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Issue Watch

2014 Issue Watch

Free Speech’s Shrinking Circle of Friends

An essential freedom-of-speech paradigm was established in 1949 by the Supreme Court in Terminiello v. Chicago.  In that case a vitriolic, racist speaker spoke to an auditorium packed with supporters. Outside the auditorium was what was described as “ ‘a surging, howling mob hurling epithets’ at those who would enter and ‘tried to tear their clothes off.’ ”  The police blamed the mob’s action on the speaker, Arthur Terminiello, a Catholic priest under suspension by his bishop. He was convicted of disturbing the peace and fined.

The Supreme Court, in a 5-4 decision, reversed the conviction and ruled that Terminiello’s speech was protected by the First Amendment.  The court said that the police, instead of taking action against the speaker, should have protected him and controlled the crowd…. » Read More

North Korea and the Speech Police

Of course it had to escalate this way. We live in a time of consistent gutlessness on the part of institutions notionally committed to free speech and intellectual diversity, a time of canceled commencement invitations and C.E.O.s defenestrated for their political donations, a time of Twitter mobs, trigger warnings and cringing public apologies. A time when journalists and publishers tiptoe around Islamic fundamentalism, when free speech is under increasing pressure on both sides of the Atlantic, when a hypersensitive political correctness has the whip hand on many college campuses.

So why should anyone be remotely surprised that Kim Jong-un decided to get in on the “don’t offend me” act?  » Read More

Sony, ‘The Interview’ and the Unspoken Truth That All Movies Are Political

There’s really no bright side to discern from this week’s bizarre, unprecedented spectacle involving Sony Pictures and “The Interview,” a Seth Rogen-James Franco satire about the assassination of North Korean leader Kim Jong Un.

After weeks of suffering through the most destructive corporate hack in history, and on the heels of theaters refusing to show the comedy because of terrorist threats made by the hackers (now believed to be sponsored by the North Korean government), Sony finally pulled “The Interview” on Wednesday, refusing even to make it available on demand.  
» Read More

A Victory for Opponents of Free Speech

Sony’s decision to pull U.S. film The Interview from distribution after threats underlines the continuing trend of failure to protect artistic freedom of expression.

“Clearly this sets an example for other anonymous groups to put a curb on artistic expression through threats. This opens the door for anyone to level a threat against artistic works that they don’t agree with or find distasteful,” Rachael Jolley, editor of Index on Censorship magazine said.  » Read More

Pulling The Interview Is the End of Free Speech in Hollywood

Sony's official announcement that the studio will no longer release Seth Rogen and Evan Goldberg's North Korean comedy The Interview closed with the line, “We stand by our filmmakers and their right to free expression.”

So what's it like when they don't?

Even running that statement several times through a Newspeak translator, it's hard to understand how Sony can claim the studio is rallying behind the First Amendment. Perhaps because it's yet to burn the film on its own lot behind the soundstage of Wheel of Fortune. Though if Sony Pictures head Amy Pascal won a time machine, you can bet she'd leap back 18 months and cancel Rogen's meeting.

And who could blame her? The last few weeks have been a nightmare for Sony, particularly Pascal. One of only two female major studio heads in Hollywood (the other is Universal's Donna Langley), her hacked emails giving orders, making personnel choices, passing judgment – the job requirements of the boss – have been deemed by the armchair blogosphere as embarrassing and unprofessional. (For what it's worth, if you imagine her dashing them off in hallways between meetings, they make perfect sense.).  » Read More

Why Free Enterprise Needs Free Speech

In 2014, free speech has been under attack, especially when the business community has gotten involved in public policy debates.

Senator Harry Reid (D-NV) often took to the Senate floor to obsessively demonize Americans who exercise their free speech rights.  Then in September, 42 Senators voted to amend the Bill of Rights to prohibit election spending by businesses.  Thankfully the measure failed.

In a speech at a U.S. Chamber of Commerce Foundation event on Free Speech & Business, U.S. Chamber President and CEO Tom Donohue called out those who want re-write the First Amendment:

"The attacks on free speech in this country have been growing steadily in recent years across many institutions, but it’s business free speech that has been the number one target for legislators, regulators, and activists.

