The Supreme Court yesterday handed down a 6-3 decision in Sorrell v. IMS Health Inc. striking down a Vermont law restricting marketing to doctors based on their past history of writing drug prescriptions. The law required that doctors opt in before drug companies could use data about their prescription patterns to market (generally name-brand) drugs to them.
I’ve been closely following this case, having filed TechFreedom amicus curiae brief with the Supreme Court earlier this year, written by First Amendment expert litigator Richard Ovelmen, and previously joined with other free speech groups in an amicus brief before the Second Circuit. Our media statement on the Supreme Court brief provides a pretty concise summary of our views and what’s at stake in this case, and Jane Yakowitz’s initial blog reactions are especially worth reading.
The lopsided decision should surprise no one: Vermont’s law was a brazen effort to suppress speech disfavored by the state based on the paternalist assumption that name-brand drug marketing is “too effective.” In essence, the Court has reaffirmed the core meaning of the First Amendment: government must trust the marketplace of ideas unless fraud or deception occurs. Anyone who takes the First Amendment seriously should be roused to applaud when Justice Kennedy writes, for the majority, that “fear that speech might persuade provides no lawful basis for quieting it.” Clearly, this principle is as true for commercial advertising as for any form of speech. I’m particularly glad to see that Justice Sotomayor joined in this decision.
This is just the latest in a line of cases upgrading protection for commercial speech stretching back over 30 years since Central Hudson and including Lorillard (2001) and 44 Liquormart (1996). But the opinion will also surely be remembered as the beginning another line of cases that attempt to guide lawmakers trying to protect legitimate privacy interests without suppressing speech. The First Circuit, upholding a similar law, had previously deemed prescriber-identifying information “as a mere ‘commodity’ with no greater entitlement to First Amendment protection than “beef jerky.'” But the Supreme Court rejected this, unequivocally declaring that “information is speech,” including both its creation and dissemination, even while recognizing the privacy problems raised by the “capacity of technology to find and publish personal information.” Continue reading →
The European Commission has a new report out today on “Implementation of the Safer Social Networking Principles for the EU.” It’s a status report on the implementation of “Safer Social Networking Principles for the EU“, a “self-regulatory” agreement the EC brokered with 17 social networking sites and other online operators back in 2009. (Co-regulatory would be more accurate here, since the EC is steering, and industry is simply rowing.) The goal was to make the profiles of minors more private and provide other safeguards.
Generally speaking, the EC’s evaluation suggests that great progress has been made, although there’s always room for improvement. For example, the report found that “13 out of the 14 sites tested provide safety information, guidance and/or educational materials specifically targeted at minors;” “Safety information for minors is quite clear and age-appropriate on all sites that provide it, good progress since the first assessment last year; “Reporting mechanisms are more effective now than in 2010;” and most sites have improved Terms of Use that are easy for minors to understand and/or a child-friendly version of the Terms of Use or Code of Conduct; and many “provide safety information for children and parents which is both easy to find and to understand.” Again, there’s always room for improvement, but the general direction is encouraging, especially considering how new many of these sites are.
Unfortunately, Neelie Kroes, Vice President of the European Commission for the Digital Agenda, spun the report in the opposite direction. She issued a statement saying: Continue reading →
The Supreme Court will be issuing its opinion in the case Brown v. Entertainment Merchants Association any day now (TLF’s previous coverage is here). The case was previously known as Schwarzenegger v. Entertainment Merchants Association, but Mr. Schwarzenegger has been trying to stay out of court of late. I was just sent a draft of the statement that the Eagle Forum Education & Legal Defense Fund, which filed an amicus brief in the case, is planning to release if the decision goes its way. The Eagle Forum Education & Legal Defense Fund was founded by Phyllis Schlafly.
[Not really. This is a joke (but the quotes are true).] Continue reading →
This morning, the Federal Communications Commission (FCC) released its eagerly-awaited “Future of Media” report. The 475-page final report is entitled, “The Information Needs of Communities: The Changing Media Landscape in a Broadband Age.” [Here’s a 2-page summary and the official press release.] The report is a bit overdue; the effort was supposed to be wrapped up late last year. Comments in the proceeding were filed over a year ago. Here are some of the major ones. Also, here is the 80-page monster filing that I submitted with my former PFF colleagues Berin Szoka and Ken Ferree.
