Category: First Amendment rights

Categories
First Amendment rights media and media people

Journalism Codified

The great revolutionary idea at the time of our nation’s independence rubs against the grain of politics and “statecraft,” as practiced by khans, kaisers, and kleptocrats: divide and conquer, divide and rule. It is no wonder that the art of making legal distinctions is so often based not on human rights but governmental convenience.

Take the right of a free press.

The notion of open government has it that the right to participate in the dissemination of knowledge (particularly information about government) is to be an individual right. Modern Freedom of Information Act (FOIA) laws are a great example of government accommodation of this right.

But the Michigan House is now attempting to restrict access to state information by trying to set up a definition of journalist, making it easier for journalists to finagle data from government, harder for lone individuals. The state’s House Judiciary Committee just approved HB 4770, which does a number of things, including setting very particular definitions of terms like “newspaper” and “journalist.”

All the better to make the practice of publishing information about government more of a privilege than a right.

This was made even clearer at the federal level, by Senator Diane Feinstein, whose support for a new “shield law” to protect journalists is best understood by its limitations: bloggers, you don’t count. And she actually referred to a “special privilege” to publish. Not a right guaranteed by the Constitution.

Politicians like it when they have credentialed, easy-to-identify (and easier-to-manipulate) professional journalists to contend with.

Citizens with those rights? Why, it drives them crazy.

Crazy enough to try to codify what a “journalist” is, anyway.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights national politics & policies too much government

Nuking the Net?

The military network that later combined with other networks to “make the Internet” was started out with an interesting purpose: to establish a communication system that could withstand nuclear strikes.

What if the United States were hit by multiple nuclear bombardments? How would survivors communicate? The protocols of the Internet allow for radical decentralization, which allows communications to get around nuked hubs.

Now, around the world, governments are trying to control this decentralized Net, taking down or otherwise preventing citizen access to Web services and sites (China, Britain, Australia, for example), and (most resolutely in China and the United States) preventing communication that cannot be “listened in” upon.

It’s almost as if governments are “nuking the Internet.”

The latest case? Lavabit. This Internet company has specialized in encrypted communications. Last week its owner and operator, Ladar Levison, made a public statement:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on — the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise.

In an interview with Democracy Now, Levison hazarded that, “if the American public knew what the government was doing,” the government “wouldn’t be allowed to do it any more.” But so far, he’s speaking very carefully and not elaborating on what the government wanted him to do with his company.

It’s almost as if Congress nuked the Constitution.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights media and media people national politics & policies U.S. Constitution

Dick Durbin’s Dangerous Idea

Politicians think in terms of institutions. If you identify yourself as an individual, a mere citizen, pfft: you’re nothing. But say you are from a lobbying group, or a government bureau, or a news organization — suddenly you matter.

That’s even how they interpret the Constitution.

They are wrong.

Back in May, Illinois Sen. Dick Durbin expressed doubt whether “bloggers, or ‘someone who is Tweeting,’ should be given media shield rights.” He believes a big unanswered question looms:

What is a journalist today in 2013? We know it’s someone that works for Fox or AP, but does it include a blogger? Does it include someone who is tweeting? Are these people journalists and entitled to constitutional protection?

Durbin thinks he’s both clever and profound to ask “21st century questions about a provision in our Constitution that was written over 200 years ago.”

But he is actually missing the whole enchilada, the point of the Constitution.

First, our two-century old freedoms don’t have an expiration date. Second, individuals have rights, not “institutions.” And not because we belong to a group. Either everyone has a basic right, or no one does.

Glenn Harlan Reynolds countered Durbin’s institutional prejudice with a fine piece in the New York Post, where he takes a common sense position: “a journalist is someone who’s doing journalism, whether they get paid for it or not.”

Reynolds reminds us that, in James Madison’s time, “it was easy to be a pamphleteer . . . and there was real influence in being such.”

Just so for today’s Tweeters and bloggers.

Hey: as far as I’m concerned, you’re being a journalist just for commenting on this at ThisIsCommonSense.com.

I’m Paul Jacob.

Categories
First Amendment rights national politics & policies

Imprisonable Speech

Most of the media is finally examining the lies that the Obama administration told ─ is still telling ─ regarding last September’s terrorist attack on the American consulate in Benghazi.

A matter worth investigating, as are wider questions regarding U.S. involvement in Libya.

But as the deceptions unravel, too few ponder the fate of one Nakoula Basseley Nakoula, ostensibly jailed for parole violations. The terms of his parole had prohibited him from using computers or the Internet without his parole officer’s approval. Obviously, Nakoula did use that technology to produce and distribute his anti-Islamic video, widely condemned for being cheesy, among other sins.

