Religious Rights and Civil Wrongs on Campus

NOTE: This blog post does not constitute "legal advice." It does not even rise to the level of a "legal opinion" derived from legal research. It is merely an informal, uninformed exploration of some questions the dispute suggests to the author. If you are personally involved in, or affected by, litigation related to the issues discussed, you should consult a lawyer. — Nicholas Johnson, Iowa City, Jan. 20, 2018

UPDATE on Federal Court proceeding: Federal District Court Judge Stephanie Rose granted plaintiffs, Business Leaders in Christ, a temporary injunction on January 23, 2018. This will permit the BLC an opportunity today (January 24) to participate in the UI "recruitment fair" and sign up additional members. Note that this is not a final decision in this case. It only applies to the next 90 days. It does, however, require that the judge has rejected any prejudgment that there is no way the plaintiffs could possibly win on the merits (not that they will win). — N.J., Jan. 24, 2018

Additional Contents

Appendix

How the University of Iowa Became 'Congress'"

Newspaper Coverage and Related Matter

A member of a University of Iowa student organization that calls itself Business Leaders in Christ (BLC), asserts that, "put simply, the school is discriminating against our group because it doesn’t like our Christian beliefs." The University insists it’s simply enforcing the legal and regulatory human and civil rights of LGBTQ students. [Jacob Estell, "Why Did UI Single Out Christian Group?" Des Moines Register, December 14, 2017; and Ira Lacher, "Op-ed left out important facts," Des Moines Register, December 22, 2017.]

What that student "put simply" is now a federal district court case. Business Leaders in Christ v. University of Iowa, U.S. District Court, S.D. Iowa, Eastern Div'n, Civil Action No. 17-cv-00080-SMR-SBJ, Memorandum in Support of Application for Preliminary Injunction Oral Argument Requested (Expedited relief before January 24, 2018 requested), December 13, 2017; Declaration of Hannah Thompson; Declaration of Kimberlee W. Colby; kDeclaratiion of Jacob Estell; Declaration of Eric Baxter.

In this age of political divisiveness — "us" vs. "them" — few political movements, if any, can resist using various forms of an often successful litigation strategy. For some, the "them" are the "billionaires and corporations."

In this case, the "them" are what the plaintiffs' financial backers, and those of similar persuasion, have at times asserted are one or more of the following: elitist, liberal, politically correct, ivory-tower, anti-Christian college faculty and students.

So who are the "us," the financial and legal backers of BLC? It’s a group called the Becket Fund for Religious Liberty — perhaps best known for its work on the Hobby Lobby case. Burwell v. Hobby Lobby Stores, 573 U.S. ___ (2014).

Here’s how The American Prospect describes the organization:

By choosing cases that will . . . slow the progression of same-sex marriage, critics contend, the fund has become ideological. The money seems to point in that direction. . . In 2012, the Becket Fund received almost a quarter of a million dollars from DonorsTrust, a shadowy middleman used to funnel money from benefactors like Charles and David Koch to conservative think tanks and advocacy groups. (The Becket Fund declined repeated requests for comment about its work and funding.)

Amelia Thomson-DeVeaux, "The Spirit and the Law; How the Becket Fund became the leading advocate for corporations’ religious rights," The American Prospect, June 18, 2014.

Thus, at the outset we need to recognize that this is not what one might normally think of as a "lawsuit." This is not two corporations suing each other because they can't resolve their differences; a consumer suing one of them; or a suit for damages suffered from personal injury in an automobile accident.

This lawsuit at least raises the possibility that it is but a single case in a nationwide political and ideological effort to make the case that (a) Christianity is under siege, and that (b) higher education is engaged in brainwashing young minds with socialism, liberal ideology, and agnostic to atheist religious views — including acceptance of same-sex marriage.

Indeed, it is even possible that Becket may have been involved in some way with the creation of the BLC, shortly before this conflict arose, in anticipation of a federal court case. I have no way of knowing if that occurred or not. Plaintiffs allege the organization has eight-to-ten members. I've not seen their names, and even if 10 that's 3/100ths of 1% of the student body. Moreover, BLC's filings in the case include a document making reference to a prior controversy at the University of Iowa nearly identical to this one. Declaration of Kimberlee W. Colby.

An effort to "follow the money" in this case is a story all its own. But with some exceptions, who is behind a law suit and why is of little relevance to the legal rights of the parties. Even serial killers are entitled to their constitutional rights. And Becket and BLC members are as well, almost regardless of motives.

