Marvin Ammori

A long, much discussed New York Times Magazine article profiles Alec Ross, Jared Cohen, and others at the State Department regarding their innovative strategies to use new technologies to serve the nation’s diplomatic goals, and to improve democracy around the world.  The article, called Digital Diplomacy, quotes Alec as calling Secretary of State Hilary Clinton the “godmother” of digital diplomacy.  She and Alec call digital diplomacy “21st Century Statecraft.”

Alec is a friend of the Space & Telecom Program at the University of Nebraska.  He spoke at our last conference in DC, giving a brilliant and inspiring opening keynote that my students still refer to with some awe.

In two months, UNL’s Space & Telecom Program will present its Third Annual DC Conference, with the first day focused more on cyber/telecom issues and the second day focused on space issues.  This year, the cyber panels and keynotes will focus on emerging cybersecurity issues; the space panels and keynotes will focus on the recently issued national space policy.

Both of the first two conferences were great events, sparking thought-providing conversations and bringing together top decision-makers and thinkers.  As I focus on cyber/telecom aspects of UNL’s program, I am posting here the agendas for the cyber days from the first two conferences.

The first conference, shortly after President Obama’s election, evaluated the previous eight years of telecom policy and looked forward to the next four.  Speakers included a then-FCC Commissioner, a former FCC Chairman, a senior UK spectrum official, AT&T’s head lobbyist, and others. The conference generated news in Reuters, the Washington Post (print and blog), and CNet, PCWorld, Internet News, Media Post, Ars Technica, and Huffington Post.

The second conference focused on international and trans-Atlantic issues.  Speakers included the State Department’s top official on cyberdiplomacy, the Director of the FTC’s Consumer Protection Bureau, the head of NTIA’s policy shop, a former Estonian defense minister, and the Deputy U.S. Chief Technology Officer, a legal advisor to the 24th Air Force, among others.  The conference generated several stories in the Washington Post and The Hill.

The full agendas are after the flip.

First Conference

Looking Back at the Past Eight Years, Looking Toward the Next Four

November 13, 2008

8: AM Welcome Matt Schaefer, Director, UNL Space & Telecom Law Program

8:10 AM  Morning Keynote FCC Commissioner Jonathan Adelstein

9:00AM: Morning Keynote Discussion

• Richard Wiley, Partner, Wiley Rein, former Chairman, FCC
• James Cicconi, Senior Executive Vice President-External and Legislative Affairs, AT&T
• Ben Scott, Policy Director, Free Press
• moderated by Cecilia Kang, Washington Post

10:00-11:00AM Wireless Issues

• Fred Campbell, President, Wireless Communications Association & former Wireless Bureau Chief, FCC
• William Webb, Head, Ofcom Research & Development (U.K.)
• Terri Natoli, Vice-President, Regulatory Affairs, Clearwire

11:20-12:20 Network Neutrality

• Marvin Ammori, Professor of Law, U. of Nebraska College of Law (moderator)
• Frannie Wellings, Telecom Counsel, US Sen. Byron Dorgan
• Rebecca Arbogast, Principal, Stifel Nicolaus,
• Markham Erickson, Executive Director, Open Internet Coalition
• James Cicconi, Senior Executive Vice President-External and Legislative Affairs, AT&T

12:30 Lunch

2:00-3:00PM  International Issues

• Tricia Paoletta, Harris, Wiltshire, & Grannis

• Ambassador Richard Russell, US Ambassador to ITU WRC-07
• Helen Domenici, International Bureau Chief, FCC
• Jonathan McHale, USTR

3:20-4:20PM Broadband Policy/Universal Access

• Sascha Meinrath, Research Director, Wireless Future Program at the New America Foundation (moderator)
• Jessica Rosenworcel, Senior Communications Counsel, Committee on Commerce, Science, and Transportation, United States Senate
• Derek Turner, Research Director, Free Press
• Link Hoewing, Vice President – Internet and Public Policy, Verizon
• Scott Reiter, Director of Industry Affairs, National Telecommunications Cooperative Association—The Voice of Rural Telecommunications

