As the web goes dark, many people may be wondering why.  Of course, it is obvious now: SOPA and PIPA, the bills currently being considered by Congress that opponents say will amount to censorship online.  In order to learn more, feel free to visit the LWR links below about SOPA, PIPA, and free speech online.

Below is a list of congressmen recently changing their stance on PIPA or SOPA or announcing for the first time their opposition to the bills.  (Updated: 9:07 PM EST).  Please visit OpenCongress for a contextual list.

Sen. David Vitter [R-La.]: “I won’t be supporting the Protect IP Act (PIPA or SOPA as it’s called in the House of Representatives) because, though I’ve been pushing hard on both internet freedom and national security concerns, they still haven’t been fully addressed. It’s a real mistake to press forward with a flawed bill now.”

Sen. Olympia Snow [R-Me.]: “As Senator Snowe reviews this wide-ranging legislation she has concerns that we cannot have a federal overreach of authority that would hamper innovation or compromise the inherent openness and freedom that are part and parcel of the Internet,” an aide said.

Sen. Lisa Murkowski [R-Alaska]: “PIPA was envisioned as a way to fight intellectual property theft online, but the bill raises serious concerns about our civil liberties. That’s why next week I plan to oppose the current PIPA bill.”

Sen. James Inhoff [R-Ok.]: “While I believe that the intellectual property rights of American companies deserve substantial protection under the law, S. 968, the PROTECT-IP Act, is not the answer to the problem of online counterfeiting and piracy.”

Sen. Jim DeMint [R. SC]: “I support intellectual property rights, but I oppose SOPA & PIPA. They’re misguided bills that will cause more harm than good.”

Sen. John Boozman [R-Ark.]: “The PROTECT IP Act seeks to address an issue that is of vital importance to the future of intellectual property rights in the modern era. However, the concerns regarding the unintended consequences of this particular bill are legitimate.”

Sen. Orrin Hatch [R-Ut.]: “After listening to the concerns on both sides of the debate over the PROTECT IP Act, it is simply not ready for prime time.”

Sen. Mark Kirk [D-Il.]: “Freedom of speech is an inalienable right granted to each and every American, and the Internet has become the primary tool with which we utilize this right. . . . While we should protect American intellectual property, consumer safety and human rights, we should do so in a manner that specifically targets criminal activity.  [PIPA] stifles First Amendment rights and Internet innovation. I stand with those who stand for freedom and oppose PROTECT IP, S.968, in its current form.”

Sen. Mark Udall [D-Col.]: “[U]nfortunately, provisions in PIPA appear to create unintended consequences that could stifle U.S. innovation, limit Americans’ free speech rights, increase the risk of cyber-attacks, and undermine how the Internet functions.”

Sen. Jeff Merkley [D-Or.]: “We can’t endanger an open Internet.”

Sen. Scott Brown [R-Ma.]: “I’m going to vote NO on PIPA and SOPA.  The Internet is too important to our economy.”

Sen. Marco Rubio [R-Fl.]: “I have decided to withdraw my support for the Protect IP Act.”

Sen. John Cornyn [R-Tx.]: “Stealing content is theft, plain and simple, but concerns about the internet and free speech necessitate a more thoughtful, deliberative process.”

Sen. Roy Blunt [R-MO.]: “The right to free speech is one of the most basic foundations that makes our nation great, and I strongly oppose sanctioning Americans’ right to free speech in any medium – including over the internet.”

Rep. Adam Kinzinger [R. Il.]: “Unfortunately, the way these bills are currently written does not ensure an open and free internet and that is not something I can support.”

Rep. Ben Quayle [R-Ariz.]

Rep. Lee Terry [R-Neb.]

Sen. Tom Coburn [R-Ok.]

Sen. Jeff Sessions [R-Ala.]

Sen. Jim Risch [R-In.]

LWR Links:

It’s American Censorship Day: Why Congress Wants to Blackout the Net

Open Letter to Senator Dick Durbin

SOPA Shelved, PIPA on Its Last Leg, and the Internet Saved?

Free Speech, generally: An Imperfect Manifestation: Searching for the First Amendment on Bill of Rights Day

Other Online Resources:

Fight for the Future

Ars Technica: Protesting SOPA: How to Make Your Voice Heard

Wikipedia: SOPA and PIPA – Learn More

CBS News: SOPA, PIPA: What You Need to Know

OpenCongress – Trace the Money

No one ever said that telling the truth was easy.  As The Times’ Public Editor Arthur Brisbane recently discovered, having conversations about how to deal with the truth is even more difficult.  Brisbane, who with all good intentions, asked readers “whether and when New York Times news reporters should challenge ‘facts’ that are asserted by newsmakers they write about.”  As Brisbane later said, readers responded bluntly, “Yes, you moron, The Times should check facts and print the truth.”

It is not only readers who responded swiftly, but journalists and commentators also.   Glenn Greenwald at Salon suggested that Brisbane’s query shows that journalists “simply do not believe that reporting facts is what they should be doing.”  This overstates the case.  Simply, the question Brisbane has asked is deceptively complicated and leads only to more questions about how journalists should deal with the truth.  At some point, the newspaper industry must find a new niche and striking out on a quest for the verifiable truth might be as good a place to start as any.

Since around the 1920s, journalists trained at universities across the country haven’t actually been taught – at least not forcefully – to be fact checkers.  Instead, many universities teach young journalists to “get both sides of the story” – an approach that is emphatically not a search for truth, but rather a quest for “fairness.”  This journalistic tactic is reinforced in newsrooms across the country, giving the politically powerful on both sides of the aisle a newspaper microphone.

Additionally, journalists in newsrooms are simply not well situated to ferret out facts for practical reasons.  In today’s political media environment, deadlines are racing towards journalists faster than I care to imagine, making thorough fact checking impractical.  Journalists who do try to quickly debunk political claims also risk losing credibility if they make a factual misstep.  Without some degree of credibility, journalists’ work is discredited, and, the game is up.  As Murrow said, “To be persuasive we must be believable; to be believable we must be credible; to be credible we must be truthful.”  The nuanced question Brisbane should have asked then is “Under what conditions can reporters be fact checkers, while not risking their own credibility?”

Fact checking is a difficult proposition for anyone, because truth has gradations and not everyone agrees on where truth fades into falsity.  Just ask Bill Adair at Politifact, a project of the St. Petersberg Times devoted to fact checking, who suffered scathing outrage when Politifact chose as the “Lie of the Year” Democratic claims that Rep. Paul Ryan’s budget would “end Medicare.”  Paul Krugman, writing in The Times, wrote in response, “This is really awful. Politifact, which is supposed to police false claims in politics, has announced its Lie of the Year — and it’s a statement that happens to be true.”

Adair’s situation is informative.  Some felt that the “lie” Politifact was trying to debunk was not verifiable.  That is, it did not lend itself to a definitive judgment by a journalist as to whether it was actually true or false.  In such situations, journalists inevitably risk losing face.  Perhaps backlash of the type that Adair faced is factored into journalists’ decisions to not fact check.  (Indeed, even Greenwald, who lambasted Brisbane for, in his mind, asking whether the Times should be fact checking at all called Politifact a “scam of neutral expertise.”)

