Corante

About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com

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« File Sharing | Freedom of Expression | Games »

July 13, 2005

July 02, 2005

June 29, 2005

June 25, 2005

June 24, 2005

Grokster + Brand X = Issues of Openness? It's All About the Distribution, Baby!

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Posted by Ernest Miller

Prof. Michael Madison points to the debate over Brand X that is starting on Picker MobBlog (MobBlawg LiftOff). [Btw, Picker calls his site MobBlog. I like Madison's MobBlawg better.] Michael agrees with one of the MobBlawggers that Brand X may ultimately be a more important decision than Grokster. Furthermore, Michael points to a Dec 2004 post of his that looks at the conceptual connections between the two: they both are means of regulating communication (On Grokster and Brand X). Abso-posi-lutely! It's all about the distribution man! It's freedom of the press, it's telecomm, it's copyright. It's Network Law. It's All About the Distribution, Stupid. It's Freedom of the Press, Stupid. We're going to need analytic tools that work similarly in all these areas of law and treat them as one whole system of regulating communication.

Anyway, for a very nice discussion of how to frame some of these issues, see Randy Picker's post, Framing Openness and the response from Phil Weiser here: Making Sense of Openness.

In response to, or perhaps, just going off on my own tangent I would like to bring in the traditional concept of common carriage as part of the openness conversation, as that is yet another way we've framed openness issues in the past.

For example, Picker makes an interesting comment:

I am comfortably in the camp of those who believe that an author should have some rights associated with her work and indeed don’t believe that even most of the copyright left favor eliminating all of the attributes associated with copyright.
Well, airlines are common carriers. But advocating common carriage for airlines doesn't necessarily mean that one wants to completely socialize airlines. I see the copyfight similarly.

Weiser notes:

Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.
Heck, yes. But I'll note in reply that in the case of common carriage, we apply it despite the fact that there are many alternatives. There may be many airlines servicing a particular airport, some even duplicating routes, but we still regulate them as common carriers. Furthermore, airlines have competition from trains and buses. One might say "there are alternative platforms" for airlines, so why regulate them as common carriers? Yet, we do. Interesting, that.

Just some random thoughts on a beautiful Friday afternoon.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm

June 23, 2005

June 22, 2005

June 21, 2005

June 20, 2005

June 17, 2005

Microsoft on Chinese Censorship: We Censor in the US Too!

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Posted by Ernest Miller

The LA Times has a very good article on Microsoft's censorship of blogs in China, the background and the controversy (As China Censors the Internet, Money Talks). For more about this issue, I highly recommend Rebecca MacKinnon's My Response to Scoble.

But there was something that struck me about Microsoft's response to issues of censorship in China, according to the LA Times:

Microsoft adds that filtering objectionable words is nothing new. In the United States, the company blocks use of several words in titles, including "whore" and "pornography."
That's just great. What a fantastic way to show your support for freedom of expression, Microsoft. When people accuse you of censorship in China, justify your actions by proclaiming your support for censorship in the United States. I'm sure the Chinese government is very appreciative that you're implying a moral equivalence between China and the United States on questions of free speech.

Now this isn't recent news, BoingBoing pointed this out in December 2004 (MSN Spaces: Seven Dirty Blogs). But really, when you're defending your censorship policy in China, do you really want to brag about how you censor in the US, home of the First Amendment? Is this helpful? On any level?

And, you know, the policy is still asinine, as Xeni demonstrated so ably. Another, more recent example: if you wanted to discuss ICANN's new top level domain, .XXX, you wouldn't be able to put the .XXX in the title - which might result in some weird contortions of lanugage. And I guess some of the titles of my past posts would be too risque for Microsoft: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry; Little-Known Anti-Pornography Statute Threatens Free Speech; and The INDUCE Act (IICA) - Putting the Pornography Industry in Charge. Thank goodness I don't use MSN Spaces.