"Some politicians and business opponents have determined that if they can’t beat us on the merits in the public square, they’ll simply work to silence our voice.  To cut us out of the debate altogether so they can have a one-sided conversation with the American people…."  » Read More

Justices Weigh Limits of Free Speech Over Internet

Anthony Elonis claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class, and attacking an FBI agent.

But his wife didn’t see it that way. Neither did a federal jury. Elonis, who’s from Bethlehem, Pennsylvania, was convicted of violating a federal law that makes it a crime to threaten another person.

In a far-reaching case that probes the limits of free speech over the Internet, the Supreme Court on Monday was to consider whether Elonis’ Facebook posts, and others like it, deserve protection under the First Amendment.

Elonis argues that his lyrics were simply a crude and spontaneous form of expression that should not be considered threatening if he did not really mean it.  The government says it does not matter what Elonis intended, and that the true test of a threat is whether his words make a reasonable person feel threatened….

The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted.  They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.  » Read More

President Asks FCC for Title II

President Obama Monday reiterated his opposition to paid prioritization, and said that means reclassifying consumer broadband services under Title II regulations.

In a video, he said cable companies and other ISPs should not let any company pay for priority. "I'm asking the FCC to reclassify Internet service under Title II of a law known as the Telecommunications Act."

In an update on the White House's We the People site responding to petitions, this one calling for Title II reclassification of broadband access, the White House said the President had "today asked the Federal Communications Commission (FCC) to take up the strongest possible rules to protect net neutrality, the principle that says Internet service providers (ISPs) should treat all internet traffic equally."

The FCC is an independent agency, so the President can only ask, a point he made clear, but he made that "ask" clear. 
» Read More

FCC: Title II, Wireless Net Regs Definitely on Table

FCC Enforcement Bureau Chief Travis LeBlanc said in no uncertain terms Friday that Title II reclassification of Internet access service and applying new network neutrality rules are still definitely potential outcomes of any new Open Internet order and folks pondering rule enforcement scenarios need to figure them into the equation.

Those pointed observations came from the FCC's latest roundtable discussion on Open Internet rules Friday at commission headquarters, this one on "effective enforcement." LeBlanc was lead moderator.  Sounding every inch the enforcer, LeBlanc laid down the potential law—or in this case, regulation.  » Read More

GAO Outlines Broadcast/Wireless Ad Battle Over Spectrum

The Senate Judiciary Committee heard from both sides of the network neutrality debate Wednesday in a hearing on the implications of the FCC's efforts to restore network neutrality rules — deadline for comment on that effort was Sept. 15. Sen. Richard Blumenthal raised the specter of ISP's suppressing speech, while Sen. Ted Cruz, suggesting things don't go better with net neutrality, likened FCC regs to nanny-state restrictions on the size of soft drinks.

Democrats pushed for Internet rules of the road, while Republicans argued the virtuous cycle of investment and innovation would be threatened.

Net neutrality fan Sen. Richard Blumenthal (D-Conn.), who is no fan of paid priority, went beyond the economics to argue about speech concerns. He suggested that under such a regime, Comcast could favor its NBC News by making sure subs got it faster than other news sites.

» Read More

Judiciary Debates Net Neutrality

The Senate Judiciary Committee heard from both sides of the network neutrality debate Wednesday in a hearing on the implications of the FCC's efforts to restore network neutrality rules — deadline for comment on that effort was Sept. 15. Sen. Richard Blumenthal raised the specter of ISP's suppressing speech, while Sen. Ted Cruz, suggesting things don't go better with net neutrality, likened FCC regs to nanny-state restrictions on the size of soft drinks.

Democrats pushed for Internet rules of the road, while Republicans argued the virtuous cycle of investment and innovation would be threatened.

Net neutrality fan Sen. Richard Blumenthal (D-Conn.), who is no fan of paid priority, went beyond the economics to argue about speech concerns. He suggested that under such a regime, Comcast could favor its NBC News by making sure subs got it faster than other news sites.

