Communication, Law, & Power | Essay Collection

Pasquale J. Festa INF390N - Communication, Law and Power Prof. Stein 1.29.2007 Critical vs. Mainstream Views of Law The difficulties inherent in creating a conceptualization of law seem to become greater when we take on the task of ascertaining a means through which we look at law. The readings from this week brought into question two distinct analytical lenses which we may utilize: critical and mainstream. It seems that the mainstream view of law believes that law should be a fixed system of rules, regulations and objective guidelines that stand outside of society and shape the behavior of the citizens whom are under the jurisdiction of these bylines. In a way, the power of law trumps the power of the people who live underneath it. A critical view, however, looks at law from another perspective. Law is created by society and therefore we have a right, and maybe even an obligation, to shape and change law. Through this lens law mutates from a static, fixed system of control to a dynamic and fluid entity that should evolve through the active participation of the society which it is to define. These two varied and distinct views of law raise many questions when it comes to conceptualizing just exactly what law is and how it should be made.

The statement by Barthes concerning myth, history, and nature sums up this perplexing issue. As time has progressed, law has changed. The views of the past have evolved into common practice. At the same time, new progressive arguments are being made that point out inherent problems with the traditionalist view and question the validity of law's nature. The continuing battle between the mainstream view (which may be seen as an example of historical action becoming common nature) and the critical view (which, to many conservatives, is seen as a corrosive agent which concerns itself with undermining the old guard of the mainstream view) raises one of the most destabilizing questions in regards to law: What is it?

If we are to make law, it would be necessary to first form a methodology for creation. The mainstream and critical dichotomy lends a hand to this conceptualization of law making practice. Each has its strengths and its weaknesses.

One positive facet of the mainstream view is how it looks at law as a fixed standard that is objective. Quite simply, law is the law. This is a very rational and logical way of

looking at law. Law should have power. Law that does not control society is, in effect, useless and unnecessary. The only problem with such a view of law deals with who is creating this law, what are their intentions, and ultimately, what if power is abused and law is used for a means of creating a totalitarian state. As Mensch pointed out, this is a problem that arose during World War II. While this view may answer the question, "What is law?" it does, however, raise the issue of ethics, social reality, and public interest.

The critical view of law focuses more so on the social and ethical aspects of law.

In a way, the critical view understands that society will change, and due to this undeniable fact so too should law change. When we look at law this way, we now have a problem with fixed standards and objectivity. If laws can change, how can they ever have any power? If law is to create a structured framework for societal behavior, how can it have stability if the society it is supposedly controlling has power over it? Where the mainstream view would attest to law's power over society, the critical view would claim the opposite. While the critical view's blurry definition of law poses a problem, one of its crucial strengths is this democratized and socially participative aspect to law making. Law is created by society and therefore should reflect the values of that society.

The debate between mainstream and critical views of law brings into question the very foundation of law itself. What we have here is a concern, not only with society, power, ethics, and control, but also the basic definition of law. Barthes' statement from Mythologies is quite pivotal. Our problem with conceptualizing law has to do with signs, signifiers and the signified. This debate over how to look at law has everything to do with finding meaning and definition.

The critical view of law, which may be seen as a progressive approach, has opened up a virtual Pandora's Box. What we have now is a very messy and complicated situation. I feel that neither a critical view nor a mainstream view of law is better. Quite simply, they both have strengths and weaknesses to them. The mainstream view's focus on creating a standard and objective law to be followed is quite practical and really sums up just exactly what law is. However, at the same time, the critical view's interest in democratizing law and allowing for law to evolve and change with society is quite attractive when one thinks of personal freedom.

In reality, law lies somewhere in the middle of these two polar views. It is at once a system of control that holds power over society as well as a constantly evolving entity that is molded and sculpted by the society which it structures. There are laws which exist which we must conform to. At the same time, we are still making and deleting laws. In effect, the mainstream and critical views of law are two sides of the same coin. The difficulty now lies in finding the middle ground between these polar opposites. Neither is universally correct and likewise neither is wholly wrong. One could say, the problem concerning law today that faces us, is a rather complex and difficult one. We are, in effect, trying to come to terms with how we define law. What historical aspects of law should we keep and how can we integrate these new reconstructional opinions into our definition? What will be, to use Barthes' term, our new myth of law?

Pasquale J. Festa INF390N - Communication, Law, and Power Prof. Stein 2.5.2007 Neoliberal and Progressive Approaches to Law It seems as if the Neoliberal approach to law spelled out by Litan and Niskanen argues that the capitalist marketplace should be the test site for shaping government policies concerning media industries. If the government were to intervene in the digital media realm, it would stifle competition and standardize media tools without letting consumers come to their own conclusions about which products and services they wish to endorse and proliferate in the marketplace. One example that Litan and Niskanen give to support this claim is the VHS versus Beta battle during the 1980's. The media itself was new and unregulated. Beta fell by the wayside because consumers, as individual members of society, chose to embrace VHS. In this instance, one can see how the market regulated itself without government interference.

Neoliberals explain that this is how media industries should be structured as it allows consumers the freedom to choose which product they want to endorse and, thus, make an active contribution to shaping of the social structure.

What interests me is the Neoliberal conceptualization of freedom. Here, it seems, freedom is spoken of in terms of economic freedom or the freedom to consume whatever one wishes to consume. Neoliberals appear to be very similar to contemporary Libertarians. They advocate market autonomy from government regulation in conjunction with social progress.

The issue here, however, is that Neoliberals seem to want to have their cake and eat it too.

