Whose First Amendment Is It?

                                 

Ever wonder why freedom of the press was singled out for specific protection in the First Amendment? After all, the Free Speech clause obviously protected the press as well as other citizens. Why include a specific provision about freedom of the press?

 

The answer is that the architects of our constitution believed that self-government requires the free and uninhibited flow of  information. They wanted to be extra-certain the government kept its hands off that information. So while the First Amendment protects all expression, the free press provision emphasizes the importance of protecting the specific kind of expression we call “journalism.”

 

Note that the constitution doesn’t protect persons called “journalists.” It protects the act of journalism. (It’s a distinction contemporary media mavens don’t seem to recognize—but that’s a subject for a different talk.) The activity of “journalism” ensures the availability of information that is in the public interest. Anyone who provides that kind of information, that kind of reporting—whether for newspapers, magazines, radio, television or blogs—deserves to be protected against government supression, intimidation or reprisal. People engaged in the act of journalism are entitled to that protection whether the news is being delivered with a quill pen or a computer.

 

The Founders were anything but naïve. They recognized that what they called the press and we call the media got it wrong a lot of the time. The newspapers of their own time, called the “penny press” were partisan rags that make Fox News and Air America look positively statesmanlike by comparison. But the founders also knew that only from the freest, most robust exchange of argument, information and gossip would truth ultimately emerge. They were comitted to free markets for goods and services, and they believed that only an equally free marketplace of ideas could ultimately protect individual liberties.

 

Freedom of Speech and Freedom of the Press don’t rest on the notion that ideas are unimportant, that “sticks and stones can break my bones, but words won’t hurt me.” The Founders knew that ideas can be both powerful and dangerous. But they believed that giving the government power to determine which ideas may be transmitted or expressed was infinitely more dangerous.

 

The Founders were could hardly have forseen the evolution of the press and the contours of our contemporary media landscape. Today, threats to the free exchange of information are very different than they were in Revolutionary times. And the greatest threats, ironically, grow out of the expansion and changing nature of the marketplace itself.

 

  • The availability of hundreds of cable channels and a vastly expanded “newshole” has led to intense competition for readers and viewers. That competition has encouraged news coverage that is more properly labelled “infotainment”—a new twist on the old newspaper adage “if it bleeds, it leads.” Today, sensationalism rules: we get endless coverage of missing blonds in Aruba, Brangelina and Tom Cruise; we get panels of so-called “commentators” screaming at each other, and pundits who sell their books by saying outrageous and self-evidently ridiculous things in an accelerating effort to grab headlines and increase sales. “Faux news” doesn’t just describe the Daily Show—which is often a lot less “faux” than some of the supposedly straight news programs.
  • Far more insidious is the fact that ownership of all our media—newspapers, magazines, radio and television stations—has become concentrated. Five international mega-corporations now control most of the American media—most of what we read, hear and see. The government doesn’t control the news—Rudolph Murdoch, Viacom and Disney do. The concerns this raises for accurate public information can be seen in the recent airing of a “docu-drama” by ABC—owned by Disney—that had been condemned as totally fabricated by Republicans and Democrats alike, despite protests and petitions to correct what appeared to be a politically motivated effort to revise the history of 9-ll.

 

The medium with the most obvious ability to counter these trends is the internet—it gives each of us access to mountains of uncensored, uncontrolled, unfiltered information. The internet carries its own set of challenges: credibility of sources, sheer volume of information available, the further enabling of our ability to tailor the information we receive to our political preconceptions—but its utility and promise far outstrip those challenges. The Net lowers barriers to participation in public discussion. Talk about “power to the people”—the internet is an unbelievably powerful threat to concentrated power, whether that power is being exercised by the government, as the founders feared, or by private monopolies.

 

That promise is why, right now, I think the biggest threat to our constitutionally protected right to receive and disseminate information is contained in a Senate Telecommunications bill sponsored by Alaska Senator Ted Stevens—he of “bridge to nowhere” fame. Buried in the technical jargon of that bill is a provision that would have profound effects on all of us who participate in the marketplace of ideas, but especially on the less powerful—and members of more marginalized communities.

