen and reported the world through right-wing glasses.   Its top talent - Shep Smith, Bret Baier, and even Bill O'Reilly - can and do have independent views.  But its staff at all levels wears ideological blinders.  Fox not only misread the Supreme Court decision by stopping too soon in its reading, but likely did that because that's what the Fox people who did the reading wanted it to say.   They read as much as they needed to confirm their hopes.  Seeing support for one's views can be a powerful source of distortion when encountering new material.

I suppose the same could be said for MSNBC, which didn't want to see the ruling strike down Obamacare and reported the ruling correctly.   On the other hand, Pete Williams, who brought the opinion to MSNBC air, is one of the sharpest legal reporters in the business.  Given the decline of CNN and the ideology of Fox, it is unlikely he'd be anywhere other than reporting for MSNBC.

Super Tuesday: Money Isn't Everythng in Politics

Mitt Romney outspent Rick Santorum better than ten to one in GOP primary states voting or caucusing today.   The result:  Santorum won in Tennessee, Oklahoma, and North Dakato;  Romney won in Massachussetts, Virginia, Vermont, and Idaho, and won by a whisker in Ohio.  And Gingrich, who also has spent much less than Romney, won big in Georgia.

Is this an example of money talks, everyone walks your way in voting booths across America?  Hardly.  Rather, these results show that people vote their hearts and minds, whatever media satuaration may say to the contrary.

Which I think is a very good thing, even though I would not vote for any of these candidates in any election.  But a defeat for money is a good thing for democracy in America.  I've been saying, ever since the outrcry against Citizens United, the Supreme Court decision which unleashed big spending and corporate financing of campaigns, that it's no big deal.   Because, as John Milton and Thomas Jefferson saw, as long as there's some truth in the field, no amount of falsity - in today's terms, false advertising - can drown it out.

Of course, people will differ on what they perceive to be truth.   I think the greater truth resides with the policies of Barack Obama as what America most needs.   But what we certainly don't need is a Presidential election determined by money, and  Romney's weak showing decisively says that's unlikely to happen.

US Supreme Court Wisely Strikes Down California Ban on Video Games

Good news for video game enthusiasts and First Amendment advocates: the US Supreme Court today wisely struck down a California ban on sale of video games to minors.   The 7-2 majority found that the ratings system was more than enough to guide parents.

The fact that the decision was 7-2 is itself highly noteworthy.  Conservative justice Scalia wrote the majority opinion.  It was joined by three other conservatives and by progressives Ginsberg,  Sotomayor, and Kagan (conservative Thomas and progressive Breyer dissented).   This is a hopeful development indeed for people who take the First Amendment seriously, and its prohibition of government restriction of communication and media - a new coalition for freedom of expression.  It also shows that I was wrong when I expressed concern about Sotomayor's First Amendment views after her nomination.

A debate I had with anti-videogame crusader Jack Thompson a few years ago follows.

Supreme Court Is Correct in Striking Down Chicago Gun Ban

I support the US Supreme Court's striking down (5 to 4) a Chicago gun ban as unconstitutional this morning.   I'm no fan or devotee of guns, but the Second Amendment is, after all, a prominent part of our Constitution - only the First Amendment exceeds it in numerical priority - and ought to be respected.

Chicago argued that the Second Amendment applies only to Federal laws, not to state and local laws.  But the Fourteenth Amendment says otherwise, explicitly insisting that the rights of citizens given in the Constitution cannot be taken away or abridged by states.

The dangers of violating the Constitution should be obvious.  World War II was the last war legally declared by Congress as provided for in the Constitution.   American wars in Korea, Vietnam, Iraq, and now Afghanistan are the result.   The First Amendment says Congress shall make no law abridging freedom of speech and press.  But the FCC has been fining broadcasters millions of dollars in the past few years.  (See my Flouting of the First Amendment for more.)

Disregarding a part of the Constitution, such as the Second Amendment, just because we don't like it, is not the way to go.   Finding a legal way to work around it (if one really exists) or repealing it are the only possible roads to real progress.   The Chicago gun ban law did neither, and the Supreme Court was right to sweep it aside.

Why the Supreme Court Decision Allowing Direct Corporate Spending on Elections is Correct

Good for the US Supreme Court for overturning the 20-year ban on direct corporate spending on elections.  Last time I checked, the First Amendment - "Congress shall make no law ... abridging the freedom of speech, or of the press" - contained no language excluding corporations from its protections.

Justice Sonia Sotomayor, no great champion of the First Amendment, predictably voted with the minority - that is, to uphold the ban.  President Obama, apparently also no great friend of freedom of speech, said the decision gives a "green light" to special interests.   Predictably, Keith Olbermann just finished ranting about the decision.  Fortunately his guest, constitutional law professor Jonathan Turley, tried to set Olbermann straight.