They consider anything that may be good for the business economy to be good for society as a whole. I feel as if this approach makes the inaccurate assumption that money will trickle down from the top of the pyramid to the bottom. In effect, Neoliberalism seems to be a stance that wants it all. It wishes to allow big business to grow as its main priority and makes the unsubstantiated claim that this will inevitably help to create a better society in general.

Progressives, such as Freeman and Mensch, point out the blatant fact that social ills are the direct effect of social and economic inequality. They make the point that just because American corporations are reporting record profits, it does not mean that crime, poverty, and illness will miraculously disappear. Progressives see the capitalist system as being the direct creator of societal problems. The battle is between the haves and the have-nots. The Progressive conceptualization of freedom concerns itself, not with the right to consume, but the right to actively engage in the shaping of society through policy and law making. This stance may be classified as radical. I, however, see it to be quite realist by the fact that Freeman and Mensch make the claim that if we do not make a proactive attempt to find

solutions for the problems of our society it will, at some point, come to a dramatic crescendo where the disenfranchised express their dissatisfaction with the system through violent uprising.

Both perspectives look at the intersection of the individual (the private) and society (the public). Neoliberals make the claim that, by allowing markets to shape policy, we are allowing individuals the right to express their opinions and let their voices be heard in terms of the way in which law and policy should be shaped in the digital world. The problem here is that Neoliberals equate capital with speech. They turn money into voices. Progressives make the opposite claim stating that such things as crime and prison overpopulation point to the fact that marginalized groups who are ill-equipped to partake in the capitalist system must make their voices and dissatisfaction heard through outright rebelliousness in the face of the law.

The one who steals, in effect, is the one who says the system is a failure.

Neoliberals are interested in preserving the rights of producers and consumers. They state that one has a right to have what one wants, just as long as one can pay for it. The difference in this conceptualization of rights when compared to the Progressive view is one of major interest. Progressives look at human rights as being universal and should not be mixed with economic capability. Progressives point to the fact that it is necessary for the government to listen to the disenfranchised and marginalized members of society, who are without capital backing, when it comes to shaping and defining policy. The civil rights movement of the 1960's is a prime example of this Progressive approach. While those who created the social movement were members of society who were not at the top of the capitalist pyramid, it was necessary for their voices to be heard and heeded as harbingers of the social reality. Only by taking into account the perspective of the have-nots was the government able to shape law and policy in a manner that worked to quell unrest and create a greater degree of social harmony.

What we can find to be a commonality between Neoliberals and Progressives is their heavy interest in the public and private, in the individual and society. Their chief difference, however, seems to be in their conceptualizations of society. While the Neoliberals focus heavily on society as being the market economy, Progressives look at society as also encompassing those who are without capital and unable to participate in the social practice of producing and consuming goods and services on a large, entrepreneurial scale. Neoliberals advocate that policy should be defined by market forces and in that case, the individual is the one who participates in the marketplace. Freedom, for a Neoliberal, is the right to have what one wants as long as one can pay for it. Progressives understand that there are members of society that do not have the advantage of speaking their voices through economic means. Marginalized members of society seem to be of little concern to Neoliberals and Progressives point out the

blatant reality concerning social ills and their inexplicable ties to economic inequality. In effect, Progressives take an opposite stance in stating that it is important to make changes so that economically disenfranchised members of society may have the things that they need so that they may become active members of society rather than messengers of the system's apparent failure to guard them from exploitation and inequality.

My main interest concerning this reading has to deal with the sad reality pointed out to us by Freeman and Mensch. As crime and law breaking can be read as a sociological dialog concerning the ineffectiveness of the capitalist system in safe guarding individuals of society from market forces, the current surge in the prison population in our country speaks volumes of the fundamental problems inherent in the capitalist system. As Freeman and Mensch point out, if the current system of law and control does not do something to start easing the troubles of disenfranchised members of society, it will come to a point where the unheard voices will have no other means to express their discontent than through violent revolution against the establishment. While the Neoliberals prefer keeping their eyes closed to the current issues of poverty and inequality, preaching that allowing free market capitalism will inevitably help society in the future, Progressives point out the sad social realities of our world and force us to open our eyes to the fact that our greed will inevitably catch up to us. Neoliberals will say that you may have what you want as long as you can pay for it. Progressives simply warn us that if we have something someone else can't afford, we shouldn't be too surprised if they decide to take it from us through brute force and violence. While Neoliberals believe a bandage of national economic growth illustrates the success of the state system, Progressives point out that just because the symptoms are superficially covered up does not mean that the disease is gone.

Pasquale J. Festa INF390N - Communication, Law and Power Prof. Stein 2.19.2007 Normative Interpretation of Speech Rights When we speak of a normative interpretation of speech rights, it seems that what we are actually talking about is finding a way to balance numerous perspectives and law theories in regards to interpretation of the First Amendment.To say one has a normative view of Speech Rights is rather misleading, as on first interaction with the term we are given the false perception of this view as being one that is very leveled and static. On the contrary, a normative interpretation of Speech Rights must take into account a number of dichotic and diverging theories in regards to the understanding and interpretation of the First Ammendment. A normative view of Speech Rights is a view that can only take shape after it is informed and molded by a number of principles and theories in regards to the interpretation of free speech and the First Ammendment.

One of the chief issues that must be taken into account seems to go back to our overarching concern with law in general. Is law something we create as a society or is it something outside of us which shapes our world? In interpreting the First Ammendment, one of the greatest difficulties lies with just how willing we are to participate in the modeling of law. On one hand, we have a critical approach to the First Ammendment which points out that law is a part of and affected by the contemporary climate of our political, social, and economic worlds. Because of this, it is imperative that law take into account the changing tide of the times and adjust itself to allow for the new needs and social structures that are springing up in the modern world. However, there is also an absolutist approach to the First Ammendment that points to the fact that law, at some point in time, must be something that is concrete and un-malleable.