My first reaction after scanning the FCC’s final report is one of relief. For those of us who care about the First Amendment, media freedom, and free-market experimentation with new media business models, it feels like we’ve dodged a major bullet. The report does not recommend sweeping regulatory actions that might have seen Washington inserting itself into the affairs of the press or bailing out dying business models.
On May 26th, it was my great pleasure to participate in a panel discussion on “Growing Up with the Mobile Net,” which was co-sponsored by the Congressional Internet Caucus and Common Sense Media. It was a conversation about kids’ privacy, online safety, teen free speech rights, anonymity, and the possibility of expanding the Children’s Online Privacy Protection Act (COPPA) and implementing the so-called “Internet Eraser Button.”
I was joined on the panel by Jules Polonetsky, Co-chair and Director of the Future of Privacy Forum, and Alan Simpson, Vice President of Policy at Common Sense Media. And the session was very ably moderated, as always, by the supremely objective Tim Lordan.* We really unpacked the “Eraser Button” and “right to be forgotten” notion and thought through the ramifications. And the discussion about the extent of First Amendment rights for teenagers was also interesting.
The video for this 48-minute session can be found on the Congressional Internet Caucus YouTube page here and is embedded below.
Note: During the session, Tim Lordan claimed that he takes no position and that if anyone says he take positions on issues that he will slap a super-injunction on them. Well, I say Tim Lordan is brimming with positions and he’s letting them fly at every juncture. In fact, I’ve never met someone so full of controversial positions in my life as Tim Lordan! OK, so sue me Tim!
It might be tempting to laugh at France’s ban on words like “Facebook” and Twitter” in the media. France’s Conseil Supérieur de l’Audiovisuel recently ruled that specific references to these sites (in stories not about them) would violate a 1992 law banning “secret” advertising. The council was created in 1989 to ensure fairness in French audiovisual communications, such as in allocation of television time to political candidates, and to protect children from some types of programming.
In the United States, banning words seems too blatant an affront to our First Amendment, but the United States has a fairly lively “English only” movement. Somehow, regulating an entire communications protocol doesn’t have the same censorious stink.
So it is that our Federal Communications Commission asserts a right to regulate the delivery of Internet service. The protocols on which the Internet runs are communications protocols, remember. Withdraw private control of them and you’ve got a more thoroughgoing and insidious form of speech control: it may look like speech rights remain with the people, but government controls the medium over which the speech travels.
The government has sought to control protocols in the past and will continue to do so in the future. The “crypto wars,” in which government tried to control secure communications protocols, merely presage struggles of the future. Perhaps the next battle will be over BitCoin, an online currency that is resistant to surveillance and confiscation. In BitCoin, communications and value transfer are melded together. To protect us from the scourge of illegal drugs and the recently manufactured crime of “money laundering,” governments will almost certainly seek to bar us from trading with one another and transferring our wealth securely and privately.
So laugh at France. But don’t laugh too hard. Leave the smugness to them.
My latest Forbes column is entitled “With Freedom of Speech, The Technological Genie Is Out of the Bottle,” and it’s a look back at the amazing events that unfolded over the past week in the U.K. regarding privacy, free speech, and Twitter. I’m speaking, of course, about the “super-injunction” mess. I relate this episode to the ongoing research Jerry Brito and I are doing examining the increasing challenges of informationcontrol.
I begin by noting that:
When it comes to freedom of speech in the age of Twitter, for better or worse, the genie is out of the bottle. Controlling information flows on the Internet has always been challenging, but new communications technologies and media platforms make it increasingly difficult for governments to crack down on speech and data dissemination now that the masses are empowered. The most recent exhibit in the information control follies comes from the United Kingdom, where in the span of just one week the country’s enhanced libel law procedure was rendered a farce.
