Of all the shockingly naive and shamelessly self-serving editorials I’ve read by businesspeople in recent years, today’s Wall Street Journal oped by Netflix general counsel David Hyman really takes the cake. It’s an implicit plea to policymakers for broadband price controls. Hyman doesn’t like the idea of broadband operators potentially pricing bandwidth according to usage /demand and he wants action taken to stop it. Of course, why wouldn’t he say that? It’s in Netflix’s best interest to ensure that somebody else besides them picks up the tab for increased broadband consumption!

But Hyman tries to pull a fast one on the reader and suggest that scarcity is an economic illusion and that any effort by broadband operators to migrate to usage-based pricing schemes is simply a nefarious, anti-consumer plot that must be foiled. “Consumers and regulators need to take heed of what is happening and avoid winding up like the proverbial frog in a pot of boiling water,” Hyman warns. “It’s time to jump before it’s too late.”

Rubbish! The only thing policymakers need to do is avoid myopic, misguided advice like Hyman’s, which isn’t based on one iota of economic theory or evidence.

Hyman’s economic illiteracy is evident from the get-go. He tries to spook people with the headline, “Why Bandwidth Pricing Is Anti-Competitive.” No it isn’t. Usage-based pricing is used in countless economic sectors every day and it is overwhelming viewed by economists as a sensible way to calibrate supply and demand while ensuring costs are covered. But Hyman says the laws of economics don’t apply to broadband!  No seriously, he says:

Cable and telecom companies argue that bandwidth is a scarce resource and that imposing caps and overage fees will relieve pressure on high-speed networks. Families pay more when they use more electricity, these companies point out, so why shouldn’t households pay more if they use more bandwidth?  The analogy is a false one. Wireline bandwidth is an almost unlimited resource due to advances in Internet architecture. Adding more capacity is easy. The marginal cost of providing an extra gigabyte of data—enough to deliver one episode of “30 Rock” from Netflix—is less than one cent, and falling. […] Consumer access to unlimited bandwidth is good for society. It fosters innovation, drives commerce, and advances political and social discourse. Given that bandwidth is cheap and plentiful and will only grow more so with time, there is no good reason for bandwidth caps and fees to take root.

Oh my goodness. Really? Hyman appears to be suffering from a rather serious case of marginal cost fallacy: the belief that prices should, as a rule, equal marginal costs. The problem with such thinking is that it leaves zero room for investment, innovation, and other real-world dynamics that get conveniently forgotten as “fixed costs.”  Of course, if you begin with the truly outrageous claim that “bandwidth is an almost unlimited resource,” and “bandwidth is cheap and plentiful and will only grow more so with time,” then it’s only logical that you’d fall prey to this fallacy!

Meanwhile, back in the real world, economists and financial analysts will explain to you that high fixed-cost goods like broadband networks don’t just grow on trees or fall like manna from heaven. Yes, of course it is true that “consumer access to unlimited bandwidth is good for society.”  But the same is true of countless other goods that we’d all like to have access to at zero cost. But that doesn’t invalidate the fundamental laws of economics. Someone financed and built those networks and someone has to keep building and improving them. You’d never get anything built if you adopted the view that scarcity was a myth and that prices must equal marginal cost.

On that point, I was tickled to see in the online comments to Hyman’s piece that one gentleman asked, “what happens when you allow unlimited access at.. marginal cost?” and for another to say in response, “Answer: You turn into Greece.”   Quite right. There is no free lunch. Something has to pay the bills, including the broadband bills. You can’t just free-ride on the future forever by pretending that bandwidth is an abundant good and holding prices at or below marginal cost.

Once you understand these facts you can point out what’s really wrong with Mr. Hyman’s reasoning: He basically wants average costs for all consumers to go up so that his costs (or the costs of any high-bandwidth use or user) will never go up. Shameful!  Indeed, let’s just call Mr. Hyman’s editorial what it is: a blatant attempt to get government to impose price controls on broadband providers to favor his company. End of story.  He could have spared us all the sloppy economic sophistry and just told us that. It would have made it a bit easier to take him seriously.

P.S. Incidentally, Mr. Hyman’s one and only suggestion for how to deal with network demand/congestion is this: “If Internet service providers really wanted to manage traffic efficiently, they would limit speeds at peak times.” Interesting. I wonder how the Net neutrality crowd feels about Netflix’s new-found love of broadband throttling!

[I am currently helping Berin Szoka edit a collection of essays from various Internet policy scholars for a new PFF book called “The Next Digital Decade: Essays about the Internet’s Future.”  I plan on including two chapters of my own in the book responding to the two distinct flavors of Internet pessimism that I increasingly find are dominating discussions about Internet policy. Below you will see how the first of these two chapters begins. I welcome input as I refine this draft. ]

Surveying the prevailing mood surrounding cyberlaw and Internet policy circa 2010, one is struck by the overwhelming sense of pessimism about our long-term prospects for a better future.   “Internet pessimism,” however, comes in two very distinct flavors:

