Category Archives: Free Speech

Gawker, the Freedom of Expression, and the Power of Consequences

free-speech-churchill

Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?

What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?

Across the web confusion abounds about what freedom of expression really means.

Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:

What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.

Literally, every part of that last bit is wrong.

The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.

The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.

Nor is that constitutionally protected freedom a “privilege.” It is a right.

And it does not have to be exercised responsibly.

It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.

Perhaps a libertarian(ish) review is in order.

“FREE SPEECH” V. FREEDOM OF SPEECH

Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.

That is not how it works.

Speech requires a forum, which must be paid for by someone.

In public forums paid for by taxpayers, “time, place and manner” restrictions may be imposed to keep things orderly. But content-based discrimination is not permitted. Even the Nazis get to express themselves.

In private forums, on the other hand, the property owner gets to decide what speech he is willing to host.

There is no “free speech” right to interrupt a Muslim prayer service at the National Cathedral. The Cathedral’s owner, which is the Episcopal Church, gets to decide what sort of speech occurs there. It doesn’t have to (but may if it wants) host Muslim-haters, atheists, rude people, or morons.

Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.

And Gawker does not have to publish every post. (I would totally make it publish this one.)

If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.

Gawker is not one of them.

Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.

…Oh yeah. Freedom of speech.

FORCE VERSUS CONSEQUENCE

It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.

That Nick Denton was “forced” to pull the now infamous Gawker post.

It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.

Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.

This includes all governmental interference, because government action by definition involves force. Even civil regulations (like fines) eventually end with puppy-killing SWAT teams. Of course force exercised by private actors, in the form of violent reprisals, also suppresses freedom and therefore should be resisted with the same passion.

Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.

Why?

Because speech is the most powerful weapon that ever has or ever will exist.

It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.

And it can do all that without shedding a drop of blood.

A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.

We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.

EVERYTHING BUT FORCE IS FAIR GAME

That being said, everything short of physical force is fair game.

A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.

Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.

All of these are fair game. All of these are themselves protected acts of expression.

They may make life unpleasant for the target. They may feel coercive or even deeply wounding.

They’re supposed to.

If speech didn’t have that power, we wouldn’t bother protecting it.

Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.

GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED

If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.

But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.

Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.

None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

In the Wake of Obergefell v. Hodges: Gay Marriage, Religious Liberty, and the Free Markets

Church of the Pilgrims, Washington DC

[Photo: Church of the Pilgrims, a Presbyterian USA Church in Washington DC, via Wikimedia Commons.]

On Friday, June 26, 2015, the Supreme Court held in Obergefell v. Hodges that under the Fourteenth Amendment, states are required to license marriages between same-sex partners and to also recognize same-sex marriage licenses from other states. The topic of same-sex marriage is probably one of the most polarizing topics in modern-day America. Over the past several days I have seen dozens of people, both for and against same-sex marriage, acting hateful to one another, unfriending and/or blocking people on social media because they have different views, and just having a very nasty tone. But why? Why can’t we have a dialogue on the topic? Let’s face it. Obergefell is now the law of the land. The purpose of this post is to try to open that dialogue. So now that gay marriage is legal in all 50 states, what comes next?

Gay Marriage

Contrary to what many may think, the Supreme Court did not create new law here. They did not legislate from the bench. The Supreme Court has a long history of recognizing marriage as a fundamental right and has held that the states cannot discriminate against consenting adults with regard to this fundamental right. The Supreme Court has held this time and time again. As Justice Kennedy noted in his majority opinion:

[T]he Court has long held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

– Obergefell (slip op., at 11)

Furthermore, the right to marry is guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Anytime that a fundamental right is restricted to a group of people, the government bears the burden of proving that the law is necessary to meet a compelling government interest, that it is narrowly tailored to meet that interest, and that the means of implementing the law is the least restrictive means available. The Court found that there is no compelling government interest in denying same-sex couples the fundamental right to marry solely because of their sexual orientation. This is not creating new law. This is the Supreme Court telling the states that any law which restricts fundamental rights between consenting adults is unconstitutional.

