If you follow me on Twitter, you’ll see in among the last several weeks’ dreck some Tweets skeptical of various themes about the Tea Party movement—chiefly that they’re significantly racist/xenophobic, or that they’re handmaidens of figures like Glenn Beck or Sarah Palin.

I may have been bending over backwards to resist attempts to define the Tea Party movement. In secret, I’ve thought about parallels to punk rock, which seemed at times to have as many strains as people. Part of being punk was not fitting into anyone else’s categories, and the Tea Party seems to have this quality—rejecting Washington, D.C.’s party labels and ideological affiliations.

Well, I’ve finally come across a careful assessment of the Tea Party movement. National Journal‘s Jonathan Rauch spent a good deal of time studying the Tea Party movement and came up with the article (and video), “How Tea Party Organizes Without Leaders.”

The winner paragraph for me:

“Essentially what we’re doing is crowd-sourcing,” says Meckler, whose vocabulary betrays his background as a lawyer specializing in Internet law. “I use the term open-source politics. This is an open-source movement.” Every day, anyone and everyone is modifying the code. “The movement as a whole is smart.”

I do believe there is something special about the Tea Party movement. Somewhat like the Internet regards censorship as damage and routes around it, the Tea Party routes around centralizers’ attempts to capture its mojo.

There are plenty working to capture its mojo: Right-wing and Republican leaders are using it to aggrandize themselves, marching in front of the Tea Party for TV cameras and newspapers. Left-wing groups and progressives are searching for—and finding—the racism and xenophobia that unfortunately does exist in any large collection of average Americans. The decentralized character of the Tea Party movement makes it easy for charlatans to claim its mantle and fund-raise deceptively on the “Tea Party” brand.

There are some bad people in the Tea Party movement, just like there are some bad users of the Internet. But overall a self-organizing political/cultural network will produce better things—and faster—than a hierarchical organization.

I’d love to have the Tea Party movement push for exquisitely libertarian outcomes, and I regret hearing Tea Party participants veer into anything resembling racism, fear of Islam, or anti-immigration rhetoric, but I don’t get to own the Tea Party either.

If there is a theme that doesn’t unfairly push the Tea Party movement into a box, I think it’s “self-government.” It seems like Tea Partiers are tired of being told how to do their politics, tired of being told how their government is going to run them. On the whole, I’ll stand up for a network of people who think like that—but don’t try to push me into a box either.

Update: David Boaz has written an excellent post at Cato@Liberty about the Tea Party movement’s relationships to libertarianism and social conservatism.

I was over at the Federal Communications Commission (FCC) the other day chatting with someone about various regulatory issues and Rush Limbaugh’s WSJ editorial came up.  The person I was speaking with made a comment about how conservatives have really been energized and unified in opposition to the re-imposition to the Doctrine.  I reminded them, however, that it wasn’t always the case that conservatives stood together in the fight over the Fairness Doctrine.  In fact, when I first came to town almost 20 years ago, there were still plenty of conservatives who actually favored it.  I was reminded of that fact when reading a new piece in Engage about “Broadcast ‘Fairness’ in the Twenty-First Century” by my friend Robert Corn-Revere.  Bob is one America’s great First Amendment defenders and his new essay offers an excellent history of efforts to micro-manage speech on the broadcast airwaves over the years.  In it, he reminds us that:

Given the recent vocal opposition to the Fairness Doctrine in the interest of preserving conservative talk radio, it is easy to forget that many prominent conservatives championed the doctrine before its demise. Phyllis Schlafly was a vocal proponent of the Fairness Doctrine because of what she described as “the outrageous and blatant anti-Reagan bias of the TV network newscasts,” and she testified at the FCC in the 1980s in support of the policy “to serve as a small restraint on the monopoly power wielded by Big TV Media.” Senator Jesse Helms was another long-time advocate of the Fairness Doctrine, and conservative groups Accuracy in Media and the American Legal Foundation actively pursued fairness complaints at the FCC against network newscasts.