In one sense, Free Speech can be interpreted as a lack of laws constricting or limiting one's right to speak or communicate one's ideas. However, in such an interpretation of the First Ammendment, we do not find anything to trumpet for the citizenry to create a participatory democracy. In a way, if we are absolutist about

our understanding of the First Ammendment, we may be quite conservative in our interpretation of Speech Rights. While we may allow the public to have the right to speak freely, we do not offer an adequate resource base for their voices to be heard. Such an interpretation of the First Ammendment and Free Speech rights is, fundamentally, a defensive approach that takes as its chief interest the conservation of Speech Rights as the absence of law governing one's ability to speak. While such an approach keeps us safe from losing our rights in terms of freedom of speech it does very little to allow us a means or way to amplify our voices in the ever growing round table of social and political discourse. In essence, such an interpretation of the First Ammendment protects one's right to be a member of the conversation, but does very little to guarantee one time at the podium.

As David Kairys points out, ". . .the American celebration of free speech is unsettling, contradictory, and quite complex." In recent years, the Supreme Court has done little to protect free speech rights of the ordinary citizenry. With the rise of corporate media people of small economic means, whose perspectives differ from those at the top of the economic pyramid, are left with their mouths gagged and without any court assistance when it comes to amplifying their voices. A defensive approach to the First Ammendment would argue that such members of society have their rights to speak freely maintained by the courts as there are no legal barriers keeping them from saying whatever they wish. However, an empowering approach to this dilemma would point out the fact that, without allowing the American citizenry the right to disseminate their ideas on a level comparable to the grand scale of the corporate media, we are, in essence, undermining the entire notion of free and fair speech that is necessary for the molding of a fully participatory democracy.

Another difficulty in terms of the idea of Free Speech in our society looks at the fact that we have laws that do in fact limit what we are allowed to say and how we say it. Laws governing one's right to burn the American Flag, to spread hate speech, and to hold a citizen accountable for liable and public defamation all trump the idealistic notion that we have total freedom of speech. Such issues are of great controversy when we begin to delve into the more complex aspects of the First

Ammendment and are, for the most part, ignored by the Supreme Court due to the inherent difficulties that arise when such laws are applied to our conceptualization and understanding of Free Speech.

If we are to try and build a normative view of Free Speech laws, it is imperative that we look at other facets of our society that seem to have little to do with the concept of freedom of speech. With the changing social, economic, and media and communication climate of the present day, it is important to realize that more applies to Free Speech than just one's ability to express an idea. As the world becomes ever more globalized and corporate institutions take control of the means of communication in our society, we must not forget that just because we have the right to say something does not necessarily mean it will be heard. If we concern ourselves too much with keeping laws from governing our ability to speak we will inadvertently allow other aspects of the American landscape to inhibit the amplification of our voices.

When creating a normative view of speech rights, it seems as if we return to the overarching argument in terms of law in general. Should we take a neo-liberal approach and allow the speech market to work itself out on its own or should we be more proactive and opt to take a progressive approach to shaping speech rights as defined by participatory action in terms of defining our laws? In effect, is what Kairys has to say true? Is our current ideology in terms of free speech a reflection of our true admiration for such rights, or is it a distortion of reality that keeps hidden from us just how muted our voices truly are?

Pasquale J. Festa INF390N – Communication, Law and Power Prof. Stein 2.26.2007 The U.S. Supreme Court and Speech Rights in Media Jerome Barron’s take on the press and First Amendment Speech Rights makes an aggressive push for a doctrine of empowerment in terms of the public’s freedoms in regards to media communications. He makes sure to note that reliance upon a marketplace approach to the First Amendment is an antiquated perspective in that such a view focuses on economic capabilities of a speaker rather than a democratic and universalized allowance for participation in dialogues over the airwaves. Due to the commercialization of media, we find that our means of speech amplification are fundamentally biased. Broadcasters, as private organizations which have a facet of profiteering in addition to their function as social mediators of communication, are compelled to send messages that will appeal to the largest audience and create a marketplace of desirable and unoffending speech which will, in turn, compel private organizations and companies to purchase airtime to maximize the scope of their message and therefore increase corporate profit. If this is the case, it seems that the First Amendment, in regards to media, allows the public a right to listen, but does little to support a right to speak.

In the case of Red Lion v. FCC we find the Supreme Court supporting the public’s right to hear both view points in social issues that are open to debate. The FCC’s Fairness Doctrine stated that broadcasters had an obligation, as social agents, to make available to the public via its airwaves conflicting views in regards to political and social issues so that information put forth to the public would be fair, balanced, and unbiased. In this particular case, it seems that the Supreme Court sees that requiring a private owner of the means of communication, which serves a public function, to give the public access to varying viewpoints on political and social issues

serves to keep media owners and the press from giving biased information. I would say, in this case, that the Supreme Court made a fair and just decision in Red Lion v. FCC in regards to protecting the public from manipulative, incomplete, and biased messages in regards to social and political issues, and upheld the public’s right to hear conflicting views that serve to foster a democratic society.

While in the case of Red Lion v. FCC we find the Supreme Court upholding the public’s right to react to statements broadcast over the airwaves, it seems that in the case of Columbia Broadcasting v. DNC we find that the Supreme Court sides with the broadcasters in allowing the public to proactively communicate through the media. This decision, in my opinion, is neither good nor bad in terms of how it supports the public in terms of First Amendment speech rights in the media. While the Supreme Court sides with Columbia Broadcasting in this instance, stating that, as a private actor, it has the right to deny access to their airwaves, it does make the valid point that if one could have access to media projection based upon economic capability, the means of communication would unfairly support the wealthy in the shaping of the social and political agenda. As stated by Stein, it seems we have “a right of access to ideas, not the airwaves,” through which such ideas are projected and amplified.