Second Annual Conference

November 19, 2009

Space & Telecom in the Transatlantic Arena: Cooperation, Competition, and Comparison

9:00-9:15: Welcome Marvin Ammori and Matt Schaefer

9:15-10:00: Cyber-diplomacy Keynote

Alec Ross, US State Department, Senior Advisor for Innovation in the office of Secretary Clinton

10:05-11:30: Trade Policy and Competition in Europe and the US

• Marvin Ammori, Assistant Professor, U. Nebraska
• Erzsebet Fitori, European Competitive Telecommunications Association
• Bertrand Vandeputte, Head, Broadband and Next Generation Access Unit, ARCEP, France
• Debroah Lathen, Board Member, BT Group, Plc. (British Telecom)
• Earl Comstock, Comstock Consulting, former President and CEO of COMPTEL

11:35-1:00: Communications as a Civil Right

• Jeremie Zimmermann, La Quadrature Du Net
• Jan Malinowski, Head of Media and Information Society Division, Directorate General of Human Rights and Legal Affairs of the Council of Europe
• Sascha Meinrath, Director, Open Technology Institute, New America Foundation
• Monica Horten, Communications and Media Research Institute, University of Westminster
• Clothilde Le Coz, Washington, Director, Reporters Without Borders USA
• Ben Scott, Free Press (moderator)

Lunch 1:00-2:00:

Lunch Keynote at 1:15

David Vladeck, Director, Consumer Protection, Federal Trade Commission

2:00-3:15: Conversation on Trade, Civil Rights, Security

• Tim Wu, Professor, Columbia Law School,
• Andrew McLaughlin, Deputy Chief Technology Office for Policy, White House
• Moderated by Cecilia Kang, Washington Post

3:30-4:55 Cybersecurity panel,

• Maeve Dion, Program Manager for Cyber & Education, Center for Infrastructure Protection, George Mason U. School of Law
• Daniel J. Weitzner, Associate Administrator for the Office of Policy Analysis and Development, National Telecommunications and Information Administration
• Derek Jinks, Charles H. Stockton Chair of International Law, U.S. Naval War College, Center for Naval Warfare Studies
• Lauri Allman, former Undersecretary of Defense for Estonia (head legal advisor to the government during their 2007 incident, helped set up the NATO-accredited Cooperative Cyber Defence Centre of Excellence in Tallinn)
• Vicki Belleau, Major, US Air Force, 24th Air Force

I just got back from Taiwan, where I’m “famous,” according to one of my extremely kind hosts.  Not famous like David Hasselhoff, German rockstar, or Jerry Lewis, French phenom, but “famous” to about 15 telecom law professors and media activists.

Even that was surprising, and worth diving into. Being kind of a big deal in Taiwan would have its benefits.  Before my trip, Tim Wu told me Taiwan was the greatest place on earth.  After all, Taiwan is a beautiful island in the tropics–an island of mountains, beaches, temples, and skyscrapers.  The tea and food is amazing; they love to eat and eat well.  The people are almost uncomfortably generous and kind. On this trip, I was even assigned a brilliant undergraduate-student, fluent in English, as my body person, making sure at all times that I was well-fed with dumplings, sated with sufficient green tea, and never lost, never late.

As for my supposed fame… One of my hosts told me that the Taiwanese Supreme Court recently cited one of my law review articles in an opinion on underground radio licensing. Several of my hosts–professors of communications or law–had read my articles.  One professor asked permission to translate an article into Chinese. My supposed fame rested more on my advocacy, however, than my scholarship. The media reformers of Taiwan, notably Campaign for Media Reform and Media Watch, are students of global media reform movements and well-versed in the American experience–including with the organization Free Press, for whom I once lawyered on media ownership limits and network neutrality. As a result, I was speaking as a keynote at an impressive conference bringing together (actually) famous mainland Chinese blogger dissidents (including Michael Anti), media theorists, and reform activists.