It was this video that Clinton and others blamed for inciting the attack in Benghazi.

Okay. The man violated parole. But many were eager to see Nakoula punished not because of that violation but because he exercised his freedom of speech in a way that offended people. We have also learned that soon after the attack, then-Secretary of State Hillary Clinton told Charles Woods, father of one of the slain, that the U.S. would make sure that “the person who made that film is arrested and prosecuted.”

At the least, Clinton was boneheaded to thus imply that the right to freedom of speech was or should be no safer in the U.S. than in Egypt. And considering all the circumstances here, it’s also fair to ask whether Nakoula would have ended up back in a jail cell sans Benghazi cover-up.

Could it possibly be that he is a political prisoner?

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights free trade & free markets government transparency national politics & policies

Your Taxes, in Small Type

The business of business is to profit by helping others. The business of government is to make sure that businesses don’t profit by cheating others.

Unfortunately, sometimes it’s the governments that cheat.

Take the airline industry. Though substantially deregulated by the early 1980s, government has not treated it in an exactly laissez faire manner since. First there are the taxes, quite heavy. And recently the Department of Transportation decided that it must regulate the way in which airlines may advertise their prices . . . and the taxes. That is, the DOT insists that the “total price” — by which it means the price-plus-tax — must be shown prominently, with the tax portion “presented in significantly smaller type than the listing of the total price.”

Talk about regulatory micromanagement!

Now, this rule isn’t something Congress cooked up. It’s the result of a bureaucracy gone wild.

And the rule has one obvious effect: It shields government from consumer criticism, showing bureaucrats at their most self-serving. About one fifth of every airline ticket goes to the government, and folks in government don’t want you to know that.

This being the case, you might think — as George Will does — that the First Amendment would apply, especially since the First Amendment is now routinely held as protecting political speech more strictly than commercial speech. But, so far, courts have ruled for the taxing and regulating bureaucrats, not the competitive airlines. Or consumers.

Frequent fliers (I’m one) should hope the Supreme Court justices take up the case, which shows why economic and political freedom go best together.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights U.S. Constitution

Earnest Umbrage Goes Indecent

You’ve probably seen Hillary Clinton in a bikini.

She didn’t pose for that famous photo. No paparazzo snapped it. It was constructed in Photoshop, with her head placed on a somewhat more buxom model’s body. It was a joke.

I’m not sure I “get” the joke completely. Sure, take the Pompous Pol and turn her into a pinup. But, still.

Also not very funny was the recent Photoshopping of Georgia State Rep. Earnest Smith’s head onto the body of a porn star. Andre Walker did the work, as he confessed on Monday. “Rep. Earnest Smith Shows His Thin Skin, Says I Have No Right to Make Fun of Him,” Walker amusingly titled his Georgia Politics Unfiltered piece. The picture? Less amusing.

But de gustibus non est disputandum and all that.

It’s not as if the political mockery that the Founding Fathers engaged in was nice, or even decent.

Well, sooner than you can say “Alien and Sedition Act,” Rep. Smith co-sponsored a bill, HB 39, to make Photoshopping politicians onto nude or indecently photographed bodies a misdemeanor, subject to a $1000 fine.

Earnest Smith summed up his case with PC sanctimony:

No one has a right to make fun of anyone. You have a right to speak, but no one has a right to disparage another person. It’s not a First Amendment right.

He couldn’t be more wrong. The Supreme Court has famously come down on the side of making fun of politicians.

Legislators’ biggest problem is that they want to legislate, even where inappropriate. Maybe they should mandate tests in constitutional law before they are allowed to represent us.

Or perhaps “Earnest” should take a lesson in Irony. Or in “lightening up.”

This is Common Sense. I’m Paul Jacob

 

 

Categories
First Amendment rights judiciary

Google Vindicated

In 2009, I noted that an Italian court was trying three Google executives for violating Italian privacy laws. The three soon received six-month suspended jail terms for being “too slow” to remove a video from YouTube that depicted the bullying of an autistic child. Google had pulled the video as soon as told about it.

The unjust conviction has now thankfully been reversed.

At the time, Google rep Bill Echikson complained that his colleagues had been convicted although they had neither uploaded the video nor reviewed it before it was posted.

A key word is “review.” Must any Internet host of user-posted content review such content before it is published or else risk incarceration? Of course, “hosted” content covers the gamut of Internet content. Few website publishers provide their own servers.

If a publisher must obtain special approval from Facebook, Google, WordPress or any other platform provider before tossing something onto the web, that’s the death knell for freedom of speech and press on the Internet. At best, the pace of publication would slow to a crawl. At worst, censorship by Web-service providers would become rampant — except when providers suspend their services altogether for fear of non-suspended jail time.

