The symposium will coincide with the 50th anniversary of the pivotal Supreme Court case New York Times v. Sullivan.

What interests me, fifty years after Sullivan, is how much the life of a free-speech lawyer has changed. The archetypical First Amendment lawyers of that era represented newspapers like the New York Times against libel suits like Sullivan’s in the US. The archetypical First Amendment lawyers of today, it seems, represent speech platforms like YouTube, Twitter, Tumblr, Wikipedia, and Automattic/Wordpress.com on a range of matters, from usage policies and privacy to copyright, and regularly address global issues.

Having spent much of my career in nonprofit advocacy and academia, I have taken part in many discussions about their work. Much of the leading thinking on freedom of press in the Internet age comes from academics like Jack Balkin, Yochai Benkler, Edwin Baker, Larry Tribe, Larry Lessig, Susan Crawford, Eugene Volokh, Greg Magarian, Danielle Citron, and many others. At the same time, alumni and current lawyers at the Office of Communication of the United Church of Christ, Media Access Project, Free Press, ACLU, the Electronic Frontier Foundation, CDT, PK, and many others, have helped to steer the future of free speech.

But corporate lawyers spearheaded the free speech triumph of New York Times v. Sullivan and I’ve been thinking how today’s lawyers at Google/YouTube, Twitter, etc. are their heirs in many ways. In this article, I’m hoping I can shed some light on if, how, and why that is. Or, as I often do while writing, I may change my mind.

Tech companies like Google and Twitter aren’t perfect, just as The New York Times and Wall Street Journal aren’t perfect. Yet, just as large corporate newspapers often have economic incentives to support freedom of press principles, so do today’s speech platforms. The unofficial tagline of Twitter is “The tweets must flow.” Journalists have profiled several of its speech lawyers as speech “defenders.” Google often hires lawyers with a background in free speech to design usage policies and address speech-threats abroad. Some of the most important free-speech controversies over the past few years have included hate speech on Facebook, the Innocence of Muslims on YouTube, the “blocking” of pro-choice text messages on Verizon, controversies over network neutrality and discrimination against speech technologies, proposed copyright legislation like SOPA/PIPA affecting Internet users and search engines, and the private/public blockading of Wikileaks. One difference between newspapers and speech platforms, of course, is that companies like WordPress.com and Google generally carry the speech of others, not the speech journalists who work there. Other differences include varying areas of law, the myriad judicial bodies at home and abroad that are more likely to affect global tech companies than city-based newspapers, and today’s potentially different norms and concepts that shape the field.

At this point, I plan to contrast and compare the role of tech lawyers in the development of free-expression doctrine with that of newspapers a half-century ago. I will probably focus on companies for whom I do legal work (or that employ friends who will speak with me). I also plan to interview lawyers at traditional publications like The New York Times, the Washington Post, and The Atlantic–partly because these traditional publications have a new set of challenges in the Internet age.

This is a topic I’ve discussed in my book (here) and something that Jeff Rosen has written admirably about, most recently in a New Republic article called the Delete Squad. Rosen once interviewed me for an article and called a legal case I handled “a model for the free-speech battles of the future,” so I’m guessing this article will give me the chance to interview him back.

Oh, and I should note, the companies I do some work for include Google and Dropbox, among others. And my work for them tends to focus on public policy and freedom of speech.

Today’s hearing will be worth watching, and could mark the beginning of efforts to enact meaningful reforms to our copyright system.

Congress has seemed reluctant to tackle copyright issues since the widespread blowback it received in 2011 and 2012 over SOPA and PIPA, controversial copyright legislation that many argued went too far to enforce copyright protections.

Already there’s been a great deal of speculation as to how the Judiciary Committee will approach copyright reform. Mike Masnick at Techdirt, who extensively covered the SOPA / PIPA bills, expressed cautious optimism about these hearings, and saw the subcommittee’s selection of witnesses for this first hearing as a promising sign that it wants to handle reform in a prudent manner.