Likewise, in our book, A Manifesto for Media Freedom, Brian Anderson and I note that some other prominent right-leaning politicians, such as Sen. Trent Lott, favored the Fairness Doctrine.  Moreover, even though most of those conservative individuals and groups have now turned against the Fairness Doctrine, some Republicans still defend (or even seek to expand) the same underlying regulatory concepts that served as the foundation of the Fairness Doctrine.  As Corn-Revere notes:

More recently, a Republican-controlled FCC under Kevin Martin has advocated far more extensive controls over broadcast and cable programming, including news and public affairs. These proposed regulations include requirements governing local programming, restrictions on the use of video news releases, and other new rules that would extend content controls beyond broadcasting. These initiatives have been embraced by liberal media activists, who have said they will seek to ensure that the FCC under the Democrats will adopt and enforce the proposals of the Martin Commission.  The common denominator of the liberal and conservative factions is the overriding belief that traditional First Amendment protections should not be applied to broadcasting or other electronic media.

Unfortunately, Bob’s got it exactly right: You really can’t trust anyone on the Left or Right to make a principled or consistent argument in favor of First Amendment freedoms across the board, including for broadcasting. I have made that point in greater detail in my recent essay on “FCC v. Fox and the Future of the First Amendment” as well as this old law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”

Simply stated, proposals to regulate speech — especially speech delivered over broadcast TV and radio platforms — can emanate from either side of the political aisle.  Of course, each side has their own set of rationales for imposing controls on speech and violating the First Amendment. It often comes down to content restraint (the conservative justification) versus content promotion (the liberal justification).  In his excellent book, The Creation of Media: Political Origins of Modern Communications, media historian Paul Starr labels these different groups the “advocates of repression” (those in favor of content restraint), versus the “advocates of uplift” (those in favor of promoting specific types of content). Typically, conservatives and Republicans have dominated the “advocates of repression” camp, while most liberals and Democrats fall in the “advocates of uplift” category.  Ford Rowan, author of the book Broadcast Fairness, put it this way: “Many liberals want regulation to make broadcasting do wonderful things; many conservatives want regulation to restrain broadcasting from doing terrible things.”

Increasingly, however, the ideological divide is disappearing between these two camps. Congressional lawmakers such as former Sen. Hillary Clinton (D-NY) and Sen. Joseph Lieberman (D-Conn.) on the political Left often favor the same content controls and mandates that Sen. John McCain (R-Ariz.) and Sen. Sam Brownback (R-Kan.) on the political Right. That’s true not just of broadcast regulation, but for proposals to censor video games, the Internet, and social networking sites.  And, even when it comes to the Fairness Doctrine, until just recently there was “a vast bipartisan conspiracy” to keep it on the books, as Corn-Revere argues.  I’m glad those conservatives who once favored the Fairness Doctrine came around to seeing the error in the ways.  Nonetheless, this episode illustrates how, once again, those of us who care about free speech and expression must remain vigilant in defending the First Amendment from attacks by both conservatives and liberals.

Geese are flying overhead. Leaves are orange. The election is over. A historic moment. And I will be optimistic, and hope that although the economics of the moment seems to be a return to things past… to the 1930s, it will turn out to be otherwise, for a good bit is known now that was not known then, whatever one’s ideology.

This column offering thoughts from Europe anticipates a wave of hostility to free markets. Well, that would perhaps not be that much of a change. I will venture far out on a doctrinal limb here, why not, and venture to ask where the free marketers went wrong? [Wait, you mean that they did something wrong? Can that be possible? Surely not]. (There is a good bit that went wrong, of course, that is not the fault of markets or their advocates… the fact that markets are not perfect, problems with rent-seeking, the fondness of the press for dwelling on the negative, and so on). But there have been consistent problems with our presentation, which I diagnose as follows:

-Use of nineteenth century models and rhetoric, and too much movement jargon, much of which is pointlessly disparaging and negative.

