Blown To Bits

Speech control news from all over

Wednesday, July 14th, 2010 by Harry Lewis

More than a year ago, when the Supreme Court upheld the FCC’s authority to fineFox Television Stations for “fleeting expletives” uttered by Bono and others, we noted that the court made only a technical ruling and some of the opinions were sympathetic to Fox’s position on the underlying and more important First Amendment question:  was the rule the FCC applied too vague, capricious, and uncertain so that it chilled speech? Technology has changed, we noted, and perhaps it is time for the rules to change too, since they were always premised on an argument that television and radio were exceptional technologies, by comparison with books, for example.

The case went back to the lower court, which took up the constitutional question, and ruled against the FCC. (New York Times story.) The judge in the case made a number of correct observations–why should the standards be different for cable TV than for broadcast TV, for example. She did not rule out the possibility of the FCC adopting rules that would be constitutional, and noted that she was bound by the Supreme Court’s 1978 Pacifica decision which made that FCC authority clear. But for the moment, the networks can relax a bit about prosecution for the occasional cuss out of the blue — for example, the one in a discussion of Middle East policy that was spoken by a US President to a British Prime Minister, and which the broadcast networks had to bleep out.

It will be interesting to see what the government does now. It could appeal, but the case seems like a loser, and an appeal all the way to the Supreme Court could backfire, since Justice Thomas signaled that there may well be five votes for overturning Pacifica and costing the government all of its regulatory authority over televised speech.

In other speech control news:

A judge in Pennsylvania signed an order, drafted by a defense attorney, requiring newspapers to expunge their archives of all mention of the defendants’ arrest. The defense attorney actually has part of the logic right: “What’s the sense in having your record expunged if anyone can Google you and it comes up?” He’s right that expungement orders have been blown to bits. He’s just wrong that the way to fix that problem is retroactive censorship of the printed word. It’s a problem that can’t really be fixed, in the U.S. anyway. What was this judge thinking?

Also, a couple of notes on anonymity. I was reading Richard Clarke’s book Cyber War, which makes a compelling case for a more controlled version of the Internet by riding roughshod over civil liberties concerns. Having described the Internet as basically a hippie invention (“the Internet as we know it today is deeply imbued with the sensibilities and campus politics of [the 1960s]“), Clarke scornfully distances himself from any respect for anonymous speech, or reading.

The “open Internet” people believe that if you wish to read The Communist Manifesto, or research treatments for venereal disease, or document China’s human rights violations, or watch porn online, your access to that information will not be free if anyone knows that you are looking at it.

So much not just for Vint Cerf, but for the professional and legal standards governing libraries in most states in the U.S. He comes off sounding just like the Chinese government in its latest “explanation” about how it will control the Internet. “We will make the Internet real name system a reality as soon as possible,” a Chinese official said recently, referring to a requirement that Chinese will in the future have to use their actual names in all Internet communications, no anonymous postings or emails allowed. Just what Clarke would like to see happen here.

6 Responses to “Speech control news from all over”

  1. Adam Smith Says:

    The central PA judges you mentioned subsequently backtracked on the order requiring the newspapers to delete archived stories. I live in Centre County and so followed the case with some interest. In fact, one of the reversals is mentioned in the article you linked to:

    “Centre County Judge Bradley Lunsford, who handled the three other cases, cited free speech concerns Tuesday in signing new expungement orders, submitted by a newspaper lawyer, that rescinded an order on Friday. The new order did not require the newspapers to expunge information about the defendants, including news stories”.

    The worrisome part of the story, to me, was that neither judge ever intended to restrict newspapers’ speech— *they just didn’t know what they were signing.* As the AP article says, ‘Kistler and Lunsford said judges typically don’t read the text of each order and assume the orders are consistent with law. The orders are “certainly not things that we, as judges … create. They’re created by lawyers,” Kistler said.’

    I never realized that judges sign such orders without reading them in detail. I guess it makes sense — as a professor, I sign tons of documents (expense reports, time cards for TAs and graders, add/drop forms, etc) without carefully checking the details. Still, the worst thing that can happen if I screw up is that a student gets under- or overpaid…

  2. Harry Lewis Says:

    Thanks, Adam I should have pointed out the rescission, and yes, this story has a component of sloppy judicial process to it. As I said, the interesting thing is the lawyer’s point. What does a sealed record mean any more, on something that has been reported in the press?

  3. Bill Gasarch Says:

    The EXPUNGE problem seems very real— but is there a solution?
    I agree that retroactive censorship has problems but is the notion
    of expunging DEAD? If so, what can we do about that- revive it or
    just give up?

    Will our great nieces and nephews think that our current notions of
    privacy were quaint?

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