And for more background on the article, you can check out this initial post from him.

I am using the occasion of this symposium panel to blog about First Amendment Architecture. Law review “articles” generally add up to 30,000 words, or 60 pages, and have hundreds of footnotes and use semi-colons; this article is definitely a creature of that genre. My language in the piece is simple I think, but the blog genre is better for discussing the same arguments in bite-sized, digestible pieces. Several people have already blogged about my article briefly (saying nice things even), such as law professors Tim Wu (calling it “important work“) and Susan Crawford (calling it “a terrific article“), as well MSNBC host Dylan Ratigan (saying it addresses “important … First Amendment questions“) .

This first post is more about the amazing panel and about why I chose to research and write this article. The next pieces will present the article’s arguments more fully.

First, the amazing panel. I am so nerd-excited that two of the nation’s leading First Amendment scholars will critique and respond to the arguments I have been marking.  Harvard’s Yochai Benkler may agree with me at points and Lillian BeVier of UVA will likely disagree with me at many points. For those unfamiliar with Benkler, Larry Lessig calls him “the leading intellectual of the information age,” and he is a leading free speech theorist. He was also my professor and paper advisor when I was in law school. (That had a major effect on the trajectory of my life.) He is also one of the kindest people I’ve ever met. BeVier is also a giant in First Amendment scholarship, having made important contributions to constitutional law on impenetrable topics ranging from the state action doctrine to the public forum doctrine. I have learned a lot from her work. It’s an honor that she will take the time out of her schedule to disagree with me on the  panel. In a phone call, she has kindly called my article “um… ambitious.” I’ll take that.

Second, why I wrote this paper. My mom knows that I have led something of a double life over the past few years, with one foot in public policy and one in academia. (I now keep toes in policy and the think tank world.) But a lot of people from one world don’t realize I have worked in the other. For example, last week, I had lunch with technology lawyers in Washington, DC. These lawyers knew me from my work to help advance network neutrality and to help defeat the Stop Online Piracy Act (SOPA), etc. These lawyers asked me if I had ever heard of the Space and Cyberlaw Program at the University of Nebraska. I had indeed heard of it—while a law professor for a few years, I was a co-founder of the program and helped build it into a program educating many of the US Air Force’s cyber-lawyers and educating some of DC’s rising legal stars in tech. Similarly, years ago, while at Nebraska, on the day the DC Circuit struck down the FCC’s Comcast/BitTorrent order in April 2010, several of the other law professors on my faculty noticed the headlines on the front pages of the WashingtonPost.com, the NYTimes.com, and even the Huffington Post, which had run the ominous banner headline “The Day the Internet Lost.” While several students offered me condolences on the decision, three of my colleagues on the faculty asked me, “Hey, have you heard about this Internet case everyone is talking about?” I had indeed heard of—I had brought the case before the FCC and argued it (and lost) before the DC Circuit.

I saw the need for this article because of that double life. Much of my work strikes me as pretty unified: as a lawyer, working in several areas, I have thought about how to promote freedom of speech broadly for everyone. To me, freedom of speech and debate are necessary inputs in solving any of our nation’s problems, from homelessness and economic inequality to banking, the environment, and national security. Freedom of speech is what Larry Lessig would call a “root” issue; working on free speech is striking at a root issue.

Thinking about free speech brought me to media regulation, as Americans access so much of their political and cultural speech through mass media. That led me to work on the FCC’s media ownership rules beginning in 2005 to fight media consolidation, working with those at Georgetown’s IPR, Media Access Project, Free Press and others. I then turned to the Internet as the core speech tool of our age, and in 2006 worked on Congress’s first network neutrality bills, addressing an issue that people often called the foremost First Amendment issue of our time. It was through this work that I worked with Stanford’s Barbara van Schewick and Columbia’s Tim Wu, among others in academia. I also worked on unlicensed spectrum and privacy and copyright, including recently on SOPA, and wrote about national security and civil liberties, and global free speech matters. All of these were unified by free speech concerns.