» Read More

NAA Says Crossownership Rules Must Go

The Newspaper Association of America has told the FCC that nothing short of complete repeal of the newspaper/TV crossownership rule will suffice to satisfy the FCC's statutory responsibility to regulate in the public interest.

FCC Chairman Tom Wheeler scrapped his predecessor's plan to loosen the crossownership rules, and now won't even go that far until mid-year 2016, if at all.  But NAA says that was not going to cut it anyway.

NAA says retaining the ban goes against the FCC's goals of encouraging original reporting by jeopardizing investment and resources in an "ever-changing climate."  » Read More

FCC Releases XML Files of Net Neutrality Comments

The FCC is making it easier forresearchers and net neutrality advocates to slice, dice and massage the comments it received on its proposal to use Sec. 706 authority to justify new anti-blocking and anti-unreasonable discrimination rules.

On Tuesday, it released six XMLfiles totaling over 1.4 gigabytes of data or as Wheeler adviser Gigi Sohn put it in announcing the data drop, "approximately two and half times the amount of plain-text data embodied in the Encyclopedia Britannica."

She said the goal was to allow researchers, journalists and others to analyze and visualize that input and to create an "even more informed" set of reply comments, due Sept. 10.  » Read More

Supreme Court Rules Against Aereo

In a big win for broadcasters, the Supreme Court has reversed a lower court ruling denying broadcasters' injunction against internet service Aereo.

That came in an opinion released Wednesday (June 25), according to SCOTUSblog. 

The decision was 6-3, with Justice Breyer delivering the opinion.   Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.

“Today’s decision is a victory for consumers,” said Paul Clement, an attorney for broadcasters in the appeal.  “The Court has sent a clear message that it will uphold the letter and spirit of the law just as Congress intended.”

We’re gratified the Court upheld important Copyright principles that help ensure that the high-quality creative content consumers expect and demand is protected and incentivized,” ABC parent Disney said. ABC was the lead broadcaster in the appeal

The court ruled that Aereo provides a public performance, not a private one, as Aereo had asserted.  "The statute makes clear that the fact that Aereo’s subscribers may receive the same programs at different times and locations is of no consequence.  Aereo transmits a performance of petitioners’ works “to the public,”Breyer wrote for the majority.

The court went out of its way to say that the ruling was a narrow one that should not discourage technological innovation.

“We must decide whether respondent Aereo, Inc., infringes this exclusive right [of public performance] by selling its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air,” said the court.  “We conclude that it does.”  » Read More

Federal Agency Cancels Redskins Trademark Registration, Says Name Is Disparaging

The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.”

The landmark case, which appeared before the Trademark Trial and Appeal Board, was filed on behalf of five Native Americans. It was the second time such a case was filed.

“This victory was a long time coming and reflects the hard work of many attorneys at our firm,” said lead attorney Jesse Witten, of Drinker Biddle & Reath.

Federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups or “bring them into contempt or disrepute.” The ruling pertains to six different trademarks associated with the team, each containing the word “Redskin.”

“We are extraordinarily gratified to have prevailed in this case,” Alfred Putnam Jr., the chairman of Drinker Biddle & Reath, said. “The dedication and professionalism of our attorneys and the determination of our clients have resulted in a milestone victory that will serve as an historic precedent.”  
» Read More

How the Supreme Court’s Ruling on Aereo Could Change How We Watch Football

With the Supreme Court poised to rule on a case that could shape the future of television, the justices are navigating everything from copyright law to cloud computing. And then there’s football.

National Football League games have become some of the most popular programming on television; last fall, 34 of the 35 most-watched TV shows were NFL games. But the league tightly controls its games, collecting hefty fees from broadcasters, cable and satellite companies. If you’re a football fan who wants to watch games live-streamed to your device, good luck finding a way without paying for cable or satellite.

Now, the court is reviewing a challenge by broadcasters who say an upstart tech firm, Aereo, is getting their content without paying when it uses tiny antennas to lift live television broadcasts from the airwaves of local stations. Aereo then streams these broadcasts to its subscribers, charging much less than cable companies.