Still, there has been a certain level of skepticism about the hearing. Mark Hachman at ReadWriteWeb expressed concern that Chairman Goodlatte’s past support for SOPA and CISPA means the Judiciary Committee as a whole will be unable to strike the right balance between ensuring compensation for copyright holders and ensuring innovation in new technologies and services continues, and will favor the copyright community’s interests over others.

David Lowery, a musician of Cracker and Camper Van Beethoven fame, wrote in Politico that he fears the views of the actual content creators will be ignored in this hearing. He argued that the perspective of the artists is crucial to meaningfully addressing problems in the copyright system and developing solutions to them, adding that he expects Chairman Goodlatte to include that community in future hearings.

There have also been calls for the subcommittee to not lose sight of the public’s importance during these hearings. Public Knowledge’s Sherwin Siy said that while the organization lauds the Judiciary Committee for addressing copyright reform, copyright law “can often be a barrier[] to everyday individuals’ ordinary uses of media,” and that Congress should “work to balance the interests of artists with those of their audiences and the public in general.”

While this is only the first in a series of hearings on copyright reform, concerns that Congress will ignore the views of the content industry, the tech community, or the general public are to be expected. No doubt we can expect to hear more from all sides as the Judiciary Committee continues its work on the issue.

Indeed, despite concerns about Congress’s ability to address copyright matters in a balanced way, Chairman Goodlatte’s reform effort could prove to be a positive step. Instead of rushing headlong into another effort to pass legislation (as some, including us, might argue was the case with SOPA), the subcommittee is taking a look at how the current copyright system is functioning, what is working well, what isn’t, and where there might be some areas of agreement so meaningful reform can occur. Chairman Goodlatte said that the goal of these hearings “will be to determine whether the copyright laws are still working in the digital age to reward creativity and innovation.”

Chairman Goodlatte and his subcommittee will have assistance from other quarters as well. On May 2, the National Academy of Sciences Board on Science, Technology, and Economic Policy (STEP) published a report entitled “Copyright in the Digital Era: Building Evidence For Policy.” Although the report was not designed to give recommendations to Congress, it is aimed at identifying data lawmakers need to make informed policy decisions. But the report makes clear that we need much more data about how the copyright system operates in practice to identify areas that need work and being devising solutions.

Given Chairman Goodlatte’s stated desire to learn rather than quickly advance a legislative agenda, today’s hearing should be a good starting point for addressing copyright reform issues.

Testifying before the subcommittee are Jon Baumgarten (former General Counsel of the U.S. Copyright Office), Laura Gasaway (UNC Law School Professor), Daniel Gervais (Vanderbilt Law School Professor), Pamela Samuelson (UC Berkeley School of Law Professor), and Jule Sigall (Assistant General Counsel for Copyright at Microsoft). All five witnesses are also members of the Copyright Principles Project, an effort launched in 2007 to bring together copyright practitioners, academics, and stakeholders to identify possible areas of agreement on how to improve the copyright system. In 2010 the Copyright Principles Project issued a report outlining 25 recommendations for reform, including encouraging registration of copyrights (not a requirement under current law), increasing the Copyright Offices technical and economic expertise, and a number of suggestions relating to the award of damages in infringement cases.

The hearing will begin at 2 pm – you can watch here.

I’ve been reading quite a bit about Glass, first with an eye towards public policy (privacy, data, etc.) and then with an eye to user experience.

User experience because two weekends ago I took part in a Startup Weekend competition. Our team included two designers plus two Google Pioneers. Pioneers, a smaller group than Explorers, are developers who were invited to one of two Google Glass hackathons. One of our Pioneers had even won a prize at the New York Glass hackathon.

After everyone on the team watched Timothy Jordan’s SXSW speech about developing for Glass, our team spent a lot of time thinking about how people will use Glass and how it may change our lives. We have continued thinking about this question since the competition.

We organized the Google Glass DC Meetup group to bring together the folks in DC who are excited about Glass. Several Pioneers and Explorers will be there. Those in DC should join.