Journalists trepidation in debunking is illustrated well by Sarah Palin’s now infamous 2009 “death panel” Facebook post where she claimed that President Obama’s healthcare plan would create a “death panel” to decide who was “worthy of healthcare.”  Even though the claim was verifiable – journalists could look through the bill for themselves, after all – journalists often refused to actively debunk the claim.  Indeed, one recent study shows that in just a fifth of articles about death panels did journalists flatly label the claim false.  Oddly, in many other instances, reporters both debunked the claim and played by the rules of he said/she said reporting.  Indeed, a third of all newspaper articles relied on the he said/she said approach.

While it is cliché, journalism is in crisis, in part, because news copy is cheap (if not free) and widely available.  The Times and other newspapers then must offer readers something that other news outlets or online opinion manufacturers cannot.  In this case, that something is fact checking.  Fact checking is in many instances time and resource intensive.  Anyone can turn out a news article quoting the he said/she said between Romney and Gingrich, for example, but not everyone can devote the resources to parsing apart the candidates’ words.  Critically, unapologetically, and obviously labeling political Pinocchio’s liars should be traditional newspapers’ new niche.

This course of action will no doubt ruffle the feathers of those on the wrong side of truth, and, yes, it might also bring charges of bias.  What do newspapers really have to lose though?  Most people already believe that newspapers are biased either to the left or the right (depending on who you ask) anyway.  Moreover, most people already do not trust newspapers.  Additionally, the increasing popularity of fact checkers like FactCheck.org and Politifact shows, if nothing else, that the public wants a clear answer when such an answer exists in the first place.

If journalists do choose to change their practices and routines, it will have to be a committed change.  They must shed constraints of their traditional he said/she said approach that live within the walls of academia and newsrooms today, taking on a greater responsibility of actively searching for “the truth.”  At the same time, though, newsrooms must know that their vigilantism must be tempered by an understanding that truth is so very often elusive.

Flickr/mexicanwave

Opponents of the industry supported piracy bills SOPA and PIPA celebrated as word came from Washington that legislators have shelved SOPA.  Over the weekend the Obama administration, responding to a petition, suggested that it would not support the current legislation.

“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small,” Victoria Espinel, Intellectual Property Enforcement Coordinator at Office of Management and Budget, said.

Espinel added that “[Congress] must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet.”

SOPA and PIPA, which were proposed last year, have been lightening rods for controversy, even prompting an “American Censorship Day” in November.  Opponents to the bills (myself included) have argued that “SOPA [and PIPA] . . . do not protect creativity, foster inovation, promote entrepreneurship, or enstill free speech values.”

Specifically, opponents expressed concerns with the DNS blocking requirements of the bill, the legal responsibilities the bills would put on third party intermediaries like search engines, the private enforcement powers granted to corporations, and the effects the bills would have on free speech.

“While I remain concerned about . . . the Protect IP Act, I am confident that flawed legislation will not be taken up by this House,”  House Oversight and Government Reform Committee Chairman Rep. Darrell Issa [R-CA] said.  “Majority Leader Cantor has assured me that we will continue to work . . . to build consensus prior to any anti-piracy legislation coming before the House for a vote.”

While many of SOPA and PIPA’s opponents are celebrating, the EFF, a public interest group and a strong opponent of the “blacklist bills,” as it calls them, cautioned that “the fight is still far from over.”  In a statement issued on Monday, EFF noted that “the Senate is still poised to bring PIPA to the floor next week, and we can expect SOPA proponents in the House to try to revive the legislation.”

Beyond public interest groups, Silicon companies like Google, Facebook, Twitter, and Reddit have also fervently opposed the legislation.  Incumbent industry powerhouses like the Motion Picture Association of America and Viacom provided the majority of support for the bills, which also were supported by a slew of legislators.  Supporters of the bills  are arguing, as the legislation falls apart, that the industry stands to lose millions without the protection of the bills.

“As had been made clear throughout the legislative consideration of SOPA and the PROTECT-IP Act, neither of these bills implicate free expression but focus solely on illegal conduct, which is not free speech,” the MPAA said in a statement over the weekend.

News Corporation CEO Rupert Murdoch said more brashly in response to the White House’s statement, “So Obama has thrown in his lot with Silicon Valley paymasters who threaten all software creators with piracy, plain thievery.”

While incumbent industry leaders are disgruntled over the recent change in tides, it appears that for the time being SOPA and PIPA opponents can pat themselves on the back for, at the very least, staving off the legislation.

A pat on the back, however, does not mean that supporters will take the week off.  Reddit, which had planned a black out of its website in protest of the bills, is reportedly going forward with its planned black out despite the SOPA news.

Wikipedia will also join Reddit, posting a banner on its website on Monday that “[i]n less than 26 hours, the English Wikipedia will be blacked out globally to protest SOPA and PIPA.”

The EFF also recently outlined provisions that are likely to be reborn in future bills and that it alleges are vague, overbroad, and damaging to free speech: the Anti-Circumvention Provision, the “Vigilante” Provision, Corporate Right of Action, and Expanded Attorney General Powers.

Flickr/Stigs

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 13,000 times in 2011. If it were a concert at Sydney Opera House, it would take about 5 sold-out performances for that many people to see it.

Click here to see the complete report.

Unsurprisingly, everyone is upset with the most popular fact checker in town, PolitiFact. What they allege though is just not true, or at least mostly false. (Flickr/hebedesign)

by Matthew L. Schafer

Recently, PolitiFact, a fact checking organization within the St. Petersburg Times, has been receiving heat.  It recently gave the “Lie of the Year” award to a whole slew of Democratic claims that Rep. Paul Ryan’s budget proposal would “end medicare.”  This caused a backlash from commentators like Paul Krugman (who has fared quite well in PolitiFact rankings), Steve Benen, and Alex Pareene.

“The people at Politifact are terrified of being considered partisan if they acknowledge the clear fact that there’s a lot more lying on one side of the political divide than on the other,” Krugman argued.  ”So they’ve bent over backwards to appear ‘balanced’ — and in the process made themselves useless and irrelevant.”

Media Matters questioned PolitiFact's Lie of the Year reasoning, arguing, "In naming as its 2011 "Lie of the Year" a statement that is, at worst, arguably true, Politifact has inadvertently said more about itself and the media's failure to adequately combat the lies and deception that act as a cancer on American democracy." (Cartoon reprinted with permission/Rob Tornoe)

Pareene agreed with Krugman’s assessment that PolitiFact (or fact checking generally) is broken, stating, “fact-checking practiced under the operating rules of ‘unbiased’ ‘objective’ political journalism will sometimes just highlight the failings of ‘unbiased’ ‘objective’ political journalism.”

Specifically, Pareene argues that fact checking isn’t different from news organizations’ normal he said/she said approach, which highlights the arguments of competing sides and lets the reader decide which side makes more sense.

Frankly, Pareene, Benen, and Krugman are wrong.  First, the smell wafting off of Pareene’s article is that it is somehow disingenuous to “debunk” political exaggerations.  What Pareene doesn’t grasp is simple: If you don’t want it debunked, don’t resort to hyperbole.

“The idea is that scare-mongering is basically the same thing as deceiving, which seems to make it extremely difficult to make a forceful political argument, in cases where you believe your opponent’s policies would make things radically worse,” Pareene said.