 

Currently, most web sites are able to be accessed at a fairly fast speed.  Any person can create a blog or web site, and it will be just as available to people all over the world as the sites of the largest companies.  The large cable and telephone companies are proposing regulations that would change that. This proposal would let Internet providers charge content providers money for faster access.  Corporations or wealthier individuals could pay to have their web sites load faster. (One person I know calls this “protection money,” because the telecom giants currently have a monopoly on the telephone and cable lines that the Internet runs through. It would be like someone owning the streets, and letting Hummers use them for free, while charging Yugos to drive on them.) 

 

The bottom line is that some web sites would become Yugos on that road we call the World Wide Web–relegated to the Internet’s bike lane if the companies that own the road are successful in getting this measure passed. The proposal would let ISPs and other web businesses pay extra to receive preferential treatment for their data packets carrying everything from video to music to text over the Internet. Such “packet prioritization” would deliver a more responsive Web to visitors to those sites–an especially valuable perk for high-bandwidth services like streaming video, but important to others as well.

 

Think about it—how patient are you with slow-loading sites? I’m not. If something is taking too long to load, unless it’s something I really, really want, I don’t wait. I go elsewhere. It’s not a phenomenon limited to the web—how often do you return to restaurants or retail stores with poor service?

 

Until now, one of the great benefits of the internet has been its equal accessibility. Before the internet, the costs of being heard—the “entry costs” of having a meaningful voice in public debate—were prohibitive. Want to start a newspaper? It’ll cost you millions. What to get a book published? Not easy—as I can attest from experience. But want to start a web site? All you need is a computer, web access and time. Your only limit your persuasiveness, whether you have a message that others want to hear.

 

The Web is the ideal “marketplace of ideas,” where those expressing ideas that may not be “mainstream” or “popular” or sufficiently in line with majority beliefs can compete on an equal footing. The web has been an enormous boon to minority opinions and voices.

 

That’s what “net neutrality” is: equal access to the marketplace of ideas. An ability to penetrate the official “echo chamber.” And that’s what is under assault.

 

If you care about equality, about journalism, about the First Amendment, you should care about preserving net neutrality.

 

 

 

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The 4400

One of the few television shows I follow is a science-fiction thriller called “The 4400.” The premise is simple: over a period of fifty-plus years, people have inexplicably disappeared, one by one. Then—suddenly—they are all returned. They have no memory of where they have been, and most face a world that is vastly changed; new social mores, new technologies, new national alliances. They are also different. They have been given new powers, and some don’t cope very well with the challenge those powers represent.

 

The returnees encounter fear and stigma. Relatives shun them; government agencies monitor them. These dynamics give the show its dramatic tension, as does the suspense of wondering how it will all turn out.

 

Coincidentally, 4400 is also the number of people who return to Indianapolis annually after “disappearing.” 

 

Of the 650,000 incarcerated individuals who are released from penal institutions in America each year, approximately 4,400 return here. Their initial disappearance from our streets was due to their own misbehavior rather than a plot device, of course, but in other ways, these ex-offenders have more in common with the television returnees than we might think.

 

Depending on the length of time served, many will find the world a different place. Computers, cell-phones, ATMs, transportation—all the technology that morphs with dizzying speed—has changed the everyday environment. Family members have moved, married or remarried, died or written them off.  Just as in the TV show, returnees’ movements are monitored, and they face persistent stigma and suspicion and a host of perverse incentives that seem designed to make re-offending easier than going straight. 

 

The greatest problem these ex-felons will face is getting a job. Employment has been shown to significantly decrease recidivism, but for many reasons (some sound, some not), up to 70% of private-sector employers refuse to hire ex-felons, period—irrespective of the nature of the underlying crime or its relevance to the workplace in question.

 

No sane person wants child molesters working at a day-care center, but as a local judge recently noted, every ex-con isn’t Charles Manson. Some are truly bad actors, but many were kids who got into bad company and made serious mistakes. Others ran afoul of our draconian drug policies. It was appropriate that they pay for breaking the rules, but we all benefit by helping those who genuinely want a fresh start.

 

America imprisons a greater proportion of its population than any other western nation. Most of those prisoners will eventually be returned to our communities. If we choose to slam every door, foreclose every opportunity, Indianapolis will have to deal with our own 4400—4400 people every single year who have nothing to lose by returning to lives outside the law.