I go on to explain how Britain’s super-injunction regulatory regime unraveled so quickly and why it’s unlikely to be effectively enforceable in the future. Read the entire essay over at Forbes and then also check out Jerry’s Time TechLand editorial from last week, “Twitter’s Super-Duper U.K. Censorship Trouble.” I also just saw this piece by British defamation expect John Maher: “Law Playing Catch-up with New Media.” It’s worth a read.
John Naughton, a professor at the Open University in the U.K. and a columnist for the U.K. Guardian, has a new essay out entitled “Only a Fool or Nicolas Sarkozy Would Go to War with Facebook.” I enjoyed it because it touches upon two interrelated concepts that I’ve spent years writing about: “moral panic” and “third-person effect hypothesis” (although Naughton doesn’t discuss the latter by name in his piece.) To recap, let’s define those terms:
“Moral Panic” / “Techno-Panic“: Christopher Ferguson, a professor at Texas A&M’s Department of Behavioral, Applied Sciences and Criminal Justice, offers the following definition: “A moral panic occurs when a segment of society believes that the behavior or moral choices of others within that society poses a significant risk to the society as a whole.” By extension, a “techno-panic” is simply a moral panic that centers around societal fears about a specific contemporary technology (or technological activity) instead of merely the content flowing over that technology or medium.
“Third-Person Effect Hypothesis“: First formulated by psychologist W. Phillips Davison in 1983, “this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.” While originally formulated as an explanation for how people convinced themselves “media bias” existed where none was present, the third-person-effect hypothesis has provided an explanation for other phenomenon and forms of regulation, especially content censorship. Indeed, one of the most intriguing aspects about censorship efforts historically is that it is apparent that many censorship advocates desire regulation to protect others, not themselves, from what they perceive to be persuasive or harmful content. That is, many people imagine themselves immune from the supposedly ill effects of “objectionable” material, or even just persuasive communications or viewpoints they do not agree with, but they claim it will have a corrupting influence on others.
All my past essays about moral panics and third-person effect hypothesis can be found here. These theories are also frequently on display in the work of some of the “Internet pessimists” I have written about here, as well as in many bills and regulatory proposals floated by lawmakers. Which brings us back to the Naughton essay.
My good friend and mentor Robert Corn-Revere, a First Amendment attorney with the law firm Davis Wright Tremaine, gave a terrific talk on “The High Value of Low Speech” at a recent Reason Foundation event. Bob is one of the greatest living defenders of freedom of speech and expression and his talks are always inspiring, informative, and entertaining. I recommend you check it out. The video is embedded below or can be found on the ReasonTV website here.
“All First Amendment cases are about the power,” Corn-Revere argues. “Who should have the power to tell individuals what to read, think, believe or feel?” He continues on to explain the recent history of controversial First Amendment jurisprudence — much of which he has been personally responsible for litigating — and explains why even “low speech” is worth defending if we cherish our speech rights.
There is a major controversy rocking the UK over the far-reaching press gag orders known as “super-injunctions,” especially because they’ve been brought to the fore by a sex scandal between famous footballer Ryan Giggs and reality TV star Imogen Thomas. (This blog post is now officially illegal in the UK.) In [my latest TIME.com Techland post](http://techland.time.com/2011/05/21/twitters-super-duper-u-k-censorship-trouble/), I explain the controversy and say that while the injunction is legally enforceable–Facebook has a London office with over 50 employees, and [today comes word](http://blogs.ft.com/fttechhub/2011/05/twitter-london/) that Twitter is starting up its UK operation–they are not practically enforceable because once out, the information cannot be controlled. I wrote:
>Controlling information is possible, but only at the margin and at great cost. As information technology advances, that margin at which information can be controlled gets thinner and thinner, and the costs of doing so become greater and greater. So given the apparent futility of keeping facts secret, you’d think officials would look to find better ways of confronting the new reality. That’s unfortunately not the case.
>“Why are we assuming that the world of communication, developing as rapidly as it is, can never be brought under control by other technological developments?” asked the head of the U.K.’s judiciary yesterday. “I am not giving up on the possibility that people who in effect peddle lies about others through modern technology may one day be brought under control.”
>And we should not forget to look in the mirror. While the U.S. has some of the world’s most extensive free speech and press liberties, it seems every week there is a new proposal to control what information can be published online.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.