It is as if Pareene would like to draw a line somewhere between a shadow cast by a falsehood and a shadow cast by an exaggeration.  The problem being, of course, there really isn’t a distinction between the two.

Second, some statements have strands of truth and falsity, and sometimes the falsity will be so great that it will obscure the truth.  As an exemplar, how about political cartoons?  Many are based on some amount of truth, but make their point by adding a cup of exaggeration for flavor.  Recognizing this, Politifact doesn’t have a binary scale, but rather a variety of rankings: True, Mostly True, Half True, Mostly True, Mostly False, False, and Pants on Fire.  In an effort to get it “right,” PolitiFacts has to make editorial choices.  Indeed, what’s the difference between mostly true or half true?  This, however, is exactly the risk that PolitiFact has agreed to open itself up to in order to better inform its readers.

Third, Pareene ironically relies on political insiders–the supposed problem of PolitiFact according to Pareene–to support the claim: “The press has a real and serious need for a mechanism by which it can report the unvarnished truth, which by necessity involves judgment calls and the application of critical thinking that can often look like ‘bias.’  Right now, the most prominent version of that mechanism has revealed itself to be as flawed as the rest of the political press.”

Obviously, the press needs a mechanism to report the “truth.”  That is exactly what PolitiFact is trying to do, while at the same time recognizing that fact is more elusive than Yeti.  Unlike traditional he said/she said reporting, PolitiFact sets out in search of the elusive monster, instead of leaving it up to the ill-informed reader to decide without any guidance.  (Additionally, notice that in Pareene article, as well as many others, there is no real suggestion of an alternative, what that alternative would look like, or how it would “solve” the failings of PolitiFact.)

The lesser point is political commentators attacking PolitiFact are doing exactly what their job description is: commentating, because they are either happy or unhappy with the result.  The greater point is one has to take the bitter with the sweet.  PolitiFact provides a valuable service.  If nothing else, at least PolitiFact takes the time to lay out in clear bullet points what Ryan’s plan does and offers support for those points, all the while telling us why some exaggerated claims are, in fact, wrong.  That is more than one can say for most articles about medicare.

Give PolitiFact a break.  It sure is doing the reader a lot more favors than those criticizing it.  Of course it’s not infallible, but its defendable.  Instead of PolitiFact’s tagline “sorting out the truth in politics,” maybe those critics would be happier with “trying the best we can to cut through the bullshit.”

Correction 12/21/2012: As originally published, this article erroneously attributed Alex Pareene’s commentary to similar commentary by Steve Benen.  LWR regrets the error.

by Matthew L. Schafer

Below is my letter to Senator Dick Durbin [D-IL].  Senator Durbin supports the Protect-IP Act, an act that would “break the Internet.”  You can contact your representative about the legislation here.  Before doing so, you can also view a helpful infographic.

Dear Senator Durbin,

My name is Matt Schafer and I respectfully write you today as a constituent and a content creator to urge your opposition to the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT-IP Act) (and, similarly, the House of Representatives version, the Stop Online Privacy Act (SOPA)).

According to the Congressional Research Service, the PROTECT-IP Act authorizes the Attorney General or a private party to file an in personam or in rem action against a foreign domain name of a website that is “dedicated to infringing activities.”

The Act defines an infringing website broadly as one that “has no significant use other than engaging in or facilitating copyright infringement, circumventing technology controlling access to copyrighted works, or selling or promoting counterfeit goods or services.”  This definition will lead to the censorship of non-infringing websites.[1]

A group of ninety law professors summarized the bill: “The Act would allow the government to break the Internet addressing system. . . . It requires credit card providers, advertisers, and search engines to refuse to deal with the owners of such sites. . . .  [It suppresses] speech without notice and a proper hearing. . . .  The Act represents retreat from the United States’ strong support of freedom of expression and the free exchange of information and ideas on the Internet.”[2]

This Act is another—particularly gross—example of industry skittishness over new technologies.  That skittishness is illustrated well by the Betamax case,[3] where Universal Studios, Inc. and Walt Disney Productions sued Sony out of fear that Betamax would break their businesses.

Where would recording technology be today if one more Justice sided with Justice Blackmun’s dissent, arguing to uphold the judgment against Sony?[4]  Luckily, in the copyright context of Sony Corp., the majority’s reasoning that technologies with substantial non-infringing uses do not violate the law has carried the day.[5]

Simply, PROTECT-IP and SOPA are as broken as the dissent’s logic in Betamax.  The legislation is not narrowly tailored.[6]  The legislation is vague and overbroad.[7]  Its operation outside of a true adversarial process should concern you as a member of the Senate Judiciary Committee.

Additionally, PROTECT-IP and SOPA protect large corporate interests, but do not protect creativity, foster innovation, promote entrepreneurship, or instill free speech values in the newest generation that will call the Internet home.

Despite Rep. Lamar Smith’s sideswipe at Google and its “criminal activity” in a recent hearing, the opponents of this bill are not lawbreakers–they are the new innovators.  They worry incumbents because they are motivated by a different philosophy: a philosophy of sharing, collaboration, remixing, reinventing, and otherwise working towards something “new,” something “better.”

You have said, in correspondence to other constituents, “It is important to note that this legislation seeks to address a serious problem without inappropriately restricting Internet freedom.”[8]  This is simply not the case.[9]

Indeed, these bills amount to censorship by breaking the Internet through DNS filtering.[10]  Simply, the Act will cause “catastrophic consequences for the stability and security of the DNS.   By authorizing courts to order the removal or replacement of database entries from domain name servers and domain name registries, the Act undermines the principle of domain name universality – that all domain name servers, wherever they may be located on the network, will return the same answer . . . .”[11]  When the fig leave of technology is pulled away, the brutality of this approach is apparent.[12]

This form of censorship is the very antithesis of our nation’s values.  As a nation, we must be eternally vigilant against attempts to censor—whether that censorship is aimed at literary masterpieces, personal blogs, the understood or the misunderstood.  As Justice Chief Justice Warren said,

It would seem idle to suppose that the Court today is unaware of the evils of the censor’s basic authority, of the mischief of the system against which so many great men have waged stubborn and often precarious warfare for centuries of the scheme that impedes all communication by hanging threateningly over creative thought. . . .

The censor’s function is to restrict and to restrain; his decisions are insulated from the pressures that might be brought to bear by public sentiment if the public were given an opportunity to see that which the censor has curbed.

The censor performs free from all of the procedural safeguards afforded litigants in a court of law.  The likelihood of a fair and impartial trial disappears when the censor is both prosecutor and judge.  There is a complete absence of rules of evidence; the fact is that there is usually no evidence at all . . . . How different from a judicial proceeding where a full case is presented by the litigants.  The inexistence of a jury . . . is a vital flaw.

A revelation of the extent to which censorship has recently been used in this country is indeed astonishing.[13]

PROTECT-IP and SOPA mean nothing but industry appeasement.  An appeasement that would cost me and millions of other American taxpayers “$47 million over the 2012-2016 period.”[14]  An appeasement that would squelch innovation and stifle creativity.[15]  The economic and creative costs are not worth the marginal benefit.  Please do not support this measure.