Another argument that I often hear is that people think that this should be left up to the individual states to decide. That would be true under the Tenth Amendment. However, the Tenth Amendment only applies to powers not delegated to the United States by the Constitution. The Supreme Court has the power to interpret these laws under the Fourteenth Amendment. So the states’ rights argument doesn’t apply. Bans on same-sex marriage also violate the Privileges and Immunities Clause of the Fourteenth Amendment. This means that citizens who move to a new state are entitled to the same rights and privileges of citizens in the new state. The state cannot discriminate against them. Therefore, a marriage license that is valid in Massachusetts is also valid in Mississippi. A state cannot discriminate against people who move from other states.

This is not a legislative issue either. As Justice Kennedy stated:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. Obergefell (slip op., at 24)

So even though the ideal process may be to go through the democratically elected legislature, this does not preclude one from raising the issue before the Court if his or her fundamental rights are abridged.

Therefore, the Supreme Court did not create a new law. They did not legislate from the bench. This is not a case of judicial activism run amok. Even if you do not agree with gay marriage, at least understand that the government cannot deprive others of fundamental rights that are given to the rest of us.

Religious Liberties

Rest assured that just because same-sex couples can now marry in all 50 states, it does not mean that the government can discriminate against religious institutions. The government should not force any particular denomination, pastor, priest, or clergy to perform a same-sex wedding against their will. This would violate the Free Exercise Clause of the First Amendment.

I don’t foresee this as much of an issue. Most gay people that I know would get married outside of the church anyway. But if a same-sex couple does want to get married in a particular denomination, their right to marry is not infringed by a pastor’s denial to perform the service. The same-sex couple is still free to seek out another pastor. If a Southern Baptist church does not want to perform the ceremony, the couple can go to an Episcopalian church. If a pastor with the Presbyterian Church of America (PCA) declines to perform a ceremony based on his religious conviction, the couple can seek a pastor with the Presbyterian Church USA (PCUSA) willing to perform the ceremony.

Therefore, I don’t see this decision as an attack on our religious liberties. Every denomination should be able to exercise their faith and religion as they see fit under the Free Exercise Clause of the First Amendment. If you do agree with gay marriage, at least understand that the government cannot infringe on a clergy’s right to exercise his or her faith by declining to perform a same-sex marriage.

Free Markets

Okay. So now same-sex marriage is legal in all 50 states. How does this affect the markets and what does it mean for all of the bakers, florists, photographers, et. al who decline their services to same-sex couples? As a Christian AND a libertarian, I sometimes find myself at odds with…myself. Even if I disagree with something that goes against my convictions, it doesn’t give me the right to deprive another of their rights or hate on them for their choices. So I want to view this topic in two lights. How should this be handled with regard to the free markets and the courts? And how does this appear in the eyes of God?

Over the past several years, Christian wedding service providers, such as bakers, florists, and photographers, have declined to provide their services to same sex weddings. In Colorado, Masterpiece Cakeshop was sued for failing to make a wedding cake for a same-sex reception. Despite the owner’s willingness to serve homosexuals in his establishment, he believes that making the wedding cake means that he is participating in the union and it goes against his convictions. More recently, in Oregon, an administrative judge proposed that Sweet Cakes by Melissa pay a same sex couple $135,000 for refusing to bake a cake for a same-sex marriage. Then of course, there was the New Mexico case where the NM State Supreme Court held that Elane Photography discriminated against a same-sex couple by refusing to record their wedding, despite their policy on welcoming gay couples for other services.

From a free market, libertarian position, I disagree with all of these decisions. In each of these cases, the business owner was willing to serve gay couples, but did not want to participate in the wedding ceremony. Businesses are rewarded or punished in the marketplace for their stances and services. If a customer doesn’t like their stance, s/he does not have to give them business. Let the markets dictate what happens to the business. I also understand the business point of view that their services are forms of expression. They should be protected from being forced to cave on their religious convictions. If they don’t want to express themselves in that manner, I don’t agree that they should be forced to. But does that mean that it’s the right decision?

