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.

My good friend and mentor Robert Corn-Revere, a Partner at Davis Wright Tremaine LLP, will be delivering what sounds like a terrific speech on April 5th at 4:00 at the George Mason University School of Law on “The First Amendment and the End of History: Does Media Convergence Mean the End of Regulation or is it Just the Beginning?” It’s a topic I care about deeply and you’ll see how influential Bob’s thinking has been on my own by watching that video down below.  Bob is one of America’s leading free speech scholars and a tireless defender of First Amendment rights. And he’s always entertaining when he steps to a podium to deliver remarks.  Admission to the event is free but RSVPs are requested: iep.gmu@gmail.com.  Here are logistical details:

Monday, April 5, 2010, 4 p.m. George Mason University School of Law (Room 120) 3301 Fairfax Drive, Arlington, Va. (Orange Line: Virginia Square-GMU Metro)

As I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about “Speech, Democratic Engagement, and the Open Internet.”  It was a shockingly one-sided affair with the deck being stacked almost entirely in favor of advocates of Net neutrality regulation. Worse yet, those advocates shamelessly made up spooky stories about a future of “private censorship” that could only be remedied by using the First Amendment as a club to beat private players into submission. The token opposition at this Chicken Little circus was Robert Corn-Revere, a Partner at the law firm of Davis Wright Tremaine LLP in Washington, D.C.   Bob set the record straight–both in terms of baseless accusations that were flying that day as well as the revisionist histories of the First Amendment that were being put forward. I’m happy to report that Bob allowed PFF to reprint his remarks as a new white paper entitled, “The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For.”

In his essay, Corn-Revere discusses the relationship between the First Amendment and regulatory policy, particularly the treatment of new communications technologies, and he warns that government regulation of broadband networks could “provide the vehicle for advancing new First Amendment theories for media regulation” and online speech and expression more generally.  “It should not be forgotten,” he argues, “that the federal government’s initial impulse was to censor the Internet and to subject it to a far lower level of First Amendment protection. It pursued this agenda for more than a decade but was blocked by a series of First Amendment rulings.”  The Communications Decency Act and the Child Online Protection Act are just two notable examples. Luckily, the courts determined that “the open Internet would be at great risk if the government is allowed to exercise such power,” he notes, and they struck down such laws.

But we must be vigilant in defending our free speech rights, Corn-Revere warns. He notes that, “the constitutional ramifications of the network neutrality debate extend far beyond the question of whether the FCC should or should not adopt a given set of rules. On a doctrinal level the question is whether technological convergence should also lead to regulatory convergence, where the least common denominator of First Amendment protection becomes the governing rule.”

“The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For” is available on the PFF website and can also be viewed down below in a Scribd document reader. I want to also recommend that everyone take a look at the brief remarks that FCC Commissioner Robert McDowell delivered at the opening of that FCC event that Corn-Revere spoke at. “Efforts to advance ‘First Amendment values’ through additional government regulation risks turning over two hundred years of First Amendment jurisprudence on its head,” McDowell rightly argued. And that’s also consistent with the outstanding address delivered last week by Kyle McSlarrow, President & CEO of the National Cable & Telecommunications Association, on the same issue, in which he correctly noted that, “the First Amendment is framed as a shield for citizens, not a sword for government.” “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government,” McSlarrow said.

Thank God a few people in this town are still taking a stand for the real First Amendment.

Robert Corn-Revere Remarks at FCC Workshop on Speech and Democracy http://d1.scribdassets.com/ScribdViewer.swf?document_id=24208240&access_key=key-2h2o9rho7g9qr414utqi&page=1&version=1&viewMode=list

Today I visited the Federal Communications Commission meeting room to attend a workshop on “Speech, Democratic Engagement, and the Open Internet.”  Honestly, I think I was stuck in the Twilight Zone, because from what the speakers at this ridiculously one-sided panel had to say: (1) the First Amendment means something entirely different than what the Constitution says; and (2) the whole Internet world is set to go to hell unless government intervenes and saves us a litany of corporate conspiracies to “silence” us.

Seriously, I thought the FCC was trying to make their broadband workshops and Net neutrality proceeding “balanced” and “evidence-based.” This one was neither.  One speaker after another regaled us with spooky stories and asked us to imagine how their particular group or service would be “blocked” or “silenced” unless Net neutrality regulations were put on the books.  But no evidence was offered supporting their scary tales.

By the time Michele Combs of the Christian Coalition got done breathlessly delivering her conspiratorial rant, for example, I half expected her to ask “What would Jesus do?” about Internet regulation.  She really laid it on thick, suggesting that ISPs were hell-bent (excuse the pun) on blocking Christian messaging across multiple platforms.  Yeah, cause it would be a brilliant business strategy to piss off tens of millions of Christians in this country. Sure, that makes a lot of sense.