But the policy arguments were not enough …  we needed to articulate a compelling constitutional framework. The media, telecom, and studio giants, and many speech scholars, assumed and advanced First Amendment framework that would render unconstitutional media ownership caps, network neutrality rules, and many other rules designed to promote individuals’ access to spaces to speak to receive diverse sources of speech. Just as Citizens United privileged the free speech rights of powerful corporations over the speech of average Americans, in my opinion, some common views of the First Amendment privilege giant telecom, cable, and media corporations over average Americans.

That is, even if Congress or the FCC did adopt the pro-free-speech rules or laws for which we advocated, the Supreme Court would be the next hurdle, as suggested by several industry lawyers and even prominent constitutional scholars. For example, while Harvard Professor Laurence Tribe and I agreed on the unconstitutionality of SOPA, we disagreed on the constitutionality of network neutrality.

So my scholarship has attempted to articulate a framework for advancing freedom of speech in our time–and my advocacy has worked, in a small way, to advance that same goal. In my scholarship, particularly in a series of three articles (here, here, and in Architecture), I try to build on the important work of C. Edwin Baker, Yochai Benkler, Jerome Barron, Jack Balkin, Owen Fiss, Joshua Cohen, and many many scholars in my generation (Greg Magarian, among others, comes to mind). I have tried to help build a framework that recaptures the First Amendment as a principle to empower all Americans, politically and personally, through access to plentiful, diverse communications spaces.

Architecture is my biggest contribution to that project, a project that many of us are working on from different angles.

So, over the next weeks, I will aim to post a few bite-sized blog pieces setting out its arguments.

(Cross-posted at Balkinization, Huffington Post, Stanford CIS Blog, Ammori.org)

This hit piece in Politico suggests some Democrats are foolish enough to think they should tear down Senator Wyden for his heroic work in fighting for a free and open Internet–something he’s been doing since the 1990s. In 2006, Senator Wyden authored the very first network neutrality bill. This year he fought to kill SOPA and PIPA. I’m biased since I was there both times, but he deserves praise, from his party and the nation, not a knife in the back.

While the piece focuses on Medicare, it seems timed to attack him for his work on SOPA, which is dead as of last Friday. Part of the Politico piece makes it explicit:

Driving the spurt from $2.3tn (£1.5tn) to $4.2tn (£2.7tn) will be the rapid rise of mobile internet access.

The study, commissioned by web giant Google, assumes that in four years 3bn people will be using the internet, or nearly 50% of the world’s population.

The research suggests that the UK is one of the most advanced e-commerce economies.

Another good reason to tread carefully when it comes to devising regulations for this interconnected and dynamic market.

Washington, D.C. – Nevada Senator Harry Reid released the following statement today on the Senate’s PROTECT I.P. Act:

I debated a representative from the Copyright Alliance, and we followed Reddit founder Alexis Ohanian.

The bills’ supporters have strongly argued that American sites are exempt from the bills and that the bills only target foreign sites. They made this argument to Congressmen even when the original SOPA bill was introduced, before the “Manager’s Amendment,” even though the first SOPA bill clearly and explicitly targeted American sites. More recently, on MSNBC, the NBC General Counsel repeated that argument over and over. This morning, at the State of the Net Conference, the Chamber of Commerce made the same argument: only foreign sites will be affected.

Even if this were a saving grace, the bills’ opponents claim that the bills in fact would significantly burden American sites. I wrote a post here that many people point to as the “definitive” post explaining how PIPA and SOPA target American companies. I explained that the foreign domains of American sites (Google.ca, Amazon.co.uk) subject American companies to punishment. I explained that the anti-circumvention provisions subject Twitter, Facebook, Google, WordPress and other American sites to injunctions if people use them to explain how to get around the bills’ remedies. I also noted that those provisions would make illegal encryption technology, like State-department supported Tor, an anti-censorship tool.  And I explained that all of the remedies burden American companies, by requiring American search companies, service providers, ad networks, and payment processors to take certain steps when faced with a court order about a liable site.

