I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Sunday, May 13, 2007

Webpage about First Amendment and the media

A website called "Exploring Constitutional Conflicts," which is maintained by my "home" state's (remember, I am from Missouri, even if only in spirit) Univ. of Missouri-Kansas City Law School, has a webpage titled "Levels of First Amendment Protection for Different Media". I am particularly interested in this subject because I would like to see the FCC's "fairness doctrine" applied to public blogs and other public websites by law and/or custom.

IMO, the title of the webpage, "Levels of First Amendment Protection for Different Media," is a misnomer because the freedom-of-the-press right of the media is not the only First Amendment issue here. There is also the freedom-of-speech right of those outside the media, and speaking of "exploring constitutional conflicts," which is the subject of the website, the main conflict here is the conflict between these two First Amendment rights. IMO this freedom-of-speech right can be particularly strong, as when a newspaper has defamed a political candidate and the candidate seeks publication of a rebuttal in that newspaper.

The webpage speaks of a "scarcity" rationale:

In Reno v ACLU (1997), the Court considers what level of scrutiny should apply to content regulation of the Internet. The Court decides the the (sic) medium deserves the highest level of First Amendment protection, noting that anyone and everyone can develop a website -- the scarcity rationale of Red Lion for greater regulation therefore has no application.

I disagree -- I assert that the scarcity rationale does apply to the Internet, and the rationale in regard to the Internet is that the total absence of scarcity of comment space on websites means that it is unnecessary for the website owner (e.g., a blogger) to pick and choose which comments to publish. The webpage's above statement wrongly implies that the scarcity of sites (i.e., the number of radio stations, newspapers, websites, etc.) is the only scarcity issue --there is also the question of the scarcity of comment space per site. Radio and TV broadcasting are generally the most heavily impacted media in regard to the scarcity of both sites and comment space per site (except that radio and TV broadcasting stations can distribute copies of programs -- even unaired programs). In contrast, the Internet has virtually no scarcity in availability of both sites and comment space per site. This issue of scarcity cuts both ways: in broadcasting, the scarcity of broadcasting channels raises the issue of a monopoly on viewpoints, and in blogging, the limitless abundance of comment space means that it is unnecessary for the blogger to pick and choose comments to publish. Now somebody is going to say that this "limitless abundance" argument does not apply because blogs are "private" and therefore the bloggers have the right to control their blogs' content by censoring comments that they don't agree with. However, the more popular blogs have become major de facto public forums, meaning that control over the content of comments on these blogs can have a great influence on public opinion. There is nothing in the First Amendment that says that bloggers on popular blogs are more equal than others in regard to the right to influence public opinion. Also, another reason why blogs should be open to all views is that blogs are being authoritatively cited by court opinions, scholarly journal articles, and other authorities. Court opinions should of course not cite blogs that have policies of arbitrary censorship of comments -- to me this is a no-brainer. Some of the other authorities that cite blogs are either parts of the government or are private entities that are directly or indirectly supported by tax dollars -- needless to say, people's tax money should not be used to aid and abet in any way the censorship of their opinions. That's another no-brainer.

Here are excerpts from Reno v. ACLU:

At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment. . . . . .

. . . . unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

So Reno v. ACLU was about obscenity on the Internet. For the reasons I gave above, I assert that the Reno v. ACLU opinion's above statement about the "scarcity" issue does not apply to arbitrary censorship of non-obscene comments on blogs.

BTW, I was surprised by the statement, "we agree with the three judge District Court," because Supreme Court cases are normally appealed from appeals courts rather than district courts. However, this case was in fact directly appealed from the US District Court for the Eastern District of Penn.. I think that such direct appeals from district courts are a bad idea -- except in dire emergencies -- because IMO it is a good idea to get a second judicial opinion before the case is heard by the Supreme Court. I was also surprised that there was a three-judge panel in the district court -- district court cases are normally heard by single judges.

A longer background of Reno v. ACLU is given in the syllabus. Reno v. ACLU struck down two sections of the Communications Decency Act of 1996; another section of the act was not challenged in the suit and survives today as 47 USC §230, which I have discussed elsewhere in this blog (here and here).