1. Net Skeptics, Pessimistic about the Internet Improving the Lot of Mankind: The first variant of Internet pessimism is rooted in general skepticism regarding the supposed benefits of cyberspace, digital technologies, and information abundance. The proponents of this pessimistic view often wax nostalgic about some supposed “good ‘ol days” when life was much better (although they can’t seem to agree when those were). At a minimum, they want us to slow down and think twice about life in the Information Age and how it is personally affecting each of us.  Other times, however, their pessimism borders on neo-Ludditism, with proponents recommending steps be taken to curtail what they feel is the destructive impact of the Net or digital technologies on culture or the economy. Leading proponents of this variant of Internet pessimism include:  Neil Postman (Technopoly: The Surrender of Culture to Technology), Andrew Keen, (The Cult of the Amateur: How Today’s Internet is Killing our Culture), Lee Siegel, (Against the Machine: Being Human in the Age of the Electronic Mob), Mark Helprin, (Digital Barbarism) and, to a lesser degree, Jaron Lanier (You Are Not a Gadget) and Nicholas Carr (The Big Switch and The Shallows).
2. Net Lovers, Pessimistic about the Future of Openness: A different type of Internet pessimism is on display in the work of many leading cyberlaw scholars today.  Noted academics such as Lawrence Lessig, (Code and Other Laws of Cyberspace), Jonathan Zittrain (The Future of the Internet & How to Stop It), and Tim Wu (The Master Switch The Rise and Fall of Information Empires), embrace the Internet and digital technologies, but argue that they are “dying” due to a lack of sufficient care or collective oversight.  In particular, they fear that the “open” Internet and “generative” digital systems are giving way to closed, proprietary systems, typically run by villainous corporations out to erect walled gardens and quash our digital liberties.  Thus, they are pessimistic about the long-term survival of the wondrous Internet that we currently know and love.

Despite their different concerns, two things unite these two schools of techno-pessimism.  First, there is an elitist air to their pronouncements; a veritable “the-rest-of-you-just-don’t-get-it” attitude pervades their work.  In the case of the Net Skeptics, it’s the supposed decline of culture, tradition, and economy that the rest of us are supposedly blind to, but which they see perfectly—and know how to rectify.  For the Net Loving Pessimists, by contrast, we see this attitude on display when they imply that a Digital Dark Age of Closed Systems is unfolding since nefarious schemers in high-tech corporate America are out to suffocate Internet innovation and digital freedom more generally.  The Net Loving Pessimists apparently see this plot unfolding, but paint the rest of us out to be robotic sheep being led to the cyber-slaughter since we are unwittingly using services (AOL in the old days; Facebook today) or devices (the iPhone and iPad) that play right into the hands of those corporate schemers who are out to erect high and tight walled gardens all around us.

Unsurprisingly, this elitist attitude leads to the second thing uniting these two variants of Net pessimism: An underlying belief that someone or something—most often, the State—must intervene to set us on a better course or protect those things that they regard as sacred.  They either fancy themselves as the philosopher kings who can set things back on a better course, or they imagine that such creatures exist in government today and can be tapped to save us from our impending digital doom—whatever it may be.

In both cases, I will argue that today’s Internet pessimists have over-stated the severity of the respective problems they have identified.  In doing so, I will argue that they both have failed to appreciate the benefits of evolutionary dynamism.  I borrow the term dynamism from Virginia Postrel, who contrasted the conflicting worldviews of dynamism and stasis so eloquently in her 1998 masterpiece, The Future and Its Enemies.  Postrel argued that:

The future we face at the dawn of the twenty-first century is, like all futures left to themselves, “emergent, complex messiness.” Its “messiness” lies not in disorder, but in an order that is unpredictable, spontaneous, and ever shifting, a pattern created by millions of uncoordinated, independent decisions.

However, because “these actions shape a future no one can see, a future that is dynamic and inherently unstable,” Postrel noted.  But that inherent instability and the uncomfortable realization that the future is, by its very nature, unknowable, leads to exactly the sort of anxieties we see on display in the works of both varieties of Internet pessimists today.  Postrel contrasts the two visions of stasis and dynamism and makes the case for embracing dynamism as follows:

How we feel about the evolving future tells us who we are as individuals and as a civilization: Do we search for stasis—a regulated, engineered world? Or do we embrace dynamism—a world of constant creation, discovery, and competition? Do we value stability and control, or evolution and learning? Do we declare with [Tim] Appelo that “we’re scared of the future” and join [Judith ] Adams in decrying technology as “a killing thing”? Or do we see technology as an expression of human creativity and the future as inviting? Do we think that progress requires a central blueprint, or do we see it as a decentralized, evolutionary process? Do we consider mistakes permanent disasters, or the correctable by-products of experimentation? Do we crave predictability, or relish surprise?  These two poles, stasis and dynamism, increasingly define our political, intellectual, and cultural landscape. The central question of our time is what to do about the future.  And that question creates a deep divide.

Indeed it does, and that divide is growing deeper as the two schools of Internet pessimism—unwittingly, of course—work together to concoct a lugubrious narrative of impending techno-apocalypse.  It makes little difference whether the two schools agree on the root cause(s) of all our problems; in the end, it’s their unified call for a more “regulated, engineered world” that makes them both suffer from the same stasis sickness.