Microsoft probably doesn't have much of a choice with regard to censorship in China, but that doesn't mean they can't demonstrate a commitment to free speech. They could start by getting rid of their censorship policy here in the US. At the very least, they could stop bragging about it.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Rating and Filtering

June 15, 2005

Yesterday Was Flag Day, Today is Anti-Flag Burning Amendment Day

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Posted by Ernest Miller

Yesterday, I noted that it was Flag Day here in the good ol' USA (Flag Day). I also noted why it was still worth commemorating: Texas v. Johnson and US v. Eichman

These were the two most recent cases in which the Supreme Court found anti-flag burning statutes unconstitutional.

Today, USA Today reports that Congress is once again attempting to pass an anti-flag burning amendment and, once again, it is very close to passing in the Senate, only 2 votes shy (passing the House is a given) (Vote on Flag Desecration May be 'Cliffhanger').

But this time may be different. Amendment supporters say last year's election expanding the Senate Republican majority to 55 has buoyed their hopes for passage. Five freshmen senators — Richard Burr of North Carolina, Tom Coburn of Oklahoma, Jim DeMint of South Carolina, John Thune of South Dakota and David Vitter of Louisiana — voted for the amendment as House members and plan to do so again.

They will be joined by at least five Democrats who have co-sponsored the resolution, including Dianne Feinstein of California and Ben Nelson of Nebraska. Both are up for re-election next year.

Some experts don't think an anti-flag burning amendment will pass. I'm not so sanguine about the issue. It wouldn't take much demagoguery to push it over the top. Furthermore, it is more than sad that such a law comes so close to passing.

There is some good news, however:

A poll released last week by the Freedom Forum First Amendment Center in Nashville found 63% oppose a flag amendment, up from 53% last year.

"Clearly, more Americans are having second thoughts about using a constitutional amendment to" instill respect for the flag, said Gene Policinski, the center's executive director. "Many Americans consider it the ultimate test of a free society to permit the insult or even desecration of one of the great symbols of the nation."

It would be nice if our representatives could learn that little lesson in civics. Allowing others to insult our flag only proves how much faith we have in our nation. Voting for such a law doesn't show you to be a patriot but, rather, a coward who lacks faith in our nation's principles.

via Hit and Run

Comments (1) + TrackBacks (0) | Category: Freedom of Expression

June 14, 2005

Podcasting and Profanity

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Posted by Ernest Miller

Last Sunday, on Corante's Podcasting Jeff De Cagna asked, what the role of profanity in podcasting was (Profanity in Podcasting: What is its Role?).

But there is an even more fundamental inquiry I'd like to pose here: what is the role of profanity in podcasting? Do we need to curse to demonstrate our fidelity to free speech? What is the point at which our defiant acts against the FCC will cease to be purposeful, and we will just become garbage mouths in the eyes (and ears) of our listeners? I know I'm probably messing with the bull here, so I'll be prepared! [emphasis in original]
The answer is simple, really. It plays whatever role the speaker desires. If that role doesn't mesh with the role the audience cares for, the audience will stop listening.

Use profanity, don't use profanity. It's a judgement call.

The real question is whether some censorship regime is necessary.

Last week on the Yahoo podcasters group, there was an extremely passionate discussion (complete with name calling) of profanity in podcasting and how it can be screened by listeners who prefer to avoid it themselves or want to keep it away from their kids. At the moment, of course, there isn't a way to screen for profanity short of listening to the podcasts. Some group members advocated a voluntary ratings system, while others recoiled at the suggestion. A key question is who gets to decide what is or isn't profane and by what cultural standard, an extremely relevant matter given podcasting's global reach. [link in original]
But really, is this necessary? The internet has a number of rating schemes, they're mostly useless. I've never noticed any blogs that are rated, why should podcasts? Depending on the audience, most blogs simply exercise a judgement call. Some refuse to publish vulgarities, others do. Sometimes the sites warn their readers, sometimes they don't. Seems to work just fine.

Of course, I'm sure the topic will come up again and again and again ...

Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | Freedom of Expression | Rating and Filtering

EFF's Legal Guide for Bloggers

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Posted by Ernest Miller

I'm a bit late in blogging this, like by 24 hours or so, but I wanted to have a chance to read the thing. EFF has issued a For Freedom's Sake: Legal Guide for Bloggers.