If Aereo prevails in the ruling, which could come as soon as Thursday, the foundation of the NFL’s television business could crumble. The league has already signed billions of dollars worth of contracts with broadcasters and cable companies for the rights to air its games for the next seven years. But a thriving Aereo could help fans bypass the broadcasters, devaluing their expensive contracts with the NFL.  » Read More

Democrats Unveil Legislation Forcing the FCC To Ban Internet Fast Lanes

Democratic lawmakers will unveil a piece of bicameral legislation Tuesday that would force the Federal Communications Commission to ban fast lanes on the Internet.

The proposal, put forward by Senate Judiciary Committee chair Patrick Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.), requires the FCC to use whatever authority it sees fit to make sure that Internet providers don't speed up certain types of content (like Netflix videos) at the expense of others (like e-mail). It wouldn't give the commission new powers, but the bill — known as the Online Competition and Consumer Choice Act — would give the FCC crucial political cover to prohibit what consumer advocates say would harm startup companies and Internet services by requiring them to pay extra fees to ISPs.

"Americans are speaking loud and clear," said Leahy, who is holding a hearing on net neutrality in Vermont this summer. "They want an Internet that is a platform for free expression and innovation, where the best ideas and services can reach consumers based on merit rather than based on a financial relationship with a broadband provider."  » Read More

Supreme Court Refuses To Take Reporter's Case on Revealing Confidential Source

The Supreme Court declined Monday to intervene on behalf of a New York Times reporter who has been subpoenaed and could face jail time for not identifying a confidential source.

The court turned down requests from reporter James Risen and a host of media organizations, including The Washington Post, that it overturn a lower court’s order and find that reporters are protected by the Constitution from testifying about their sources.  The justices offered no reason for turning down the case.

Federal prosecutors want Risen to testify in the case of Jeffrey A. Sterling, a former CIA analyst who they believe gave Risen information for his book “State of War: The Secret History of the CIA and the Bush Administration.”  In that 2006 book, Risen detailed classified information about the CIA’s efforts to disrupt Iran’s nuclear program.  » Read More

FCC Launches Open Internet Rules, Take Two

With occasional interruptions from protestors in the room, the FCC commissioners voted Thursday on proposed new open Internet rules that would use Sec. 706 authority to revive open Internet rules.

The vote was two for, Wheeler and commissioner Mignon Clyburn, two against, Republican commissioners Ajit Pai and Michael O'Rielly, and Democrat Jessica Rosenworcel concurring.

FCC chairman Tom Wheeler made it clear the vote on the rule proposal was the beginning of a process, and that it was in response to a court remand and an effort to restore legally sustainable rules.

He also said nothing in the proposed new rules necessarily allows paid priority.

While it was take two, it was not Title II, though the FCC asked whether and how to reclassify if it concludes that is the better way to go. Wheeler said Title II was still on the table.  
» Read More

In Google Case, E.U. Court Says People Are Entitled To Control Their Own Online Histories

Europe’s highest court on Tuesday stunned the U.S. tech industry by recognizing an expansive right to privacy that allows citizens to demand that Google delete links to embarrassing personal information – even if it’s true.

The ruling has potentially wide-ranging consequences for an industry that reaps billions of dollars in profit by collecting, sorting and redistributing data touching on the lives of people worldwide.  That includes more than 500 million people in the European Union who now could unleash a flood of deletion requests that Google would have little choice but to fulfill, no matter how cumbersome.

The impact on American users was not immediately clear, though companies sometimes seek to adopt uniform policies around the world to simplify compliance….  » Read More

Net Neutrality Forces Slam FCC Draft Proposal

The FCC continued to get hammered Thursday by groups saying a draft network neutrality proposal that would allow for paid priority access to broadband consumers business model, under various limitation, was a threat to the Open Internet.  While FCC Chairman Tom Wheeler has said that is not the case, period, there are a bunch of nonbelievers.