Finally, I will play the devil's advocate here. What about partisan blogs that are set up to promote or advertise something, e.g., a political candidate, a commercial product, or a particular philosophy? Shouldn't those blogs be allowed to censor contrary comments? OK, so long as such blogs make it clear that their sole purpose is to promote something and they do not hypocritically pretend to be open forums. Such blogs should be required to post a prominent notice that arbitrary censorship of comments will be practiced (e.g., "This blog has a policy of censoring comments solely because the blogger disagrees with them"). And generally such blogs should not be authoritatively cited by court opinions, scholarly journal articles, etc., and if such a blog is authoritatively cited, the citation should include a warning note that the blog has a policy of arbitrary censorship of comments. We will then see how many bloggers choose to arbitrarily censor comments.

We already have laws that regulate blogs and there is no reason why we cannot have laws that regulate bloggers' comment policies. However, as I said, laws against arbitrary censorship of blog comments are not the only answer, because most victims of such censorship have neither the time nor the money to sue. There needs to be a change in the Internet culture so that such censorship is widely frowned upon -- right now we have an Internet culture that condones and even approves such arbitrary censorship. And even if we never have a law prohibiting arbitrary censorship of blog comments, merely debating whether we should have such a law will hopefully help to change the Internet culture.

Related articles in this blog:

No, Ed, it's not your blog -- blogs are not private or personal

Prof. Volokh approves of arbitrary censorship of blog comments
.

Labels:

16 Comments:

Anonymous W. Kevin Vicklund said...

Larry, you do realize the fairness doctrine no longer exists.

Sunday, May 13, 2007 6:40:00 PM  
Blogger Larry Fafarman said...

Cyberbully Kevin Vicklund said,

>>>>>> Larry, you do realize the fairness doctrine no longer exists. <<<<<<

Of course I know that. Articles that I linked to in other posts said that.

It is more correct to say that it is dormant. The Supreme Court never ruled that it is unconstitutional to apply the fairness doctrine to broadcasters. The fairness doctrine for broadcasters was repealed by administrative action. Wikipedia gives a history of the fairness doctrine.

I want to see the fairness doctrine applied to blogs. That is what I am arguing in favor of here.

Sunday, May 13, 2007 7:01:00 PM  
Anonymous W. Kevin Vicklund said...

Then you obviously don't understand why it existed and why it was eliminated. Which is not surprising, since you don't seem capable of understanding much of anything.

Sunday, May 13, 2007 7:17:00 PM  
Blogger Larry Fafarman said...

Cyberbully Kevin Vicklund drivels,

>>>>> Then you obviously don't understand why it existed and why it was eliminated. Which is not surprising, since you don't seem capable of understanding much of anything. <<<<<<

Why don't you say that to the members of Congress who are supporting legislation that would reinstate the fairness doctrine for broadcasters. Wikipedia says,

As of early 2007, Senator Bernie Sanders (I-VT), along with Representatives Dennis Kucinich (D-OH), Maurice Hinchey (D-NY), and Louise Slaughter (D-NY) have announced their support of legislation which would reverse the 1987 FCC decision and restore the Fairness Doctrine

I know very well why the fairness doctrine existed -- because of the scarcity of available broadcasting frequencies. And I think that there should be a fairness doctrine for blogs because of a superabundance of comment space.

Sunday, May 13, 2007 7:37:00 PM  
Anonymous Rollcall of Notorious Moonbats said...

< Why don't you say that to the members of Congress who are supporting legislation ... >

Because it'd be futile.

Monday, May 14, 2007 1:04:00 AM  
Blogger Larry Fafarman said...

>>>>>> Why don't you say that to the members of Congress who are supporting legislation ...

Because it'd be futile. <<<<<<<

Saying it to me is also futile. So why say it to me?

Monday, May 14, 2007 3:39:00 AM  
Anonymous Voice in the Wilderness said...

> Saying it to me is also futile. So why say it to me? <

Saying anything to you seems to be futile. You are just to dense to understand anything.

Monday, May 14, 2007 10:08:00 AM  
Anonymous Bill Carter said...

> Comments containing nothing but insults and/or ad hominem attacks are discouraged. <

VIW is right about one thing. Your constant violation of what is supposed to be one of your principles just makes you look childish and is probably one of the major reasons that other blogs don't take your seriously. See if you can make a post without using the terms "cyberbully", "pajama-clad", "dunghill", "fathead", etc. If you can't, you shouldn't expect to look like more than a baby who has not gotten his way.

Yesterday I mentioned VIW and then mistakenly while thinking about him/her, typed that in under username. The real VIW then rightly complained. I will leave it to you to figure out which post that was.

Monday, May 14, 2007 10:19:00 AM  
Blogger Larry Fafarman said...

