The Constitution and National Security: The First Amendment Under Attack
The New York School of Law
Showing posts with label Free Speech. Show all posts
Showing posts with label Free Speech. Show all posts
Sunday, January 23, 2011
Monday, October 18, 2010
Joseph Torres: Google's Evil Plan
Google's Evil Plan
By Joseph Torres
Save the Internet
...
The irony is that, while Google is colluding with Verizon on a deal that would allow for corporate censorship on the Internet, it is also working the State Department to pressure foreign countries to open up their markets to prevent government censorship abroad.
What makes this deal so problematic is that a federal court ruled in April that the Federal Communications Commission (FCC) did not have the authority to regulate the broadband industry. The decision threw out the legal framework adopted by the Bush administration to deregulate the broadband industry, a framework that has resulted in a broadband market dominated by companies like Verizon, Comcast, and AT&T.
At this moment, the FCC does not have the authority to prevent companies like Verizon from engaging in online corporate censorship by blocking or discriminating against certain content online. The FCC, however, can reestablish its authority to reregulate the broadband industry and protect the public from discriminatory business practices.
FCC Chairman Julius Genachowski has faced relentless pressure from the phone and cable companies to stop the FCC from moving forward. Instead of standing up for the public, his office has held closed-door meetings with Google, AT&T, Comcast, and Verizon, allowing these companies the opportunity to write their own rules that would restrict our free speech rights online.
The chairman announced last week that his office will end the backroom negotiations. But no matter how the chairman tries to put a positive spin on what went on at these meetings, we all know nothing good comes from federal agencies allowing themselves to be captured by industry.
If we are witnessing the beginning of the end of the open Internet as we know it, Chairman Genachowski wouldn't be the only one who deserves blame.
While the news media have been obsessed by the lack of bipartisanship in Washington, one story they have missed is how corporate campaign contributions have united both Democrats and Republicans to work together to kill an open Internet. Close to 80 Democrats have formed an alliance with House Republicans to kill net neutrality. They have written to the FCC, urging the Commission not to move forward with protecting an open Internet.
Rep. Gene Green (D-Texas), who has led the effort among Democrats in the House to undermine the FCC, and Rep. Fred Upton (R-Mich.) just introduced bipartisan legislation that would prevent the commission from acting to protect the public.
President Obama campaigned on a promise to take a "back seat to no one" in his support of network neutrality, a position he restated earlier this year. There's worry the White House now might retreat from that position since it wants the phone and cable companies to continue writing checks to Democrats during this midterm election.
To Read the Rest of the Report
By Joseph Torres
Save the Internet
...
The irony is that, while Google is colluding with Verizon on a deal that would allow for corporate censorship on the Internet, it is also working the State Department to pressure foreign countries to open up their markets to prevent government censorship abroad.
What makes this deal so problematic is that a federal court ruled in April that the Federal Communications Commission (FCC) did not have the authority to regulate the broadband industry. The decision threw out the legal framework adopted by the Bush administration to deregulate the broadband industry, a framework that has resulted in a broadband market dominated by companies like Verizon, Comcast, and AT&T.
At this moment, the FCC does not have the authority to prevent companies like Verizon from engaging in online corporate censorship by blocking or discriminating against certain content online. The FCC, however, can reestablish its authority to reregulate the broadband industry and protect the public from discriminatory business practices.
FCC Chairman Julius Genachowski has faced relentless pressure from the phone and cable companies to stop the FCC from moving forward. Instead of standing up for the public, his office has held closed-door meetings with Google, AT&T, Comcast, and Verizon, allowing these companies the opportunity to write their own rules that would restrict our free speech rights online.
The chairman announced last week that his office will end the backroom negotiations. But no matter how the chairman tries to put a positive spin on what went on at these meetings, we all know nothing good comes from federal agencies allowing themselves to be captured by industry.
If we are witnessing the beginning of the end of the open Internet as we know it, Chairman Genachowski wouldn't be the only one who deserves blame.
While the news media have been obsessed by the lack of bipartisanship in Washington, one story they have missed is how corporate campaign contributions have united both Democrats and Republicans to work together to kill an open Internet. Close to 80 Democrats have formed an alliance with House Republicans to kill net neutrality. They have written to the FCC, urging the Commission not to move forward with protecting an open Internet.
Rep. Gene Green (D-Texas), who has led the effort among Democrats in the House to undermine the FCC, and Rep. Fred Upton (R-Mich.) just introduced bipartisan legislation that would prevent the commission from acting to protect the public.
President Obama campaigned on a promise to take a "back seat to no one" in his support of network neutrality, a position he restated earlier this year. There's worry the White House now might retreat from that position since it wants the phone and cable companies to continue writing checks to Democrats during this midterm election.
To Read the Rest of the Report
Tuesday, May 18, 2010
Bill Moyers & Michael Winship: Chevron's "Crude" Attempt to Suppress Free Speech
Chevron's "Crude" Attempt to Suppress Free Speech
by Bill Moyers & Michael Winship
Bill Moyers Journal
Even as headlines and broadcast news are dominated by BP's fire-ravaged, sunken offshore rig and the ruptured well gushing a reported 210,000 gallons of oil per day into the Gulf of Mexico, there's another important story involving Big Oil and pollution - one that shatters not only the environment but the essential First Amendment right of journalists to tell truth and shame the devil.
