Marvin Ammori

Like millions of others, this afternoon, I watched the US narrowly lose, in extra time, to Ghana.  I watched in a packed restaurant in Palo Alto, California, and when time expired, everyone applauded.  We lost, but our team played well throughout the games, and made us all proud.

Afterward, a friend called me with an idea.  Since he was watching from home, he could actually hear the announcers.  The announcers explained that the government of Ghana had sent 1,000 fans to the World Cup, but had to send them home already.  Ghana is a poor country.  Travel to the games is expensive, with travel, visas, and hotels.  But the government raised some funds from corporate and other sponsorships, as well as tax dollars, to send some of their citizens to the games.  In the end, the Ghana government’s budget could only afford to send the fans for the first round.

Ghana’s team, however, continued past that first round.  And now it will play next week, July 2, in the Quarter Finals, as the last African country standing, and the third African team to make it to the Quarter Finals ever.

And I bet they earned the respect of the American audience during their US game today.  But their fans still had to go home.

So why not pitch in, my friend asked? His idea: Americans should set up a way–through a simple text message or a website–to send over a few dollars to help send Ghana fans to the Quarter Finals.  Sure, for good public relations, some corporations could pitch in.

But this strikes me as the perfect opportunity to engage in some “people-to-people”  diplomacy, as the US State Department has called it, or even “fan-to-fan” diplomacy.  Considering the world’s craze for the World Cup, there is perhaps no better way to win “the hearts and minds” of soccer fans around the world than for American fans, as individuals, to contribute to sending fellow fans to cheer their own team.

After the Ghana-US game, this fan-to-fan diplomacy would reflect a kind of nobility among opponents–like when, during the Third Crusade, Saladin sent his opponent Richard the Lion-Hearted two replacement-horses in battle during; or when, in the Princess Bride, Inigo Montoya delayed his duel with Westley so he could catch his breath after climbing a cliff; or when, in Pulp Fiction, Bruce Willis couldn’t leave his opponent Marsellus in anguish and had to go back downstairs with a katana blade to save him.

Like that.  But on a global scale.

If someone has a link or a way to do this, include it in the comments, and I will update.

NPR had an excellent short piece on the laws regarding US military engagement for cyberwar–something several of my students will be helpful in shaping.

Recently, the Senate confirmed General Keith Alexander to head U.S. Cyber Command, a command dedicated to protecting US military networks from cyber-espionage and cyber-attack.  While the military is recruiting and training “fighters in the cyber domain” (read, people with technical skills), the military also needs a legal framework for engaging in cyber activities (needing people with legal skills).

The US military adopts and follows rules of engagement.  These are rules on how to engage the enemy–including when force is authorized, what kind of force is authorized, and who can authorize it.  These rules are related to our international obligations–undertaken in treaties and based on custom–referred to as the laws of armed conflict.  The rules of engagement cannot violate our international obligations, so we can think of the laws of armed conflict as outer bounds of the rules of engagement.  Often, our rules of engagement will be even stricter–providing, say, greater protection for civilians and neutral countries.

The NPR story discusses how the US Cyber Command is grappling with the legal issues.  Some include: who in the chain of command can authorize a counter-attack under particular circumstances; when and how can the military respond to an attack being routed through a neutral country (considering, for example, the Hague Convention); when is a preemptive cyber strike justified?

While teaching, I ask these questions, and others like them, every year in a class on Global Communications and Cyberwarfare Law.  We spend weeks on these issues–none of which yet have clear answers.

And, in my class, every year has been one US Air Force JAG attorney getting an LLM degree in the University of Nebraska’s Space & Telecom program.  After receiving the LLM, that JAG returns to the military to advise on cyber law and policy.

And I’m quite proud of them, for their hard work and for the task they’ve taken on for the nation.

So I’ll brag for a moment.

Our first wrote an excellent LLM thesis arguing that, on balance, a new cyberwar treaty is unnecessary.  She has been an advisor to Air Force’s “Cyber Command,” officially known as the 24th Numbered Air Force.

Our second is completing her thesis on how some domestic telecom rules could impede cybersecurity.  She will soon help advise the US Cyber Command.

Our third, who begins in August, has big shoes to fill.  But he has already impressed me when I met him at a recent conference we had in Nebraska.

So, at any rate, this is a post bragging about my excellent students and how proud I am of them.  I have enjoyed the intellectual challenge of working on such complex legal issues with the exceptional lawyers that the Air Force has sent to our program. And it’s an important challenge.

But this also gives me the opportunity to convey how thoughtfully and systematically (it seems from my point of view) the US military is addressing the legal, and even ethical, issues in this new space.  They should be commended.

In 1995, wearing her “academic hat,” Elena Kagan gave a speech to the National Association of Broadcasters, the Newspaper Association of America, and the Libel Defense Resource Center on the Relationship Between First Amendment Doctrine and Technological Change.

In the speech, she said something that would have been welcome to the broadcasters in the room: that the usual constitutional rationale resulting in “lesser” constitutional protection for broadcasters’ speech was senseless. Kagan told the audience:

For example, did the scarcity rationale ever make sense with respect to broadcasting? Perhaps courts should only with great forethought and caution determine that new technology demands a new legal framework.