The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you're doing is legal. And on top of that, sometimes knowing the law doesn't help - in many cases it was written for traditional journalists, and the courts haven't yet decided how it applies to bloggers.

But here's the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn't use the law to stifle legitimate free expression. That's why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.

To be clear, this guide isn't a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide the kind of advice you need if you're being threatened with a lawsuit. The goal here is to give you a basic roadmap to the legal issues you may confront as a blogger, to let you know you have rights, and to encourage you to blog freely with the knowledge that your legitimate speech is protected.

It is good (and I really dig the cover).

They need to make some buttons so that every blog can link to it in their navigation bar. [Correction: They have links here: Link to the Legal Guide for Bloggers. However, I still think they need some smaller buttons.]

UPDATE 1010PT They also have a very cool alternative poster: liberty_waits_ad.png

More from Copyfight: Do You Know Your Rights?

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

Gov't Support for Media Discussed

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Posted by Ernest Miller

Jeff Jarvis is attending the Annenberg Foundation Trust at Sunnylands' Institutions of Democracy and discussing the First Amendment and government support for media with mass communications professor Timothy Cook (Gov Giveth and Gov Taketh Away).

Various ideas were raised by respondents that made my spine shake: taxing ads to support publications with fewer ads, giving postal subsidies only to publications below a circulation threshold, government search engines.
As Jeff responds, "Arrrgh."

There is insight here: the government shapes our communications environment far more than we realize. However, these ideas for direct subsidy seem to do both too much and too little. Too much in that they invite all sorts of governmental decisions about what sort of content and media should be subsidized and too little in that they don't address the structural and architectural elements of our communications infrastructure.

Telecomm (and I'm not talking about the distraction about "media ownership") and copyright law are the real powers that shape our communications environment. You want to talk about government helping media, that is where you have to look.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Telecomm

June 13, 2005

Even Copyright Infringing Spammers Deserve Free Speech Protections

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Posted by Ernest Miller

Denise Howell endorses (Putting The DMCA To Good Use) Kevin Marks's idea to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to attack "spamblogs" (Using the DMCA for Good).

There are spammers who copy entire blog posts from others to act as fresh bait for their search spoofing tricks. This is commercial use, and a violation of most CC licenses (and indeed default copyright).Stephanie Booth recently did this [issued a DMCA notice and takedown] to a spammer at www.famous-people.info who plagiarized one of her posts on Jennifer Garner, on what was a Google Adsense supported spamblog. When she sent a DMCA notice, they took down the page and apparently lost their Adsense status. [links in original]
Although I sympathize with the desire to inhibit spamming and enforce copyright, I must demur. I cannot endorse use of the DMCA's notice-and-takedown provisions, unless there are no other reasonable legal alternatives.

The problem with the provisions is that they lack important procedural safeguards for free speech. Copyright holders can easily, with virtually no justification and no judicial oversite, cause a website to remove speech that is perfectly legal for days, if not weeks. There is no requirement that the copyright holder actually file a lawsuit, if there is a counter notification. There is no recourse for damages for false takedown notices as long as they were issued in "good faith." This makes the DMCA ripe for abuse (EFF: Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands) and, among other reasons, an unjust law.

We should not use unjust laws, giving them legitimacy, unless there are no reasonable alternatives. In this case, there are a number of alternatives, such as sending a polite request, sending a threatening legal letter, contacting the ISP directly, or even suing for copyright infringement (statutory damages are your friend).

We should not be so quick to use law to terminate speech merely on our say so. You say spam, I say free speech (until a court rules otherwise).

UPDATE 0835PT
Please see the comments for a continued debate.

Comments (13) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression

June 10, 2005

Raff Videoblogs an FCC Indecency Decision

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Posted by Ernest Miller

Andrew Raff Rox0rz! Yesterday, on IPTAblog, he posted what is likely the first vblog on a particular FCC indecency decision (And Now, Something Different).

I want one of these for every FCC decision.