In this chapter, I will take on the first variant of Internet pessimism (the Net Skeptics) and make the dynamist case for what I call “pragmatic optimism.”  I will argue that the Internet and digital technologies are reshaping our culture, economy and society in most ways for the better, but not without some serious heartburn along the way.  My bottom line comes down to a simple cost-benefit analysis: Were we really better off in the scarcity era when we were collectively suffering from information poverty? Generally speaking, I’ll take information overload over information poverty any day.  But we should not underestimate or belittle the disruptive impacts associated with the Information Revolution.  We need to find ways to better cope with those changes in a dynamist fashion instead of embracing the stasis notion that we can roll back the clock on progress and recapture “the good ‘ol days”—which actually weren’t all that good.

In another chapter in the book, I will address the second variant of Internet pessimism (the Net Loving Pessimists) and show how reports of the Internet’s death have been greatly exaggerated.  Although the Net Loving Pessimists will likely recoil at the suggestion that they are not dynamists, the reality is that their attitudes and recommendations are decided stasisist in nature. They fret about a cyber-future in which the Internet might not as closely resemble its opening epoch.  Worse yet, many of them agree with what Lawrence Lessig said in his seminal—by highly pessimistic—1999 book, Code and Other Laws of Cyberspace, that “Left to itself, cyberspace will become a perfect tool of control.”  Lessig and his intellectual disciples—especially Zittrain and Wu—have continued to forecast a gloomy digital future unless something is done to address the Great Digital Closing we are supposedly experiencing.  I will argue that while many of us share their appreciation of the Internet’s current nature and its early history, their embrace of the stasis mentality is unfortunate since it forecloses the spontaneous evolution of cyberspace and invites government intervention to create a more “regulated, engineered world” that will, ironically, undermine much of what they hope to preserve about the current Internet.

[ I’ll then go on to finish this chapter, basically by finally completing my essay, “ Are You An Internet Optimist or Pessimist? The Great Debate over Technology’s Impact on Society.” In the second chapter addressing the pessimism of the “Net Lovers,” I will build on my review of Zittrain’s “Future of the Internet,” my two–part debate with Lawrence Lessig on the occasion of the 10th anniversary of “ Code and Other Laws of Cyberspace,” and my forthcoming review of Tim Wu’s soon-to-be-released book, “The Master Switch The Rise and Fall of Information Empires.”  I will then eagerly await the hate mail from all the affected parties.]

The always-excellent Wall Street Journal “Information Age” columnist L. Gordon Crovitz has another editorial worth reading today, which builds on the Second Circuit’s recent decision to reverse FCC content regulation for broadcasting.  In “The Technology of Decency,” Crovitz explains “parents don’t need the FCC to protect their children.” “Technology makes it easier to block seven or any number of dirty words,” he notes. “Taking the FCC out of regulating indecency might just lead to more decency by refocusing responsibility where it belongs: on broadcasters and parents.”

That’s a point I’ve hammered on her in the past and in all my work on parental empowerment solutions, including my book, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” Indeed, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what is acceptable in their homes and in the lives of their children.  And, luckily, poll after poll shows that parents are stepping up to the plate and taking on that responsibility (contrary to what some policymakers in Washington imply).

Moreover, legally speaking, Crovitz shows why the old rationales for regulating broadcasting differently no longer work. “No medium is likely ever to be as pervasive as broadcasting once was,” he notes. He goes on to note that:

Broadcasting is no longer the pervasive, dominant medium. And unlike the Web, televisions now have tools for parents to block programs based on their suitability for kids. And the appeal court’s history of technology undermines the legal foundation for allowing broadcast censorship, including the justification that broadcast outlets are scarce. There are now more television stations than newspapers.

Indeed, that’s a point I have stressed in my work, especially my Catholic University CommLaw Conspectus law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”  I also produced this video on “America’s First Amendment Twilight Zone” to better explain why the old notions of “scarcity” and “pervasiveness” no longer work as rationales for asymmetrical regulation of speech.  Anyway, make sure to read Crovitz’s excellent essay.

One of the more troubling aspects of the contentious debate over Net neutrality regulation is the way some proponents have sought to cast Net neutrality as “the Internet’s First Amendment.” As a die-hard free speech advocate, I find this truly outrageous and a complete contortion of the true purpose of the First Amendment.  As I have argued here before, it is incredibly dangerous thinking that puts our real First Amendment liberties at stake by empowering a regulatory agency with more means of controlling online speech and expression. Simply stated, the Internet’s First Amendment is the First Amendment, not some new, top-down, heavy-handed regulatory regime that puts the Federal Communications Commission in control of the Digital Economy.

On this point, I wanted to bring two things to your attention. The first is an outstanding address delivered today by Kyle McSlarrow, President & CEO of the National Cable & Telecommunications Association, at a Media Institute event here in Washington, DC.  And the second is this new paper by my PFF colleague Barbara Esbin.

McSlarrow’s speech was entitled, “Net Neutrality: First Amendment Rhetoric in Search of the Constitution” and it squarely addressed the fundamental fallacy set forth by the Net neutralitistas when it comes to the First Amendment. “Whatever our present-day policy disagreements about net neutrality, or even differing politics, let’s not forget that the First Amendment is framed as a shield for citizens, not a sword for government,” he argued. “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government,” McSlarrow said. “And… if there’s one thing the Supreme Court has made clear, it’s that rules that directly restrict protected speech cannot be justified by a government interest that is merely hypothetical.”