The consequence to her assertion is simple: if this key rationale, “scarcity,” is senseless, then broadcasters like ABC and Clear Channel deserve increased constitutional protection for their speech.  And this increased protection would come from judges and Justices (such as a Justice Kagan) striking down congressional and FCC rules on broadcasters.

In mocking the scarcity rationale, Elena Kagan was disagreeing with Supreme Court majorities, as no majority has yet voted to abandon the scarcity rationale.

Kagan was, however, agreeing with the broadcast lawyers in the room.  She was also agreeing with Justice Clarence Thomas, who has devoted concurrences to attacking the rationale, siding with broadcasters.  But Justice Thomas and Kagan have many allies on this one–perhaps the majority of conservative and liberal free speech scholars at the time would have agreed that the scarcity rationale made no sense. Her statement would have been almost uncontroversial.

But, if Dean is confirmed to the Court, she will likely understand why the Supreme Court has never abandoned the rationale, despite the often off-hand academic attacks.  The real-world consequences of eliminating the scarcity rationale would be far-reaching–resulting in destabilizing the framework for communications in our society and producing outcomes adverse to individual speech rights.

These consequences are something that most speech scholars (including Kagan in 1995) generally overlook. This is  understandable as–with our specialized academic culture–many speech scholars are simply not expert in or even aware of the rules governing media, but necessarily specialize in some other important aspect of speech doctrine.

But the “unintended” consequences of eliminating the scarcity rationale are real.  The consequences include heightened judicial aggression (1) against some long-established campaign finance rules (both disclosure and access rules), (2) against government rules (with 80-years of precedent) for assigning frequencies to those who communicate wireless-ly from CBS to Verizon (paraphrasing Larry Lessig and Yochai Benkler, eliminating the scarcity rationale would make CBS “unconstitutional”), (3) against numerous media ownership limits designed to ensure that a small handful of corporations do not control the public’s sources of information, (4) against rules promoting children’s educational programming, and (5) against rules promoting noncommercial programming on satellite TV.

Indeed, while overlooking these consequences, scholars’ desire to eliminate the scarcity rationale seems targeted at exactly one 40-year-old case (called Red Lion, discussed below) that upheld a law that has now been repealed (and dead) for over 22-years.  But eliminating the far-reaching scarcity rationale to undermine Red Lion is like cutting off your fingers to clip your (already clipped) fingernails.  In fact, considering the far-reaching effects, it’s more like axing off your entire arm.  The scarcity rationale, senseless as it may seem, underpins many decisions that speech scholars–and most Americans–would strongly endorse.

I write this post in three parts.

I. I briefly explain the scarcity rationale, and do so from the point of view of its critics. Based on their understanding of the rationale, the rationale is as senseless as Kagan says.

II. I continue with real-world consequences, which are noted above.  Dozens of rules–obscure but highly significant–would be constitutionally suspect.

III. If the scarcity rationale doesn’t make sense but generally leads to good results, then a better understanding is necessary.  I briefly note what I think the scarcity rationale is really about, and which other rationales would place the many scarcity-supported pro-speech outcomes on firmer footing.

Continue reading →

Those interested in poking around in Dean Elena Kagan’s documents can turn to her Senate Committee Questionnaire, filed when she was appointed Solicitor General.

Those interested in free speech & technology issues will find at least two documents, both from 1995, of some interest.

In one, titled Remarks – On Constitutionality of Speaker-Based Restrictions at American Bar Association Panel on Communications Law on the Questionnaire (but more simply titled “Remarks on Turner” in the actual file), she discusses Turner Broadcasting, a case that may be important for the future of media and Internet regulation.  She found the speaker-preferences in that case worthy of even more heightened scrutiny than the majority imposed (and I think the majority imposed inappropriately high scrutiny).

I think her views were  in the mainstream of liberal thought back then, though perhaps not now.  The second Turner seemed more appropriately deferential to Congress (not to the cable companies) perhaps partly because of Justice Breyer joined the court.

In a second one, titled Remarks – On Relationship Between First Amendment Doctrine and Technological Change at Libel Lawyer’s Conference, which was apparently a speech to Newspaper Association of America, National Association of Broadcasters, and the Libel Defense Resource Center, she said broadcast doctrine’s scarcity rationale never made sense (which would have been a standard thought among liberal scholars then and now, though I disagree with the consequences of that thought).  She also said that judges should apply standard First Amendment doctrine to new technologies, which may not tell us too much other than that she disagreed with the perceived “different” standard applying to broadcast because of the scarcity rationale. But it could also mean she is endorsing what Justice Souter called “first, do no harm” and Justice Breyer called “analogical reasoning” in their opinions in the Denver Area case: namely that Justices shouldn’t rush to adopt new (or even existing) standards for new technologies and should “wait and see” as the technologies evolve.

I am going to write up some more on these two, mainly as springboards to discuss the issues, rather than as discussions of Kagan’s speeches 15 years ago.