But, while reading more about Taiwan on my 13-hour flight back to San Francisco, I realized I wasn’t famous even to 15 people; instead the Taiwanese just practice a beautiful cultural kindness. They are apparently overly generous and super polite to everyone. My treatment was standard. All the tours of Tainan, Chiayi, and Taipei.  The student body-person acting as my nanny. The kind words. The books explained that the Taiwanese are so polite that they tell you “Your Chinese is excellent” precisely when you screw up a phrase in Chinese.  At least you’re trying. They tell you “You’re so good with chopsticks” precisely when you drop the sticks and start using your fingers. At least you tried.

It has something to do with “face” and making sure you don’t “lose face.”

This explains why my undergraduate nanny, who lent me her video game device, the Nintendo DS, told me “You’re so smart” when I screwed up on stage-ten of Tetris. She went to stage-12 or so.

It also explains my experience in Taipei, when I ran into a woman wearing a Michigan shirt.  In Taiwan, a lot of designer shirts have random English words on them.  This woman’s Michigan shirt–which was glittery and sequined, pink and purple not maize and blue–seemed random that way.  But I’m from Michigan, and, thousands of miles away, I see a Michigan shirt.  So I asked, “Do you have a Michigan connection?” She didn’t understand and kept walking.

One of my hosts put his hand on my shoulder.  “Maybe she was nervous,” he said.  After a slight pause, he said, “because you are so handsome.”

So, in Taiwan, I’m not only famous, but I am also unnervingly handsome. Tim Wu was right: best place on earth.

So I have to thank my wonderful hosts and new friends. They’re too many to name, but they include professors Shih-Hung Lo and Ching-Yi Liu, as well as my little nanny, Joyce, who hopes to study in the US.  They made my trip to Taiwan special in many ways, and I learned a lot, both about media policies and the island. Thanks.

And here is a picture of me and my nanny at the Longshan Temple.

On June 28 of this year, the White House issued the National Space Policy of the United States, described by some as changing course from the previous administration’s 2006 strategy.  Last year, the White House issued  Cyberspace Policy Review, and continues to pursue cybersecurity initiatives ranging from activating U.S. Cyber Command earlier this year to proposing the National Strategy for Trusted Identities in Cyberspace–while members of Congress propose over 40 cybersecurity bills.

As these initiatives reflect, our nation, like others, faces domestic and national security challenges associated with outer space and with cyber space.  Facing these challenges requires society to address questions of law and policy–not merely of engineering or computer science.  These legal and policy decisions must balance competing security objectives, making difficult and important trade-offs while complying with our domestic laws, our international obligations, and our core values as a nation.

U.S. government officials and thought-leaders in industry and academia are currently shaping answers to these important questions.  The University of Nebraska-Lincoln is convening a conference at the Newseum in Washington, DC, on September 9 and 10, to explore these issues.

The conference will be UNL’s third annual conference on space and cyber policy organized by its College of Law’s Space & Telecommunications JD/LLM Program.  Previous conferences have featured senior government and military officials, as well as seminal thinkers in academia.  Their speeches and panels garnered national and international news coverage in publications ranging from the Washington Post to Reuters and the Hill.  Thanks partly to  UNL’s proximity to and relationships with U.S. Strategic Command, which is headquartered south of Omaha, the University of Nebraska is emerging as a leading national institution on questions of cyber and space policy.

The complete agenda and speakers will be posted by mid-July, as we finalize details.  I have created a tab on this blog for the event.  Thursday, September 8 will feature key note conversations and talks on cyber policy, and confirmed speakers include General Michael Hayden, Stewart Baker, Bruce Schneier, and the top JAG counsel for the Air Force cyber unit and U.S. Cyber Command.

Friends, Law Scholars, Law Students:

I know your type.

You can’t jog without your iPod.  To run the miles, you need that melodic beat of the Black-Eyed Peas, the triumphal boasts of Jay-Z, the fluid rhymes of Snoop.