Best,

____________/s/________________

Matthew L. Schafer

An Occupy Philadelphia protester leads a chant at a recent protest. (Flickr/Craig Fineburg)

by Matthew L. Schafer

On May 29, 1787, Charles Cotesworth Pinckney, a South Carolinian who would later become the Foreign Minister to France, submitted a proposal for the organization of the soon to be formed new federal government.  In his proposal, he included a precursor of the First Amendment to the United States Constitution.

“The legislature of the United States shall pass no law on the subject of religion nor touching or abridging the liberty of the press,” he wrote.

The Constitution would eventually be ratified a year later without Pinckney’s clause protecting the freedom of speech.  Nonetheless, the Founders had struck a deal to ratify the Constitution on the condition that Congress work to pass a Bill of Rights once the Constitution was in force.

Three years later on December 15, 1791, Congress ratified the Bill of Rights.  After several revisions, Congress had included the following language for the First Amendment:

Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .

Justice Louis Brandeis would later say of the First Amendment:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Brandeis wrote those words in a 1927 concurrence in Whitney v. California, a Supreme Court case that sent Ms. Anita Whitney to jail for trying to organize the Communist Labor Party in California in 1919.

Titled "Article the Fourth" is the House of Representatives version of what would become the First Amendment (top). "Article the Third" is the modified article that would find its way into the Bill of Rights and, eventually, the Constitution as the First Amendment (bottom).

Two-hundred and twenty years after the First Amendment went into force and over 80 years after Brandeis wrote his stirring concurrence in Whitney, many would hope that First Amendment ideals are alive and well–that the ideals embodied in the First Amendment, and in the Western cannon almost 400 years ago, would have been realized.

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” John Milton wrote in 1644.

Yet, that old ideal that men should have the liberty to speak freely, one pulled painfully through history by men who no doubt understood its importance to the realization of both a healthy individual and a healthy state, has not yet been fully realized.

Earlier this month, Frank La Rue, the U.N. special rapporteur for the protection of free expression, admonished the United States and local municipalities for arresting or otherwise impeding reporters covering the Occupy protests around the country.  The admonishment went uncovered by the press for all intents and purposes.

Free Press, a national, non-profit, non-partisan media reform organization, has documented 34 instances of police arresting journalists who were in the middle of covering the protests.  Major news organizations, the New York Civil Liberties Union, and the New York Press Club sent letters protesting the treatment of reporters to city officials.

“I believe in city ordinances and I believe in maintaining urban order, [b]ut on the other hand I also believe that the state — in this case the federal state — has an obligation to protect and promote human rights,” La Rue said.  ”If I were going to pit a city ordinance against human rights, I would always take human rights.”

Flickr/Walt Jabsco

Last week, Mayor of New York Michael Bloomberg said that police did not prevent anyone from reporting.  This, however, seems difficult to wash with the fact that police did arrest reporters, which likely inhibited those arrested reporters from actually reporting for some period of time.

It is not only reporter arrests that illustrate attacks on the news media, but subpoenas against journalists.  Indeed, it is one thing if a journalist “accidentally” gets swept into the fray of a protest, it is another when the government actively pursues a journalist’s notebook through orderly legal channels.

When Branzburg v. Hayes, a 1972 Supreme Court decision subject to a slew of interpretations regarding the freedom of the press to be free from government subpoenas, was handed down, the government issued few subpoenas against reporters.  Such is not the case anymore.

This week, a federal judge issued a subpoena that would require a Chicago Tribune reporter to turn over all information on a juror at issue in a high-profile case.  The Tribune fought the order, and the judge later said that the reporter need not produce her notes, finding that they would not be useful.

“From our perspective, it really doesn’t matter whether Sweeney’s notes contain anything that would help either side in this case,” the Tribune wrote after the decision.  ”Requiring reporters to do the work of the judicial system compromises the work they do for the public.  Journalists’ agenda is to collect and present facts fairly, as independent witnesses.  If attorneys and others can demand access to that material for their own purposes, then reporters can be perceived as their agents.  Sources will be reluctant to talk freely, or at all.”

While the Tribune can claim success in this instance, it is just a small step toward judicial restraint in issuing subpoenas for reporters notebooks.  This victory does not spell the end of orders against journalists, however.  In 2006 alone, over 7,000 state and federal subpoenas were issued against news organizations, a study suggested.

The subpoenas demand anything from substantive notes to confidential sources to the who, what, when, where, and why.  The topics of the subpoenas range from information about juror tampering to drugs to national security.  Essentially, everything.

National security stories especially put journalists at risk of jail time if they refuse to divulge sources.  There are success stories even in the national security realm, however.  For example, James Risen, a New York Times reporter, recently succeeded in convincing a judge not to enforce a subpoena against him in a case related to his 2006 book State of War, which details a botched CIA operation in Iran.

“A criminal trial is not a free pass for the government to rifle through a reporter’s notebook,” Judge Leona Brinkema wrote in favor of Risen.

Of course, corporate limits on speech, while not prevented by the First Amendment, which applies only to federal and state government, are also concerning.  Such limits are especially concerning when they are enforced by the government–at which point the First Amendment’s protections would kick in.

Corporate limits on speech manifested themselves during the Gulf oil spill last year when reporters were repeatedly blocked from taking photographs and reporting on the spills.  The situation was so desperate that Anderson Cooper finally exclaimed, “We are not the enemy here.”

It would be false to say that the First Amendment’s less-than-perfect current condition wasn’t the one the Founders had in mind when they ratified the Bill of Rights.  Indeed, the Founders are many of the same men who would later pass the now embarrassing Alien and Sedition Acts of 1798, which radically restricted speech and gave the Federalist goverment the power to arrest anyone, including journalists.  Nonetheless, by writing the First Amendment into a timeless document, the Founders have forever challenged America to live up to the ideal–not down to the failings of the past.

Luckily, speech does garner greater protection than it has in the past. On the whole, prior restraints preventing the press from publishing are rare and social media has reinvigorated the public sphere generally.  (Though even that is threatened.)  Moreover, alternative media–enabled by the Internet–has brought alternative views to millions.  And, for the most part, the Supreme Court has defended free speech vigorously.

That said, there is a future that imagines a greater free trade in ideas, spurred not only by the protections promised by the Bill of Rights and enforced by the judiciary, but technological advancements that make the marketplace bigger, more diverse, and vibrant.

Bill of Rights Day should be a reminder to everyone that the imagined future is not here yet; that there is work to be done; and that everyone has a stake in seeing that that work is completed.  If it is not completed, everyone will be the worse for it.

For now it is worth hoping along with Justice Black, who wrote in response to the effects that McCarthyism had on free speech in America, that brighter days are ahead.

“Public opinion being what it now is, few will protest the conviction of these Communist petitioners,” Black wrote sixty years ago.  ”There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”

A cause that everyone should be able to get behind: stop arresting reporters who are just trying to do their jobs.  That’s what Free Press, a national non-profit non-partisan media watchdog group, is hoping anyway.  According to Free Press, as cited in the New York Times, twenty-six reporters have been arrested in connection with covering the Occupy movement.

“After a week in which journalists and police clashed at Occupy Wall Street and related events around the country — and the NYPD arrested 12 reporters — leaders like New York Mayor Michael Bloomberg are starting to feel the heat,” Free Press said in a mass email.