Contrary to Senator Schumer of New York, the decision has "not just predetermined the winners of next November's elections."   The decision is not political.  It favors neither party.  It favors freedom.  (I'm a lifelong Democrat, who voted for Obama.)

Justice Stevens, who wrote the minority, dissenting opinion, thinks the First Amendment was not intended to apply to corporations, which  "are not human beings. They can't vote and can't run for office."  But  by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers.

It's hard, I know, to support the right of people or organizations to speak and write and buy ads when you utterly and vehemently disagree with their positions.  But that is precisely what the First Amendment was designed to support and protect.   Because it protects the expression not just of opinions you may detest, but your own most cherished opinions, when others may find them detestable.

More Bad Business from the Supreme Court on the FCC and the First Amendnment

Another grim, outrageous, but not really surprising ruling on the First Amendment from the US Supreme Court today, which held 5-4 that fleeting or single-word expletives on broadcast television and radio shows could be fined millions of dollars.

A lower U.S. Appeals Court in New York had found the FCC fines "arbitrary and capricious," by Justice Scalia, writing for the Supreme Court majority, reasoned that "the F-word's power to insult and offend derives from its sexual meaning."

So? Whatever the psychological wellsprings of its semantic power, what counts is whether any Federal agency has the right to fine any broadcaster or anyone, any amount of money, for saying the word "fuck" one or a dozen times, sotto voce or with trumpets blaring, given that the First Amendment to our Constitution says "Congress shall make no law ... abridging the freedom of speech". The linguist Scalia and his four similarly minded colleagues on the bench not only are showing utter contempt for the First Amendment, but are violating their own sacred conservative principle of not "legislating from the bench" with this dangerous ruling.

But it was not unexpected, and indeed has roots in unfortunate Supreme Court rulings throughout the 20th century, including the George Carlin "seven dirty words" case in the late 1970s, in which the Supreme Court upheld the FCC's censure of WBAI Radio for broadcasting Carlin's hilarious routine. Ironically, Justice John Paul Stevens wrote the majority opinion for that benighted ruling. Today, Stevens was in the minority, objecting that the fines for sexual and excretory expressions in broadcasts make no sense given that television is filled with ads about "battling erectile dysfunction" and helping people who "are having trouble going to the bathroom."

Like Justice Oliver Wendell Holmes, Jr., who soon came to regret the use of his "clear and present" danger restriction on the First Amendment to further suppress speech and press, Stevens may now see the error in his support of the FCC attack on WBAI Radio in the 1970s.

But the danger to our freedoms won't go away, whatever the majority and minority views on any Supreme Court, until some Supreme Court rules the FCC itself in obvious violation of the First Amendment. A government agency that keeps track of broadcasting bandwidths to make sure they don't interfere with one another, technically, by being too close on the radio wave spectrum is fine, though decreasingly needed given the unlimited bandwidth of Internet radio. But a government agency that seeks to dictate to us whether we can hear the words "fuck" and "shit" - you'll forgive me if I don't use the ridiculous "F-word" and "S-word" appellations, since everyone knows just what they mean, anyway - but a government agency that seeks to restrict and punish expression of any of that is a gross violation of our Constitution.

Until we as a society recognize and act upon that very obvious and crucial fact, we can expect more bad business and conduct from the FCC and the U.S. Supreme Court.

My 2005 Keynote Address on "The Flouting of the First Amendment" follows, for some historical context ...



Transcript of The Flouting of the First Amendment

Al Gore: The Two Lines of History Converge

Al Gore won the Presidency in 2000. He certainly won the popular vote, and likely would have won the electoral college vote, too, had the Republican dominated Supreme Court not stepped in - unconstitutionally - and stopped the recount in Florida.

A lesser man might have given up public service in the face of such public abuse. But Al Gore became a citizen of the world, championing an issue upon which the future of this planet depends. He never became President, but he galvanized a planet and won the Nobel Prize.

And tonight he spoke at Mile High Stadium at the Democratic Convention on behalf of Barack Obama. Talk about appealing to our better angels - no one could spoken more eloquently of the need not only of country but our globe for an American President not beholding to oil companies and the ways of the past. As Gore aptly pointed out, the same progressive policy that would free us from dependence on oil would not only help the climate but our economy and national security as well.

Had Al Gore been allowed to become President eight years ago, he might well have been on this same stage tonight, endorsing Barack Obama as his successor.

The two lines of history - Al Gore as rightful President, Al Gore not in office and eight years of Bush-Cheney - converged tonight in Denver. The result will be the same - Barack Obama as the next President. History is at last correcting itself.