-Failure to empathize with people’s real concerns, such as concern about the environment or income disparity. There is the perennial addiction of wonks to Reason-and our awkwardness with emotion that leads us to dismiss it as irrelevant. Makes it look like we don’t care–a false impression, but a real factor none-the-less.

-Specializing in the defense of unpopular causes, whether it is free speech, the super-rich, or the large company of the day. Advocates tend to focus on these causes in the hope of getting attention as contrarians-but as a result the image of advocates for the market becomes identified with unpopular interests, and our energy gets expended in short run battles.

The solution? Well, I’ll save that for another day.

Meanwhile, how about this for a thought? In recognition of the nation’s leaning to the left, I’ll make a concession. Have some social programs. Have all the social programs you want. But there is one thing that I will insist on. Just one thing.

Y’all will have to be ruthlessly honest about how well the programs actually work. About the unintended consequences. About the rules that pile up costs with no benefits. About the forces and factors that lead institutions like public schools or regulatory agencies to fail.

If you can just manage a genuine curiousity about whether the plans that you dream up to help people will actually work, then we’ve got a deal. I promise that if the programs don’t work, we can try something else. Institutional re-design. Heck, maybe even a market.

But I don’t think anyone’s going to go for it.

Today was a big day — and not just because there was an election going on! As I mentioned yesterday, the other big news was that the U.S. Supreme Court was hearing oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. Again, all the background you need can be found in my post yesterday, so here I will just be summarizing my general thoughts about how the oral arguments played out this morning.

Unfortunately, because no electronic devices or even notepads are allowed in the courtroom, much of what I am relaying here is from memory or from the notes that I surreptitiously scribbled on a tiny piece of scrap paper when the guards weren’t looking. (And yes, I have been reprimanded before for taking notes in the Court!)  The transcript has just been released, however, so you can read it through and judge for yourself.  Anyway, here are some general thoughts:

• Balance of Questioning by Justices: Generally speaking, things did not go as well as I had hoped they would.  The justices asked some tough questions for both counsels, but some of the justices seemed surprisingly deferential to the FCC. When Fox lawyer Carter Phillips rose to speak, for example, he was almost immediately interrupted by a barrage of questions from Justice Scalia and Chief Justice Roberts, who both seemed sympathetic to the FCC’s argument that the agency had taken sufficient steps to justify its change of policy about “fleeting expletives” on TV or radio. Scalia, in particular, was probably the most deferential to the agency throughout the questioning this morning.  Not a good sign for the broadcasters or the First Amendment.

• The Chicken-Egg Debate about What Drives Culture:  Scalia also raised the most hard-nosed questions about the impact of such words on our culture. In terms of the ‘chicken-and-egg’ debate about whether media influences society or media just reflects society, Scalia clearly believes that media drives culture. He suggested that broadcasters had unduly influenced culture.  Again, not good for the broadcasters or free speech advocates, but other justices didn’t say much on this issue.

• The APA & Substantive Constitutional Issues: Souter (joined by Roberts and Scalia) also led a line of questioning about whether Fox was essentially asking for a new test under administrative law that provided less deference to an agency when substantive First Amendment cases where being considered. There have always been sticky admin law / APA-related issues involving agency deference when substantive issues and constitutional rights were at stake.  It will be very interesting to hear what, if anything, the Court has to say about that in this case. But, at least from the tone of the questioning I heard today, the Justices still seem quite deferential to agency decision-making even if free speech issues are in play.  Again, really not good for the broadcasters, but this could tip the opposite direction in the final decision.

• Scarcity v. Abundance as a Regulatory Rationale: There was a very interesting line of questioning raised by Justice Ginsburg that lead to a shocking response from U.S. Solicitor General Gregory Garre. She asked about what impact the Internet and online speech cases has had — or should have — for the case before the court. She stressed how much things had changed since the Court’s Pacifica holding in 1978 and implied that might have some bearing on the matter before the court today. [This was one of the key points I raised in my amicus with CDT, in which we argue that changing technological and marketplace realities have a profound bearing on this case and FCC regulation of speech in general].