Download the video: Arrested Development, Indecency and the FCC [Quicktime, 17.6MB, 5min].
(I had a little trouble with the playback, your mileage may vary.)

Read the 4-page decision it is based on: In the Matter of FOX TELEVISION STATIONS, INC., Memorandum and Order [PDF].

BONUS: Andrew Raff says he got the video of Arrested Development off a DVD. That likely means he violated the DMCA. Way to go, Andrew!

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression

June 09, 2005

June 08, 2005

Janice Brown Appointed to DC Circuit Court of Appeals

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Posted by Ernest Miller

Prof. Michael Madison notes the appointment of Janice Brown to the DC Circuit Court of Appeals bench (CNN: Senate Confirms Brown to Federal Judicial Post), and one of her opinions that copyfighters would be interested in (Janice Brown Confirmed). The case he cites is Intel v. Hamidi, in which Brown dissented from a majority ruling holding that Intel could not prevent a former employee from sending mass emails to current Intel employees. Her dissent shows quite the fondness for property metaphors:

Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud today's decision, but even the flow of ideas will be curtailed if the right to exclude is denied. As the Napster controversy revealed, creative individuals will be less inclined to develop intellectual property if they cannot limit the terms of its transmission. Similarly, if online newspapers cannot charge for access, they will be unable to pay the journalists and editorialists who generate ideas for public consumption.

This connection between the property right to objects and the property right to ideas and speech is not novel. James Madison observed, "a man's land, or merchandize, or money is called his property." (Madison, Property, Nat. Gazette (Mar. 27, 1792), reprinted in The Papers of James Madison (Rutland et al. edits., 1983) p. 266, quoted in McGinnis, The Once and Future Property- Based Vision of the First Amendment (1996) 63 U. Chi. L.Rev. 49, 65.) Likewise, "a man has a property in his opinions and the free communication of them." (Ibid.) Accordingly, "freedom of speech and property rights were seen simply as different aspects of an indivisible concept of liberty." (Id. at p. 63.)

The principles of both personal liberty and social utility should counsel us to usher the common law of property into the digital age.

Yeah, free speech is exactly like a property right. Sure.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression

June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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Posted by Ernest Miller

The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments

Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 – Spring 2005 [PDF].

Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)

However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.

Read on for a more detailed take on the report...

...continue reading.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

In Search Of: A Positive Agenda for the Copyfight

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Posted by Ernest Miller

My friend, Prof. Beth Noveck, has written (not for the first time) about the need for a progressive political agenda with regard to cyberlaw on her Cairns Blog (Positive Cyber-Progressivism).

I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values.
Part of this is, of course, because even negative liberty has been under constant attack for the past decade. We copyfighters have barely fought off things like the INDUCE Act and Broadcast Flag, which doesn't leave much time for focusing on positive goals.

Which isn't to say that there haven't been a number of positive goals put forward. In the copyright realm there have been several alternative compensation schemes for filesharing put forth, from prominent law professors (Neil Netanel and William Fisher among others) and organizations such as EFF. I keep deluding myself that it's all about the distribution, and copyright reform should follow along those lines, most recently: A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright. Larry Lessig has called for shorter terms and a return to some copyright formality. There are other examples. Unfortunately, however, none has really caught on for a variety of reasons, not least that there is much disagreement.

And, actually, I'm not even sure what "negative liberty" means in the context of copyright law. Most copyfighters, myself included, are intent on finding the right level of copyright, not freeing us from it entirely. That seems to me a very progressive goal itself.

The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing.

The issue of free speech, which Beth also raises, is also an interesting one. Free speech is a funny sort of negative liberty. It is a negative liberty that is, in part, justified by its positive purposes. According to Mill, the best way to approach truth is by allowing, almost encouraging, error. Accepted truths will be strengthened through battle with error. Error will be overthrown by truth. And, as is most likely the case, both sides have a little bit of truth to them and we move to a better synthesis. Free speech may be a negative liberty we cherish, but even were it not, it would be a progressive policy goal.