As Christians, is this the way that we are to show our love to the world? In Matthew 22:36-40, Jesus tells us that we are to first, love the Lord our God with all our heart, soul, and mind and second, that we are to love our neighbors as ourselves. When we decline these services to others, are we loving our neighbors as ourselves? Are we reflecting the love of Jesus as we are called to do? I don’t think so. Jesus never really hung out with the religious folks. He was always meeting with, preaching to, and loving on the fishermen, the taxcollectors, the prostitutes, the dregs of society. Jesus said that he didn’t come for the righteous or powerful, but to save those who are lost. When we refuse services to same-sex couples, are we drawing them closer to God, or are we just pushing them further away?

I think that it’s time that we love our neighbors as ourselves.

 

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

Free Speech Aside, Why We Must Defend Those Who Draw Muhammad

Callimachi free speech aside

Free speech aside, why would anyone do something as provocative as hosting a ‘Muhammad drawing contest’?”

New York Times reporter Rukmini Callimachi asked that question on Twitter at 8:08 p.m. on May 3, within hours of gunmen opening fire at a “draw Muhammad” event in Garland, Texas.

It is tempting to answer Callimachi’s question dismissively. Speech needs no why. Freedom of expression is its own raison d’être.

That is in fact what I believe.

I am a freedom fetishist.

But perhaps we have strayed so far from our classically liberal tradition, become so complacent inside the bounds of our own civility, that we must deign again to explain the why of it.

Free speech aside, why depict Jesus Christ floating in urine? Why paint the Virgin Mary splattered by dung and surrounded by hovering vaginas? Why fake an interview wherein Jerry Falwell confesses to losing his virginity with his mother? Why produce the musical The Book of Mormon?

Free speech aside, why does anyone, ever, do or say or think or draw or write anything profane or blasphemous or provocative or controversial or impolite or mean-spirited or harsh or unkind?

Do only certain answers to that question justify the exercise of such freedom? Insulting to Christianity 15-0505

I sit as I write this in a crowded coffee shop. The tables are small and closely spaced. There are men seated at the two tables on either side of me. All three of us have matching disposable cups of overpriced coffee sitting precariously on the edges of our small tables crowded beside our silver laptops.

There is no way for me to turn my laptop to prevent them both from seeing the screen. After reading the Wikipedia entries for the artwork I mentioned above, I peruse galleries of Charlie Hebdo covers looking for examples of images targeting Christian and Judaic ideas.

Ideas. Not people.

CircumcisionI wonder to myself, what do these men sitting so closely beside me think of these images? By now, they have surely glanced over and seen them on my screen. What meaning have they ascribed to them, to my perusing of them here inside the narrow confines of this crowded coffee shop?

I find my mind flowing back through the years to another table in another time. It is more than a decade and a half ago. The table is bigger, square instead of round. In a lunch deli, not a coffee shop, and not at all crowded. I am having lunch with a friend. It is before the days of smartphones. We are reading different sections of a shared newspaper.

An article captures my attention. I summarize it aloud for my friend. A couple struggling with fertility sought help from a fertility clinic. Ultimately the wife was implanted with embryos that were successfully fertilized using her eggs and donor sperm. A baby was born.

Only there had been a mix-up with the donor sperm used by the clinic. The baby does not have the right look to her parents’ way of thinking.

Her skin is too dark. Her hair is too kinky.

The parents are suing. The article closes with a quote in which they insist they are not racist.

“Right. We aren’t racist,” I mimic, sarcastically. “We just don’t want this baby. For entirely nonracist reasons.”