(Have you read, by the way, that after the surviving, dazed and frightened workers were evacuated from that burning platform, they were met by lawyers from the drilling giant Transocean with forms to sign stating they had not been injured and had no first-hand knowledge of what had happened?! So much for the corporate soul.)
But our story is about another petrochemical giant - Chevron - and a major threat to independent journalism. In New York last Thursday, Federal Judge Lewis A. Kaplan ordered documentary producer and director Joe Berlinger to turn over to Chevron more than 600 hours of raw footage used to create a film titled CRUDE: THE REAL PRICE OF OIL.
Released last year, it's the story of how 30,000 Ecuadorians rose up to challenge the pollution of their bodies, livestock, rivers and wells from Texaco's drilling for oil there, a rainforest disaster that has been described as the Amazon's Chernobyl. When Chevron acquired Texaco in 2001 and attempted to dismiss claims that it was now responsible, the indigenous people and their lawyers fought back in court.
Some of the issues and nuances of Berlinger's case are admittedly complex, but they all boil down to this: Chevron is trying to avoid responsibility and hopes to find in the unused footage - material the filmmaker did not utilize in the final version of his documentary - evidence helpful to the company in fending off potential damages of $27.3 billion.
This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor - already under siege by severe cutbacks and the shutdown of newspapers and other media outlets - is vital to the public awareness and understanding essential to a democracy. As Michael Moore put it, "The chilling effect of this is, [to] someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."
In an open letter on Joe Berlinger's behalf, signed by many in the non-fiction film business (including the two of us), the Independent Documentary Association described Chevron's case as a "fishing expedition" and wrote that, "At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject's identity and voice are presented in the final report.
To Read the Rest of the Essay
by Bill Moyers & Michael Winship
Bill Moyers Journal
Even as headlines and broadcast news are dominated by BP's fire-ravaged, sunken offshore rig and the ruptured well gushing a reported 210,000 gallons of oil per day into the Gulf of Mexico, there's another important story involving Big Oil and pollution - one that shatters not only the environment but the essential First Amendment right of journalists to tell truth and shame the devil.
(Have you read, by the way, that after the surviving, dazed and frightened workers were evacuated from that burning platform, they were met by lawyers from the drilling giant Transocean with forms to sign stating they had not been injured and had no first-hand knowledge of what had happened?! So much for the corporate soul.)
But our story is about another petrochemical giant - Chevron - and a major threat to independent journalism. In New York last Thursday, Federal Judge Lewis A. Kaplan ordered documentary producer and director Joe Berlinger to turn over to Chevron more than 600 hours of raw footage used to create a film titled CRUDE: THE REAL PRICE OF OIL.
Released last year, it's the story of how 30,000 Ecuadorians rose up to challenge the pollution of their bodies, livestock, rivers and wells from Texaco's drilling for oil there, a rainforest disaster that has been described as the Amazon's Chernobyl. When Chevron acquired Texaco in 2001 and attempted to dismiss claims that it was now responsible, the indigenous people and their lawyers fought back in court.
Some of the issues and nuances of Berlinger's case are admittedly complex, but they all boil down to this: Chevron is trying to avoid responsibility and hopes to find in the unused footage - material the filmmaker did not utilize in the final version of his documentary - evidence helpful to the company in fending off potential damages of $27.3 billion.
This is a serious matter for reporters, filmmakers and frankly, everyone else. Tough, investigative reporting without fear or favor - already under siege by severe cutbacks and the shutdown of newspapers and other media outlets - is vital to the public awareness and understanding essential to a democracy. As Michael Moore put it, "The chilling effect of this is, [to] someone like me, if something like this is upheld, the next whistleblower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they're working for."
In an open letter on Joe Berlinger's behalf, signed by many in the non-fiction film business (including the two of us), the Independent Documentary Association described Chevron's case as a "fishing expedition" and wrote that, "At the heart of journalism lies the trust between the interviewer and his or her subject. Individuals who agree to be interviewed by the news media are often putting themselves at great risk, especially in the case of television news and documentary film where the subject's identity and voice are presented in the final report.
To Read the Rest of the Essay
Sunday, January 24, 2010
David Kairys: Money Isn't Speech and Corporations Aren't People -- The misguided theories behind the Supreme Court's ruling on campaign finance reform
Money Isn't Speech and Corporations Aren't People: The misguided theories behind the Supreme Court's ruling on campaign finance reform.
By David Kairys
Slate
Go back almost a century, to the time when the modern corporation was created, and you'll find laws that prohibit or limit the use of corporate money in elections. And yet this week, a 5-4 Supreme Court struck down the limits that Congress passed in 2002 in this tradition in the case Citizens United v. FEC.