Be that as it may, there are also a number of progressive free speech policies out there - particularly for what I call "freedom of the press", the role of government in regulating distribution of information. For example, there are those who want stricter control over media ownership and claim a progressive mantle. I disagree with them (as I disagree with Netanel and Fisher), but it is a positive platform. There are many in the copyfight who argue for open access and open standards in order to free distribution. This seems to me a positive, progressive goal. Unfortunately, these two groups seems somewhat opposed and, among other reasons, very little is accomplished along these lines.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | News

June 06, 2005

Newspaper Opinion = Protected: Blogger Opinion = Activism, Not Protected

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Posted by Ernest Miller

I meant to blog about this last week, but Eugene Volokh noted a rather ominous comment to the FEC from the director of the Institute for Politics, Democracy and the Internet at George Washington University (Political Activist (Bad) or Journalist (Good)?). From the director's comment:

Until recently, the distinction between the news media and rest of us was clear and uncontroversial. Bloggers blur that distinction. If anyone can publish a blog, and if bloggers are treated as journalists, then we can all become journalists. If millions of “citizen journalists,” as bloggers like to call themselves, are given the rights and privileges of the news media, two consequences will follow.
Well, yeah. Of course, the director wants to distinguish between blogger/journalists and blogger/activists. Volokh links to the best response (Common Sense):
Dear FEC,

I write to you today to request your kind advisory as to whether this pamphlet defines me as an ACTIVIST or a JOURNALIST. . . .

Sincerely,
Thomas Paine

In a later post, Volokh also makes a point about the exemption that the media receives (Media Rights, Not Journalists' Rights):
But while "journalist" is sometimes used to refer to people who are (ostensibly) nonpartisan and impartial, neither the federal election law media exception nor the anonymous source privilege is so limited. Federal election law exempts from various regulations and prohibitions "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication." Both nonpartisan news stories and opinionated editorials (including ones that endorse candidates) are protected. Both newspapers that strive to maintain maximum objectivity and magazines that overtly and consistently advocate a particular ideology are protected. Likewise, privileges to conceal the names of anonymous sources don't turn on whether the claimant writes opinionated pieces or objective ones.
Gee, one wonders why the opinion pages of commercial newspapers should be priviledged when they endorse candidates, but not bloggers. What a strange vision of the First Amendment that must be.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

June 05, 2005

Apple + Intel: Where's the Lawsuit Against C|Net?

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Posted by Ernest Miller

Late Friday afternoon, C|Net News published an extremely valuable trade secret about Apple and Intel, days before Apple was scheduled to announce it (Apple to Ditch IBM, Switch to Intel Chips). So, where's the friggin' lawsuit against C|Net to find out who leaked? Where is the judge who is going to claim that what C|Net published was "stolen property"?

Will someone please explain to me the difference between what C|Net has done and what happened in Apple v. Does?

Comments (41) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

Journalism's Coming Age of Enlightenment

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Posted by Ernest Miller

Jay Rosen has written another of his insightful pieces on the state of modern journalism, today finding the connections between J-School reform and the press mythology of Watergate (Deep Throat, J-School and Newsroom Religion). Read the whole thing, but the following passage was particularly striking to me:

In his excellent book, Watergate and American Memory (1992, Basic) Michael Schudson distinguishes between the scandal, which didn't change the world very much, and the myth of Watergate in journalism. It did change journalism by giving the warrant of history (and the mandate of heaven) to the adversarial press and the Fourth Estate model, where the press is an essential check on government, a modern addition to the balance of powers.
In many ways, this gets to the heart of the problems with the ways that the mass institutional press views itself. The picture the mass institutional press has of itself is that of the Fourth Estate, another branch of the governing structure, albeit unelected. They are adversarial because they seek to check and balance the other powers, which, presumably, do not represent the interests of the people. The mass institutional press has arrogated unto itself the voice of the absent people.

Much of this comes, I think, from a fundamental misunderstanding of "freedom of speech, or of the press".

Let me make this clear:

The interests and purposes of the First Amendment are not identical with the interests and purposes of the mass institutional press. For the purposes of the First Amendment, the mass institutional press is sometimes a means, not an end.