Absolutely correct. And these views are buttressed by the comments of Barbara Esbin in her new paper, in which she argues that “Net Neutrality is not the First Amendment for the Internet.”  She continues:

Today we live in a world with no FCC-imposed network neutrality rules. Can anyone seriously maintain that the Internet’s potential for commercial, political, artistic, and social expression has been hobbled in this country? Or that diversity is lacking? It is far more likely that the Internet has thrived, as Congress has stated, in the absence of federal or state regulation.

“Nor has the evidence, amassed after years of trying, painted a picture of persistent market failure or consumer harms,” she argues.

Turning the First Amendment on Its Head

Both she and McSlarrow note that twisted rationales for Net neutrality “turn First Amendment protections on their head” by making private platforms and actors in the enemies of speech instead of the government, which has traditionally acted to curtail speech liberties and freedom of expression. And it has succeeded at times because the government has the coercive ability to imprison, fine or otherwise punish speakers in ways that no private media or communications platform can.

There’s also the question of whether Net neutrality regulation might constitute a form of “compelled speech.” As Barbara notes, “Under traditional First Amendment jurisprudence, the government compelling a speaker to speak or transmit a message that it does not wish to transmit is just as much a free speech infringement as it is to prevent a speaker from transmitting or posting messages it wishes to transmit or post.” She cites remarks delivered at a 2007 Progress & Freedom Foundation event by noted First Amendment scholar Lawrence Tribe on this issue, in response to a question about broadband ISP control of content delivered over their networks:

The general question that raises is the extent to which the government can, in effect, force media to act as common carriers, to be transparent, to force them simply to convey whatever content comes along. To the extent that someone, or an entity, is a content provider engaging in discretion is not simply an empty pipeline. It has the fundamental right of editorial discretion. For the government to tell that entity that it cannot exercise that right in a certain way, that it must allow the projection of what it doesn’t want to include, is a violation of its First Amendment rights.

The Madness of “Media Access” Theory

All this should seem logical to anyone who has taken a look at the plain language of the First Amendment. It could not be more clear when it says, “Congress shall make no law…”  There aren’t any caveats or footnotes. And the First Amendment most certainly was not intended as a tool for government to control the editorial discretion of private individuals or institutions. It was about restricting the power of the government to curtail speech and expression.

So how did this twisted theory of the First Amendment gain currency in Net neutrality circles? To answer that you need to go back to the 1960’s when a handful of liberal legal scholars began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thinking. George Washington University law professor Jerome A. Barron’s 1967 Harvard Law Review article, “Access to the Press — a New First Amendment Right,” as well as the work of Yale University law professor Owen Fiss, gave rise to this new intellectual movement. Its goal, in essence, was to convert the First Amendment into a club to beat demands out of private media providers. Basically, these theorists wanted to expand “Fairness Doctrine”-like right-of-reply notions to newspapers, and simultaneously grant the government more leeway to use the First Amendment to alter media structures and outputs. As Fiss argued in a 1986 law review article, under the “media access” approach, a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

Other left-leaning intellectuals and activists groups would come to integrate that logic into their work and public policy proposals. Now you know, for example, where the Media Access Project gets their name!  But many other regulatory-minded groups — Free Press, Public Knowledge, the Center for Digital Democracy, MoveOn.org, New America Foundation, and others — trace much of their intellectual heritage back to Barron, Fiss, and the other media access theorists. [Read my lengthy debunking of media access theory here.]

And now we have books being written with titles like Virtual Freedom: Net Neutrality and Free Speech in the Internet Age, by Dawn Nunziato of George Washington University. I’ll have a review of Nunziato’s disturbing new book up shortly, but suffice it to say, she has taken media access theory, put it on steroids, and brought it into the Information Age.  At least the media access old-timers could more reasonably use “media scarcity” as an excuse for their regulatory machinations. But Nunziato just dispenses with all that and instead conditions all the new regulation on “democratic participation” and other amorphous theories.

Will the Real Big Brother Please Stand Up

Indeed, with Nunziato’s book, we see how the seeds of misguided intellectual thinking sometimes spring into wild gardens in which the weeds slowly take over everything in sight.  This twisted conception of the First Amendment is so thoroughly ingrained in leftist media policy thinking today that even an abundant medium like the Internet is not exempt from potential regulations based on it despite the death of media scarcity. And that’s how we got to the point we are at today in the net neutrality regulatory debate, with many policymakers and activists groups painting private broadband operators as the supposed real Big Brother problem that the First Amendment must address.

Consider, for example, the comments then-Sen. Hillary Clinton made in 2006 regarding why she supports net neutrality regulation: “Each day on the Internet views are discussed and debated in an open forum without fear of censorship or reprisal.” As I noted at the time, when I read her statement I practically fell off my chair. It’s not just that Mrs. Clinton was asking us to believe in some asinine conspiracy theory about how broadband companies are supposedly out to censor our thoughts or engage in reprisals. (”Reprisals”? For what?) No, what really blew my mind here was the fact that Sen. Clinton had the chutzpah to declare that the private sector was somehow the real threat to online speech. After all, as I inventoried in that old essay, Sen. Clinton has led several notable efforts over the past decade to expand government regulation of television, video games, and even the Internet.