So I feel compelled to respond to a bizarre counterargument I heard today. This morning, at a conference, the counsel for the Chamber of Commerce said that Amazon.co.uk or Google.ca would not be covered by the bill because the bill only applies to “US-directed sites” and those sites with foreign domains are directed to foreign audiences. Later in the day, I spoke with USA Today, and, after my chat, the reporter called back to tell me that the other side said I was wrong about Amazon and Google being subject to the bill because of foreign domains. The argument again: Google.ca and Amazon.co.uk (and others like them) are not “US-directed sites.”

So I’d like to say: this is your best argument? It’s astonishingly weak for two reasons.

First, the bills define US-directed site to mean almost any site that you can access in the US. PIPA does not have a definitive test, but it lets courts determine which sites are directed to the US based on several indicia, including whether the “Internet site has reasonable measures in place to prevent such goods and services from being accessed from or delivered to the United States.” (PIPA, page 48.) Meaning, if the site hasn’t blocked American users from accessing the site, then it’s US-directed. The whole point of the Internet, though, is that sites are globally available, and not blocked for particular countries. SOPA, on the House side, merely requires “minimum contacts” sufficient for personal jurisdiction, which is a very low standard that would touch most sites–as any law student would learn after reading the International Shoe case in the second week of Civil Procedure. (See SOPA, page 9).

Second, this argument is unconvincing because it suggests that the bills would cover zero sites in the whole world. If Amazon.co.uk and Google.ca are exempt from the bill, then so are ThePirateBay.co.uk or ThePirateBay.ca. The point of SOPA and PIPA, in theory, is to target foreign sites, who are defined based on having foreign domain names. So, the Chamber is saying, “Don’t worry Google.com won’t be subject to the bills because that’s not a foreign site.” Now it says, “Don’t worry, Google.ca won’t be subject to the bills because it’s not a US-directed site.” Does that mean neither MegaUpload.com or MegaUpload.ca is subject to the bill? By my count then, the bills don’t apply to any sites that have a domestic domain name nor do they apply to any sites that have a foreign domain name.

The Chamber is trying to convince us that the bills apply to zero websites and companies? They wouldn’t apply to MegaUpload.com or MegaUpload.ca, Google.com or  Google.ca, ThePirateBay.org or ThePirateBay.fr?

This doesn’t strike me as highly convincing.Why would studios and labels spend millions trying to pass a bill that affects zero websites and companies?

They wouldn’t.

Yesterday night, I jumped on Al Jazeera English. Here is the clip, and I embed it below.

Other than a brief mention on CNN, MSNBC’s was surprisingly the first mainstream coverage of this issue.

Alexis was excellent and my mother tells me I did a fine job too.

Afterwards, I wished that Alexis and I had been able to have a mind meld into one magical person, like the superhero Firestorm.  He did a great job of discussing how these bills would make anti-censorship tools illegal. He noted that the State Department funds and encourages anti-censorship tools and these bills would make those tools illegal. I wish I had had the time to discuss that issue on Al Jazeera English. Considering Al Jazeera’s role in the Arab Spring and role of anti-censorship tools in autocratic regimes, I wish I could have conveyed that point on Al Jazeera’s English channel.

Over at MSNBC, the NBC General Counsel kept claiming that, based on his read of the bills, they only affected foreign websites. Alexis and Chris Hayes aren’t lawyers so it was hard for them to disagree with an experienced lawyer on statutory analysis. But I’m also an experienced lawyer, and I’ve  evaluated the statute and have detailed the exact sections of the bill that severely burden American sites. After the show, Chris retweeted my post on the issue. Alexis also linked to my post in his Google Plus posting about the show.

Glad that we have seen at least some coverage of these really important bills that could dramatically change the Internet for the worse–suppressing free speech, harming security, threatening innovators and start-ups.

Also, even if two of us can’t meld into one superhero, SOPA and PIPA have caused a firestorm online, as millions speak with a unified voice, and it won’t let up soon, even if that voice is silence.