Category: Politics

Internet Freedom as Party Plank with Cormac Flynn (Podcast)

During the SOPA battle, I continually tried to argue that it was fine to distrust media conglomerates but that it was not rational to simultaneously turn a blind eye to the political influence of Silicon Valley. Last week, a handful of Democratic representatives sent a letter to the DNC requesting a new plank in the party platform.  The language was drafted or backed by three Northern California representatives — Zoe Lofgren (16th), Anna Eshoo (14th), and Doris Matsui (5th), and they were joined by Jared Polis of the Colorado 2nd.  The language requested reads as follows:  “Democrats should explicitly affirm our staunch commitment to online free expression, to protect privacy from overbroad surveillance, to a free and open Internet, and to innovation in digital services.”  There’s nothing inherently negative about this language. In fact, it’s so generic that it begs the real question:   Who or what is behind it?

To discuss the relevance of this latest development, I spoke with my colleague Cormac Flynn.  Cormac has been a democratic party operative for more than 25 years. He has served as a campaign manager or finance director at the state, local, and national levels; and he is today Vice President for State Policy and Program Planning at the League of Conservation Voters.

NOTE – 9/4/12:  This article from The Washington Post reports that the Democratic Platform will include language committed to an open Internet that includes protecting intellectual property and providing cyber security.

Is copyright a threat to free speech?

This is a piece I wrote as a guest post for The Copyright Alliance. It got the folks over at TechDirt into a lather, but I suspect that’s because it wasn’t read or read very carefully by most of them.  

Not only have Copyright and Free Speech coexisted peacefully for the entire history of the Republic, but I would go so far as to suggest that Copyright is both literally and figuratively the money where our proverbial mouth is when it comes to the power of the First Amendment.  Think about it:  we are not only free to criticize our government, but if we’re really good at it (like Lewis Black), we’re entitled to make a pile of cash doing it.  How cool does that make America?  I say pretty cool, but there are those who seem to think the enterprise piece of the equation somehow diminishes the freedom part.  Au contraire.

If the U.S. is founded on one idea above all others, it’s that there is a link between free enterprise and freedom itself. Yes, this ideology has its flaws, and we’re still living through the economic woes of certain kinds of enterprise run amok; but let’s not throw out the baby with the bankers just yet. I believe it is no accident that we grant special rights of enterprise to those who exercise free speech in the form of books, music, and the performing and visual arts. After all, the First Amendment guarantees the right of anyone on U.S. soil to speak, but it in no way guarantees that everyone has something to say.

I know this may be hard to believe in the age of Tweetdecks, blogs, and threads; but all speakers are not created equal. Those who speak well enough to do it for a living have benefitted society in precisely the way intended by Article I Section VIII of the Constitution; and while you may quarrel with a particular form of expression, you can’t quarrel with the trillions of dollars in economic activity derived collectively from all works. Still, the mental contortionists of the copyleft claim that copyright, in the magic wonderland we call The Digital Age, now threatens Free Speech. And their position reminds me of another First Amendment stumper:  that same-sex marriage threatens the Freedom of Religion.

As alluded to in one of my recent posts the Kantian principle that your rights end where they infringe on the rights of another is logically implicit, if not explicit, in the broad, human rights established in our laws.  In a nutshell, society functions because most of us agree that your pursuit of happiness does not extend to a right to, say, drive an ATV across my yard and tear up the garden. Strangely, though, we often encounter folks trying to argue this principle in reverse — i.e. that my right to restrict trespassing infringes on your right to drive an ATV wherever you please.  Yeah, this sounds dumb because it is; but the logical construct is applied by religious zealots regarding same-sex marriage and by copy zealots (they actually have a religion now) regarding copyright.

The craftiest of gay-marriage opponents will argue that legalizing these unions infringes on their rights to be Christian in America, which is tantamount to undermining religious freedom.  Yes, anyone with two working brain cells can recognize that this isn’t sound reasoning so much as thinly veiled bigotry. Same-sex marriage can only be a threat to religious freedom if we agree that the zealot’s belief that homosexuality is a sin should implicitly influence our legal definition of marriage. There is no way to cut through this logical Gordian Knot without concluding that all marriage would have to be religious (and ultimately Christian) in order to be legal in the U.S.  And that would violate the definition I believe most of us apply to religious freedom.