>>>>>> Comments containing nothing but insults and/or ad hominem attacks are discouraged. <

VIW is right about one thing. Your constant violation of what is supposed to be one of your principles just makes you look childish and is probably one of the major reasons that other blogs don't take your seriously. See if you can make a post without using the terms "cyberbully", "pajama-clad", "dunghill", "fathead", etc. <<<<<

There is no violation. I said that comments containing nothing but insults and/or ad hominem attacks are only discouraged. And my comment policy linked in the sidebar says that abuse is OK so long as it does not disparage anyone's race, color, sex, religion, sexual orientation, or national origin.

One of the rudest, crudest dudes in the blogosphere is Sleazy PZ Myers, who runs the very popular Pharyngula blog. Being a rude crude dude does not seem to have hurt him any.

And being polite has not gotten me anywhere. I was initially very polite with those sleazy pajama-clad bloggers on the Law Blog Metrics blog.

Monday, May 14, 2007 4:00:00 PM  
Anonymous W. Kevin Vicklund said...

Larry again showed his ignorance of the sources he cites when he questioned the three judge district court panel and direct appeal to the Supreme Court. The opinion stated why it followed that route. In brief, when the Communications Decency Act was passed, a Note was appended stating that constitutional challenges were to be extradited by forming a three judge panel and sending appeals directly to the Supreme Court. This is a common rider for bills that may have the effect of limiting rights.

Of course, I wouldn't expect Larry to know these things, as he has demonstrated that he has all the legal acumen of a pet rock.

Monday, May 14, 2007 7:09:00 PM  
Anonymous Voice in the Wilderness said...

> And my comment policy linked in the sidebar says that abuse is OK so long as it does not disparage anyone's race, color, sex, religion, sexual orientation, or national origin. <

O.K. you pajama clad fatheaded halfwit.

Monday, May 14, 2007 10:52:00 PM  
Blogger Larry Fafarman said...

Pettifogger and blogosphere goon Kevin Vicklund drivels,
>>>>>>In brief, when the Communications Decency Act was passed, a Note was appended stating that constitutional challenges were to be extradited [expedited?] by forming a three judge panel and sending appeals directly to the Supreme Court . . .

Of course, I wouldn't expect Larry to know these things, as he has demonstrated that he has all the legal acumen of a pet rock. <<<<<<

Well, good for you, Kevin. You got one up on me. You should be proud of yourself. (NOT!)

Here is what the syllabus of Reno v. ACLU says,

A number of plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d). After making extensive findings of fact, a three judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions.

That could mean anything -- it could mean that the district court arbitrarily decided to have a three judge panel and that the Supreme Court arbitrarily decided to accept a direct appeal from a district court.

The suit challenged the constitutionality of the statute. If the law prescribed a procedure for such a suit, then Congress showed that it expected the constitutionality of the law to be challenged!

As I said, there is no advantage here to a direct appeal from a district court to the Supreme Court. Going through a federal appeals court gets a second opinion prior to SC review and gives an opportunity to refine the arguments. And what if the Supreme Court refuses to accept the direct appeal from the district court?

Appeals of administrative decisions of government agencies are often filed initially in the federal appeals courts instead of the district courts because an administrative decision is regarded as the equivalent of a district court decision. But that is another matter.

Tuesday, May 15, 2007 5:36:00 AM  
Blogger Larry Fafarman said...

Voice in the Wilderness said...

>>>>>> And my comment policy linked in the sidebar says that abuse is OK so long as it does not disparage anyone's race, color, sex, religion, sexual orientation, or national origin. <

O.K. you pajama clad fatheaded halfwit. <<<<<

You are still in violation of the rules. The blog masthead says, "Comments containing nothing but insults and/or ad hominem attacks are discouraged."

Tuesday, May 15, 2007 5:43:00 AM  
Anonymous Voice in the Wilderness said...

> You are still in violation of the rules. The blog masthead says, "Comments containing nothing but insults and/or ad hominem attacks are discouraged." <

You are remarkably inconsistent on this issue. You claim that your own comments, containing nothing but insults and/or ad hominem attacks are not a violation of the rules but those of others which only retaliate are.

Make up your mind. Which is it?

Tuesday, May 15, 2007 3:13:00 PM  
Anonymous Voice in the Wilderness said...

Larry, If you don't realize just how ridiculous your last post makes you look, you really need help. Stop digging!

Tuesday, May 15, 2007 4:23:00 PM  
Anonymous Voice in the Wilderness said...

There is another post I didn't write with my name on it. I didn't write it but I agree with it. Who is doing this?

Wednesday, May 16, 2007 8:27:00 AM  

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