 

There are no simple answers, no pat policy prescriptions. Sometimes, hiring an ex-offender presents an unacceptable risk; other times, refusing to give someone a second chance is the greater risk.  

 

Television shows can wrap up problems tidily in an hour. Real life is a lot harder.    

 

 

Comments

The 4400

One of the few television shows I follow is a science-fiction thriller called “The 4400.” The premise is simple: over a period of fifty-plus years, people have inexplicably disappeared, one by one. Then—suddenly—they are all returned. They have no memory of where they have been, and most face a world that is vastly changed; new social mores, new technologies, new national alliances. They are also different. They have been given new powers, and some don’t cope very well with the challenge those powers represent.

 

The returnees encounter fear and stigma. Relatives shun them; government agencies monitor them. These dynamics give the show its dramatic tension, as does the suspense of wondering how it will all turn out.

 

Coincidentally, 4400 is also the number of people who return to Indianapolis annually after “disappearing.” 

 

Of the 650,000 incarcerated individuals who are released from penal institutions in America each year, approximately 4,400 return here. Their initial disappearance from our streets was due to their own misbehavior rather than a plot device, of course, but in other ways, these ex-offenders have more in common with the television returnees than we might think.

 

Depending on the length of time served, many will find the world a different place. Computers, cell-phones, ATMs, transportation—all the technology that morphs with dizzying speed—has changed the everyday environment. Family members have moved, married or remarried, died or written them off.  Just as in the TV show, returnees’ movements are monitored, and they face persistent stigma and suspicion and a host of perverse incentives that seem designed to make re-offending easier than going straight. 

 

The greatest problem these ex-felons will face is getting a job. Employment has been shown to significantly decrease recidivism, but for many reasons (some sound, some not), up to 70% of private-sector employers refuse to hire ex-felons, period—irrespective of the nature of the underlying crime or its relevance to the workplace in question.

 

No sane person wants child molesters working at a day-care center, but as a local judge recently noted, every ex-con isn’t Charles Manson. Some are truly bad actors, but many were kids who got into bad company and made serious mistakes. Others ran afoul of our draconian drug policies. It was appropriate that they pay for breaking the rules, but we all benefit by helping those who genuinely want a fresh start.

 

America imprisons a greater proportion of its population than any other western nation. Most of those prisoners will eventually be returned to our communities. If we choose to slam every door, foreclose every opportunity, Indianapolis will have to deal with our own 4400—4400 people every single year who have nothing to lose by returning to lives outside the law.

 

There are no simple answers, no pat policy prescriptions. Sometimes, hiring an ex-offender presents an unacceptable risk; other times, refusing to give someone a second chance is the greater risk.  

 

Television shows can wrap up problems tidily in an hour. Real life is a lot harder.    

 

 

Comments

Civic Incompetence and Its Consequences

A college in Canada—Lakehead University—is running a rather audacious recruitment campaign: an internet advertisement with George W. Bush’s face and the message “Yale, Shmale. Graduating from an Ivy League university doesn’t necessarily mean you’re smart. If you agree, click here.” When you click on the link, you get a pitch for Lakehead.

Just another bit of evidence—as if evidence were needed—of the low esteem in which the current American President is held.

If his usefulness to Canadian ad men and late-night comics were the only consequences of Bush’s incompetence, that would be an embarrassing, but short-lived, problem. Unfortunately, having a chief executive who doesn’t recognize basic constitutional principles or comprehend important distinctions has created domestic and international disaster. 

Let’s just connect the dots by way of one example. Bush has constantly talked about the importance of bringing “democracy” and “freedom” to the Middle East. He clearly believes the terms are interchangable. They aren’t. Democracy is the practice of popular election; liberty, as the western world has come to understand that term, requires the rule of law. The rule of law protects our freedom to live our lives as we see fit, without government interference so long as we aren’t harming someone else. Liberty thus includes freedom of speech and religion, a right to due process and equal protection, the right to privacy, and so forth.

In the Middle East, for example, Hamas—the Palestinian terrorist organization—was democratically elected (and Hezbollah enjoys majority support in much of Lebanon). It is quite likely that Iraq, which used to be the most secular Arab state, will eventually elect a theocratic government—assuming Iraq survives its current civil war intact. In short, a country can be both “democratic” and repressive. 