Amazingly, Solicitor General Garre suggested that the government actually had a stronger case today when it regulates broadcast platforms differently than all other forms of media. His reasoning: Precisely because there are so many other unregulated platforms where kids might see or hear objectionable media, it was vital for the government to quarantine one platform and make sure it is safe from objectionable programming. This is an astonishing argument for the government to set forth as a rationale for regulation as it essentially turns the old “scarcity rationale” for regulation on its head.  Back in the old days, we were told broadcasting had to be regulated because it was scarce.  Today, by contrast, the government tells us we have to regulate broadcast platforms because of media abundance. Damned if you do, damned if you don’t!

This line of questioning generally helps the broadcasters, but if the Court doesn’t reach the substantive First Amendment issues in its decision, then it’s meaningless.

• Community Standards: On a related note, Justice Ginsburg also asked some sharp questions about the continuing sensibility of the “contemporary community standards” test for broadcast television and radio regulation. She wanted to know how the FCC determines these things and how they surveyed the public to determine what “the community” thought was appropriate for broadcast TV and radio. Solicitor General Garre didn’t really have a good answer, and how could he; this is arbitrary government at its worst. The FCC is asking us to believe that a handful of vocal anti-free speech advocates speak for all Americans when they complain to the FCC about various shows. It’s a farce. Millions of average American viewers just turn off the TV and go to bed happy each night after watching TV; they don’t send in a letter to the FCC saying that they liked what they saw. By contrast, the regulatory advocates bombard the FCC with complaints and then the FCC says that counts as the will of the people.

Anyway, these questions about community standards generally help the broadcasters, but I doubt the court will follow through with this line of reasoning in their final decision. They should, however, because it is silly to think the relevant “community” can be determined just by considering broadcast in isolation.  After all, more and more kids these days are watching video online and via other alternative media distribution platforms.

• The End of Live TV & Radio?: There were several questions from Justices Breyer and Scalia about tape delays and whether broadcasters had the ability to essentially delay all live programming to make sure no dirty words got through.  I thought the justices would have understood why ending live television and radio was a bad idea, but some of them sounded like they were enamored with that notion. Again, very, very troubling for the broadcasters. (Incidentally, during this line of questioning, I found myself thinking how now might be a good time to invest in the tape delay technology business! Seriously, if the FCC wins this case, it may be that every broadcaster in America has to invest in tape delay equipment and rigorously scrub live TV on the fly.  Just think how silly this is in the age of the Internet and instantaneous online video.)

• • –

Again, these are just my initial thoughts. I need to go through the transcript again later and digest everything again before I say anything more.  Overall, however, I am concerned for the First Amendment after this morning’s arguments in the Supreme Court. We could get a close decision in favor of the FCC and the agency’s ongoing effort to expand content controls.

On the other hand, it’s difficult to get a read on some the members of the court. After all, Justices Alito and Thomas didn’t say a peep today, and Justice Kennedy only spoke up once or twice.  And just because some of them asked hostile questions that seemed deferential to the FCC, that doesn’t automatically mean they will ultimately vote in the agency favor in this case.  We’ll just have to wait till next spring or summer to get their final verdict.

Tomorrow morning, the U.S. Supreme Court will hear oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. I plan on attending and will try to post some thoughts about how the arguments played out here later tomorrow afternoon or evening. [I won’t be able to live blog of Twitter it because no electronic devices are allowed in the courtroom, which I’ve always thought is outrageous.] In the meantime, here again is the background of the case.

The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here and the full 2nd Circuit decision is here. [By contrast, the so-called “Janet Jackson case” — CBS v. FCC — took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit’s decision here.]

In a 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” The decision demonstrates how, over just the past few years, the FCC has arbitrarily thrown out 30+ years worth of precedent and greatly expand the scope of its regulatory authority over speech on broadcast TV and radio. As a result, the FCC’s order was vacated and remanded to the agency. The agency appealed the decision, however, and the Supreme Court accepted it for review.