Perhaps if the bad Italian precedent had been allowed to stand, the worst would not have come to pass. Perhaps only rarely would we see a horrific conviction exploiting that precedent, and perhaps only in Italy. But why take even one step down that road?

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights free trade & free markets too much government

Unfree Financial Speech

Can you get in trouble with the law — or at least a government agency’s unlimited regulatory power — for peacefully telling the truth?

You can, despite the protections articulated in the First Amendment and the greater respect sometimes accorded to freedom of speech than to other constitutionally protected rights.

It is possible because when they assault speech, government officials claim to be opposed not to the right to speak freely but to something else. They say they’re combating lung cancer, the influence of money on politics, or the unequal distribution of information to investors.

This summer, Reed Hastings of Netflix committed the sin of boasting on Facebook that monthly viewing of Nexvids “exceeded one billion hours for the first time ever in June.” Sounds innocent enough.

Come December, though, and the Securities and Exchange Commission has threatened to bring civil charges against Netflix for allegedly violating “public disclosure rules.” SEC Regulation FD requires public companies to make “full and fair disclosure” of “material” information that is not already public.

The SEC still thinks that 244,000 Facebook subscribers don’t fully and fairly constitute the public, but the communication cannot by any reasonable, modern construal be a case of offering “insider information.” How much more “outside” from the back rooms of a corporation can you get than Facebook?

The absurdity, here, lies in the SEC’s rules and its interpretations of those rules — and in the blind, confused, bankrupt way bureaucracies, which don’t go bust as the companies they oversee can, enforce their rules.

That is why Bernie Madoff slipped through the SEC’s fingers for years, while Netflix finds itself in hot water for a Facebook posting.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights national politics & policies political challengers

Silence, Please?

At this time in an election year, condemnations of “negative” political ads crescendo to fortissimo. But hey: Are folks really so attached to watching the standard menu of TV advertisements for GEICO, Viagra, and Chia Pets?

I doubt it. I think they worry about what such nasty attacks say about our political process. Granted, many 30-second political spots stretch the truth like a pretzel, though not any more than the candidates regularly do in person.

Still, political debate today is no nastier than it was when Washington and Adams and Jefferson roamed the earth.

And TV wasn’t even very big back then.

“An onslaught of negative political advertisements in congressional races,” the New York Times relates, “has left many incumbents, including some Republicans long opposed to restrictions on campaign spending, concluding that legislative measures may be in order to curtail the power of the outside groups behind most of the attacks.”

Incumbents are smart . . . and informed about campaigns. I’ll bet they know that in the 54 races lost by incumbents in 2010, Super PACs spent on average over $900,000. In races incumbents won, about $75,000.

“Incumbents have a lot more money than challengers do,” Professor Bradley Smith, former Commissioner of the Federal Election Commission, points out, “and Super PACs help to level that playing field and make challengers competitive.”

Incumbents think that elections are a time for them to speak. It’s all about them. Plus, no one — great, lousy or mediocre — likes to be attacked.

But elections in a free society are a time for everyone to speak.

This is Common Sense. I’m Paul Jacob.

Categories
ballot access First Amendment rights general freedom initiative, referendum, and recall

Concerned and Confused

Why call it “political correctness,” when it’s simply “political” and so terribly incorrect?

Whatever we call it — “a totalitarian impulse” comes to my mind — placing Angela McCaskill on administrative leave from her job at Gallaudet University is just flat-out wrong.

“It recently came to my attention that Dr. McCaskill has participated in a legislative initiative that some feel is inappropriate for an individual serving as Chief Diversity Officer,” Gallaudet President T. Alan Hurwitz wrote, last week, on the University’s Facebook page. McCaskill’s alleged transgression was to sign a petition to refer the Legislature’s same-sex marriage law to the ballot for Maryland voters to decide, and potentially overturn.

Hurwitz didn’t mention any specific policy violated by McCaskill. Worse, while acknowledging her “right to sign a petition,” Hurwitz added, as if in clarification, that “many individuals at our university were understandably concerned and confused by her action.”

There appears to be much confusion at Gallaudet . . . about the meaning of freedom.

President Hurwitz, who faces criticism from both proponents and opponents of the same-sex marriage referendum that started this fracas, claimed to be confident that a “resolution of this matter can be reached,” hazarding that it “will require that she and the university community work together to respond to the concerns that have been raised.”

A “resolution”? McCaskill has an attorney, and the greater likelihood is a large lump sum settlement for violating her civil rights.

This is Common Sense. I’m Paul Jacob.