“Under this terribly misguided proposal, the Internet as we have come to know it would cease to exist and the average American would be the big loser," said Sen Bernie Sanders (I-Vt.). "We must not let private corporations turn bigger and bigger profits by putting a price tag on the free flow of ideas."  » Read More

Justices Test Aereo on Copyright Issue but Raise Concern About Harming Cloud Services

Several Supreme Court justices appeared skeptical of Internet streaming start-up Aereo during oral arguments Tuesday, questioning whether the company was created as a technical work-around of copyright laws to bypass license payments.

But justices also raised concerns that a decision siding with television broadcasters’ complaint could have far-reaching effects on new Web cloud technologies, sweeping up services such as Dropbox and Apple’s iCloud into any fresh interpretations of 40-year-old copyright laws.

“What disturbs me on the other side is I don’t understand what the decision for you or against you when I write it is going to do to all kinds of other technologies,” Justice Stephen Breyer told David Frederick, an attorney for Aereo.

In a little more than an hour of questioning, the justices delved into highly technical arguments about Aereo’s technology and business model.  The two-year-old private firm uses thousands of tiny antennas, each the size of a dime, to capture programs off the airwaves and record them for consumers to view on smartphones, tablets and laptops.

But the company doesn’t pay broadcasters licensing fees, and the question at the heart of the Supreme Court case is whether the company’s use of individually assigned antennas is akin to a consumer’s right to use rabbit-ear antennas to watch broadcast TV for free.

Aereo, which charges subscribers $8 a month for its service, has used that argument in its legal defense.  It says it merely rents out antennas and recorders that consumers control remotely from their homes.  But every major broadcaster, including ABC, CBS, NBC and Fox, says the firm is no different from a cable, satellite or online licensing partner such as Hulu or Netflix that is obligated to pay for the right to rebroadcast the networks’ copyrighted material….  » Read More

Commerce DMCA Meeting Looks To Tackle Standardized Takedowns First

The Obama Administration Thursday launched its latest multistakeholder process on standards and best practices for improving the notice and takedown system for infringing Internet content.  The goal is to come up with voluntary standards and avoid the scorched earth debate that took down the SOPA/PIPA legislation in 2013.

Thursday's day-long meeting, which was overseen by the Department of Commerce and hosted by the U.S. Patent and Trademark Office, appeared to find common ground on the need to focus on one issue rather than tackle several at once.  That issue was a standardized template for the notice and takedown regime under the Digital Millennium Copyright Act (DMCA), which is the way content rights holders and ISPs inform Web users of allegedly infringing content.

A representative of the Motion Picture Association of America agreed that standardized templates was a good topic to start with. He also said that the focus should be on a process that was effective, not just efficient.  He said the point is not to generate millions of notices, but to cut down on the need for them by cutting down on infringement.  He also weighed in on one of the other issues on the table, one that will likely be more contentious: abusive or incorrect notices.  He suggested that such notices are actually a "minuscule" percentage and should not take up resources disproportionate to their impact.
» Read More

Google and Viacom Settle YouTube Lawsuit

Google and Viacom settled a copyright lawsuit filed by the media giant related to content hosted on the video service YouTube.  In a joint statement released Tuesday, both companies say they resolved a lawsuit filed by Viacom in 2007 over copyrighted content from networks including Comedy Central and MTV. No financial terms were disclosed.

"This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together," reads a joint statement from both parties.

Viacom filed its lawsuit against Google in 2007 -- one year after Google acquired YouTube -- seeking $1 billion, claiming the tech titan showed "brazen disregard" for demands it remove content owned by Viacom.

In 2010, a judge threw out Viacom's lawsuit, claiming YouTube could not be held responsible when its users post clips from Viacom programs.  Last year, Viacom's lawsuit was tossed a second time by a federal judge, saying YouTube is not liable so long as it removes infringing videos from copyright owners. 
» Read More

FCC Is Pulling Plug on CIN Study

“The FCC will not move forward with the Critical Information Needs study," an FCC spokesman said Friday.  "The Commission will reassess the best way to fulfill its obligation to Congress to identify barriers to entry into the communications marketplace faced by entrepreneurs and other small businesses.”