Similarly, the copyright-threatens-speech proposal uses the illusion of reverse discrimination to suggest that when the producer exercises his copyright, this somehow infringes on the consumer’s desire to reuse or “share” the work as he sees fit, which amounts to a “chilling effect” on speech. Like the same-sex marriage thing, this argument glosses over personal bias to foster a logical leap to a shaky conclusion.  Copyright only threatens speech if we agree that the consumer’s right to reuse is more important than the producer’s right to treat his work as property. But we haven’t agreed to this for the same reason we don’t agree that you may drive an ATV over my lawn in the pursuit of happiness.  Freedoms have boundaries defined by the harm done to others; and free speech has managed to survive just fine despite the fact that it does not grant permission for plagiarism, perjury, libel, vandalism, disturbing the peace, hate crimes, or, indeed, theft of intellectual property.

If you hate Citizens United, think twice about that anti-SOPA campaign

In late January, Justice Scalia drew the ire of Democrats and civil libertarians when he said the following about the flood of soft-money, political ads flowing from the 2010 decision in Citizens United v FEC:  “I don’t care who is doing the speech — the more the merrier.  People are not stupid.  If they don’t like it, they’ll shut it off.”  I wish I could agree with the justice that people are not stupid, but I do agree that it isn’t the Constitution’s job to make us smart.

I’m the kind of pedant who read the transcripts of this case shortly after the ruling was made; and I haven’t been able to get the recent notion out of my head that there’s a connection between reaction to that decision and the anti-SOPA/PIPA campaign. I’ll do my best to explain.

Citizens United intrigues me because it raises a paradox in that everyone who fears the influence of the ruling likely believes it is someone else who is susceptible to the wiles of PAC spending. Presumably, we each think we’re well-informed enough to see through the charade and that it is only other folks who will be manipulated by corporate interests. Of course, those other folks probably think the same thing, hence the paradox.  If we were all truly well-informed, Scalia would be right, and the landmark ruling should be a pyrrhic victory for the manipulators.  They could spend themselves into oblivion and not move the agenda in the slightest.

To the contrary, we know that PAC and SuperPAC spending has tremendous influence, so at least some of us are indeed unable to see the puppet strings in the process, which raises this question:  If reliable data is the weapon against corporate influence, what if that “reliable data” is being disseminated by manipulating corporations in the first place?  And that, my friends, is what the Internet enables in mass quantity, which brings me to the anti-SOPA campaign.

Both Citizens United and the anti-piracy battle raise First Amendment issues, albeit from very different perspectives.  Scalia argued that a ruling in favor of the FEC in this case would have a chilling effect on free speech; and web industry lawyers argued the very same thing about certain sections of SOPA.  While it would take a very long article to compare and contrast the First Amendment particulars of these two topics, an underlying principle that both appear to share is that the best way to protect free speech is to have more speech.  If we look at the state of news and information in the digital age, I am personally dubious that more has made the information better.  As such, I find myself wondering, does more makes us freer, or does more actually mean more opportunity for more manipulators not only to tell us what to think, but to make us believe we thought of it ourselves?

The protest of January 18th has been hailed as a landmark event in direct democracy, but I personally believe it was exactly the opposite. If 10+ million people read either bill plus analyses from each side before making their decisions, I’ll eat my hat and a cardigan for dessert.  On the other hand, as I indicated in my last article in The Hill, if people were rallied by a manipulating industry to stop legislation in it’s tracks, then that is merely an illusion of democracy more insidious than all the lobbying and advertising in the world.  Specifically, it is a manifestation of the very thing we fear about Citizens United.

Behind the cacophony of aggregate and mutant hype that led up to blackout day was a rhythm section pumping out a steady beat of blogs, emails, legal opinions, and claims that came from organizations like the The Electronic Frontier Foundation, The Sunlight Foundation, Change Congress, Free Press, and several others.  All of these organizations are 501(c)(3)PACs that receive substantial support from tech and web companies like Google.  That in itself is not a smoking gun.  In fact, some of these organizations do some important, grass-roots work on civil liberties issues predicated on ideas that just so happen to dovetail with the business objectives of their backers.  That is why PACs are effective — they often stand for principles we hold dear.

The point is that this protest so many believe was about the people taking charge was, in fact, more industry-backed and coordinated than its joiners probably realized. And my fear is that we just taught the next manipulating industry how cheaply and easily they could blast some other piece of legislation. Hence, before we shout too loud against the influence of Citizens United, we should learn to recognize a river of soft-money when we’re swimming in it.