The Progress & Freedom Foundation Blog

Lots of good things in The Washington Post today following up on U.S. Secretary of State Hillary Clinton's historic address last week about the importance of global Internet freedom. First, The Post has published a powerful supporting statement from Sweden's Minister of Foreign Affairs, Carl Bildt, entitled, "Tear Down These Virtual Walls." Bildt notes that:

Two decades ago a wall made of concrete, built to divide the free and unfree, was torn down. Today it is the freedom of cyberspace that is under threat from regimes as keen as dictatorships past to control and limit the possibilities of their citizens. They are trying to build firewalls against freedom. At the end of the day, I am convinced they are fighting a losing battle -- that cyber walls are as certain to fall as the walls of concrete once did.

He then goes on to argue that, following Secretary Clinton's address last week, "We should now forge a new transatlantic partnership for protecting and promoting the freedoms of cyberspace. Together, we should call for all these walls to be torn down." He continues:

Much like the way the rule of the law is critical to protecting the freedoms we enjoy as citizens in our societies, and international law protects the peace between our nations, we must seek to shape the rules that will protect the rights and the freedom of cyberspace.

Importantly, The Washington Post itself also editorialized today about "The Internet War."

Yesterday's Supreme Court decision in Citizens United v. FEC essentially stands for the proposition that free speech is free speech regardless of the speaker. The 5-4 majority for the Court ruled that "We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion." (at 25) Echoing its early decision in Bellotti, the Court noted that "Political speech is 'indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.'" (at 33) "All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker's ideas." (at 35) "There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations." (at 37)

Somehow this has proven controversial, even radical, to some. But, as George Will correctly notes, "This was radical only because after nearly four decades of such 'reform' the First Amendment has come to seem radical. Which, indeed, it is. The Supreme Court on Thursday restored First Amendment protection to the core speech that it was designed to protect -- political speech." Essentially, the decision gets Congress out of the game of picking who, or what platform, deserves full First Amendment protection when it comes to uttering political speech. And there's nothing radical about that.

Indeed, as Justice Kennedy noted for the majority, there is nothing surprising about this reasoning once you realize that almost every other type legislative or regulatory speech restriction has been struck down as a violation of the First Amendment. "The law before us is an outright ban [on political speech], backed by criminal sanctions," Kennedy noted (at 20). "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." (at 33) Think about this for a second: Criminal sanctions or jail time for political speech! How in the world did we get to the point in this nation where criminalizing political speech became acceptable to our legislators? Ignoring the obvious answer--it's all about protecting incumbents--what is really "radical" here is not that the Supreme Court setting us back on the right path, but that our legislative branch has veered so far off of it.

This morning at the Newseum in Washington, DC, U.S. Secretary of State Hillary Rodham Clinton delivered remarks on Internet freedom and the future of global free speech and expression. [Transcript is here + video.] It will go down as a historic speech in the field of Internet policy since she drew a bold line in the cyber-sand regarding exactly where the United States stands on global online freedom. Clinton's answer was unequivocal: "Both the American people and nations that censor the Internet should understand that our government is committed to helping promote Internet freedom." "The Internet can serve as a great equalizer," she argued. "By providing people with access to knowledge and potential markets, networks can create opportunities where none exist."

Unfortunately, however, "the same networks that help organize movements for freedom... can also be hijacked by governments to crush dissent and deny human rights." Echoing Winston Churchill's famous "iron curtain" speech, Sec. Clinton argued that "With the spread of these restrictive practices, a new information curtain is descending across much of the world." She noted that virtual walls are replacing traditional walls in many nations as repressive regimes seek to squash the liberties of their citizenry. That's why the Administration's bold stand in favor of online freedom is so essential.

Importantly, Sec. Clinton made it clear that the Obama Administration is ready to commit significant resources to this effort. She said that, over the next year, the State Department plans to work with others to establish a standing effort to promote technology and will invite technologists to help advance the cause through a new "innovation competition" that will promote circumvention technologies and other technologies of freedom. Sec. Clinton also challenged private companies to stand up to censorship globally and challenge foreign governments when they demand controls on the free flow of information or digital technology.

That is particularly important because Secretary Clinton's speech comes on the heels of the recent news that Google and at least 30 other Internet companies were the victims of cyberattacks in China, which raises profound questions about the future of online freedom and cybersecurity. Sec. Clinton's remarks will make it clear to online operators that the U.S. government stands prepared to back them up when they challenge the censorial policies of repressive foreign regimes.

The negativity of political advertising is a constant complaint and has given rise to no end of proposals to regulate purely political speech despite the plain language of the First Amendment and obvious intention of the founders to prevent government from censoring criticism. The importance of this issue extends well beyond politics: With U.S. political advertising for all media expected to hit $3.3 billion in 2010, political ad spending constitutes a significant source of advertising revenue for all kinds of publishers. To put that number in perspective, it's just 1.4% of the $241 billion in advertising spending expected for 2010, but is nearly half as large the total spent on display advertising revenue (which makes up 1/3 of total online advertising revenue) in 2008. So as advertising revenues continue to decline and more advertising moves online, political ad spending is an increasingly important source of revenue for publishers of both traditional and new media.