My friend snickers. We both get it. We are young and smug and sure of ourselves, signaling our mutual membership in the best of all possible tribes. We start riffing off each other, back and forth, mimicking all the things we imagine people blissfully unaware of their own contrivances say in such circumstances.

We’re not racist. We just don’t think the races should mix.

We’re not racist. This is about the children.

We’re not racist. We have black friends.

A man at a corner table looks up from behind his own newspaper and frowns at us.

Jerk. I immediately assign him to one of those other, less desirable tribes. One whose members remain fatuously assured of their enlightened values right up until the moment they are handed that baby. The swaddled bundle of Other that forces them to confront the things they had until that point been able to deny existed inside their own minds.

Or—

Wait.

Wait!

Does he think we are the—?

Did he misunderstand? We were only…

What? I struggled to think of the right words to describe what we were doing.

Making fun.

Mocking.

Satirizing.

I am fifteen years away from knowing what Charlie Hebdo is.

Poe’s Law is not yet a thing.

All of sudden I see how the view might look from his table. I am no longer sure which of us belongs in which tribe. Which of us is blinded by our own contrivances.

It is not always obvious.

It is not always possible to find a single objective truth in satire, in mockery, in fiction, in art. It is not always easy to define the line between the thing mocked and the mockery itself. Between racism and the illustration of racism. Between targeting ideas and targeting people. To avoid the place where laughter collides with conscience. To know if we are punching up or down.

To avoid the inherent limitations of the views from our own tables.

But it is in those moments when self-doubt obliterates contrivance that paradigms shift. It is in the moments when we finally sense the chinks in our own armor of righteousness that we fully appreciate the limitations of our perspectives. It is where we straddle those lines that cannot be drawn that real debate occurs and social change is worked.

There is inherent value in the speech that drives us to the place where the curtain is pulled back.

And that is why.

As Caleb Crain, author of Necessary Errors, writes on his Steam Thing blog:

It’s possible, of course, to see the antiracist message of one of the Charlie Hebdo cartoons as no more than a cover for an underhanded relishing of the racist imagery deployed in it. Parody usually does participate to some extent in the energy of what it parodies; that is one of the risks it runs. Humor is not pure. It speaks to us through our flaws, as well as speaking to us about them—envies and hates, as well as greeds and lusts—and it can’t exist without the license to work with dark materials.

Last year at the University of Iowa, a visiting professor created a sculpture of a Ku Klux Klansman papered with articles about racial tension and violence over the last 100 years. Some people complained that it was racist, and the sculpture was removed. Its creator, Serhat Tanyolacar, intended the sculpture to confront the comfortable assumption that our racial frictions are all safely in the past.

Can one of these interpretations be pronounced objectively correct to the exclusion of the other? They are like conjoined twins—one good, one evil—and you cannot kill one without killing the other.

And that is why.

If the message cannot always be nailed down, neither can the direction of the punch, though that was a criteria for meritorious satire recently advocated by cartoonist Gary Trudeau. An LGBT couple denied photography, floral or catering services will undoubtedly perceive the balance of power differently than the Christian business owner bankrupted for expressing religious values that amount in others’ eyes to politically incorrect discrimination.

Which side controls the narrative about campus “rape culture?”

Does Paul Nungesser have more or less power than Emma Sulkowicz?

Are the targets of Charlie Hebdo’s satirical barbs victims, as Trudeau suggests, or are they oppressors, as Ayaan Hirsi Ali and others might argue?

[T]o portray an institution that mocks any religion’s sacred cows as villainously “punching down” ignores that religious institutions are very much part of the power structure and have been throughout history.

When you’re challenging the gods, and those who claim to speak for the gods, you are always punching up.

Can we say with certainty that Charlie Hebdo’s (alleged) punching down in France does not help people like Raif Badawi punch up in Saudi Arabia?

Like shifting sands, our perceptions of the balance of power change from setting to setting, issue to issue, moment to moment, always influenced by the view from our table. If we refrain from swinging except in the clear cut cases, satire is sidelined precisely at those moments when we stand on the brink, when social upheavals make the scores too close to call.