Where’s the Evidence? And How Would They Even Do It?

And yet Clinton and many other Net neutrality advocates continue to insist that it is the private sector, not the government, that is the real threat to our free speech rights. Practically speaking, these advocates of Net neutrality regulation have little to fear in this regard. It is almost impossible to believe that any Internet operator could limit speech or expression in the ways these regulatory advocates fear.  Unlike the government, which possesses the coercive power to completely foreclose all speech under threat of fine or imprisonment, the private sector lacks the ability to use force to bottle up speech or speakers. And even if private operators tried it, there would be hell for them to pay with the press, industry watchdogs, and their even subscribers. More importantly, there’s just no good business angle to censorship; they make more money by delivering more bits, not fewer. Finally, any attempt by one actor to stifle something becomes a prime incentive for another to offer it.

Tim Lee nailed all these points in an excellent paper from last year, “The Durable Internet: Preserving Network Neutrality without Regulation.” Tim noted:

Concerns that network owners will undermine free speech online are particularly misguided. Network owners have neither the technology nor the manpower to effectively filter online content based on the viewpoints being expressed, nor do profit-making businesses have any real incentive to do so. Should a network owner be foolish enough to attempt large-scale censorship of its customers, it would not only fail to suppress the disfavored speech, but the network would actually increase the visibility of the content as the effort at censorship attracted additional coverage of the material being censored.

I think that’s exactly right and, later in his paper (between pgs 22-3), Tim nicely elaborates about the “Herculean task” associated with any attempt by a broadband provider to “manipulate human communication.” Not only is it true, as Tim argues, that “no widescale manipulation would go unnoticed for very long,” but he is also correct in noting that the public and press backlash would be enormous.

Shield from Government or Sword for the Government?

But let’s get back to the principle of the matter at stake here because, for those of us who cherish the real First Amendment and seek to protect it, it is essential we not let regulatory advocates get away with their effort to convert it into something it isn’t and was never meant to be.  Jonathan Emord, author of the brilliant 1991 book, Freedom, Technology and the First Amendment, put his thumb on the real threat here: “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The ultimate danger of this twisted conception of the First Amendment, he noted, is that, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”  Or as Kyle McSlarrow noted in his speech today, these regulatory advocates are essentially saying that the First Amendment “a sword for government” instead of “a shield for citizens” from coercive government actions that would infringe our legitimate rights of free speech and expression.

In sum, “media access” philosophy and the regulatory approach its adherents counsel  is completely at odds with a proper understanding of the First Amendment.  Government — not the private sector — remains the true threat to our liberties.  And, most horrifyingly of all, empowering the state to use the First Amendment to regulate private actors will almost certainly backfire and result in more, not less, regulation of speech online.

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

My new article on “FCC v. Fox and the Future of the First Amendment” has just been published in the February 2009 edition of Engage, the journal of the Federalist Society. Here’s how it begins:

On November 4th, 2008, the Supreme Court heard oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. This case, which originated in the Second Circuit Court of Appeals, deals with the FCC’s new policy for “fleeting expletives” on broadcast television. The FCC lost and appealed to the Supreme Court. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — was heard in the Third Circuit Court of Appeals. The FCC also lost that case and has also petitioned the Supreme Court to review the lower court’s ruling. These two cases reflect an old and odd tension in American media policy and First Amendment jurisprudence. Words and images presented over one medium-in this case broadcast television-are regulated differently than when transmitted through any other media platform (such as newspapers, cable TV, DVDs, or the Internet). Various rationales have been put forward in support of this asymmetrical regulatory standard. Those rationales have always been weak, however. Worse yet, they have opened the door to an array of other regulatory shenanigans, such as the so-called Fairness Doctrine, and many other media marketplace restrictions. Whatever sense this arrangement made in the past, technological and marketplace developments are now calling into question the wisdom and efficacy of the traditional broadcast industry regulatory paradigm. This article will explore both the old and new rationales for differential First Amendment treatment of broadcast television and radio operators and conclude that those rationales: (1) have never been justified, and (2) cannot, and should not, survive in our new era of media abundance and technological convergence.

I go on in the piece to make the case against the those rationales and the call for the Supreme Court to use the Fox and CBS cases to end this historical First Amendment anomaly of differential treatment of broadcast platforms relative to all other media providers.

This article can be downloaded as a PDF here, or viewed down below the fold in the Scribd reader.

FCC v Fox and Future of First Amendment (Thierer-PFF) http://d.scribd.com/ScribdViewer.swf?document_id=12683998&access_key=key-epitk15wtp38l34jow7&page=1&version=1&viewMode=list

Of the titles I included in a mega-book review about Internet optimists and pessimists that I posted here a few months ago, I mentioned Lee Siegel’s new book, Against the Machine: Being Human in the Age of the Electronic Mob.  It is certainly the dourest of the recent books that have adopted a pessimistic view of the impact the Internet is having on our culture, society, and economy. Because Siegel’s book is one of the most important technology policy books of 2008, however, I decided to give it a closer look here.