But one of the more powerful arguments against such advertising is that it diminishes the effectiveness of advertising in general for all products and services--and potentially lowers revenue for publishers even more than is spent on political advertising. That's why some advertisers and even publishers could conceivably support restrictions on negative campaign ads. The problem with this argument is that it's just not true. That's the conclusion of this very interesting 1999 Stanford study by Shanto Iyengar and Markus Prior I just stumbled upon: "Political Advertising: What Effect on Commercial Advertisers?" The authors conclude:

Despite the inherent bias of all forms of advertising, people perceive product ads as generally truthful and interesting. In contrast, political ads are dismissed as dishonest, unappealing, and uninformative. When judged against political advertising, product advertising enjoys considerable public support....

They suggest two explanations for "the significant reputation gap between the two genres of advertising":

Over at Mashable, Ben Parr has a post ("Facebook Turns to the Crowd to Eradicate Offensive Content") expressing surprise that Facebook has a crowdsourcing / community policing solution to deal with objectionable content:

Did you know that Facebook has a crack team of employees whose mission is to deal with offensive content and user complaints? Their ranks number in the hundreds. But while most websites have people on staff to deal with porn and violence, none of them have 350 million users to manage... Now the world's largest social network found a way to deal with this shortage of manpower, though. Facebook has begun testing a new feature called the Facebook Community Council [currently invite-only]. According to a guest post on the Boing Boing blog by one of the council's members, its goal is to purge Facebook of nudity, drugs, violence, and spam.

The Facebook Community Council is actually a Facebook app and tool for evaluating content for various offenses... The app's tagging system allows council members to tag content with one of eight phrases: Spam, Acceptable, Not English, Skip, Nudity, Drugs, Attacking, and Violence. If enough council members tag a piece of content with the same tag, action is taken, often a takedown.

What Facebook is doing here is nothing all that new. Many other social networking sites or platforms such MySpace, Ning, and many others, do much the same. Video hosting sites like YouTube do as well. [See my summary of YouTube's efforts down below]**

No doubt, some will be quick to decry "private censorship" with moves by social networking sites, video hosting sites, and others to flag and remove objectionable content within their communities, but such critics need to understand that:

One of the themes you come across again and again in public policy debates about privacy, advertising, marketing, or even free speech battles, is the notion that the public at large is made up of mindless sheep being duped at every turn. And, as Berin Szoka and I noted in our paper "What Unites Advocates of Speech Controls & Privacy Regulation?" if you buy into the argument that consumers are basically that stupid then it logically follows that people cannot be trusted or left to their own devices. Thus, government must intervene and establish a baseline "community standard" on behalf of the entire citizenry to tell them what's best for them.

But there are good reasons to question the premise that consumers are blind to efforts to persuade or influence them -- regardless of what type of media content or communications efforts we are talking about. I was recently reading Communication Power by Manuel Castells and liked what he had to say about how so many media critics make this false assumption. Castells rightly notes:

Interestingly enough, critical theorists of communication often espouse [a] one-sided view of the communications process. By assuming the notion of a helpless audience manipulated by corporate media, they place the source of social alienation in the realm of consumerist mass communication. And yet, a well-established stream of research, particularly in the psychology of communications, shows the capacity of people to modify the signified of the messages they receive by interpreting them according to their own cultural frames, and by mixing the messages from one particular source with their variegated range of communicative practices. (p. 127)

That's exactly right, and it is even more true in an age of ubiquitous, interactive communications technologies. "The people formerly known as the audience" have the unprecedented ability to talk back, to compare notes, to collectively criticize and hold accountable those who previously held all the cards in the mass media age of the past. Most consumers are perfectly capable of judging the merits of advertising, commercial messages, or other content on their own; they cast a skeptical eye toward most claims but process those claims alongside other counter-claims, independent judgments, informational inputs, and "cultural frames," as Castells rightly argues. We need to give the public some credit.

Congresswoman, CALM Thyself! LA Times Eschews Eshoo Nanny State Bill to Regulate Ad Volume

The LA Times has come out swinging in a devastating editorial against Rep. Anna G. Eshoo's (D-CA) Commercial Advertisement Loudness Mitigation (CALM) Act, passed by the House on Tuesday. As Adam Thierer and I have discussed (here, here, and here), and as Ken Ferree notes here, this silly paternalist law would require the FCC to issue rules that broadcast and cable TV ads:

(1) ... shall not be excessively noisy or strident;

(2) ... shall not be presented at modulation levels substantially higher than the program material that such advertisements accompany; and

(3) [their] average maximum loudness... shall not be substantially higher than the average maximum loudness of the program material that such advertisements accompany.