At its sister site, SavetheNews.org, Free Press has started a letter campaign calling on Mayor Bloomberg and other mayors around the country to stop arresting reporters and drop any charges against already arrested reporters.  According to the organization, 30,000 people have put their names on these letters.

“You must publicly commit to defending press freedom in your city and protecting the First Amendment,”  the boilerplate wording states.  ”Please drop all charges against journalists covering the Occupy Wall Street protests and put an immediate stop to all forms of press suppression.”

Free Press also allows you to customize the message, so I added my voice to Free Press’ campaign.  Feel free to add yours too.  Here’s what I said:

The Supreme Court has long ascribed to the belief that a free press is essential to a free democracy.  See New York Times v. Sullivan.  Further, the Supreme Court has emphasized that the press–whether it be the lonely pamphleteer or the Washington Post–owes it to the public to keep a watchful eye on government action and inaction.  See New York Times v. United States.

Arresting reporters is not only bad publicity, but flies in the face of these democratic ideals rooted securely in the American story.  As Justice Douglas said so many years ago, “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

To suppress such speech via a suppression of the press is unacceptable.  To arrest the press for whatever reason is unacceptable.  By arresting reporters, you’re arresting the lawful manifestation of one of our Country’s most cherished beliefs: that a free press is necessary to a free democracy.

by Matthew L. Schafer

On Wednesday, the House Judiciary Committee held a hearing on H.R. 3261, the Stop Online Piracy Act (“SOPA“).  The House Judiciary Committee hosted six witnesses, five of which testified in favor of the law, one of which testified against the law.  One person familiar with the industry told LWR that the hearing’s unbalanced panel was “invidious.”

On the side of SOPA was Maria Pallante, the Register of Copyrights at the U.S. Library of Congress, John Clark, the Chief Security Officer and VP of Global Security at Pfizer, Michael O’Leary, the Senior Executive Vice President of Global Policy and External Affairs at the MPAA, Paul Almeida, President of the Department of Professional Employees at AFL-CIO, and Linda Kirkpatrick, Group Head of Customer Performance Integrity at MasterCard.

The lone opposition came from Katherine Oyama, Policy Counsel at Google.

As Google noted, its loneliness at the table is not indicative of a lack of opposition to SOPA.  Indeed, Google, along with, AOL Inc., eBay Inc., Facebook Inc., LinkedIn Corporation, Mozilla Corp., Twitter, Inc., Yahoo! Inc., and Zynga Game Network, sent a letter to the House Judiciary Committee a day before the hearing to protest SOPA.

“We support the bills’ stated goals – providing additional enforcement tools to combat foreign ‘rogue’ websites that are dedicated to copyright infringement or counterfeiting,” the letter stated.  ”Unfortunately, the bills as drafted would expose law-abiding U.S. Internet and technology companies to new uncertain liabilities, private rights of action, and technology mandates that would require monitoring of web sites.”

Earlier this year, over 100 law professors sent a letter to the Senate attacking the Protect IP Act, SOPA’s counterpart in the Senate.

“The Supreme Court has made it abundantly clear that governmental action to suppress speech taken prior to ‘a prompt final judicial decision . . . in an adversary proceeding‘ that the speech is unlawful is a presumptively unconstitutional ‘prior restraint,’” the law professors said, explaining that Protect IP would operate as a prior restraint.

On OpenCongress, a non-profit, non-partisan public resource that provides the public with access to bills currently before Congress, is one of the coalition of websites that are participating in American Censorship Day to protest the SOPA hearing.  On its website, which allows users to vote on whether they support or oppose bills in Congress, SOPA has a 2% approval rating.  Ninety-eight percent oppose the bill.

Other websites participating in American Censorship Day include: Reddit, MetaFilter, 4chan, Mozilla, Public Knowledge, Electronic Frontier Foundation, Free Software Foundation, Free Press, Wikimedia Foundation, Torrentfreak, Boing Boing, Creative Commons, Grooveshark, Demand Progress, Hype Machine, Techdirt, Irregular Times, Engine Advocacy, Center for Democracy and Technology.

According to OpenCongress, SOPA would:

[E]stablish a system for taking down websites that the Justice Department determines to be dedicated to copyright infringement. The DoJ or the copyright owner would be able to commence a legal action against any site they deem to have “only limited purpose or use other than infringement,” and the DoJ would be allowed to demand that search engines, social networking sites and domain name services block access to the targeted site. It would also make unauthorized web streaming of copyrighted content a felony with a possible penalty up to five years in prison.

Some organizations have been less kind to the bill.  Free Press, for example, a non-profit, non-partisan media reform organization, said in its “take action” boilerplate language that “[t]his legislation gives corporations the power to blacklist websites at will. And it violates the due process rights of the thousands of Internet users who could see their sites disappear.”

Evidently, the House Judiciary Committee declined to give voice to the majority of these concerns, asking only Google to attend the hearing.  Google, after being attacked in opening statements by Committee Chairman Lamar Smith [R-TX], expressed concerns that SOPA would undermine the Digital Millenium Copyright Act Section 230, which prevents online service providers from being sued for the actions of the users of their services.  Many credit Section 230, which was passed along with the rest of the DMCA in 1996, with fostering the Internet as we know it–open, diverse, and safeguarded from intermeddling to a degree.

SOPA is broken.  The chilling effect that this law will create is incomprehensible in its magnitude.  The legislation is not narrowly tailored.  Completely law abiding websites could be swept into its broad language.  Moreover, a judge has the unilateral ability to blacklist a website.  Moreover, the free speech concerns here are no doubt tangible and probable.  Search engines would be required to censor search results, for example.

SOPA may protect large corporate interests, but it does not protect creativity, foster inovation, promote entrepreneurship, or enstill free speech values in the newest generation that will call the Internet home.  This bill is bad law in the making.

Moreover, despite Rep. Smith’s sideswipe at Google and its “criminal activity,” the supporters of this bill are not law breakers–they are the new innovators.  They concern incumbents because they are motivated by a different philosophy: a philosophy of sharing, collaboration, remixing, reinventing, and otherwise working towards something “new,” something “better.”

As one person associated with the American Censorship Day movement told this author when he asked permission to post the infographic below, “In my world, you wouldn’t even have to ask.”

(Source: Flickr/mindgutter)

It is important for the people to understand that what is called art in advertising is not artifice; that there is no catch in it; that it is not a one-sided device to beguile [consumers] into spending their money; but that on the other hand, its chief design is to point out effective means of communication between the tradesman and his customers that the benefits of this inter-communication, as the benefits of all advertising must be, are mutual.[1]

Introduction

            In 1995, John Huffmann, a Clemson University undergraduate chemistry major, created not only a chemical that mimicked the effects of the active ingredient in marijuana, but also the kindle of a now fiery debate over freedom of speech.[2]  Huffmann called the synthetic cannabinoid chemical JWH-018, and intended to use it to research certain forms of liver disease and cancer.[3]  Whatever the original intentions, several companies, seeking to capitalize on the new synthetic cannabinoid, began spraying it on dried herbs.[4]  These companies then marketed the smokable herbs under the guise of “potpourri,” giving the products names like “Spice” and “K2.”[5]  The effects of the “high” from smoking the chemical spiked herbs appear to vary widely depending on how producers manufactured the drug, and how predispositions influenced individual highs.[6]

In an effort to combat increases in emergency room visits due to the use of the drug, local and state governments began criminalizing certain forms of the synthetic cannabinoid.[7]  As of early 2011, a dozen states banned the drug, while several others had similar criminalizing bills under consideration.[8]  The efforts, however, remained largely futile due to the synthetic nature of the product, which allowed producers to change slightly the chemical makeup of the product in order to circumvent any new bans on specific chemical compounds.[9]  One potential remedy to the chameleon character of Spice’s chemical makeup is to ban advertising that relates to the product.[10]  Therefore, while being unable to ban the product itself, a legislature could at least minimize publicity surrounding the product thereby—presumably—decreasing use and demand.