Siegel’s book essentially picks up where Andrew Keen’s leaves off in Cult of the Amateur: How Today’s Internet is Killing our Culture (2007).  I posted a two-part review of Keen’s book here last year [Part 1, Part 2], but here’s a quick taste of Keen’s take on things.  He argues “the moral fabric of our society is being unraveled by Web 2.0” and that “our cultural standards and moral values are not all that are at stake.  Gravest of all,” Keen continues, “the very traditional institutions that have helped to foster and create our news, our music, our literature, our television shows, and our movies are under assault as well.”

As I noted in my earlier “Net optimists vs. pessimists” essay, after reading Cult of the Amateur, I didn’t think anyone else could ever be quite as over-the-top and Chicken Little-ish as Keen. But after working my way through Siegel’s Against the Machine, I realized I was wrong. It made Keen seem downright reasonable and cheery by comparison! Keen and Siegel seem to be in heated competition for the title “High Prophet of Internet Doom,” but Siegel is currently a nose ahead in that race.

Keen and Siegel are both essentially channeling the ghost of the late Neil Postman, the one-time dean of the modern school of techno-pessimism. Postman’s 1992 book Technopoly: The Surrender of Culture to Technology, was the first major anti-Digital Age diatribe and it remains the reigning champion of anti-technology screeds. “Information has become a form of garbage,” Postman argued, “not only incapable of answering the most fundamental human questions but barely useful in providing coherent direction to the solution of even mundane problems.” If left unchecked, Postman argued, America’s new technopoly — “the submission of all forms of cultural life to the sovereignty of technique and technology” — would destroy “the vital sources of our humanity” and lead to “a culture without a moral foundation” by undermining “certain mental processes and social relations that make human life worth living.”

Although Lee Siegel doesn’t bother citing him, he owes much to Postman’s brand of social criticism. Indeed, in large part, Siegel is simply bringing Postman’s critique of the Information Age up to date. Like Postman and Keen, Siegel is concerned about the “destructive side” of the Internet and the Information Age, which they all feel is being overlooked. Specifically, the attack these authors mount on the Information Age and the Net can be boiled down to two major themes:

1. The Net is destroying (or at least greatly diminishing) the role of experts, authority, “truth”, and traditional societal norms and institutions. This is having (or eventually will result in) dangerous ramifications for our culture, economy, and democracy.
2. The personalization and customization that the Information Age and the Internet have spawned is an unambiguously negative development for our society and culture. Moreover, in large part, the entire Web 2.0 experience is largely just about commercial interests furthering their ends.

Let’s take a closer look what Siegel says about each.

Experts, Authority, and “Truth”

Like Postman and Keen, Siegel doesn’t mix words when it comes to his contempt for the disintermediating influences of modern information technology. He is particularly concerned about the loss of “truth” and “authority” in our new environment. “Culture needs authoritative institutions like a powerful newspaper; it needs them both to protect its critical, independent spirit and to make sure that culture’s voices heard in the louder din of more powerful economic and political entities.” (p. 140-1) By empowering the masses to have more of a voice, Siegel says, “unbiased, rational, intelligent, and comprehensive news… will become less and less available.” (p. 165) “[G]iving everyone a voice,” he argues, “can also be a way to keep the most creative, intelligent, and original voices from being heard.” (p. 5)

Like many other Net skeptics, Siegel views Wikipedia, YouTube, blogs, and almost all user-generated content with a combination of confusion or contempt. “[S]elf-expression is not the same thing as imagination” or art, he argues. (p. 52)  Instead, he regards the explosion of online expression as the “narcissistic” bloviation of the masses and argues it is destroying true culture and knowledge. “Under the influence of the Internet,” he says, “knowledge is withering away into information.” (p. 152) Our new age of information abundance is not worth celebrating, he says, because “information is powerlessness.” (p. 148).

One reason Siegel gets nostalgic about the age of scarcity is because elites like him — and others who were lucky enough to have access to mainstream media — had a more privileged place in the old media world.  As a social / cultural critic, he can’t be happy with all the competition he now faces in that field from the blogosphere and online media outlets.

But it’s difficult to sympathize with Siegel’s position that others should be excluded from having a voice now in an effort to preserve the old order. After all, for the past seven decades, public policy has largely been preoccupied with getting society out of the scarcity mess (even though public policy created much of that mess!) by ensuring that citizens had more choices and outlets. Now that we have more options, some people like Keen and Siegel aren’t happy about the fact that the hoi polloi have been empowered. But, even if some traditional institutions lose the dominant position they once held in society, plenty of “authoritative” and “professional” media options and outlets continue to exist. Our new Information Age simply empowers millions of other voices to join the conversation and offer alternative perspectives and input.