The LA Times's pithy response: "Ads too loud? Try 'mute.'" Three cheers for trusting users to take advantage of the simple tools available to them to make these decisions for themselves (like the "mute" button on their remote), instead of leaping to legislative solutions:

Eshoo might have the public on her side, but as a representative of Silicon Valley, she should be more wary of having the government dictate technological solutions to problems that individuals can solve themselves. The market is already responding -- more than 30% of TV viewers use ad-skipping video recorders. Besides, as dissenting Republicans on the House Energy and Commerce Committee pointed out,"Americans' televisions still have volume control, and remote controls still have 'mute' buttons. Consumers do not need the government to come into their homes and operate their remote controls for them." With all the challenges facing the country, you'd think lawmakers could find better things to do than invite themselves into their constituents' living rooms.

Besides the broad philosophical precedent that this elitist law sets (consumers are too stupid and helpless to take care of themselves so government must do it for them), I explained in some detail five other reasons why this law is a terrible idea when I blogged about it in October:

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

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

Anti-Obesity Activists "Grease" Skids for Unconstitutional, Unnecessary Food Advertising Restrictions

At a public forum held Wednesday by the Federal Trade Commission on "Sizing Up Food Marketing and Childhood Obesity," activists called on Congress to pass legislation that would heavily curtail food marketing to children, including:

Rep. Jim Moran's (D-VA) "Healthy Kids Act" (H.R. 4053) would direct the FTC to conduct a rulemaking and decide what kinds of foods could be marketed to children, and FCC to ban or seriously restrict broad categories of food and beverage ads shown on children's programming.

Sen. Tom Harkin (D-IA) wants to repeal limitations a heavily Democratic Congress imposed in the late 1970's on the FTC's unfairness rulemaking authority over children's advertising after the agency ran amok.

Rep. Dennis Kucinich (D-OH) intends to introduce legislation to essentially tax so-called "fast food and junk food" marketed to children by eliminating the current tax deduction.

It's easy to pick on advertising as the cause of all of society's ills, but there's no hard evidence that food advertising is to blame for childhood obesity or that restricting food ads on television or the Internet will solve the problem. Howard Beales, now at George Washington University's business school, wrote the definitive law review article on this topic back in 2004, when he was Director of the FTC's Bureau of Competition: Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present. It is a true masterpiece.

Dan Jaffe of the Association of National Advertisers, brings his extraordinary expertise on this issue to bear in his comments (full comments in Word doc) to today's workshop, which update and expand on the themes Howard discussed in his 2004 article. As Dan describes in rich detail, industry is already responding to demands by parents and other consumers with healthier foods and self-regulation.

So, rather than restricting the free speech of advertisers, and thus diluting First Amendment rights in general, the FTC should use its existing authority to punish truly unfair and deceptive claims. Governments and schools should focus on educating kids and parents about eating healthier and exercising more.

My friend Pablo Chavez, Managing Policy Counsel of Google, brings to my attention the fact that the Daniel Pearl Freedom of the Press Act (H.R. 3714) was pending before the House today, and I'm happy to note that it passed late this afternoon. The bill, which is co-sponsored by Reps. Schiff and Pence in the House and is co-sponsored by Sen. Dodd in the Senate, would expand the examination of press freedom worldwide in the State Department's annual human rights report and establishes a grant program aimed at broadening and strengthening media independence internationally. Specifically, the bill would identify "countries in which there were violations of freedom of the press, including direct physical attacks, imprisonment, indirect sources of pressure, and censorship by governments, military, intelligence, or police forces, criminal groups, or armed extremist or rebel groups."

This is a worthwhile goal and a fine tribute to a great journalist, a first-class human being, and someone I was honored to briefly count as a friend in this world before he was murdered by terrorist scum in 2002. Indeed, some of my fondest memories from the mid-90s are of the times I would meet Danny Pearl for beers at Cap City Brewery or other bars in downtown Washington, DC. He was an up-and-coming star reporter covering telecommunications policy for The Wall Street Journal and I was just starting to make a name for myself as a policy geek in this field. Because I was working very closely with a number of Hill offices at that time and helping to craft some of what eventually went into the Telecom Act of 1996, Danny knew I had a lot of good inside information. And like any great journalist, he knew that enough beers and late-night banter would eventually get me to spill the beans about something I wasn't suppose to be sharing with a reporter! I didn't mind being an "unnamed source" in a couple of his stories, and the fact that he sometimes quoted me in others gave me and my career an unbelievable boost. I still remember sending my family the first big WSJ story I was ever quoted in. It was a piece Danny wrote back in '94.

Everyone now knows the tragic story of how Danny was abducted and murdered by terrorists in 2002. I remember how numb I went when I heard the news and still find it hard to fathom how such a gentle, down-to-earth soul could have been viciously murdered.