And I'll be back later after Obama's acceptance speech.



See also Obama Delivers New Kind of Speech - Calls Out McCain on "Temperament"

Infinite Regress Democratic Convention Coverage from Day Three: America Moves Up - Obama Nominated! ... Biden Hits McCain on Everything from Afghanistan to Amtrak

Infinite Regress Democratic Convention Coverage from Day Two: Patrick Buchanan on MSNBC: Hillary Will Campaign Hard for Obama, But Won't Shed Tears If He Loses ... Hillary Speaks Powerfully at Democratic Convention, in a Scene for the Ages

Infinite Regress Democratic Convention Coverage from Day One: Olbermann to Scarborough on MSNBC: "Jesus, Joe, Get a Shovel!" ... Ted Kennedy at 2008 Democratic Convention: JFK Would Be Smiling ... Michelle Obama's Speech: Bringing Home America

Bill Clinton's Statements About Obama Should Be Taken with a Big Grain of History

Bill Clinton is clearly playing a major role in Hillary Clinton's contest with Barack Obama and John Edwards for the Democratic nomination for President. He is certainly entitled to support his wife, and indeed speak for or against any candidate. But the media accord a lot attention to what he says, because he is a former President. And this means his record as President is germane to what he says about any candidate, and voters should keep Bill Clinton's record as President in mind when they evaluate his current statements.

With that as my guide, I would like to briefly recount an episode in the Clinton Presidency that did not receive too much attention at that time, and many Americans may be unaware of today.

Bill Clinton signed the Communications Decency Act into law in 1996. It was struck down as unconstitutional by the Supreme Court a year later, which probably accounts for why many Americans know little about it. But a brief examination of Bill Clinton's actions and explanations regarding the CDA reveals a lot about the former President who is now on the attack against Barack Obama.

The CDA was intended to protect children against Internet porn. But it was drafted in terms wider than necessary to do this job, and in fact sought to punish anyone who published any "indecent" or "offensive" words on the Internet, for whatever reason, if those words could possibly ever be read by children.

The Republican dominated Congress passed this Act handily. Many Democrats joined in. It was part of a larger act, which included opening up cable television providers to more competition.

The Communications Decency Act part of this package was clearly unconstitutional - in violation of the First Amendment. Bill Clinton signed it into law, anyway.

When questioned about why he signed such an act into law, Bill Clinton replied that he didn't like it, but figured the Supreme Court would strike it down. He could have stopped the Act in its tracks by simply vetoing the legislation. He could have sent it back to Congress and said, give me the part of the larger act that opens up cable, and leave out the unconstitutional attack on Internet free speech.

Had Congress overridden his veto, the country and the First Amendment would have been no worse off.

The Act carried powerful penalties for those convicted of its violation - hundreds of thousands in fines and two years in prison. Joe Shea, editor of the online American Reporter, soon published an open letter online denouncing Congress for passing this Act. He used some salty language in his letter. In other words, Shea's letter contained "offensive" language, but obviously was published in a political not a pornographic context.

Bill Clinton's Attorney General Janet Reno went after Shea, anyway. And a year later, the Supreme Court struck this law down.

But where was Bill Clinton's honor and courage? What if the Supreme Court had not found the CDA unconstitutional? (Its record on supporting the First Amendment in the 20th century is spotty, at best.) Joe Shea could have gone to prison for two years. Is not the President's job to stand up for what he believes is right, and not pander to Congress and trust in the Supreme Court to correct this error?

Or perhaps Bill Clinton agreed with the CDA, and didn't care about the First Amendment.

That's the problem with Bill Clinton - he frequently has trouble speaking and acting, politically, in ways which stand up to rational scrutiny.

So the Communications Decency Act goes down in history as a severe restriction on our political speech that Bill Clinton enabled, and which almost came to be. I wrote about this at some length in my 1998 The Soft Edge: A Natural History and Future of the Information Revolution. This got the issue some critical attention, but so much has happened since then that it's rarely discussed nowadays.

But voters would do well to bear this incident in mind when they consider what to make of Bill Clinton's attacks on Barack Obama. Does he really believe what he says, when he exaggerates and misrepresents what Barack Obama is saying? Unfortunately, in this situation, the Supreme Court has no authority to overturn Bill Clinton's actions or his statements.

As I've also indicated here many times, I think Hillary Clinton in the White House would be a very positive development. I'm supporting Barack Obama, but I would not be at all unhappy with either Hillary Clinton or John Edwards as President. My sincere recommendation to the Clinton campaign at this point, then, would be to get Bill out of the picture, off the circuit - if they can.