The implications of such a ban stretch far beyond drug control into serious First Amendment[11] questions related to the rights of a commercial speaker who seeks to advertise variations of these chemicals that could be banned, but have not yet been banned.[12]  Indeed, “important First Amendment values are furthered by protecting advertisements that offer services and activities that have been, or could be, legally prohibited.”[13]  Despite the furtherance of these values, others argue that the government may—consistent with the First Amendment—ban or restrict advertising that relates to potentially harmful substances.[14]  Pointing to cigarette and alcohol advertising bans, proponents of restricting commercial speech relating to legal—but dangerous substances (like synthetic cannabinoids)—assert that such a restriction poses no threat to the First Amendment, because that Amendment was never intended to protect wholly commercial speech; “As a rule, [product advertising] does not affect the political process, does not contribute to the exchange of ideas, [and] does not provide information on matters of public importance . . . .”[15]

In order to address whether advertising of synthetic cannabinoids would contravene the First Amendment, this comment proposes a new approach to commercial advertising bans.  It suggests that the Court should discard its Central Hudson test,[16] and move towards an analysis that does not focus exclusively on the “commercialness” of the speech.  Specifically, Part I briefly examines the history and development of the commercial speech doctrine.  Next, Part II criticizes the false dichotomy of commercial and non-commercial speech, and provides reasons to discard, in favor of a strict scrutiny analysis, the now accepted—but nonetheless challenged and controversial—Central Hudson test.  Finally, it asserts in Part III that despite the broad protections that the First Amendment provides commercial speech, the government may still enforce truth in advertising rules as part of its greater economic regulatory power.  It concludes that although a blanket ban on the advertising of synthetic cannabinoids likely violates the First Amendment, the government may still regulate that advertising, assuming that those regulations are tied to fostering truthful representations of the commercial characteristics of the product.

I. A Brief History of the Commercial Speech Doctrine

            Although the commercial speech doctrine jurisprudence is variable,[17] the Court’s decisions affirm the idea that commercial speakers enjoy some degree of First Amendment protections.[18]  In 1976, the Supreme Court in Virginia State Board broke from past decisions to hold unconstitutional a Virginia statute that prevented pharmacists from “publish[ing], advertis[ing], or promot[ing]” the price of prescription drugs.[19]  Justice Blackmun, writing for the majority, first acknowledged the Court’s past hostility towards granting commercial speech, that is, speech that “proposes a commercial transaction,” First Amendment protections, writing that “[t]here can be no question that in past decisions the Court has given some indication that commercial speech is unprotected.”[20]  Nonetheless, he rejected the argument that commercial and non-commercial advertising are inherently different.[21]  He went on to state that both the First Amendment rights of the pharmacists and the consumers must be considered.[22]  Indeed, Justice Blackmun acknowledged at the outset that freedom of speech protects the speaker, and “where a speaker exists . . . the protection afforded is to the communication, to its source and to its recipients.”[23]

Just four years later in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, the Court quickly backtracked from its holding in Virginia State Board.[24]  In Central Hudson, where petitioners challenged the Public Service Commission’s ban on all promotional advertising relating to energy consumption, Justice Powell, writing for the majority, outlined the so-called Central Hudson test.[25]  The test, which amounts to asking whether a certain abridgement or regulation of commercial speech is based on a substantial governmental interest that is not overbroad, led Justice Powell to the conclusion that a complete ban violated the First Amendment, because it was too broad.[26]  Indeed, the ban on advertising encompassed advertising that damaged the state’s interest in promoting energy conservation, and advertising that actually promoted the state’s interest, that is, promoted energy conservation habits.[27]

Following the advent of the Central Hudson test, both the Supreme Court and lower courts applying the test arrived at different conclusions despite similar fact patterns.[28]  In Posadas de Puerto Rico Assocs. v. Tourism Co., for example, the Supreme Court upheld an initiative by the Puerto Rican legislature that banned gambling advertising directed at its own citizens.[29]  There, the Court gave extreme deference to the legislature, concluding that the legislature believed “advertising of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised,” and that belief was “a reasonable one.”[30]  More recently, however, the Court has demanded actual evidence—as opposed to legislative intuition—to support restrictions on commercial speech.[31]  As the Court stated in 44 Liquormart, Inc. v. Rhode Island, “without any . . . evidentiary support whatsoever, we cannot agree with the assertion that the price advertising ban will significantly advance the State’s interest in promoting temperance.”[32]  As such, Justices and scholars saw 44 Liquormart as a return to the original rational of Virginia State Board, providing greater protections to commercial speech.[33]

In 2011, the Supreme Court again applied Central Hudson in Sorrell v. IMS Health, Inc.[34]  There, the Court considered whether a Vermont law preventing pharmacies from selling prescription drug consumption information to data miners and pharmaceutical companies violated the First Amendment.[35]  While the companies affected by the statute argued for application of strict scrutiny, the state argued for the application of the Central Hudson test.[36]  The Court passed on deciding whether applying strict scrutiny or Central Hudson was more appropriate, because the regulation failed even the less strict Central Hudson test.[37]  Both Sorrell and 44 Liquormart seem to indicate that the Court is partial to applying what was once a true intermediate scrutiny test under Central Hudson with “bite.”[38]

Although some have suggested that the commercial speech doctrine will naturally fall by the wayside with the Supreme Court’s decision in Citizens United, it is not clear that Citizens United necessarily leads to the overruling of Central Hudson.[39]  Indeed, Citizens United reinstated the principle that government cannot regulate political speech on the basis of the speaker.[40]  Yet, the Court originally based its rationale of limited protections for commercial speech not on the fact that the speaker was corporate, but rather because the speech itself was commercial and therefore not within the ambit of the First Amendment.[41]  Thus, the underlying rationales for the regulations in Citizens United and in the commercial speech cases are different.[42]  As such, Citizens United by itself does not naturally require the overruling of Central Hudson.  Such an assertion is bolstered by the fact that the Supreme Court after deciding Citizens United still applied Central Hudson in Sorrell.[43]