I feel you.

But you, like me, have always wished, deep down, that you could jog to the soothing cadence of Harvard Law professor Lawrence Lessig. You have often prayed you could punctuate each step of a morning jog with the faint Russian accent of  Eugene Volokh.  Yes, the UCLA law professor and blogger extraordinaire.  You’ve often regretted putting down that footnote-laced Article on legal ethics of death penalty reform, just to get your daily run–or even to get into the car and run an errand.

I feel you.

I’ve been there.

And that’s why today turns a new leaf.

An announcement: the University of Nebraska College of Law’s American Constitution Society is introducing a law-interviews podcast series.  In each podcast, the student-hosts will interview a  guest about  significant legal controversies  of the day–as well as enduring questions our democracy must face. These guests will be diverse in terms of viewpoint (liberal, progressive, libertarian, conservative) and experience (law scholars, aspiring law scholars, legal advocates, and other experts.)  But it is still ACS.

These guests call into our UNL studio, where our student-hosts command the microphone with dog-eared, highlighted copies of the guest’s most important law-review articles at hand, giving each other high-fives whenever a guest says, “Student podcaster, that is an excellent question.”

Audience: The target audience is law students, lawyers, and legal academics. Tell your friends. Tell your lawyer.

Timing:  These brave law students will begin interviewing guests twice a month beginning this fall. The will podcast irregularly till then, about the Kagan nomination and other issues.

In anticipation of the fall, during this past spring, the students interviewed four guests generous enough to be early adopters/guinea pigs.  These podcasts are now up online and will be on iTunes by next week.  They are awesome. You want to listen to them.

First: Lawrence Lessig (podcast).  Lessig is an seminal thinker in constitutional law, campaign finance, political corruption, and copyright and technology law.  He teaches at Harvard. He is always ahead of his time–meaning, here, his interview made us realize a better way to capture the guest’s audio. (Sorry Larry.  Really. We improved the original recording… But… thank you again!) He discusses Citizens United, Caperton, fair use.

Second: Eugene Volokh (podcast). Volokh is an expert on the First Amendment, Second Amendment, and much else.  He and his brother Sasha, among others, run the Volokh Conspiracy, a popular legal blog. Eugene teaches at UCLA.  On the podcast, he discusses a wide range of issues, from gun rights to protests at military funerals. (Yes, he probably is not the ACS faculty advisor at his law school. But the point of the podcasts is to provoke thought and to educate, rather than to broadcast a uniform view. )

Third: Jen Moreno (podcast). Moreno is an expert and leading advocate on death penalty issues.  She is the staff attorney at the Berkeley Death Penalty Clinic.  She discusses her work and the state of the death penalty in the US.

Fourth: Josh Blackman (podcast). Josh is an aspiring academic, who also has a legal blog, created a Supreme Court fantasy league, and has an organization meant to promote high schoolers’ understanding of the legal system.  He discusses McDonald v. City of Chicago. (Also, I can safely bet he is not a member of ACS–a libertarian, I think.)

All the podcasts are available on the UNL ACS website and will be posted on iTunes, of course for free, subject to Creative Commons license to share as you wish.

You.

If you would like to be a guest, email us at amoreperfectpodcast AT acslawnebraska DOT org.

Also, if you’d like to help in other ways (especially ACS current students at any law school), send us an email as well.

On another note: a few thanks are in order as we begin the project. Thanks to the UNL students kicking this off–particularly Omaid Zabih, Bobby Truhe, and Adam Morfeld. The technological stuff required a lot of time, and each interview requires hours of research to prep. Thanks to  American Constitution Society national, for being so supportive. Thanks to Eric Berger, who is UNL ACS’s other faculty co-director (the yin to my yang, or the other way around, whichever is a compliment). And thanks especially to our first guests, for making my jogs this summer in the California sun even more enjoyable.

And thanks to you. Enjoy. And stay tuned. Beginning in the fall, we will be posting these regularly.

Cross-posted at Balkinization.

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.

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.