And that is why.

But it is not all.

Circumscribing speech based on the sensibilities of out-groups marginalizes and infantilizes the members of those groups. It treats them as children who must be shielded from the harsh confrontations that members of other, more superior groups might be expected to handle. As David Frum noted in responding to Trudeau:

It’s almost as if he thinks of underdogs as literal dogs. If a dog bites a person who touches its dinner, we don’t blame the dog. The dog can’t help itself. The person should have known better.

In this manner, Trudeau and his cohorts would return fierce debate to the exclusive province of those—white, male and Judeo-Christian—who by dint of their power and privilege can be expected to handle such heady and taxing matters responsibly.

Out-groups are not comprised of children. Nor are they homogenous. Among their many victims, extremists who call themselves Muslims kill moderates who also call themselves Muslims. Is Charlie Hebdo punching down against the latter—or punching up on their behalf?

People of good faith can reach different answers.

And that is why.

Finally, and here is the crux of it, we cannot make the world safe for the people who would punch up unless we find it our hearts to defend those who will use the same freedom to punch down.

I used to differentiate between government censorship and private consequences for unpopular speech. It was the wrong distinction. The meaningful difference is between non-forceful responses to speech—firing, boycotting, bankrupting, and shunning, all of which are fair game—versus forceful responses, which never, ever are.

It is not functionally different whether the thugs suppressing expression are the official ones we call “government” or a renegade band of religious zealots. If we give in to the latter on the theory that they are somehow exempted from the resistance we would put up against the former, the zealots simply become a shadow government of censors.

We are no less unfree.

Bosch Fawstin's  winning entry in the Garland, Texas "Draw Muhammad" contest.

Bosch Fawstin’s winning entry in the Garland, Texas “Draw Muhammad” contest.

If we want freedom to exist for the Raif Badawis of the world, we must defend its exercise by the Pam Gellars.

The peaceful way to do that, to render violence counterproductive to its own ends, is by mirroring the speech that would be suppressed. Even when it is offensive. Even when it is blasphemous. Even when it is rude, childish, stupid, unpopular, pointless or unnecessarily provocative.

Even when we don’t agree. Especially then.

And that is why.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Are “Safe Spaces” the New “Coloreds Only?”

Entrance 15-0325

Earlier this month, two white students at Ryerson University in Canada were dismissed from a meeting of the Racialized Students’ Collective, a university group funded through the Ryerson Students’ Union. The university’s student newspaper, The Ryersonian, reported the RSU coordinator confirmed the students were excluded for being white. Last week Aeman Ansari, a fourth year journalism student at the school posted a blog entry on HuffPo Canada defending the decision.

Ansari ably and convincingly defends her belief that safe spaces are important. Ansari’s defense falls short for failing to explain why taxpayers, the university, and other students should fund them as exclusionary campus events.

Specifically, Ansari opines that:

[T]he point to note is not that two white students were asked to leave the event, but rather that this was a safe space …

…This group and these sort of events allow people of colour to lay bare their experiences and to collectively combat this societal ailment. These spaces are rare places in the world not controlled by individuals who have power, who have privilege.

…The presence of any kind of privilege puts unnecessary pressure on the people of colour to defend any anger or frustrations they have, to fear the outcome of sharing their stories. The attendees are trying to move forward by supporting each other and they should not have to defend themselves, they should not fear the consequences of raising their voices.

Let us get out of the way that I dislike people who cannot deal with opposition, who will only defend their opinions to friendly crowds, or who must banish dissent to feel validated.Drinking Fountain

I prefer feisty tanglers to special snowflakes.

It is neither here nor there. Special snowflakes are entitled to their preferences too, and everyone deserves an occasional session in the echo chamber. I agree with Ansari that safe spaces are important.