But Siegel also disputes what he regards as such romanticized notions of “online participation” and “personal democracy.” To him, everyone is just in it for the money. “Web 2.0 is the brainchild of businessmen,” and the “producer public” is really just a “totalized ‘consumerist’ society.”  But what about all those bloggers who (like me!) are in it for the love of the conversation and debate?  Well, says Siegel, we just don’t realize the harm we are doing by trying to have our say!  “[T]he bloggers are playing into the hands of political and financial forces that want nothing more than to see the critical, scrutinizing media disappear.” (p. 141) And as for those true believers and Net evangelists who believe that something truly exciting is happening with our new online conversation, according to Siegel, they are simply “in a mad rush to earn profits or push a fervent idealism.” (p. 25-6)

It’s difficult for me to imagine anything more insultingly stupid than those last two statements.  The insulting part about them is that Siegel is essentially telling us all to shut up!  We all need to put down our pens — or, rather, our keyboards — and understand that we are doing great harm to those journalists, institutions, or other enlightened few who are really providing the “critical, scrutinizing” function so essential for a healthy democracy and culture. It’s just blatantly elitist for Siegel to suggest that only a select few have any business sharing their views with the world, and he even acknowledges that several times in the book. But he wears that elitist tag like a badge of honor as he stares down his nose at the newly empowered masses, snorting in disgust at everything he sees.

And the stupid part about those statements above is that the vast majority of bloggers or online participants are absolutely not in it for the money, or even out to take down mainstream media. They just want to be heard. But, again, Siegel believes that what you all have to say is not worth hearing anyway.

The Supposed Perils of Personalization

Indeed, Siegel’s primary gripe with the Web 2.0 world is that while most of us appreciate the growing personalization of information and content as well as the increasingly participatory nature of the Internet, he sees that as an unmitigated evil.  “The Internet is the first social environment to serve the needs of the isolated, asocial individual.” (p. 6)  The “Daily Me” (personalized, instantaneously delivered content) that Nicholas Negroponte predicted and longed for in his prescient 1995 book Being Digital, is viewed by Siegel as nothing more that the creation of a “narcissistic culture” in which “exaggeration” and the “loudest, most outrageous, or most extreme voices sway the crowd his way; the cutest, most self-effacing, most ridiculous, or most transparently fraudulent of voices saw the crowd of voices that way.” (p. 79)  He goes so far as to refer to it as our “democracy’s fatal turn” in that, instead of “allowing individuals to create their own cultural and commercial choices,” Web 2.0 has instead created “a more potent form of homogenization.” (p. 67)

In this regard, Siegel is channeling another Net skeptic, the prolific Cass Sunstein of the University of Chicago Law School.  In his 2001 book Republic.com, Sunstein also referred to Negroponte’s “Daily Me” in contemptuous terms, saying that the hyper-customization of websites and online technologies was causing extreme social fragmentation, isolation, and alienation, and could lead to political extremism. “A system of limitless individual choices, with respect to communications, is not necessarily in the interest of citizenship and self-government,” he wrote. As I said in my review of his book in Regulation magazine that year, Sunstein was essentially saying that the Internet is breeding a dangerous new creature: Anti-Democratic Man. “Group polarization is unquestionably occurring on the Internet,” he proclaimed, and it is weakening what he called the “social glue” that binds society together and provides citizens with a common “group identity.” If that continues unabated, Sunstein argued, the potential result could be nothing short of the death of deliberative democracy and the breakdown of the American system of government.

Siegel continues this line of reasoning in Against the Machine but, like Sunstein, completely fails to offer anything more than a few random anecdotes in defense of their thesis that the Net is leading to close-mindedness, homogenization, and the death of deliberative democracy. Worse yet, they also both completely fail to look at the other side of the story, which is that the Internet and Web 2.0 may be having the exact opposite effect. I made that argument in my 2005 book, Media Myths: Making Sense of the Debate over Media Ownership (p. 39):

The reality is that citizens do face an overwhelming number of media choices today, and that probably does make it somewhat more difficult for them to have “shared experiences” involving any individual news or entertainment program. But that isn’t really such a lamentable development. Government need not take steps to make sure everyone watches or listens to the same programs each night so they can all talk about them around the watercooler at work the next day. It’s just as good that everyone can discuss something different that they saw or heard the night before. And the very fact there are so many distinct media options available to citizens is better for a healthy democracy than a limited range of media options. Again, regardless of who owns what, the fact remains that we have more sources of news, communications, and entertainment than ever before in this country. Still, some media critics wax nostalgic about a mythical time — a supposed “Golden Age” of newspapers, radio, or television — when the populace was more closely linked or unified in some grand sociological sense by common reporting or programming options. But that is a stretch. The days when William Randolph Hearst dominated media, or when only three TV networks brought us our news at a set time each night, could hardly be labeled the “Golden Age” of those respective mediums. If that’s the world media critics want us to return to, then this represents, as Jonathan Knee argues, “an argument for homogeneity hiding under the pretext of diversity.”

And, indeed, that’s exactly what Siegel is proposing in his book, as Keen also does in his. They want to roll back to clock and return us to the mythical “good ‘ol days” of media. Again, when were those days? I simply cannot fathom how anyone can claim that the age of media scarcity — with its limited outlets and opportunities — was truly better than the world we find ourselves in today. As I noted in the first part of my two-part review of Keen’s book, which was entitled “Why an Age of Abundance Really is Better than an Age of Scarcity”:

What Keen doesn’t seem willing to tolerate is that when everyone has a voice, a lot more silly things are going to be said and heard. Back in the days before we all had our own soapboxes (websites, blogs, social networks, YouTube posts, etc.) we all had opinions, but we had few ways to get those opinions out. Now that the Internet has become the great leveler and given everyone the ability to be a one-person newspaper or broadcaster to the world, the dream of a more fully empowered citizenry is slowly becoming a reality. The upside is that everyone gets an equal chance to be heard. But the downside is that everyone gets an equal chance to be heard! That is, with the good comes some bad. There are wonderful contributions to culture and human communications being made by average Joes and Janes across the globe because of the Web. But let’s face it, there’s a lot of crap out there too. Cutting through the cultural clutter can been a real challenge, and even with the best search tools in the world at your disposal, it can still be difficult to find that diamond in the rough. But aren’t we better off as a society because of the opportunities now at our disposal? Isn’t an age of media and cultural abundance — warts and all — still preferable to the age of scarcity which preceded it?