If in the case of Red Lion v. FCC we find the Supreme Court supporting the public in terms of First Amendment speech rights and in the case of Columbia Broadcasting v. DNC we find the Supreme Court trying to balance the interests of both the public and private sectors, it seems that in the case of Miami Herald v. Tornillo we find the Supreme Court fully supporting the media organization in terms of the messages it wishes to send. In this particular case, Joe Tornillo asserted that the Miami Herald broke a Florida statute that required newspapers to allow political candidates to reply to malignant articles intended to defame them during elections. When the Miami Herald refused Tornillo a chance to answer to scathing editorials about him, he brought the newspaper to court. We would think, based upon the previous decision made in Red Lion v. FCC, that this case would seem rather cut and

dry and that the Supreme Court would side with Tornillo. Apparently, in this case, we find that the Supreme Court found differences between the two cases and opted to side with the newspaper; stating that telling a newspaper what to publish would be the same as telling it what not to publish, therefore being a form of censorship and infringement on the freedoms of the press.

By forcing the newspaper to do such things this form of government coercion could in fact cause newspapers to steer away from controversial discussions and could be far more detrimental to the democratic dialogue in the press than one would think.

It seems that in the discussion of First Amendment Speech Rights and the Supreme Court each case encompasses a series of fine tuned differences that must be closely read in terms of coming to conclusions about how to interpret the First Amendment. What we have here is a sticky situation where the interests of the public and private sectors, of individual citizens and profiteering companies, must be delicately balanced so that one does not take precedence over the other in all aspects of free speech. The question put forth is of great concern as the state of media technology is evolving in the present day with the ever burgeoning growth of the digital world: How should the Supreme Court work to create laws that create opportunities for the public to participate in the social and political dialogue in terms of media access without fully infringing upon the rights of the private owners of media?

Pasquale J. Festa INF390N – Communication, Law and Power Prof. Stein 3.5.2007 The Marketplace Metaphor and Free Speech In contemporary America, we find that our media is driven largely by a corporate-consumer framework. Broadcasters, for the most part, use advertisement as means of collecting revenue for the support of their stations. As this is the case, truth be told, broadcasters are more apt to make efforts to appease the desires of private industries, which use their communication conduits as a means of sending messages to large scale consumer groups, than they are to make attempts at amplifying messages that take as their target marginalized and underrepresented sectors of the public realm. When it comes to the financial running of media entities, we find that advertising comprises 70% of newspaper revenues, 100% of broadcast and radio revenues and 60% of national cable-television revenues (Stein, 36). If this is the case, would we be naïve to assume that when messages are broadcast to us, they have little concern with our need for reliable, democratic, and fact based materials and more so to do with feeding our consumer spirit and compelling us to go out and partake in the purchasing of goods and materials that are flashed across the screen?

The problem with the Marketplace Metaphor in terms of Free Speech is that it naively assumes that what is offered to consumers is what they want.

The fact of the matter, as the price of prime advertising times on media channels is rather high, is that the messages that are being sent have little to do with the quality of information and everything to do with the message author’s ability to pay large sums of money to have the privilege of disseminating their message. For the most part, broadcasters rely so heavily on advertisement revenue that they will do anything to keep viewers watching. As audience size is an important part of this equation, we find that broadcasters will make efforts to attract the preferred audience for advertisers. As young, high income, and non-minority members of American

society are the dream team for both advertisers and broadcasters, we find that members of society who stand outside of this demographic are underrepresented in terms of applicable media in the Marketplace system.

As this is the case, broadcasters have shunned any idea of creating innovate programming that deviates from traditionally successful models.

What we find is a media that does not express the changing climate of the American social landscape, but rather, makes the attempt to keep in place archaic notions of the social fabric. The corporate media, in a sense, is creating a netherworld of ideas that focuses primarily on the needs, wants, and desires of the largest niche population of American society without making space for voices from outside the clique. If Neoliberals argue that the Marketplace metaphor is perfect for Free Speech in the media and allows for us to have First Amendment rights without the intervention of Government regulation then it seems all too apparent that they are blind to the fact that this model creates the notion of exclusive democracy rather than an inclusive democracy. One’s ability to pay equates to one’s ability to speak. If you can not pay then you’re not worth hearing seems to be the consensus here.

Particularly after 9/11 and the beginning of the Iraq war, one can see the fissures in such an approach to Free Speech. Throughout the course of this political period, one would not be wrong to point out that the media, for the most part, did little to rock the boat in terms of facilitating debate about the present administration’s ideas. Dissenting voices, as they came from groups farther down the socio-economic hierarchy, had very little access to broadcast media and relied solely on homegrown, DIY tactics to disseminate their opinion. When throngs of rebellious protestors showed up on the corporate media taking over New York City like an angry mob, did it not become apparent that the Marketplace metaphor for Free Speech is fundamentally flawed? Much as I wrote before in regards to the inherent dangers of a narrow-minded, Neoliberal approach, it can be seen here that dissent and rebellion in terms of gaining access to the airwaves is an explicit dialogue that concerns itself with the fundamentally antidemocratic and biased manner in which the current system operates.