As I noted back in August, I submitted an amicus brief to the Supreme Court along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology. In that brief, we argued that this case will have profound ramifications for the future of the First Amendment and the regulatory treatment of old and new media platforms alike. It is important that the FCC not be permitted to so casually change its regulatory approach, as it did in the matter before the Court today. The FCC’s new approach has created a confusing and arbitrary regulatory atmosphere that leaves many speakers wondering what they can and cannot say on broadcast television and radio stations today.

It’s also vital that the Court recognize how the FCC is being unduly influenced by a small handful of particular vociferous special interest groups who are artificially inflating the number of indecency complaints and attempting to propagate the myth that they speak for the masses. It is important for the Supreme Court to not allow a small minority to achieve a “heckler’s veto” over content on television or radio.

Finally, it is important that the Supreme Court rein in the FCC in this matter to also ensure the agency does not seek to expand its powers to cover new media platforms. The First Amendment rights of speakers using cable, satellite, and even the Internet, could be at stake here. We live in an age of media and technological convergence and, therefore, it is vital the Court not allow the FCC to engage in a form of regulatory convergence by letting this old regime bleed over into new quarters.

What many of us will be listening for tomorrow during oral arguments is some sort of indication of whether the Court wants to get into the substantive First Amendment issues at stake here, or instead just stick to the procedural (APA) issues that were at the heart of the Second Circuit decision. In particular, a lot of us are wondering whether the Court will get into the the thorny issues and theories set forth in the Court’s controversial 1978 decision of FCC v. Pacifica Foundation.  This summer, upon its 30th anniversary, I penned a 6-part series of essays about the Pacifica decision and the “pervasiveness doctrine.”  It will be very interesting to see if pervasiveness is discussed tomorrow in the questioning by the justices. If it is, that could signal that the court might be willing to get into the substantive First Amendment issues here instead of merely addressing process-related concerns.

If you are interested in reading more opinions about the FCC v. Fox case, I have itemized all the amicus briefs before the court. [I have also blasted some folks on the Left who filed briefs in the case for failing to defend the First Amendment and instead calling upon the court to just defend their sacred regulatory cows (namely, the Red Lion decision and the “scarcity rationale” for FCC regulation of the media marketplace.)] Finally, here are a few additional articles or essays about the case that you might want to check out for basic background, or to see what others are saying:

• SCOTUS Wiki page for the case
• SCOTUS Blog argument preview
• Adam Liptak, “Must It Always Be About Sex?” New York Times
• William Triplett, “Fox v. FCC heads to Court,”Variety
• David G. Savage, “On the Supreme Court Docket: bleeeeeep,” Los Angeles Times
• Joan Biskupic, “Supreme Court to Hear FCC Appeal over Dirty Words,” USA Today

I’m pleased to announce the publication of A Manifesto for Media Freedom, which I co-authored with Brian C. Anderson of the Manhattan Institute. Brian serves as editor of Manhattan Institute’s excellent City Journal and he is the author of best-selling books like South Park Conservatives and Democratic Capitalism and Its Discontents.

In this little manifesto, we highlight one of the central ironies of the Information Age.  Namely, that despite “the breathtaking abundance of new and old media outlets for obtaining news, information, and entertainment…”

many people hate this profusion, and never more than when it involves political speech. The current media market, they charge, doesn’t represent true diversity, or isn’t fair, or is subject to manipulation by a small and shrinking group of media barons. They want the government to regulate it into better shape, which just happens to be a shape that benefits them. Doing so… would be a disaster, a kind of soft or not-so-soft tyranny that would wipe out whole sectors of media, curtailing free speech and impoverishing our democracy.

In other words, instead of celebrating the unprecedented cornucopia of media choices at our collective disposal, many policymakers and media critics are calling for just as much media regulation as ever. We itemize these threats in our chapters and they include: efforts to revive the “Fairness Doctrine”, media ownership regulations, “localism” requirements, Net neutrality mandates, a la carte regulations, cable and satellite censorship, video game censorship, regulation of social networking sites, campaign finance-related speech restrictions, and so on.

