Marvin Ammori

In the last three days, I’ve heard sentences like the one above uttered several times.

I’ve heard it about phones that lacked buttons, that had huge cracks along their touch screen, and that have only slightly-obsolete-looking designs.

No time in American history have we as a nation held onto to so many cell phones that are over 18 months old…

I was on Here & Now, produced by the wonderful folks at Boston’s NPR station WBUR today.

I discussed freedom of speech and the BART disruption that I’ve written about here (several times).

To listen, follow this link.

Yesterday, several think tanks and scholars filed an amicus brief in FCC v. Fox, the indecency case before the Supreme Court. This case has a long history, and grows partly out of Paris Hilton’s use of bad words on live TV. The case is before the Supreme Court for a second time.

Some scholars affiliated with the Yale Information Society, the think tank New America Foundation, and Professor Monroe Price filed an amicus brief to remind the court that the case is limited to indecency regulations, rather than concerning broader spectrum policy issues. In the short-hand of Supreme Court precedents, only Pacifica is at issue, not Red Lion, NBC v. US, CBS v. FCC, and so on.

The brief can be found here. Thanks to Nick Bramble at Yale for taking the lead on this brief. We have consistently reminded the Court of this point; I drafted and filed an amicus brief making this argument to the Supreme Court the first time this case reached the Court, in 2008.

My former employer, the University of Nebraska, has joined the inspiring Gig-U project, headed by Blair Levin.

Both Blair and the CIO of UNL emailed to thank me for connecting them–which I don’t remember doing. I think I just emailed the Dean of the law school, who gets things done.

I’m not sure where on the Maimonides giving ladder I end up for sending an email but not remembering it… Probably a lower rung. But glad Gig-U and UNL connected–and that UNL students and others will connect to the Internet faster than ever.

For the past few years, I have been a Term Member of the Council on Foreign Relations. It’s a pretty amazing organization. I’ve seen speakers such as Secretary Clinton, Senator Lugar, and the founder of China’s leading search engine.  The Council also has some very talented and brilliant members, the most famous of which is either Angelina Jolie or Bill Clinton.

I received an email from the Council that was a call for nominations. And several of my friends have recently asked me about the Council and are applying for Term Membership. So this is my attempt to get the word out. I would love to have more members who have backgrounds in technology policy–or who are my old friends. Either one.

If you are interested in joining and I could be helpful in providing advice, please feel free to ask.

Applications are due October 1 for life Members and November 1 for Term Members. Details are here if interested.

The band and I decided to change our theme through WordPress.

I think this theme is cleaner and more in line with current trends in design than the previous one.

This weekend, I am honored to be a keynote speaker at Open Video Conference 2011. I will be discussing how public policy affects the online video ecosystem. Before the keynote, I will also co-lead some sessions on “making the map” of the ecosystem. I will be leading the sessions with my friends Nick Bramble of Yale Law School and Sky Fernandes of Centripetal Capital, among others. I have a history of excellent co-leaders at the Open Video Conference; in 2009, with an overflowing room eating sandwiches, Tim Wu and I led about network neutrality and an open video ecosystem.

At OVC, I always learn far far more from the participants than I could ever teach them. The participants include leading techies, creatives, and visionaries shaping video on the Internet. I’m looking forward to the conference and thank the organizers for inviting me once again to contribute and learn.

Yesterday, Twitter announced the hiring of its Head of Global Public Policy–Colin Crowell. Colin is a veteran known to everyone in telecom and Internet policy circles. He’s creative, super smart, and strategic. And avid readers of this blog (hi mom!) will remember I praised Colin’s work at the FCC when he stepped out of government, after decades of service.

Congrats to him on the job, and congrats to Twitter on the hire.

I was quoted in the Washington Post yesterday on whether the BART’s disruption of cell service, to disrupt a protest, violated the First Amendment. I said it’s a “hard question.” And it is. But I do think the answer is yes–the disruption violated the First Amendment.

It’s a hard question because one of several tests may apply. I have written a half dozen posts on the issue, so here I’ll include a top line summary, using First Amendment terms, on why I think the legal tests point toward a First Amendment violation (based on the facts available). I also want to note that BART’s response to the public backlash has at times been encouraging; the Post article noted the public discussion that BART has helped facilitate in thinking through its policy going forward.

But here is my attempt to apply the doctrine to the particular disruption here.

1. If the BART stations are nonpublic forums, then banning an entire medium of speech so broadly likely fails the test for nonpublic forums. See Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. and International Society for Krishna Consciousness, Inc. v. Lee. It fails the test because the disruption likely fails both prongs of the test (and need only fail one): it was both unreasonable and likely viewpoint based.

2. If the cell service at the BART station is seen as a forum itself (and not a medium of speech), then it is either a nonpublic forum or a designated public forum. If a nonpublic forum, the test above applies. If a designated public forum, then a higher test applies. A flat ban would have to be narrowly tailored to a compelling purpose–BART would likely fail to show narrow tailoring. If the disruption were not a ban (as it appears) but a content-neutral time, place, and manner restriction, then the government would need narrow tailoring to an important interest. Again, narrow tailoring would be difficult to show, though less difficult than for a ban.

3. Finally, BART officials have invoked Brandenburg v. Ohio, which sets a very high bar for suppressing speech, requiring   incitement to imminent lawlessness. It’s taught in law schools as a major bulwark against government silencing speech. If BART is claiming to meet this test, it’s like claiming its staff can run four-minute miles.

The ACLU of California also has an excellent analysis in this letter.

Some things are more tiring than others, obviously. I always found both packing and writing to be particularly exhausting. A recently article in the New York Times suggests why.

Last week, I packed up some boxes of my stuff. Like everyone, in packing, I noticed I had too many things. I had too many books, printouts, and notes. So I sifted through them for several hours, throwing them into two piles, of things I needed and those I didn’t. There were some close calls, like “Will I ever read this biography of Justice Brandeis? Should I keep my research and notes about innovation theory? Would I ever reread ‘True Blood and Philosophy’?” Actually, there were a lot of close calls. There were hundreds of little decisions about what to keep and what to dump. They weren’t high-stakes decisions–the books can be replaced, I could review sources instead of my notes, and True Blood is not Rawls.

But during the hours of packing, I felt almost completely depleted mentally. The packing was far more tiring than hoisting and moving heavy boxes, which required more physical energy. The mental component was surprisingly more exhausting. To me, this didn’t make sense.

The New York Times’s article on decision fatigue explained the mystery. Every word of the article is worth reading, but it has three main points: that making decisions is extremely tiring, that it saps our willpower, and that glucose reverses these effects.

I want to focus on the first point–that making decisions is tiring. Even deciding between vanilla and chocolate takes a toll. Making a decision is more tiring than contemplating or following through on the decision. Using the terminology of Caesar deciding to cross the Rubicon River to invade Rome, the author writes:

[C]rossing the Rubicon is more tiring than anything that happens on either bank — more mentally fatiguing than sitting on the Gaul side contemplating your options or marching on Rome once you’ve crossed.

This research suggests not only that the Grand Inquisitor may have been onto something (he thinks that many people don’t want to make decisions). It also helps explain why writing is tiring. Writing always feels so exhausting, far with its dozens of little decisions, from structure to syntax, from subject to sound. Even this post, like any post, requires dozens of little decisions with every conjunction and reference. But writing longer projects are even far more exhausting. It’s always easier to read and research and keep researching; the key decisions, and decision fatigue, come in writing, not in researching.

Maybe, to relax and do something less exhausting, I’ll read something… or lift and move heavy objects.