Why is any of this important—or relevant—to the gay community? 

The central concern of civil liberties and the rule of law is to trump what James Madison called “the passions of the majority.” The ACLU is never called upon to defend people everyone agrees with; the First Amendment was intended to protect, as Justice Holmes once put it “the idea we hate,” not the popular, widely-accepted idea. The gay community’s ability to make progress toward acceptance and equal rights depends upon America’s commitment to liberty, not its practice of democracy. In 2004, we saw what happens when citizens get to vote on the rights of their gay neighbors. The principle that matters is equal protection of the laws, not fidelity to majority passions.

This is not to suggest that democracy is unimportant, only that it is insufficient. Majority vote unconstrained by the rule of law and respect for equal rights can be every bit as tyrranical and despotic as the rule of a dictator.

An example: when I was the Executive Director of Indiana’s ACLU, we represented the KKK in a suit against the state. The then-governor, Evan Bayh, had refused to allow a Klan rally on the steps of the Indiana Statehouse. The steps were routinely used by other groups—prochoice and prolife, major and minor political parties, all manner of issue advocacy organizations—but the Klan was (for good and obvious reasons)massively unpopular. Those of us defending the right of these despicable people to be treated like everyone else included me (Jewish), a co-operating attorney (gay), and a paralegal (African-American). We’d have been the first people killed if the Klan ever came to power.

In a very real sense, however, we weren’t representing the Klan—we were defending the rule of law. We knew that our own rights depended upon fidelity to the principle of equal protection—that if the most despised citizens don’t have rights, no one really has rights—they just have privileges that government can revoke when majority opinion makes it politically convenient to do so. 

Too bad our President doesn’t understand that.

 

 

 

 

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Adults and Children

Here’s a short quiz.

 

    Who is the better parent, the dad who lovingly but firmly corrects his child when he believes the youngster has done something wrong and needs to learn a lesson, or the dad who reflexively defends Junior, no matter what—the one who goes to school and argues when the teacher disciplines his child?

    

Most of us would choose the parent who cares enough to teach his child to distinguish between right and wrong, between unacceptable behavior and behavior that is true to the child’s best nature. Most of us also recognize that the parent who constantly shields his children from the consequences of their bad choices is not living up to the responsibilities of parenthood.

    

Would we accuse the first parent of not loving his child? Or would we say his willingness to do the unpleasant work—the willingness to suffer through the tantrums of the two-year-old told no, the pouting of the preteen denied a pair of too-expensive jeans, and the complaints of a grounded teenager—makes him the better, more loving parent? One is  mature love; the other is a self-centered  "he’s my kid, so he’s automatically right" attitude that is anything but.

     

Think about this example the next time someone in the Bush Administration suggests that any criticism of the Iraq war or American foreign policy is “siding with the terrorists.” Think about it when shrill pundits accuse those who disagree with Administration policies of “hating America” or being “covert enemies” who secretly want the United States to fail.

    

Midterm elections are fast approaching, and the nasty rhetoric on all sides is ratcheting up accordingly. That’s a shame—because if there is anything America needs right now, it is an adult conversation about our policy priorities, and about the qualifications of those we elect to set those priorities and implement them. That conversation won’t occur if necessary participants in the debate take the position that disagreement equals hatred and shouldn’t be tolerated. 

 

    Mature people who genuinely love this country will worry when they believe it is going astray. They will do the hard work of citizenship: they will inform themselves of the facts and make an effort to help correct perceived missteps. They won’t always be right, any more than a parent is always right—but therein lies the difference between patriotism and jingoism.

    

Let’s set some ground rules. Let’s acknowledge that people can love their country deeply, and yet have very different ideas about what is in the national best interest. We can respect the good will of those with whom we disagree, and listen to their arguments, rather than applying labels in order to dismiss them. We may leave the conversation without reaching agreement—indeed, such a result is highly likely, given human nature and the different worldviews we bring to the discussion—but actually listening to each other can be a very enlightening experience.

 

     Good parents don’t condone name-calling when their children do it.  Good citizens don’t resort to it either.

 

 

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