In each case, we advance a pro-freedom paradigm to counter the advocates of media control. What do we mean by the “media freedom” that we advocate as the alternative to these new regulatory crusades? Here’s how we put it in the book:

For media consumers, it’s the freedom to consume whatever information or entertainment we want from whatever sources we choose, without government restricting our choices. For media creators and distributors, it’s the freedom to structure their business affairs as they wish in seeking to offer the public an expanding array of media options, for both news and entertainment. And for both consumers and creators,media freedom is being able to speak one’s mind without restraint and without the threat of FCC or FEC bureaucrats telling us what is “fair.”

It doesn’t seem like much to ask until you realize how many people in Washington and academia today are calling for these various flavors of media regulation.  Of course, it doesn’t help that media-bashing has always been a bipartisan sport.  Indeed, depsite the fact that most of these efforts are lead by the Left, our book highlights how some folks on the Right are still guilty of joining some of these misguided regulatory crusades.

Republican presidential candidate John McCain, for example, has sponsored “a la carte” mandates for cable and satellite operators and sponsored the draconian campaign finance law that will forever bear his name, McCain-Feingold. He has also proposed a follow-up law: McCain-Feingold II. Although it did not pass, McCain’s measure would have required broadcasters to run 12 hours of “candidate-centered and issue-centered programming” in the six weeks prior to primary and general elections — without giving broadcasters any control over those 12 hours (half of which would have had to run during prime time). The bill would have created a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee on all broadcast license holders. In sum, the legislation would have forced broadcast stations to pay a tax to the federal government that would in turn finance a pool of funds that politicians could turn around and spend to run ads on those very stations!

Others on the Right have favored the Fairness Doctrine in the past, and more recently, some have joined the Net neutrality effort. And many conservatives have long been in favor of various forms of media censorship.

That being said, the most serious threats to media freedom today arise from the Left and our book serves primarily as a response to the many Leftist efforts to regulate media today. As we argue in the introduction:

The left seems certain that a media problem ails our society; it just can’t decide what that problem is. Some contend that real media choices are as limited or biased as ever, while others argue that our democracy is imperiled by too many media choices, making it hard to share common thoughts or feelings. What unites these two types of critics is their elitist presumption that they know what’s best for the rest of us. They would love to rewrite regulations to tilt the media in the direction they prefer; and if they are allowed to do so, what is shaping up to be America’s Golden Age of media could come to a sudden end.

The Left’s obsession with reinstating the Fairness Doctrine is particularly telling in this regard. [You can read our history of the Fairness Doctrine here] But, as we go on to note:

Some liberals suggest that even a new Fairness Doctrine wouldn’t be enough to correct a “structural imbalance” in the media marketplace. They want tightened ownership regulations, mandates ensuring “greater local accountability” over radio and TV broadcasters, and a significant ramping up of subsidies for public radio and TV stations. One leading leftist proposal would even force private broadcasters to fund public broadcasters! These proposals expose the left’s true goal: to regulate private media outlets comprehensively and drive out those owners who dare to offer right-leaning alternatives.

This movement is being driven by a wide variety of Left-leaning think tanks and advocacy groups, especially Free Press, Media Access Project, and the New America Foundation. These organizations will likely have a strong voice in an Obama administration regarding media law and Internet policy issues. And we fear that means that new regulatory shackles will be placed on the media and free speech as a result. That’s why we penned this manifesto at this time. As we conclude in our book:

Motivated by the naked desire for political control, a reactionary fear of the new, or genuine if misguided views on equality and fairness in the media, [these liberal media activists] threaten to enact regulations that will strangle or at least cripple this social development before it can begin to reach its potential. Those on the right are not free from these impulses, either. But they, as the prime beneficiaries of media abundance — of all the conservative and libertarian talk shows and websites that would suffer in a media landscape remade by the Democratic Party and liberal activists — should embrace, defend, and expand the freedom that made it possible.

Anyway, if you care about free speech and media freedom, I do you hope you will consider giving the book a look. The main page for our book is here. And you can find it on Amazon here.