A few days ago, I was on the local evening news, where I discussed a recent presidential directive with the incomparable David Louie. The directive relates to freeing additional spectrum for high-speech Internet services. The issue is relevant for Silicon Valley innnovators–and the rest of us.
Thanks to the Stanford Law press shop and the Center for Internet Society for connecting us.
On another note, the same episode had a great story about the Homerun.com, a very cool company.
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.
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.
I posted a long blog post a few weeks back about Elena Kagan’s scholarship and what it suggests about her views on Citizens United and the constitutionality of standard media regulation. Because I spent the next week talking to people about the post, I reviewed her scholarship again and had some more thoughts. I figured I would post these thoughts, more for discussion than anything else.
So here is another long, geeky post (almost embarrassingly long) about scholarship and legal doctrine. Scholars write such things about Justices sometimes, so why not about nominees?
I think her scholarship (albeit from last decade) raises interesting questions about her support for some of the positions held by Justice Stevens and President Obama.
This post is not about any particular decision but about a group of “rationales” often advanced by government to defend the constitutionality of adopted laws. Specifically, the post is about “anti-distortion” rationales—that is, government rationales used to justify speech rules bases on the existing (or potential) speech environment being “distorted” by certain factors (like wealth inequality). Both Obama and Stevens appear sympathetic to anti-distortion rationales, for example, regarding corporate campaign expenditures to un-distort a speech environment that drowns out the voice of ordinary citizens.
It appears that Obama and Stevens are fans of anti-distortion rationales while Dean Kagan likely is not. In Citizens United, Dean Kagan famously downplayed, if not abandoned, these rationales. She refers to them in one academic article as even “dangerous.” Sometimes, she even seems to caricature these arguments—which is unusual for her, as her scholarship is generally remarkably nuanced (and brilliant).
In terms of sources, I will discuss primarily a short passage in Kagan’s first article and Kagan’s argument in Citizens United, as well as their relation to the longer passage in Kagan’s scholarship that I discussed in my previous post. Like my last post, this one will be long (for a post) and will discuss legal scholarship and Supreme Court cases. Again, I’ll name the articles and even the pages (or “find”-able quotes) so others can look to the sources and reach perhaps other conclusions, if they’re interested. And, again, there are important caveats, so it’s not a slam-dunk case.
So before the fold, I’ll present the argument in brief.
Argument in Brief
There are at least two relevant anti-distortion rationales that government can assert to defend speech rules, a broad rationale based on massive wealth inequality distorting speech and a narrow rationale based on the existence of corporate legal rules. Obama and Stevens have voiced support for even the broad rationale, while the Austin majority rested only on the narrow one. Thus, while it is unsurprising Kagan’s argument in Citizens rejected the broad rationale, it is perhaps telling that she did not advance even the narrow rationale in the briefs. In addition, her two major First Amendment articles in the 1990s depicted the broad and narrow anti-distortion rationales by turns as indistinguishable from one another, as conflicting with the First Amendment itself, and even as “dangerous.”
Of course, many caveats must be considered in this somewhat academic exercise.
Oddly, dozens of Democrats (perhaps 70 again) have signed a letter supporting the talking points and agenda of Glenn Beck and one his major corporate sponsors, AT&T. This letter also contradicts the technology agenda of Barack Obama, Obama’s Federal Communications Commission, and the Democratic leaders of the House and Senate Commerce Committees that oversee the communications industry. The “congressional” letter is being peddled by cable and phone lobbyists to the staff of Democratic Congressmen who have a history of putting their names on cable and phone industry’s debunked talking points, sometimes apparently without understanding their meaning.
This letter, being pushed by Rep Gene Green (D-TX), pertains to whether or not the Internet will remain an open engine of economic and democratic freedom. In D.C., legislators and lobbyists are debating something called “net neutrality,” which is a common-sense FCC proposal to keep phone and cable companies from interfering with what you can do online and how you can use the Internet. Without net neutrality, phone and cable companies can limit your online speech and freedom. I think the Daily Show explains the issue best (here (with John Hodgman) and here).
Glenn Beck, who thinks Barack Obama is a anti-white racist Marxist leading a coup against our country, has launched a holy war against net neutrality. This guy from “Americans from Prosperity” comes on Beck’s show and spews lies about net neutrality, mainly making bizarre claims that “net neutrality” is a “government takeover,” not a rule to preserve the status quo. Surprise: AfP is funded by phone and cable companies and has launched a million dollar ad campaign of dishonest arguments.