Similarly, a woman from an online video company spoke of “gatekeepers” and “filters” that were supposedly lurking around the corner that would shut her down. But no evidence was presented supporting that fear. Instead, she asked us to believe Big Brother was coming in the form of private ISPs and that the “filters” would be imposed on us were private ones, not governmental. Uh-huh.

Popular blogger Glenn Reynolds had plenty of tales of impending doom of his own as did a couple of other minority-oriented site providers who testified. Lots and lots of spooky stories were told but, again, no evidence was offered that ISPs were currently doing anything to hurt their businesses or speech.  I sure would have liked to hear Glenn at least develop a theory about why ISPs would want to block his blog and millions of others like his. After all, it’s really hard for me to understand how they’d make any money by blocking content and angering all their customers.

Then there was Jack Balkin of Yale Law School and Andy Schwartzman of the Media Access Project who, as they have always done, told us that the First Amendment was a club that government could use to basically beat private media providers into submission. (Funny, because I always thought “Congress shall make no law…” was a pretty clear statement.  But perhaps I missed some footnotes in the Constitution.) Like the other panelists, they told spooky stories of their own about how ISPs would not allow “participation” in the “new town square.”  At least Andy tried to cite some evidence to back up his scary tales, but it was the same rehashed stuff from the past. Seriously, how many times can someone say “Madison River” without getting bored?

The only thing missing from the event was an appearance by Stephen King to do a reading from his forthcoming books: “ISPs Kitten Killers” and “How Broadband Providers Stole Our Souls and Sent Us to Hell.”  Perhaps the agency can invite him next time.

The token opposition to all this insanity was Robert Corn-Revere, one of America’s greatest living defenders of the First Amendment.  Thankfully, Bob was able to take some time out of his busy court schedule – since he spends much of his life in court fighting various FCC efforts to control speech – to come to the FCC and set the record straight on the true meaning of the First Amendment and the dangers of empowering federal regulators to oversee online content more generally.  Bob cited a litany of history examples – and these would be the only actual facts that made an appearance at this particular FCC event – showing how it is GOVERNMENTS, not private actors, who have historically been the primarily threat to our freedom of speech and expression. Bob reminded the crowd that, over the past 15 years, Congress has tried continuously to impose speech controls on the Internet and impose a host of other content-based regulations.

In conclusion, I just want to repeat to those FCC officials who care: This was one of the most insanely one-sided panels I have ever seen in my life and it was in no way, shape, or form “evidence-based.”  At least panel moderator Stuart Benjamin had the courage to push back against the conspiracy theories and ask a couple hard-nosed questions to bring the semblance of balance to the event. But if our broadband plan and Net neutrality rules are built on the sort of conjectural harms, scary stories, and a completely contorted view of the First Amendment that we heard at the FCC today, then God help us all.

PS: FCC Commissioner Robert McDowell delivered some excellent remarks to kick off today’s session that are well worth reading.

He Wants to Terminate Your First Amendment Rights

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that “excessively violent” material — whatever that may be –“deserves no constitutional protection.” It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to “reasonable inferences” and “legislative judgments.”

The John Connor of Your First Amendment Freedoms

In other words, Corn-Revere notes, “the state is asking the Court simply to lower the bar so that protected speech may be regulated based on legislative whim.” He continues:

Thus, like the Terminator, no matter how many times you kill it, the government drive that motivates these laws keeps on going and going until it achieves its programmed goal. If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

Corn-Revere is right. The ramifications of this case could be profound. As I pointed out in my previous essay on this case:

California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence. The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed “obscene” or “harmful to minors” (”HTM”).   If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora’s Box of content regulation and go after “excessively violent” content.

I’ve sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there’s just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as “excessively violent” media content.  And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard.

Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak.  And our own Tim Lee is currently studying there as well.  I wish I was smart enough to get into that program!

The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.

The presentation is based upon several other essays, court filings, and law review articles I have written on the topic, including:

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, 7/10/07.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,” by Adam Thierer, 1/20/09.
• Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008

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.

How about nothing.

My Cato colleague Gene Healy has a book out that is essential reading for people who think that all things turn on the presidency. The folks at the Family Online Safety Institute should read The Cult of the Presidency: America’s Dangerous Devotion to Executive Power.

Because the subject line of the email they sent me promoting their “Safe at Any Speed” conference about online safety is: “What Will the Obama Administration Do . . . ?”

Please: Nothing, nothing, nothing. It is, and shall forever be, the responsibility of parents to raise their children, including by guiding kids’ access to and use of the online world. Adam pointed you last week to a report that appears to do a good job of keeping things in perspective.

It’s nice to see that FOSI is involving people like Adam and First Amendment lawyer nonpareil Bob Corn-Revere in their conference. The next thing they should do is move it out of Washington to where the parents are. And don’t ask what presidents will do about online safety.