(Oh, and with so much talent on our team, our project ended up winning the Startup Weekend competition with an instant-help app. It was my second Startup Weekend and I am a big fan of that organization and recommend others try it.)

The Court rejected that argument, resoundingly in the opinion’s language, and by a 6-3 vote. 

Here is the opinion. 

Over the weekend, Marvin had a guest post on Techdirt, discussing his favorite posts of the week. Check it out here.

Check out Marvin’s video below:

#FCMostCreative @ammori on #innovation in the #FCGrill @lincolnmotorco tent! vine.co/v/bwxJrarKBeV—
Fast Company (@FastCompany) March 11, 2013

For the past several years, I have been impressed by how much Democrats and Republicans agree on the importance, in principle, of supporting high-tech entrepreneurship. (It’s one theme of my book.)

This bipartisanship was on display last week, when 33 startups flew into Washington, DC to meet with White House officials and Congressmen. The fly-in day was called “Startup Day on the Hill” and was organized by Engine Advocacy, a group that helps give startups a voice in DC and has 500 startup members. (I’m on Engine’s Steering Committee and am a big fan.)

This video clip is from the “Demo” event on Tuesday, where startup founders displayed their companies to members of Congress and their staff,  demonstrating to those in DC that not all companies are lawyered-up/lobbyist-retaining giants.

We had some remarks from Senator Jerry Moran, a Republican from Kansas, now a major champion of high-tech entrepreneurship. For those unfamiliar with Sen. Moran, he is now a lead sponsor of Startup Act 3.0 and years ago was the first Republican Senator to join Senator Ron Wyden (D) in opposing SOPA/PIPA.

This video is a fairly amusing depiction of this bipartisanship on tech issues–a bipartisanship that has extended from the days of SOPA to ECPA reform to Aaron’s Law addressing the CFAA. I am hoping this bipartisanship is extended and strengthened.

In the video, Senator Moran, a Republican, is giving some advice to startup founders. A bearded Mike McGeary, Engine’s Director and someone who worked on Howard Dean’s 2004 campaign, is listening on. The camera then pans to me, the clean-shaven guy in a striped green tie who was a tech advisor to the Obama campaign in 2008. And then it pans to Grover Norquist, champion of the “Taxpayer Protector Pledge,” someone who understands that entrepreneurship drives economic growth, and that economic growth is key to balancing the spending/revenue equations. So we all stand on the same side to support tech innovation, if from slightly different perspectives.

The entire crowd was politically mixed, matching folks on opposite sides of the political aisle.

Hat tip to Daniel Schwartzbaum, who really created the video, and also to the folks at Engine.

Let’s consider two possible answers, simply yes or no. On the one hand, you may argue that “he who pays the piper calls the tune”– because the government owns the network, it has the right to choose which sites are accessible. On the other hand, you may believe that the government has the same (or less) constitutional power to block sites on its own networks as it does to order sites blocked on private networks like Comcast’s, Verizon’s and AT&T’s.

Much of the discussion on the listservs is pointing out that municipalities have not attempted to block sites, nor have they expressed much desire to do so. The cities and towns offering Internet access generally don’t have censorship in mind; they are trying to improve access.

I want to focus on the constitutional question: I believe the First Amendment would likely restrict the towns’ ability to block access to certain sites. The question, to some extent, is which analogy is most apt for Internet access, or which previous case will determine the outcome? A court may adopt one of several frameworks to reach its decision, partly because a law can violate the First Amendment for many different reasons and partly because several different judicial tests may apply to similar situations (e.g., “subsidized speech” doctrine and “public forum” doctrine overlap sometimes, as I discuss here).

Designated public forum?

The Supreme Court has held that public streets, parks, and squares are “traditional public forums,” and that the government cannot ban specific content in those forums. This is the case even though government owns the property. Here, the government, while piper-payer, cannot call the tune. I doubt a court would deem a municipal network a “traditional” public forum because networks are less “traditional” forums than public squares.

But the analysis doesn’t end there. The Supreme Court has defined other kinds of forums in its analysis.