Where I disagree with Ansari is her implicit insistence that other students and Canadian taxpayers pay for them as exclusionary campus events. She never gets around to explaining or defending this aspect of her position.

The fact is “safe spaces” already exist.

They are called “private property.” Private homes, leased apartments, backyards, and private event venues can all be used to host exclusionary events. In addition, private conversations take place every day in bars, restaurants, coffee shops, conference rooms, sidewalks and parks.

That there are insufficient opportunities for people to have private conversations seems false on its face. If certain students want to get together to talk about their experiences only with a carefully selected crowd, there is no shortage of opportunities or “spaces” to do just that.

Waiting room 15-0325The issue is why they want to use student and taxpayer funds to do it on campus. Ansari never explains that.

Private, exclusionary discussions and events should be conducted privately. Forcing other people to pay for and host them is a new form of bullying—a new incarnation of an old segregation.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Stop Calling Government Regulation of the Internet “Net Neutrality”

fcc-net-neutrality-voteImage from the FCC by way of Ars Technica

Stop using “net neutrality” to refer to government regulation of the internet.

That’s not what net neutrality is, and it’s certainly not what the government regulations promulgated by the FCC today are, in this case “Common Carrier” Rules.

People who don’t know any better are celebrating todays faux “net neutrality” FCC action as a victory for freedom and free speech on the internet, when in fact, it’s exactly the opposite.

I’ve written extensively about net neutrality and this is very much NOT it.

All the FCC has done today, is impose common carrier regulation on every ISP (oh and by the way, lots of other organizations as well who “provide internet access”. No-one has any idea how the regulations are going to be finalized, what the language will mean, who will be impacted and how… except everyone knows it’s going to cost a lot), instead of just the telephone companies it was already imposed on. Verizon for example, who was already one of the worst violators of net neutrality, even with common carrier regulation already in place for them.

Thus it makes competition and breaking of existing monopolies even harder, while not actually doing a damn thing to secure or improve neutrality… oh and it gives the FCC more control over the internet.

Absolutely none of those are good things.

Common carrier regulation is a big part of what made the current near monopolies on Internet access happen in the first place, because small independent companies, and even large regionals, couldn’t compete with the giant telcom conglomerates under those regulations. So, they all got swallowed up.

I’ve been working with telecommunications companies, and common carrier regulations, for more than 20 years. I’m an expert in governance and regulatory compliance, and I can tell you right now, NOBODY understands these regulations, because they are not capable of being understood.

These regulations and the rulings and case law associated with them go back to 1930s… and in some particulars all the way back to the 1870s. And of course, rather than replace them with something clear when they wanted to make new regulations, congress and the FCC just amended and added on and countermanded and…

I’ve flowcharted them before to try to see what applied how and where and when… the only thing I could come up with was “nobody knows for sure, it all depends what a regulator or judge says at the time”.

This wasn’t a blow for freedom and free speech… This was a giveaway to big corporate donors in the telecommunications industry.

The big telcos have been trying to get their primary competition, non-telco ISPs, burdened with the same regulatory load they labor under, for DECADES. Now, in one stroke, the FCC at the personal direction of the president, has given it to them.

Oh and guess what else common carrier regulation includes… SURVEILLANCE.

All common carriers are required to provide the government and law enforcement “reasonable access” for surveillance, as well as to give up records, usage details, and other subscriber and user data, WITHOUT A WARRANT.

What does “reasonable access” mean? Whatever the government says it means… and if you think I’m exaggerating, I’m not. I’ve dealt with the FBI on this issue, and that’s a direct quote.

Yes, this is not only a massive corporate crony handout, it’s also a huge gimme to the FBI and the NSA, who have wanted all ISPs stuck under common carrier for years as well.

Stop calling government regulation of the internet “net neutrality”. Letting the liars control the language helps them lie to you.

Net neutrality is not government regulation, and these regulations are certainly not net neutrality, nor anything like it. Don’t be taken in by fraud, cronyism, and statism, masquerading as freedom.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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