While I am hesitant to call for government intervention in the regulation of media, it does seem that at some point in time we will need a trumpeter for creating an inclusive democracy in terms of Free Speech, the First Amendment, and the broadcast world. The question here, while on a superficial level seems very simple, is of great concern in terms of conceptualizing a philosophy of democratized media: Is the message projected to me a message that I want or that I am told I want? How can Speech be “Free” when economic capabilities are involved? How can American society, as a whole, know the truth about itself when only the concerns and voice of one homogenous sector of it is being given the opportunity to speak? Will we give up convenience so that we may find truth or will we sit on our couches, afraid to participate in opening up a dialogue of great consequence in terms of making changes so that we may form an inclusive democracy in our country? All of these questions, while seeming fundamentally naïve, are of pivotal concern as we move forward into the future landscape of media communications. With the advent of the Internet and the rise of a two-way media system, such questions are of paramount importance in regards to shaping and defining regulation (if there is to be any) of the digital realm of communication.

Pasquale J. Festa INF390N – Communication, Law, and Power Prof. Stein 3.19.2008 The Role of Culture in Defining Legal Boundaries The question of whether culture should define legal boundaries or its converse is a very sticky and difficult problem that carries with it a gargantuan load of philosophical, ethical, and moral debates. In the two cases read for this week, FCC v. Pacifica Foundation and Reno v. American Civil Liberties Union, we find the Supreme Court of the United States taking on the massive task of balancing First Amendment speech rights with the right to keep oneself safe from intrusive, obscene and indecent materials. The greatest dilemma brought forth by these two cases is very much so a question that is all too similar to the age old brain teaser: What comes first, the chicken or the egg?

In deciding whether or not cultural limits should define legal limits it should be noted that taking either view as a universal, blanket approach to making law would be fundamentally erroneous. What is greatly problematic is the way in which we define the word “culture” for synthesizing a law making paradigm.

Culture has an umbrella like structure to it. We could first argue that there is a concept of World Culture (i.e. culture that is defined by taking into account all cultural habits from the diverse collection of individuals through out the world).

However, we could dig deeper into the catacombs of culture and find a series of subcultures underneath this kingly domain (American culture, Suburban culture, Urban culture, etc.). The difficulty arises when one subculture’s acceptable habits and modi operandi clash with another subculture’s. In the contemporary social fabric of 2007 this observation of what Jean-Francois

Lyotard called “the battle of each against the other,” is all too apparent in the “Culture War” being played out in the American Legal System. Currently, issues concerning abortion and gay marriage are taking center stage as the country starts to rev its motor for the upcoming election year and this staunchly points to just how intimate the connection between culture and law is in contemporary American society.

When it comes to deciding whether it is culture that defines law or law that defines culture, we come to crossroads in the woods, where the road ahead on either side is so densely concealed by the brush of uncertainty, choosing either path, despite the greatest of intentions, may be quite perilous. If we are to use law to define cultural limits, we will be, at the most fundamental of levels, creating a legal structure that inhibits and coerces the cultural expression of individuals. However, from the contrary perspective, allowing cultural expression to define our legal boundaries could lead to the decay and demolition of the notion of law itself. For example, sodomy laws in a number of states act as a legal means for a dominant culture (heterosexual practice) to impose its will and have the authority to punish a subordinate subculture (homosexuality). In this instance, a private, mutually consented sexual expression of desire between two individuals falls victim to the overarching power of a dominant culture’s legal decision. On the other hand, while the subculture of urban street gangs may find the act of murder acceptable and necessary to its cultural practice, does this mean that the larger culture, which is fundamentally adverse to such action, must honor and respect such action?

The question of whether or not cultural limits should define legal limits extends far and beyond the realm of the First Amendment and Free Speech. The dilemma is, at its very core, the most difficult ethical and philosophical problem concerning law, rights, and privileges facing the world today. Every decision, be it legal, technological, scientific, or artistic, has an impact on the entire social fabric of the world. With the advent of digital technologies, the rise of the McLuhanian idea of the “global village”, and the expansion of Western culture throughout the world due to globalization, each individual must come to an understanding that every single one of his or her decisions, no matter the perceived size, has an impact on what can be conceptualized only as the World Culture. If we do not wish for our individual cultures to be molested by the tentacles of law, it is necessary for varying individuals, from diverse cultures, to come together and be able to work out a mutually acceptable framework for how our laws are to take shape in this time of revolutionary, cultural and legal change. As Jean-Francois Lyotard writes in The Postmodern Condition: A Report on Knowledge: A self does not amount to much, but no self is an island; each exists in a fabric of relations that is now more complex and mobile than ever before. Young or old, man or woman, rich or poor, a person is located at ‘nodal points’ of specific communication circuits however tiny these may be. Or better: one is always located at a post through which various kinds of messages pass (15).

Works Cited Lyotard, Jean-Franรงois. The Postmodern Condition: A Report on Knowledge. Trans.

Geoff Bennington and Brian Massumi. Theory and History of Literature 10.

Minneapolis: University of Minnesota Press, 1984.

Pasquale J. Festa INF390N - Communication, Law and Power Prof. Stein 3.24.2007 Hate Speech What seems to be most interesting in regards to hate speech and the First Amendment has to deal with the way in which such speech is wholly outside the jurisdiction of Free Speech protection. While I am not advocating hate speech or saying I agree with it in any way, it does seem rather contradictory to have a law that protects an individual's right to express an opinion, unless that opinion or the manner in which it is stated is considered too obscene for society. In the case of Beauharnis v. Illinois we find that distributing leaflets containing discriminatory statements concerning race and ethnicity is not protected by Free Speech rights.

In fact, as Smolla states, "The court continues to treat 'obscene' speech as not within the protection of the First Amendment at all."

The difficulty in regards to finding a place for hate speech is that it rests between libel and the infliction of emotional distress. As Matsuda writes in her article for the Michigan Law Review, ". . . this Article moves between two stories.