The study had drawn criticism for plans to interview journalists over why they covered what they covered.  FCC chairman Tom Wheeler suspended the study earlier in the week, at least until the methodology could be changed to scrub questions to journalists and media owners, but utlimately it appears to have been unsalvageable.... » Read More

Democratic Lawmakers Want To Bring Net Neutrality
Back to Life

Democrats in Congress have introduced a bill that would restore Net neutrality regulations, less than a month after a court decision struck them down.  U.S. Rep. Henry Waxman, D-Calif., is among the legislators who back efforts to restore Net neutrality regulations,

"It basically says, 'Remember the court decision from a couple of weeks ago?  Forget about that,'" John Bergmayer, senior staff attorney at Internet freedom advocacy group Public Knowledge, told NBC News.  "Right now there are no rules in place.  This is basically saying, while the FCC is making up its mind, the previous rules are in place."

Reps. Anna Eshoo and Henry Waxman, both D-Calif., introduced the Open Internet Preservation Act in the House, while Sen. Edward Markey, D-Mass., introduced a companion bill in the Senate. 

“The Internet is an engine of economic growth because it has always been an open platform for competition and innovation,” Waxman said in a statement.  “Our bill very simply ensures that consumers can continue to access the content and applications of their choosing online."

If passed, the legislation would require that broadband providers treat all Internet traffic equally.  That is how it worked before Jan. 14, when a U.S. appeals court ruled that the Federal Communications Commission couldn't impose Net neutrality regulations because it classified broadband providers more like Google than a telephone or power company. » Read More

Court Vacates Heart of FCC Open Internet Order

A three-judge panel of the U.S. Court of Appeals for the District of Columbia has unanimously vacated much of the FCC's Open Internet order and remanded it back to the FCC.

"[A]lthough we reject Verizon’s challenge to the Open Internet Order’s disclosure rules, we vacate both the anti-discrimination and the anti-blocking rules.  The agency’s decision is so deficient as to raise serious doubts whether the agency can adequately justify its decision at all," said the court.  "We remand the case to the Commission for further proceedings consistent with this opinion."

The court said the FCC has the authority to "promulgate rules governing broadband providers’ treatment of Internet traffic," and says that its "justification for the specific rules at issue here – that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet – is reasonable and supported by substantial evidence."

But it concluded that because the FCC has not classified ISPs as common carriers, it cannot regulate them as though they were. » Read More

Supreme Court To Hear Aereo Appeal

The Supreme Court has agreed to hear broadcasters appeal of the denial of its injunction request against Aereo. The court held a conference Friday on what appeals to hear, and did not take long in making the decision.

"The petition for a writ of certiorari is granted," the court said without elaboration. Justice Samuel Alito took no part in the decision.

Aereo had joined broadcasters in saying the court should resolve the issue, which is whether it is simply providing remote access to TV station signals or is retransmitting a performance without compensation in violation of the copyright laws.

The Second Circuit Court of Appeals refused to grant an injunction and suggested Aereo was on solid legal footing. The case has yet to be decided in the lower courts, but broadcasters argue that the service should be blocked until that lower court decision is reached because it threatens their business.

So far, no other federal appeals court has weighed in, so there is no split in the federal circuit. But district courts have differed, and the Ninth and D.C. federal appeals courts have been asked to weigh in. » Read More

FCC Chairman Voices Clear but Cautious Support for Net Neutrality

Speaking at the 2014 Consumer Electronics Show, FCC Chairman Tom Wheeler offered cautious but clear support for Net neutrality.

When Consumer Electronics Assn. topper Gary Shapiro, who interviewed Wheeler onstage Wednesday, wondered if Net neutrality rules might become unnecessary, Wheeler framed the issue in terms of results, not rules, and warned the FCC would act if markets veered in directions that discourage competition and innovation.

"I've always — well, for 60 days," he quipped, noting his short time on the job, "I've been talking about what I call the regulatory seesaw. If there are good things happening the marketplace, if there is competition, then the commission doesn't have to do much. But it can (tilt) as well."

The current Open Internet Order, he said, "is designed to encourage competition, is designed to be different for wireless than from wire, and it makes it clear that if there are untoward things impacting things to the network, undermining innovation, then the commission should move." » Read More