Student organizations can increase their membership at the University of Iowa’s "recruitment fairs." The next one is scheduled for January 24-25, 2018. Because the controversy has resulted in the decertification of BLC as a student organization, it will not be able to participate. Therefore, Becket is asking the court for a "preliminary injunction" — by which one assumes it means the reinstatement of plaintiff as a student organization prior to January 24.

The primary requirement for preliminary injunction relief is a demonstration of the probability the plaintiff will ultimately win a permanent injunction.

Becket argues that BLC will ultimately win reinstatement, because plaintiff’s constitutional rights have been violated by the University.

Becket sites the First Amendment; but because it only limits "Congress" ("Congress shall make no law . . .") does it even apply to the University of Iowa? Yes; for the reasons why the University would be included in what the Founders called "Congress," see the Appendix, below.

What might be of relevance in the First Amendment? There are primarily three clauses (plus another three discussed below): The University "shall make no law ["law" includes "regulations"] respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech. . .."

Although the BLC's student spokesperson believes the University "doesn’t like our Christian beliefs," it’s important to distinguish between (a) beliefs that are held by students but not expressed, (b) the expression of students' beliefs in speech or writing, and (c) actions driven by those beliefs.

The University could not even know, and certainly does not restrict, students’ unarticulated beliefs or other thoughts — whether regarding religion or other subjects.

The University neither restricts students’ expression of their beliefs, nor could it legally do so — subject to some exceptions, such as disruption of the University's educational mission, or the provocation of "imminent lawless action."

This case involves BLC's actions — namely, its refusal to permit one of its members, who is openly gay, from running for a leadership position in the organization. It contends that student organizations, and student religious organizations most of all, must be permitted to retain what it believes is their constitutional right to insist that its leaders share the mission of the organization and the beliefs of its members.

Consider this hypothetical. From 1844 to 1978 the Mormon Church withheld from African Americans the opportunity to enter its priesthood — with theological arguments to support its position. Max Perry Mueller, "Is Mormonism Still Racist?" Slate, March 2, 2012. Assume that, prior to 1978, the University of Iowa had the same human and civil rights policies it has today. If the BLC's rationale were to be applied to that set of facts, could a UI Mormon Students Association successfully insist that it had a constitutional right to bar African American Mormon members from its leadership, while still enjoying the benefits of a UI-certified student organization? If not, why not; what is the distinction?

Note that University has not forbidden the existence of BLC in Iowa City, has not indicated a desire to do so, and probably could not do so. That is not at issue in this case.

This case merely involves whether a student organization at the University of Iowa, insisting on its asserted constitutional right to violate the University's written policies regarding students' human and civil rights (made expressly applicable to student organizations), is nonetheless constitutionally entitled to receive the benefits accorded University-certified student organizations. These benefits include such things as access to meeting rooms, participation in recruitment fairs, and financial support. Registration of Student Organizations ("It is the responsibility of each registered student organization to adhere to the mission of this University, its supporting strategic plan, policies, and procedures.")

All of which brings us to the distinctions between a "public forum" and a "limited public forum."

If the University, or other state institution, makes an auditorium or meeting rooms available to all organizations and members of the public, it has created a "public forum." As such, the institution cannot exclude any individual applicant or group from access to the public forum because of their religious beliefs, ideology or the content of their speech.

But that is not a public institution's only option. It can also create a "limited public forum" — that is, an auditorium or meeting rooms that are only available for designated groups or purposes. For example, use could be limited to "official university functions," or "college or department-sponsored events." That is, in effect, what the University of Iowa has done with regard to students' access to facilities, "recruitment fairs," and financial support. This privileged access is limited to student groups that have been certified as compliant with, among other things, the University's policies regarding individuals human and civil rights.

There is the possibility of some ambiguity in the BLC’s approach to students who identify as LGBTQ.

The BLC seems to accept the University’s Human Rights Policy requirement that BLC welcome all otherwise qualified students to membership regardless of the applicants’ sexual orientation. BLC Website, Membership Process ("The organization accepts anyone at any time throughout the year and will not discriminate against anyone on the basis of race, gender, sexual orientation, religion, disability or any other factor. However, because it is geared towards business students, the target audience for this organization would be for students already admitted into the Tippie College of Business, pre-business students, or students considering business as a major/minor.")

The University is guided by the precepts that in no aspect of its programs shall there be differences in the treatment of persons because of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual, and that equal opportunity and access to facilities shall be available to all. (emphasis added)

Operations Manual, Ch. 3, Human Rights, Sec. 3.1; and Policies, I. Student Rights, F. University Policy on Human Rights.