There are “designated public forums.” That is, courts can decide that a forum isn’t “traditional” like a street or park, but that the actions of the city officials have “designated” the forum to public speakers in a way that requires city officials not to discriminate among the speakers. The government could explicitly designate a public forum. City officials should do so and city residents should demand it. A government may implicitly designate a public forum through its actions and practices; that is why governments sometimes lose these cases, while insisting they never explicitly designated a public forum.

So, in short, a municipal network might be a designated public forum, and our speech on that network would be protected.

Vague discretion in a nonpublic forum?

There are nonpublic forums–forums over which government has more discretion. But even in nonpublic forums, a restriction must be both reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.”  Thus some laws for a municipal network would be unconstitutional if they suppressed a speaker or site based on its views.

Even if a law, on its face, didn’t target a particular view, it could be unconstitutional for being so vague and covering so many activities that it gave the city officials wide discretion to pick on and censor only those speakers whose views they opposed. Indeed, when the San Francisco BART cut off mobile access to stop a protest, Eugene Volokh and I discussed a similar question. Volokh believed that even if the BART network was a nonpublic forum, one of the restrictions was vague and overbroad, and therefore unconstitutional. Considering the language in cases like Reno v. ACLU and other Internet speech cases, I think it likely that courts would find municipalities’ attempted definitions written in regulations to be problematic, even if the network were a nonpublic forum (or private). Indeed, the ACLU analyzed a proposed private network that the FCC considered authorizing, one that would require a free family-friendly tier. The ACLU found the restriction’s vagueness and overbreadth problematic.

Subsidized speech

There are also complicated cases involving speech subsidized by the government. For example, the government funds public radio stations. In the early 1980s, Congress tried to tie those funds to a requirement that the stations not “editorialize.” But here, the piper-payer could not call the tune. The radio stations could take the funds and call their own tunes.

Another case goes in the opposite direction: the Supreme Court held that libraries accepting public funds can be required to block pornography.

We have to ask: which is more similar? I think the nature of libraries as a public physical space for families and children would distinguish that case from a municipal network that people use in their own homes.

Postal service?

Several people have pointed to the postal service, which the federal government owns and runs, as an example of a publicly owned network to which the First Amendment (and Fourth Amendment) applies, limiting the government’s power to restrict speech. Some rules have been constitutional, others have not been, but the general constitutional rule is largely speech-protective. At any rate, the rule isn’t merely: the piper calls the tune. The public has rights.

Conclusion

The judicial analysis doesn’t end at answering whether a municipal network is a “traditional public forum.” That is only the start of the public forum analysis.

Other analogies and precedents may also inform the courts. It’s perhaps not a slam-dunk case in either direction–until we see a clear restriction we can evaluate. But the existing precedent provides much comfort.

Finally, courts are not always so mechanistic. Judges understand the effects of their decisions, and several pro-free speech decisions would be difficult to explain based on precedent alone or the reasoning in the case. The judges seem to say–in a democracy like ours, government shouldn’t have the power to censor speech in this way. And when judges have a range of different doctrines to choose from (I include only a few above) they might pick and choose the doctrine that protects speech and conforms to our intuitions–that municipal networks should be free, not censored.

As usual, happy to correct any mistakes or address anything I overlooked, so let me know in comments. Also, Chapter 3 of my new e-book, On Internet Freedom, discusses some public forum questions in some depth.

 A top German court has ruled that people can sue their Internet providers for damages if connection is lost. The court has ruled that access to the Internet represents a basic need in modern society.

The complaint that brought about the ruling came from a man who lost his Internet connection for two months due to an administrative error caused by a takeover of his Internet provider by another company. He is now entitled to monetary compensation – and while the amount may not be very high, the ruling reflects an important shift. With it, Germany’s Federal Court of Justice has stated that Internet connection is a modern necessity, on par with the right to mobility.

The court compared the situation to a car owner claiming damages after someone else has caused an accident that renders the car unusable for some time.