The first is the victim's story of the effects of racist hate speech. The second is the first amendment's story of free speech." Balancing between these poles is of great difficulty. Taking a side will, either way, cause one group's rights to trump the rights of another group. It seems in hate speech we find the legal system trying to come to a conclusion about one of the stickiest situations in regards to First Amendment law.

In the case of Hustler Magazine, Inc. v. Falwell we find that personal attacks against public figures are protected as long as it is found that the attack is not published with reckless disregard for the validity of its statements. In this particular case we are finding the court protecting the rights of speech, but by inserting a clause regarding the truth of statements, also protecting the victim's right to recover damages if the speech is found to be libelous and causes emotional distress.

The difficulty with hate speech is that it singles out individuals for slander through the use of blanket statements in regards to race, ethnicity, gender and sexual orientation. While hate speech is speaking about a group of people, its aim is to inflict damage at the level of the individual. The difficulty lies, however, in defining the limit at which a statement of opinion becomes a vicious attack on individuals with an explicit intent to cause emotional harm and inflicting mental anguish. As Smolla states, "Freedom of speech has its costs, and tolerance of even the speech of the intolerant is one of them."

I feel as if using law as a way of curbing hatred in our society is fundamentally erroneous. The problem here lies with the fact that law only steps in after the cultivation of ignorant and harmful ideas have come to bear fruit.

While I am not advocating that hate speech be permissible, (for instance, burning crosses on an individual's lawn constitutes a serious threat to that person's mental and physical well-being and should not be tolerated) I am stating that using the legal system as a means of shaping social interaction will only lead to

greater intolerance from the already intolerant. Now, in addition to ignorantly having little regard for human beings based upon their race, class, ethnicity, gender or sexual orientation, we will come to find these same individuals to lose regard for society as a whole, government and the legal system.

The problem of hate speech is much deeper than anything the legal system can handle. It is fundamentally an issue that finds its seedlings in the spreading of an ideology of intolerance. As Smolla states ". . . the battles against hate speech will be fought more effectively through persuasive and creative educational leadership than through punishment and coercion." If we wish to have a democratic society where the First Amendment rights of free speech are completely open and have a society that is void of intolerance, bigotry and racism, it is imperative that we focus on educating the members of our society about the ill effects of hate speech and the ignorant nature of racism, sexism, and classism. While law may act as a way of clipping an ugly branch from the tree of expression, it does not preempt seeds from being planted and sprouting in the soil that is the American land.

Pasquale J. Festa INF390N – Communication, Law and Power Prof. Stein 4.2.2007 Privacy and Personal Information In the contemporary world, with the emergence of new digital technologies, it seems that the issue of personal information and the right to privacy is becoming of greater and greater importance with the passing of each year. Currently, we are unable to do virtually anything without handing over to a corporate entity pieces of our personal life. Our movements online can be watched by the library whose computer we utilize, our e-mail can be read by our bosses, and even our own physical bodies can be tracked via GPS or whenever we use our cellular phones. With what seems to be a place in time where our personal freedoms are dematerializing before our eyes, is it naïve or too paranoid to ask the question, “Is Big Brother no longer fiction?”

One issue of great concern (one that I feel I myself have overlooked the implications of throughout the course of my life) is the simple fact that one does not, necessarily, own one’s mailbox despite the fact that it is a piece of one’s own property. As Branscomb writes in “Who Owns Your Name and Address,” “There is a statute forbidding the postal box or mailbox attached to your premises from being used for any purpose other than as a receptacle for USPS mail, strongly suggesting that it is, for all practical purposes, USPS property, not yours” (13). If this is the case, does it not appear then that even the postal service, which first started primarily for the dissemination and delivery of news to the

public, has now become a means for tunneling particular messages to the American citizenry?

Each day, when one opens up the mailbox, what does one find? Junk flyers advertising new fast food restaurants complete with coupons, personal statements concerning mortgages, credit cards, and finances, and, ironically, advertisements for services that seem, scarily enough, all too well tailored for the individual they are sent to. As Branscomb notes, “Far more pernicious . . . is the compilation of data gathered from many sources, then correlated by computerized analysis to formulate profiles of our tastes, interests, and activities�

(16). When one thinks about this fact, the implications are rather frightful. Are we not being stalked?

Most people would say that such fears are gross conspiracy theories and idiotic paranoia based upon a distrust of government agencies. When one looks at the laws that have been enacted to protect our privacy (i.e. the Freedom of Information Act and the Privacy Act of 1974), it seems as if, perhaps, the government itself is so not so much doing things itself to penetrate our private lives but, however, is doing very little to keep commercial entities in the private sector out of them. While the Privacy Act of 1974 prohibits government agencies from using personal information data that has been collected for anything else other than what it was specifically collected for, it says nothing about commercial information gatherers. Currently, the greatest threat to personal privacy is not the FBI, CIA or IRS but rather, is the commercial website you enter your name and address into, the piece of paper you fill out in the mall to receive

a fifteen dollar gift certificate for appetizers, or the ATM card you use on Amazon.com.

What is most frightening about a fundamentally lack of privacy concerning not only our names and addresses is the manner in which the stories they carry with them are commodified and bought and sold like any other piece of plastic. In Sandra Peterson’s essay, “Your Life as an Open Book,� we find the deplorable use of personal financial information being shared, utilized, and manipulated for the sake of personal financial gain. In the case of Mallory Hughes, who received an unsolicited letter from evangelist Oral Roberts, we find a person who is suffering from debt and financial inadequacy being targeted, solicitated, and manipulated with false notions of help and fraudulent promises of freedom. Things like this happen every day. The citizens of America are not nameless and faceless to the corporate entities that run our economy. Instead, they are known all too intimately by them. Issues concerning your finances, your interests, and your consuming patterns are better known to them than some of your best friends. Big Brother is not a man in the White House watching our lives on television. Big Brother is the man in the skyscraper and all his friends passing around the details of your life at the boardroom table trying to make decisions for you that are solely in their own interest.