II. A False Dichotomy and a New Approach

            The First Amendment’s protections serve to foster and protect a free exchange of ideas and expressions.[44]  Nonetheless, the Court has not extended the protection of that Amendment to certain categories of “valueless” speech.[45]  After Central Hudson, the Court returned to pigeonholing commercial speech into a similar category of relatively unprotected speech.[46]  Central Hudson, however, did not pass unchallenged, with opponents arguing that there is no substantive difference between commercial and non-commercial speech.[47]  Indeed, several cases “suggest[] that no line between publicly ‘interesting’ or ‘important’ commercial advertising and the opposite kind could ever be drawn.”[48]  As such, the foundation on which the Central Hudson test sits, that is, commercial speech requires fewer First Amendment protections, necessarily relies on a potentially impossible classification of speech as commercial in the first place.[49]

A.  Dissecting the Commercial Distinction

Since Virginia State Board and despite inherent difficulties, courts have attempted to distinguish commercial from non-commercial advertising by their “commonsense differences.”[50]  Following Supreme Court jurisprudence,[51] courts have asserted that not only the unique characteristics of commercial speech like its “hardiness” and “objectivity,” but also the “greater potential for deception or confusion in the context of certain advertising messages” is reason to regulate this speech.[52]  Yet these supposed distinctions only veil the complexity of distinguishing commercial speech from non-commercial speech.  Indeed, “is it really that simple?”[53]

Judges, for example, have had difficulties defining commercial speech based on the Virginia State Board Court’s offered model of a commercial statement; that is, “I will sell you the X prescription drug at the Y price.”[54]  Most often, commercial advertising does not fit into such a simple mold; many times, commercial advertising not only proposes a transaction, but also imparts both affective and informational messages, and conveys images and expressions that are intended to persuade the public.[55]  As such, the case may present itself where the suppression of supposedly commercial speech will—necessarily—sweep into its ambit traditionally protected speech that “contribute[s] to the exchange of ideas.”[56]  Indeed, “the lines between art and advertising are not sharp.”[57]  Thus, despite attempting to classify a certain advertisement as commercial, there seems to be little doubt such a classification is futile,[58] and even if it wasn’t, a commercial advertisement is likely not void of any non-commercial information that contributes to the public dialogue.[59]

Examples of the commercial advertisements that blur the lines between advertising and art abound.  Take for example a popular Levi’s Jeans advertising campaign Go Forth.[60]  In a commercial spot from the campaign, the viewer sees images of twenty-somethings flit across the screen as the original recording of Walt Whitman reading his poem, Pioneers! O Pioneers!, plays in the background.[61]  “Whitman’s verse allows Levi’s to evoke not only its proud history but a forward-looking present—the pioneering, American mindset that Whitman captured and that Levi’s hopes to embody,” one commentator suggests.[62]  Similarly, the now famous Apple Macintosh advertisement, Think Different, rolled videos of Albert Einstein, Bob Dylan, Martin Luther King, Jr., Richard Branson, and the like, while Richard Dreyfus reads a poem in the background.[63]  At one point, Dreyfus states, “About the only thing you can’t do is ignore them.  Because they change things.  They push the human race forward.”[64]  Walter Isaacson, Steve Jobs biographer, later said, “By the end, Jobs, along with four or five other people, have written this not as ad copy, but as a manifesto.”[65]  These two examples show clearly how what the Court would call an advertisement is also art—in spite of Levi’s and Apple’s motivation to sell products—that would normally be protected by the First Amendment.

The blurring of the lines between art and advertisements go both ways; that is to say, that sometimes what would normally be considered art becomes an advertisement.  For example, Morgan Spurlock, a documentary filmmaker, created “The Greatest Movie Ever Sold,” a critique of product placement, by funding it exclusively with royalties from product placements.[66]  One critic described the movie as a fusion between advertising and filmmaking—at once a celebration and a criticism of advertising.[67]  “The conceptual joke is that the entire project was financed by conspicuously placed products in a film that is little more than a string of ads for its sponsors,” yet other aspects of the film “lend it a frisson of cultural and intellectual weight.”[68]  Thus, it is unclear whether a court should consider Spurlock’s film an advertisement, a documentary, or both.  If the result is both, then a court would be met with a quandary as courts have traditionally considered movies as bastions of free speech[69] and advertising not.[70]

Obviously, not all advertising is created equal, and at times some advertisements will be relatively barren of artistic components.[71]  Similarly, some traditionally protected speech will have a stronger relationship to advertising than other traditional speech.[72]  It is because of these “commonsense”[73] characteristics of twenty-first century advertising that it is impossible to make a distinction between protected speech, and what would otherwise be protected speech but is not because it also “propose[s] a commercial transaction.”[74]  As shown, in many instances it is no longer true that advertisements “do[] ‘no more than propose a commercial transaction.’”[75]  Instead, advertising today can and often does critically comment on “social, political, esthetic, moral, and other ideas and experiences” that lie at the core of the First Amendment’s protections.[76]  If nothing else, by treating anything that proposes a transaction as less deserving of First Amendment protections, the Court would be restricting what would otherwise be protected from such restrictions.[77]  This is all to say that the impossibility of separating speech which simply proposes a transaction from the traditionally protected peripheral or central messages of that speech requires the courts apply strict scrutiny to regulations on all speech—commercial or not.[78]

B.  Commercial Speech from a Listener’s Perspective: Refocusing the Analysis

In addition to the inherent difficulties of classifying speech as wholly commercial or wholly non-commercial, there is also another basic rationale from Virginia State Board that cautions against presumptions that commercial speech’s unique characteristics preclude it from First Amendment protections.[79]  In Virginia State Board, the Court acknowledged the “First Amendment right to ‘receive information and ideas,’” recognizing that “freedom of speech ‘necessarily protects the right to receive.’”[80]   Simply, the Court recognized in Virginia State Board that any supposed commercial speech doctrine must address the rights of the speaker to speak, and the listener to listen.[81]  Moreover, there are quite persuasive justifications to protect the rights of the presumed commercial speaker, and, in turn, the listener.[82]  As the Virginia State Board Court stated, “As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”[83]

Despite many cases’ nods to a listener’s right to receive information, this right often plays only a subordinate—if not cursory—role in most opinions.[84]  There is reason, however, to focus the analysis more so on the listener’s right to receive information.  Indeed, while courts have struggled to formulate a distinction between commercial speech and non-commercial speech,[85] most have accepted without much disagreement[86] that whatever the regulations placed on a speaker, those regulations must not unnecessarily inhibit the public’s right to know.[87]  Moreover, the public’s right to know provides another justification to apply strict scrutiny to so-called commercial speech, because that right is not tied to the basic commercial characteristics that served as the original rationale for providing less protection to that speech.[88]  Instead, that right is tied solely to the inherent belief that society is benefitted by the “’open marketplace of ideas’ protected by the First Amendment.”[89]  As Justice Holmes stated:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, . . . .  I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe . . ., unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law . . . .[90]

What Justice Holmes first expounded as now blossomed into the well accepted idea that the “marketplace” is enriched by greater amounts of “social, political, esthetic, moral, and other ideas and experiences . . . .”[91]  This information—commercial or not—may entertain, inspire, inform, affect, or otherwise bring to the citizen ideas that would have otherwise been lost to them, and thereby increase competition in the “marketplace of ideas.”[92]

Thus, just as the Court almost did in 44 Liquormart,[93] it should finally discard the Central Hudson test, recognizing that it is impossible to distinguish commercial advertising from non-commercial advertising—a necessary predicate to the test[94]—and that the public’s right to receive such information is too often relegated to a subordinate class—a class, which the Court has nonetheless ruled, enjoys the protection of the First Amendment.[95]