The majority's ruling unleashes a new wave of campaign cash and adds to the already considerable power of corporations. The court's main rationale is that limits on using corporate treasuries for campaigns are a "classic example of censorship," as Justice Anthony Kennedy wrote for the majority. To get there, Kennedy depends on two legal theories that blossomed as constitutional principles in the mid-1970s: money is speech and corporations are people. Both theories are strange, if not simply wrongheaded—why, according to the Constitution or common sense, would money be speech or corporations be people? The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.
The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the "quantity of expression"—the amounts of money—can't be limited.
But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn't apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being "disruptive" and posing an "inconvenience" to others. In other words, in the court's view, some people's money is speech; others' money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits on the number of picketers.
The money-is-speech theory turns out to be a rhetorical device used exclusively to provide First Amendment protection for all money that wealthy people and businesses want to give to, or to spend, on campaigns. It also doesn't make sense under long established free-speech law. Spending or donating money to support or facilitate speech is expressive and deserves some protection. But money simply doesn't make it into the category of things that are and embody speech, such as books, films, or blogs. Traditional speech-law analysis would separate the speech from the conduct (or "nonspeech") elements of campaign spending and donation and allow considerable leeway to regulate the latter. Even as to "pure" speech, "compelling" government interests are overriding. And spending and donating money seem, among the traditional speech-law categories, a "manner" of speaking that the court has said usually can be "reasonably regulated."
The other basic theory supporting the ruling in Citizens United—the court's claim that, for some purposes, corporations are constitutionally, if not actually, people—comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades.
Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say "GM was embarrassed today"—they obviously don't and shouldn't have all the rights of people. For example, they don't have the right to vote.
In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don't function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends. In the wake of the court's ruling this week, will some corporations pick a party or politics while others channel unheard of amounts of money to both major parties? Will investors be influenced by a corporation's political portfolio?
The Citizens United decision will make it harder to achieve reforms opposed by major corporations and change business as well as politics. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.
To Read the Rest of the Commentary
By David Kairys
Slate
Go back almost a century, to the time when the modern corporation was created, and you'll find laws that prohibit or limit the use of corporate money in elections. And yet this week, a 5-4 Supreme Court struck down the limits that Congress passed in 2002 in this tradition in the case Citizens United v. FEC.
The majority's ruling unleashes a new wave of campaign cash and adds to the already considerable power of corporations. The court's main rationale is that limits on using corporate treasuries for campaigns are a "classic example of censorship," as Justice Anthony Kennedy wrote for the majority. To get there, Kennedy depends on two legal theories that blossomed as constitutional principles in the mid-1970s: money is speech and corporations are people. Both theories are strange, if not simply wrongheaded—why, according to the Constitution or common sense, would money be speech or corporations be people? The court has also employed theories not uniformly but, rather, as constitutional cover for dominance of the electoral system by corporations and by the wealthy.
The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the "quantity of expression"—the amounts of money—can't be limited.
But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn't apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting—their form of speech—the Hare Krishnas were being "disruptive" and posing an "inconvenience" to others. In other words, in the court's view, some people's money is speech; others' money is annoying. And the conservative justices have raised no objection to other limits on the quantity of speech, such as limits on the number of picketers.
The money-is-speech theory turns out to be a rhetorical device used exclusively to provide First Amendment protection for all money that wealthy people and businesses want to give to, or to spend, on campaigns. It also doesn't make sense under long established free-speech law. Spending or donating money to support or facilitate speech is expressive and deserves some protection. But money simply doesn't make it into the category of things that are and embody speech, such as books, films, or blogs. Traditional speech-law analysis would separate the speech from the conduct (or "nonspeech") elements of campaign spending and donation and allow considerable leeway to regulate the latter. Even as to "pure" speech, "compelling" government interests are overriding. And spending and donating money seem, among the traditional speech-law categories, a "manner" of speaking that the court has said usually can be "reasonably regulated."
The other basic theory supporting the ruling in Citizens United—the court's claim that, for some purposes, corporations are constitutionally, if not actually, people—comes out of the long history of the development of corporations. But the extension of corporate personhood to campaign speech is a controversial innovation of the conservative justices over the last few decades.
Corporations needed some rights usually reserved for people to function as legal entities, so that they could, for instance, make enforceable contracts and sue or be sued. But despite the common cultural personification of corporations—we can easily say "GM was embarrassed today"—they obviously don't and shouldn't have all the rights of people. For example, they don't have the right to vote.
In Citizens United, Justice Kennedy discusses business corporations as if they were clubs or political associations with political viewpoints and elected leaders. But corporate managers don't function as representatives or employees of shareholders, who have no say, no shared political views, and no expectation that their investments will be used for political ends. In the wake of the court's ruling this week, will some corporations pick a party or politics while others channel unheard of amounts of money to both major parties? Will investors be influenced by a corporation's political portfolio?
The Citizens United decision will make it harder to achieve reforms opposed by major corporations and change business as well as politics. Increasing the constitutional rights of corporations beyond their business purposes is really about increasing the rights and power of corporate managers. Government has enabled corporate managers to control huge accumulations of wealth without any personal risk—an arrangement that contributes to wild, bubble-producing economic swings and collapses. Citizens United invites that arrangement directly into politics and elections.
To Read the Rest of the Commentary
Subscribe to:
Posts (Atom)