Pasquale J. Festa INF390N - Communication, Law, and Power Prof. Stein 4.9.2007 Copyright and Intellectual Property In 1941 French born American artist Marcel Duchamp took a reproduced image of the Mona Lisa, stuck a mustache on her face and scribbled the letters "L.H.O.O.Q." underneath her likeness. Today this work is considered a seminal piece of modern art as it critiques, with a sense of candor and hilarity, the notions of fine art, culture and identity (the Mona Lisa is thought to be Leonardo da Vinci in the guise of a woman by a number of art historians). In 1962 Andy Warhol exhibited for the first time his image of 200 Campbell Soup Cans. The silk screened work was a verbatim copy of the nationally popular Campbell soup product package right down to the little golden crest in the center of the label. Neither of these men was sued for copyright infringement despite the fact that the works they made explicitly boosted the works of other individuals.

Duchamp's piece was on a commercially printed postcard, most likely with a copyright on the back noting the company's explicit right to reproduce the image. Warhol even went a step further, transplanting a corporate entity's product package to a piece of canvas, placing it on a wall and calling it his own. When it comes to the, as Paul Goldstein chooses to call it, "Metaphysics of Copyright," is it not here, in works of art that seem to live and breath outside the legal confines of such a notion, that we find the most fundamental problem of copyright facing our contemporary society? As Goldstein writes, "All these decisions, whether made in the courts, legislatures, or private law offices, have a single result: when copyright gives control to one person, it extracts some measure of freedom to imitate from everyone else."

Would I be too candid to argue that in today's world the entire notion of an "original idea" no longer exists? It seems as if everything given to us, whether by corporate entities or intellectual thinkers, is "new and improved," two things wholly opposite of each other. When we speak of "intellectual property" we are talking about the patenting, trade-marking, and ownership of

thoughts and ideas. Such a thing is extremely difficult to attain complete control over. Once a statement is made, it no longer exists as speaker's property; it can be interpreted, analyzed, critiqued, and quoted in virtually anyway by virtually anyone. When we talk about copyright and patents, the legal notions of having ownership over an idea, image, work, etc., we are losing sight of something far more important and far more democratic in terms of its conceptualization. We are losing sight of the notion of plagiarism, something that is, as Goldstein states, ". . . an ethical, not legal, offense . . . ."

In the contemporary, media saturated world where fame and popularity are king, the notion of plagiarism, or of taking something that is someone else's and pawning it off as your own, has slow slipped into the American mainstream mode of operations. While Michael Jordan can command millions of dollars for an image of himself soaring through the sky, the average citizen is given little for his or her identity. Today, particularly amongst the younger crowd, individuals are selling their personages at low cost, without any protective rights over how their personalities are portrayed for the sole sake of having exposure. Reality TV has co-opted identities and created hyper-fictions in regards to the lives of ordinary citizens. Suzy next door has now become a somebody, but at what cost? With the advent of digital media, particularly with pseudo-paparazzi Homepages such as lastnightsparty.com and the newest edition of minglenow.com, ordinary, everyday individuals have their photo's snapped unsuspectingly by would be photographers and plastered across the electronic superhighway the very next day; all without signing a model release (standard procedure in model and portrait photography) or given any rights in regards to how the images are used or, even, if they are used at all. The simple fact, and a sad one at that, has to do with the way's in which ordinary, everyday people have been battered by the likes of celebrity and V.I.P. culture into selling off their identities for the sake of phony celebrity and pseudo-attention all to the lowest bidder.

Perhaps I am not answering this week's discussion question and I do feel sorry for my lack of having a statemented response, but I feel that the issue of copyright and trademark,

particularly in terms of personages, brings up a larger issue that needs to be discussed. As was mentioned in last class, why could not an ordinary citizen place some form of control over his or her identity and hold any individual or group of individuals that may partake in the act of using this identity for any other reason other than explicit ones specified, not be held accountable for encroaching upon copyright or trademark violations? If I were to make my name, legally, my own property, could I then command that all utterances of it, all images of my person, and all references to who I am come with some form of economic penance to myself?

The simple truth is that this is probably very much, through astute knowledge of the law and well tuned rhetoric, a possibility in terms of making a valid and believable argument.

However, the system that commands society, the marketplace economy, and the economic and persuasive powers of conglomerated entities, would do very little to accommodate the freedom's of the everyday citizen. As Goldstein writes, "If copyright is the law of authorship and patent is the law of invention, trademark is the law of consumer marketing." The entire web of intellectual property rights is designed to be so haphazard and confusing that the normal, uninformed citizen would have little understanding of the intricacies that are involved.

Fundamentally, like most issues encountered in this class in regards to First Amendment rights, it seems as if the legal structure, legislative process, and dominant forces in the marketplace economy have set up a system that allows little room for a free and open discourse in regards to free speech and the individual's right to control his or her own life, personage, and presentation of self in everyday life. Only when enough citizens command high prices for the buying and selling of their lives will the powers that be see the fundamental problems with the current setup.

Pasquale J. Festa INF390N - Communication, Law and Power Prof. Stein 4.16.2007 The Law of the Internet I work for the State of Texas Law Library and each day as I traverse the labyrinth like nature of the KF Stacks I inevitably walk past a small section only two shelves in size that always seems to catch my attention. These humble cases, each only half filled, contain literature pertaining to the realm of law and the Internet. Being a still young 26 years old, I grew up with (or perhaps, it grew up with me so to speak) the Internet. This netherworld, a society that exists elsewhere, has grown strong and stronger as the years have marched on.