Freedom of speech and of the press is the principle; the mass institutional press is merely one expression of this principle and, as we are learning, is a historically contingent and flawed one at that. The error has come in thinking that the mass institutional press is the only possible means for expressing this principle, and that what the mass institutional press expresses is also an expression of this principle.

This wouldn't be so bad, if the mass institutional press hadn't gotten the underlying principle so darn wrong.

Deans of Journalism, scribble a note: Investigative reporting, exposing public corruption, and carrying the mantle of the downtrodden were taught to McGrath not as political acts in themselves--which they are--and not as a continuation of the progressive movement of the 1920s, in which the cleansing light of publicity was a weapon of reform--which they are--but just as a way of being idealistic, a non-political truthteller in the job of journalist. (Which is bunk.) [emphasis in original]
These two means are expressions of the interests and purposes of the First Amendment, though I would not emphasize that the cleansing light of publicity is not only part of the progressive movement of the 1920s. Political is not synonymous with partisan.

There are other purposes of free speech, but clearly, one of the most important is that of persuasion in service to what we can know of truth. This is inevitably, if not definitionally political. However, the mass institutional press eschews persuasion for a recitation of facts and "he said, she said," in order to avoid persusasion and, thus they think, politics. But gathering and organizing facts is still a persuasive and political act. It is fairly explicit when exposing public corruption. And it exists even in "he said, she said" reporting when it gives one implausible argument greater weight through equal stature with the superior argument. This is particularly insidious in its effects upon the journalists themselves, who seek only arguments on both sides of an issue, rather than the persuasive arguments, and may thus eventually become blind to the difference.

The biggest blindness was, of course, to the reality that fact-gathering and reporting are inevitably political. And, thus,

This kind of instruction is guaranteed to leave future journalists baffled by the culture wars, and in fact the press has been baffled to find that it has political opponents. Well, jeez louise, so did the progressives of the 1920s! As far as the religion knows, none of this is happening. And J-schools--by passing the faith along but making little room for non-believers--are part of the problem.
And so, at least partly, the mass institutional press comes to its present crisis. And what is the solution?
But maybe it should be crashed. Maybe what we need is not funding for a new church, but a breakaway church, or two, or three of them. (And what is Fox News Channel, but that?)
Well, actually, Fox News is a bunch of recreants. They still worship in the church of objectivity, but that is only lip service.

But why new churches? Tear down the church and let a diversity of schools of thought bloom.

UPDATE 2300 PT

Jay Rosen has updated the paragraph I cited above. Here is the new version:

In his excellent book, Watergate and American Memory (1992, Basic) Michael Schudson distinguishes between the scandal, which didn't change the world very much, and the myth of Watergate in journalism. By giving the warrant of history, and the mandate of heaven, to the adversarial press, and the Fourth Estate model (where the press is an essential check on government, a modern addition to the balance of powers); by telling each new crop of journalists how to be heroes and how do good; by glamorizing the underworld of confidential sources, the mythos of Watergate had very definite effects in journalism.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression | Journalism | Network Law

June 03, 2005

ICANN Doesn't Censor, Governments Do

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Posted by Ernest Miller

Everyone has commented on the initial reports concerning the new ".xxx" top level domain approved by ICANN. For example, see my initial post (ICANN Approves '.xxx' Top Level Domain). However, there is more to learn as the decision is analyzed.

Of course, those behind the domain are very concerned with the free speech issues involved. They've even brought well-known First Amendment attorney Robert Corn-Revere onboard as retained counsel. In a post to the ICANN ".xxx" thread, he defends the .xxx domain from charges that it will be made mandatory in the US (Legal Protections for the Voluntary Nature of the .xxx Domain).

But if the U.S. government tried to require use of a .xxx address by designated entities, such a regulatory scheme would likely be found to be unconstitutional.
Ok, so it would be unconstitutional to mandate use of ".xxx" in the US. But would it be unconstitutional to require libraries and schools to block access to ".xxx" on pain of not getting federal funds so long as a patron can view .xxx domains