C.  Applying a New Approach to Commercial Advertisements of Legal Synthetic Cannabinoids

The current controversy over the advertising of synthetic cannabinoids provides an excellent illustration of just how difficult it is to apply the label of “commercial speech” to a message so that it may be regulated without also sweeping into the regulation protected speech.[96]  For example, one synthetic cannabinoid seller’s advertising speaks to buying the product, but also conveys what would normally be protected political speech:  “The good ole Gov [sic] is getting hammered over next years HUGE budget deficit! . . .  Lets [sic] help the Gov [sic] out by seeing how much tax revenue we can generate on the Louisiana Legal Potpourri!”[97]  Indeed, this message is attempting to sell a product, but is nonetheless commentating on the politics and economics surrounding the Louisiana governor’s attempts to reduce the state’s deficit.[98]  Thus, banning this message, because it is related to a commercial transaction of synthetic cannabinoids, would also result in a ban on peripheral political messages within that commercial speech.[99]

Consequently, accepting such an advertisement as wholly commercial, that is, of “less [a] constitutional moment” under the Court’s previous decisions, appears to suggest that speech containing commercial and non-commercial messages is subject to less protection, simply because of its commercial speech component.[100]  Such a conclusion—one that is necessarily required for the application of Central Hudson—seems “to have nothing more than policy intuition to support it.”[101]  The cracked foundation on which Central Hudson sits further weakens when one considers the First Amendment rights of those reading advertisements about synthetic cannabinoids.[102]  It is only through access to such legal information that consumers can make knowing and intelligent decisions about the synthetic cannabinoids—and even about the politics within the message; “To this end, the free flow of commercial information is indispensable. . . . Therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decisionmaking in a democracy, [it cannot be said] that the free flow of information does not serve that goal.”[103]

Taken together, the false dichotomy between these types of speech and the rights of the listener raise serious questions as to the constitutionality of blanket bans on commercial advertising in general and of synthetic cannabinoids specifically.[104]  Indeed, blanket bans on commercial speech can operate as a censor in many instances.[105]  For this reason, the Court has, as a general rule, refused to create First Amendment “vice” exceptions for predominately legal products, i.e. lottery tickets, alcohol, and tobacco, out of fear that such exceptions would have “the unfortunate consequence of . . . allowing state legislatures to justify censorship by the simple expedient of placing the ‘vice’ label on selected lawful activities.”[106]  Moreover, the apparent implication of blanket bans is that for all intents and purposes the product and the potential controversy surrounding the product are removed from the public discourse.[107]  Thus, such bans on commercial speech “not only hinder consumer choice, but also impede debate over central issues of public policy.”[108]  In one such instructive case, the Seventh Circuit Court of Appeals, upheld a Federal Trade Commission (FTC) order to stop an industry group from commenting on a suggested link between eggs and health problems.[109]  Its ruling in favor of the FTC, essentially “excluded one sector of society from participating in the public debate.”[110]

A court applying the Central Hudson analysis to the advertising of synthetic cannabinoids would no doubt reach a similar conclusion as did the Seventh Circuit.  Nonetheless, this result would not be supported by the original rationale of Virginia State Board and would be based on the false distinction between commercial and non-commercial speech.[111]  Applying strict scrutiny to an advertising ban on synthetic cannabinoids would, on the other hand, bring logical and jurisprudential clarity to commercial speech jurisprudence.[112]  Indeed, such an approach would alleviate obvious difficulties and controversies by no longer requiring a court to determine the “commercialness” of the speech in question.[113]  Moreover, it would strictly protect the rights of the listener to receive the commercial information.[114]  Thus, in order to justify a total ban on synthetic cannabinoids, the government would have to show both a compelling governmental interest for the regulation and that the regulation is narrowly tailored.[115]  Preventing the advertising of products that are legal—but nevertheless may prove dangerous to  minors[116]—likely amounts to a compelling governmental interest.[117]  Nonetheless, the blanket bans that failed in 44 Liquormart and Central Hudson, would similarly fail under the more demanding strict scrutiny standard.[118]  While the Central Hudson test required only “a fit that is not necessarily perfect, but reasonable,” the government’s burden would be greater under a narrowly tailored standard.[119]  That is, the government would have to show that the ban advances the compelling governmental interest, is not overinclusive, is not underinclusive, and is the least restrictive alternative.[120]  Because a blanket ban would prevent advertising to minors as well as to adults, the ban would likely be overinclusive.[121]  Indeed, under a blanket ban, “the law does more than simply keep children away from speech they have no right to obtain-it interferes with the rights of adults to obtain constitutionally protected speech and effectively ‘reduce[s] the adult population . . . to reading only what is fit for children.’”[122]

III. Maintaining Regulations on the Economic Characteristics of Protected Speech

            Despite complete bans on advertising likely failing an analysis under strict scrutiny, the government may still regulate—consistent with the First Amendment—the other characteristics of the product.[123]  Indeed, the Court has accepted time, place, and manner regulations—even of non-commercial speech—“provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information.”[124]  Additionally, courts also have accepted that such restrictions encompass “disclaimer warning[s] of the dangers of alcohol.”[125]  As such, even allotting full First Amendment protections to commercial speech does not necessarily leave the government powerless to regulate such speech by requiring it to carry disclaimers, for example.[126]  Thus, it is likely that the government could require that producers and vendors of synthetic cannabinoids label their products with disclaimers and perhaps warnings of the dangers associated with smoking such a product.[127]

Furthermore, such an approach is truer to traditional conceptions of the First Amendment and its relation to the market place of ideas, that is, where the people, after weighing various considerations choose their victor.[128]  This, as opposed to the government, which is “of course, entitled to take [a position] and to attempt to persuade the American people of its validity,” but which “is emphatically not entitled to monopolize the debate or to suppress the expression of opposing points of view” from monopolizing all discussion about matters that may otherwise implicate First Amendment concerns.[129]  As opposed to an all-out monopoly on an idea, the labeling regulations would provide the consumer with the necessary safety information, while at the same time preventing to some degree “the very sort of paternalistic interest which the First Amendment precludes the state from asserting.”[130]

IV. Conclusion

The commercial speech doctrine has long been susceptible to judicial manipulation, and has shown that even the most basic assumption regarding the classification of commercial speech as such raises insurmountable obstacles.[131]  As such, Central Hudson should finally be rejected as jurisprudential imbroglio.  Under strict scrutiny, restrictions on what one would previously have called “commercial speech” would deserve similar—and more consistent protections—than under Central Hudson, while not requiring any inquiry into the “commercialness” of the speech.[132]  At its most basic, commercial speech through advertising no doubt contributes to the marketplace of ideas, and, therefore, listeners have the right—in spite of the underlying commercial motive—to receive such information.[133]  Indeed, “the remedy to be applied is more speech, not enforced silence.”[134]  Thus, a judicial analysis of commercial speech regulations should be consistent with the majority of speech that has traditionally received First Amendment.  Such an analysis, in this case, would protect producers and vendors of legal synthetic cannabinoids from blanket advertising bans—subject to disclaimers that survive strict scrutiny.[135]