The fight at the moment turns on whether the FCC should reverse the Bush era “deregulation” of Internet providers, something even Justice Scalia thought the FCC should have done long ago. Unless the FCC properly “reclassifies” broadband providers under the Communications Act, the FCC cannot stop the largest cable companies when they block the Bible or competing online TV providers.
In fact, a lot more is at stake with “reclassification”: without it the FCC cannot implement its national broadband priorities to make sure all Americans have access to high-speed Internet access. The following national priorities are put in jeopardy without reversing the current “deregulation,” according to the FCC’s general counsel, a lawyer who has served both Republican and Democratic Chairmen:
accelerating broadband access and adoption in rural America;
connecting low-income Americans, Native American communities, and Americans with disabilities;
supporting robust use of broadband by small businesses to drive productivity, growth and ongoing innovation;
lowering barriers that hinder broadband deployment;
strengthening public safety communications;
cybersecurity;
consumer protection, including transparency and disclosure;
and consumer privacy.
Millions have spoken out in favor of net neutrality, reclassification, and an open Internet for all Americans. And President Obama said he would take a “backseat to no one” in his support of net neutrality.
But, rather than support the expert agency and their party’s leadership on these issues … some Democrats are joining AT& Glenn Beck (I mean … AT&T and Glenn Beck), Comcast, corporate-funded groups like AfP, and others dead-set on derailing the Obama presidency.
Some Democrats in Congress have done this before–with 72 of them signing onto an infamous letter of cable talking points to pressure the FCC back in October. Many of them also receive a lot of money from the industry and its lobbyists. They are standing with the largest phone and cable companies, not with you. You have to wonder why the congressional leadership isn’t educating their members on the centrality of this issue to the Obama economic and democratic agenda.
Someone should ask them why they’re standing with Glenn Beck, AT&T, and Comcast, and against their own President and the FCC. And if the House leadership or the White House won’t do it, for some reason, you might have to do it for them.
Here’s a list of who to call.
On Monday, Mother Jones published an article by Nick Baumann about Don Verrilli, a White House attorney on the short-list to replace Elena Kagan as Solicitor General. I’m a big fan of Mother Jones and of Nick, and decided to expand on the theme of my quote in that story (“I love that guy”) with a short blog post. And this isn’t meant to take anything away from the other possible candidates for Solicitor General (I know nothing about that process).
The Mother Jones article describes Don primarily as a copyright lawyer, and primarily as the lawyer who won the Grokster case. It also provides pro- and con- responses based on that case.
I’m quoted in the story as part of this paragraph:
One might think that the non-profit groups that have fought Verrilli and his clients in court would be clamoring for the White House to reconsider. However, many of its regular opponents respect him. Gigi Sohn, the head of Public Knowledge, a nonprofit that advocates for copyright reform, defended Verrilli in an email to Mother Jones. “I don’t think Don has ‘drunk the Kool-Aid’ of the RIAA or Viacom, he was simply representing his clients,” Sohn wrote, adding that she thought he was “perhaps the most qualified person in the country to be the next Solicitor General.” “I love that guy,” says Marvin Ammori, a law professor who served as the lead lawyer for Free Press, a group that supports media reform and attacks big media companies like Viacom. “He’s an amazing lawyer.”
I’m also quoted this way: “Ammori acknowledged that Verrilli is personally ‘pro-copyright.'”
I agree with everything Gigi said too. By “pro-copyright,” I didn’t mean Kool-Aid drinking pro-copyright.
Now for the cheers.
Cheer 1. He is, as I said, an amazing lawyer. Many of my most talented friends have worked for him and were mentored by him. (It surprises me how often I say, “Do you know Don Verrili?” and the response is, “Yeah, I worked for him.” This includes lawyers sympathetic to Youtube.) And many of my mentors rave about Don’s work as a lawyer, often calling Don the best lawyer they know.
Cheer 2. Not all his cases were Grokster. Don won the Turner case, a major First Amendment case about cable TV, and I am glad he did. He worked on many important First Amendment cases–for example, Reno v. ACLU, an important Internet law case striking down indecency provisions. At his law firm, Don worked with the well-known First Amendment lawyer Bruce Ennis (who argued Reno) and clerked for two of the great judges of the 21st Century, Skelly Wright and First Amendment all-star William Brennan.