I believe it is. And as I concluded in my review of Keen’s book, which seems like an equally sensible way to conclude this review of Lee Siegel’s tedious screed:

I think we are definitely better off because of this seismic shift in our communications and media environment. The human conversation is more diverse than ever before, and we have been empowered to experience the full range of culture and human creativity (for better and for worse!)

Early in 2007, I started penning—but somehow failed to continue—a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past. But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.

Amicus briefs are starting to be filed in the matter, and you won’t be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC’s authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left—namely the Supreme Court’s 1969 Red Lion decision and FCC’s ambiguous “public interest” authority to comprehensively regulate media markets. Consider this filing submitted by several liberal activist groups like Free Press, New America Foundation, Consumer Federation of America, Consumers Union, Participatory Culture Foundation, Acorn Media Foundation, as well as a couple of academics, like Susan Crawford and Monroe Price. These are some of the leading lights of the Left on communications and media policy.

With the Fox case, we have, quite possibly, the one major chance in a generation to make profound statement about the role of the FCC in policing speech in society. And what do these leading intellectual lights of the Left do in their 42-page brief to the court? They relegate the First Amendment to the equivalent of a footnote in the matter. The First Amendment is barely even mentioned in this filing; it is an afterthought.

Instead, they make everything subservient to saving Red Lion and maintaining the FCC’s authority to comprehensively regulate media markets. Red Lion, you will recall, is the Supreme Court’s historic 1969 decision legitimizing the hideously misnamed “Fairness Doctrine.” Of course, it also serves as the foundation for just about every other sort of media regulation that the FCC enforces: i.e., ownership restrictions, educational TV mandates, advertising restrictions, political advertising mandates, must-carry rights, and so on. The lynchpin of the Red Lion decision is the scarcity doctrine. In essence, the court held that the supposed scarcity of media outlets (or at least broadcast spectrum licenses) somehow justified comprehensive regulation of the media marketplace.

Liberals have long been in love with Red Lion and continue to rely on the case in one filing after another before the FCC and the courts in support of their efforts to justify existing or proposed media regulations. Of course, in light of the explosion of media options and competition, Red Lion and the “scarcity doctrine” have become utterly intellectually bankrupt rationales for regulation. But that hasn’t stopped the Left from pinning all their regulatory hopes on the doctrine and attempting to breathe new life into it at every turn.

Even more troubling is the fact that their filing argues that the Internet is some how touched by Red Lion. “[Q]uestioning Red Lion,” they say in their brief, “could throw media, spectrum, and Internet policy into chaos.” (p. 15) Excuse me? The Internet will be thrown into chaos if Red Lion is altered or abandoned by the court in the Fox case? I wasn’t aware that Red Lion had suddenly empowered the FCC to regulate this abundant medium known as the Net!

I won’t belabor this point about the scarcity rationale being dead and Red Lion being bad law, instead I’ll just refer you to the last major thing that the FCC said on the matter. Three years ago, the FCC published a staff report by John Beresford, an attorney with the FCC’s Media Bureau, entitled, “The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed.” That title pretty much says it all, but Beresford went on to say: “[T]he Scarcity Rationale for regulating traditional broadcasting is no longer valid” and from there laid out a devastating case against Red Lion and the scarcity rationale. Calling the scarcity rationale “outmoded” and “based on fundamental misunderstandings of physics and economics,” Beresford went on to show why just about everything the FCC every justified on this basis was misguided and unjust. He points out what countless economists have concluded through the years, namely that:

(1) the scarcity the government complained of was “largely the result of decisions by government, not an unavoidable fact of nature.” In other words, the government’s licensing process created artificial scarcity.

(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.

(3) even if there ever was anything to the scarcity doctrine, there certainly isn’t today in our world of information abundance.

Anyway, you get the point. Even people working at the FCC don’t take Red Lion or the scarcity rationale seriously anymore! Why then do these liberal academics who filed in the Fox case? They would be better served by shifting their regulatory rationales away from the hopelessly ambiguous and intellectually bankrupt “scarcity rationale” and toward an antitrust-based form of analysis based on market power considerations. But it is precisely because Red Lion provides them so much more regulatory wiggle room that they remain wedded to such a discredited theory. One wonders how long that farce will continue.

Regardless—and getting back to my main point here—it is absolutely shameless that these liberals would use this rare occasion to file a brief before the highest court in the land and not bother defending the First Amendment and free speech rights. We know we can’t trust the Right to defend the First Amendment, but the fact that the Left is abandoning it too is really troubling.