As it was once possible to live a life where a home personal computer was not needed, today things are different. The Internet, while seeming to be "another place," or a society within society, has become entangled with the fabric of what I like to call the analog world (i.e. the "real" world"). As Lessig states, the advent of the Internet brought about a great fervor of utopian idealism, of a place where true democracy and free speech could reign. Now, years later as the digital child is starting to emerge into adulthood, we find that such notions, while still very promising and possible, are at potential risk due to the encroachment of real world socioeconomic practice. Much like television, users of the Internet are, for the most part, channel surfing through a world of digital media and are, it seems, finding only a small fraction of the possibilities out there. While everyone may be an author in the digital world, the simple fact remains that not everyone can hold control over the means of access to virtual destinations.

Currently, one area of Internet law and policy of great debate centers on the concept of Net Neutrality, of the Internet being a place where ideas and information are given the freedom to flow and disseminate without hindrance. Google, a large proponent of Net Neutrality, is already taking steps to protect this ideal by purchasing dark fiber wires (fiber optic wires used in the creation of wireless networks) and taking steps to expand free access to the Internet (Google's wiring of San Francisco for free wifi is seen by many as a first step in the creation of a free and open national wireless network). It is here that we seem to come almost full circle in regards to the issues we first faced in this course: Is it the market or government that should have power over defining law and, thus, molding society?

The dilemma we are faced with in terms of defining law and policy seems, by its very nature, to become even more hazy and difficult in the world of the Internet. In the case of Yahoo! v. La Ligue Contre le Racisme et L'antisemitisme we find the clash between the borderless world of the Internet and the nation-state oriented reality of the analog realm to

raise new issues in regards to free speech, governmental jurisdiction and personal freedom.

The reality of the situation raises many questions of legal and philosophical concern: how does one balance the freedoms of divergent cultures while maintaining a level of fair democracy and, to further the question, will government intrusion upon the territory of the digital world have a chilling effect on the capacity for free speech, inadvertently causing the Internet to become a stagnant communication system no different than contemporary television?

In creating a law for the Internet I must admit that I concur with Lawrence Lessig when he discusses the notion of creating a constitution as "an architecture - not just a legal text but a way of life . . . .� What instigates fear in regards to the permutation of the Internet has to do with both scale and power. It grows endlessly, almost exponentially, and is a system, due to being in the hands of the public, that seems to be without a reigning entity. Already, in this burgeoning digital city, we are finding that while we have a number of intellectual oasis hideaways, there also exist, much like the analog world, seedy back alleys and Skid Rows.

Governance of the Internet, at its most fundamental and basic level, is an issue in regards to global politics and worldly society.

In February of 2007 the International Business Times published an article dealing with the suicide of a 13 year-old-boy in Maine (http://www.ibtimes.com/articles/20070221/add1-cyberbullying.htm), while this may seem like it has nothing to do with Internet law, the fact is it serves as a glaring example of the issues raised by the new media and the inherent possibility for such technological capabilities to bring about a new era of violence, crime, and abuse. This young boy committed suicide due to incessant cyberbullying by peers and a rapid dissemination of lies and gossip about him through the utilization of the Internet. Child psychologists have noted that this is new form of bullying is far more detrimental to the psychology and emotional stability of its victims due to the sheer scope of the dissemination of information.

Like all things there are two sides to the Internet coin. While, on the one hand, proponents of Free Speech and participatory democracy will make the argument that the Internet should be allowed to grow freely without government interaction and that its shape should be dictated by the ways in which society utilized the media, it must be noted that having a society without some form of rule or governance can bring about a degree of anarchy and, as Lessig mentions in regards to post-communist Europe, "Mafiosi" justice. What is different about the Internet in regards to the creation and implementation of rules for use is the fact that, by its very nature, it encourages society to have a participatory role in creating, shaping, and defining the powers and limitations of such laws. The Internet, by its very nature, is a social mediator, a people connector, and due to this, it does not have the same degree of

exclusivity in regards to rule and law making does as is apparent in the territory of analog reality. The law makers, theoretically, should not be able to hide behind closed doors whispering secrets and passing legislation that is hidden from public view.

The problem put forth is one of indeterminate and vast philosophical and ethical concern. If the law of the Internet is to be shaped and molded by the sculptors of the public, does not some degree of concern and fear arise in regards to the public's ability to rise to the challenge and act cooperatively when disagreements arise? Are we mature and capable enough to design the law of the future Internet when we are already seeing glaring examples of Free Speech abuse in the digital realm? The fear is quite real due to the fact that at this moment in history we are standing on the precipice looking towards a horizon that has the possibility of being our greatest dream or worst nightmare. We are capable to find both information of the greatest importance and the trashiest of brain candy in the hallways and corridors of the fiber optic labyrinth. The Internet has the potential to create an informed citizenry as equally as it has the potential to spread and make acceptable actions and behaviors far from virtuous.

We are emerging into a new human era where perceptions and realities, where fantasy and truth, are starting to mingle in a way that causes each to become unstable and ungrounded. As the Internet is without borders, the notion of national supremacy over it seems to be something that may never happen. However, such a belief relies heavily on the level of effectiveness of self-regulatory structures. While the Internet definitely challenges traditional notions of power, communication, and law, fundamentally, we find ourselves back at square one. If we are unable to act maturely and ethically as un-supervised children in the digital playground, will government again step in and become a paternal figure reprimanding us for our transgressions and anarchic actions? Is it here, in the Internet, that we find the ultimate mesh of law, government, power, freedom, privacy, democracy, and ethics?