Beyond that, Don has dedicated himself to pro bono work throughout his career. He has won several awards for this pro bono work. Much of that work is death penalty and criminal justice advocacy. Pro bono, he won a Supreme Court case regarding ineffective assistance of counsel in 2003.
Cheer 3. He strikes me as remarkably thoughtful and fair-minded. I know him primarily from auditing a small seminar he used to teach at Georgetown Law, called Theories of the First Amendment. When I audited, I was a teaching fellow, having graduated from law school a few years earlier, and had already thought about the First Amendment (and studied it in other classes) for years by then. I was impressed with Don’s ability to explore all sides of every issue and to encourage all of us to do the same.
I may be biased because he was incredibly responsive–he replied to emails in seconds flat with long, thoughtful replies and seemed to always have time for the students, though he was a prominent partner and argued at least one Supreme Court case that semester.
But What About Grokster?
I think Don shouldn’t be controversial just because of Grokster. After all, all nine Justices ended up agreeing that Grokster was an illegal service.
He got the votes of even Justices Stevens and Breyer–who are not sympathetic to expansive copyright claims–on a copyright claim. That would usually mean he either didn’t have a “Kool-Aid” copyright claim or that he must be among the very best lawyers in the US.
Either way, he’d make a fine Solicitor General.
The day before President Obama nominated Elena Kagan to the Supreme Court, I wrote a long blog post raising questions about Elena Kagan’s support for or opposition to Citizens United and Turner Broadcasting–that is, her support of or opposition to the constitutionality of certain campaign finance and media/telecom rules, respectively. My main point was that her scholarship–notably several pages of discussion in one of her major law review articles, published in the mid-1990s—shows considerable sympathy for the largest corporations’ arguments on both issues of campaign finance and media rules. Said another way, she appeared to agree more with Justices Scalia, Thomas, and Roberts than with Justice Stevens and Obama on them. I posted this long discussion both at Balkinization and the Huffington Post, which was kind enough to front-page the post.
The day after the post, President Obama nominated Elena Kagan, as expected. In praising Kagan, Obama specifically mentioned that she chose Citizens United as her first case to argue, despite long odds of victory. He said, “I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy powerful interests must not be allowed to drown out the voices of ordinary citizens.”
So I got all these calls–the New York Times, the Wall Street Journal, Politico, National Journal, etc.
I said that I assumed the President’s team naturally vetted Dean Kagan on these issues.
Also, my evidence was (I thought) highly suggestive, but not necessarily definitive, of her views in the 1990s, and she may have changed her mind since.
These discussions with press prompted me to read and re-read Kagan’s free speech scholarship. I didn’t find anything in that scholarship pointing in the opposite direction of my initial, limited conclusions.
But the press questions and the scholarship review prompted a few additional thoughts.
Most of these thoughts are not so much criticisms of Kagan per se; they are more like attempts to explore some of her thoughts (or her thoughts from 15 years ago!).
I hope to write them up soon… They’re mainly thoughts (1) on the “anti-distortion rationale,” which Dean Kagan abandoned in her argument in Citizens United, and (2) her thoughts on media like books and broadcasting, which also came up in Citizens United.
For those who love the Internet, who want it to remain a general-purpose technology and open tool for democratic participation, last night was a good night.
Net neutrality is a proposed FCC rule that would keep phone and cable companies from interfering with websites and technologies on the Internet. Obama campaigned on the issue (using his strong support to help differentiate him from Clinton’s campaign), as did sixteen Senate candidates in 2008, and many prominent governors, Congressmen, etc. have voiced support.
Last night, two big supporters of net neutrality won their primaries.
Joe Sestak, who defeated Arlen Specter in the Pennsylvania primary, is strongly pro net neutrality. In 2006, when he ran for Congress, he wrote a post on MyDD called “Why I Support Net Neutrality.” He said: “I’ve looked at the facts, weighed the evidence, and I strongly believe that Net Neutrality is good for America.” In that post, he advocated for net neutrality primarily for our economy and our small businesses, and was also using the Internet to galvanize political participation (and raise money, directly from average individuals).
So is and Jack Conway, who won the Democratic primary in Kentucky for US Senate . In this clip, he explains that he was troubled by the DC Circuit case reversing the FCC’s network neutrality order against Comcast, and discusses the political potential of the open Internet.
That was just my quick take… If there are other pro-net neutrality candidates who won last night, let me know in comments.
So a big day for network neutrality.
Marvin Ammori 