The University's enforcement of these requirements is complaint-driven — thereby avoiding the intrusion, administrative difficulty, and excessive costs of investigations into the detailed operations of every student group on campus. Anyone can complain of violations, and if they do the University will inquire into the facts. My guess is that the issue plaintiffs are asserting (the University's prejudice against "Christian beliefs") has either never, or very seldom, arisen before. Thus, it is not surprising that when plaintiffs did undertake an investigation they were able to find what they allege to be the inconsistent enforcement of the human rights standards they are charged with violating. (Obvious examples would be sports teams, or Greek organizations, that limit membership to a single sex. They also found a Muslim organization with standards similar to those of BLC with regard to beliefs of the organization's leaders.) However understandable, this inconsistency in enforcement may be a problem with the University's defense. It may, at a minimum lead to a reexamination, and restatement, of the application of the University's policies regarding human and civil rights.

"U.S. District Court Judge Stephanie Rose pressed UI attorney George Carroll, specifically, on whether UI has addressed allegations it unequally enforced its human rights policy by deregistering Business Leaders in Christ for barring an openly-gay student. The student organization — which goes by BLinC — has argued other UI groups limit membership and leadership to those who agree with their ideals and religious beliefs, including Imam Mahdi, which reserves leadership posts for Shia Muslims and requires they 'refrain from major sins.' 'Has the University of Iowa taken any steps to ensure that organization has modified its constitution?' Rose asked about the Muslim group. Carroll answered, 'No.'" Vanessa Miller, "Federal judge presses University of Iowa on singling out religious student organization," The Gazette, January 19, 2018, p. A1.

It is true that BLC insists there should be a distinction between a certified student organization’s inability to reject members and what should be its freedom to apply stricter standards with regard to its selection of officers of the organization. (Becket argues an analogy to the "ministerial exception," that “a religious group’s 'selection of its ministers is unfettered.'" Brief, above, pp. 21 et seq.)

But even with regard to officers, there is an additional ambiguity in BLC’s position.

On the one hand, there is the suggestion that the organization’s Christian values are at odds with any male student self-identifying as gay –- which, while not precluding that student’s membership, would preclude their sharing leadership as an officer of the organization. (Depending on one's approach to the member-officer distinction, this would constitute a clear violation of the University's Human Rights Policy.)

On the other hand, there seems to be, as well, the profession of BLC’s Christian value that sexual relations outside of a marriage relationship are sinful. It is suggested that while individual occurrences of such a sin would not be disqualifying for BLC leadership (once appropriately atoned for), an open rejection of that value as a restraint on one’s behavior would be disqualifying –- possibly for membership, but certainly for leadership.

The complainant — an openly gay member who wished to be considered for leadership — was told he could not be an officer. It is possible that the BLC decision was grounded, not in the complainant’s sexual orientation status (his outing himself as gay), but rather on his insistence that he intended to continue to pursue sexual relations outside of marriage.

If so, and BLC applies the same standards to straights and gays alike (because sexual promiscuity is not one of the University’s protected human rights), the BLC’s decision would not seem to be a violation of the University’s prohibition of exclusion based on sexual preference.

As promised, not only is this blog post not legal advice, neither does it offer any answers, predictions of the judge's ruling, or proposals for revisions in the University's policies.

Moreover, there are many other issues involved in this case, and the others around the country involving student Christian organizations. It will continue to be interesting to follow how this case evolves over time.

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APPENDIX
"Establishment," "Free Exercise," and Why the University is "Congress"
The University of Iowa has denied "Business Leaders in Christ" its status as a student organization because of what the University believes to be BLC's alleged anti-gay policies. WWJD (what would Jesus do)? Apparently, Jesus would sue the University in federal court, because that's what BLC is doing. Neither facts nor law are clear.

Constitution. Let’s start with the Constitution.

Mention "the First Amendment" and most folks (including myself) think "freedom of speech."

Of course, 'free speech" and "press" (media) are not only mentioned there, they are among the fundamental pillars of democracy. [See, "Defending Democracy," December 3, 2017.]

But so are other foundations of our democracy: the right "peaceably to assemble" and to "petition the government for a redress of grievances."

Religious Freedom. In fact, the First Amendment begins, not with freedom of speech, but with freedom of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Is the UI "Congress"? How can the First Amendment, with its restraints on the Congress ("Congress shall make no law . . .") even apply to the University of Iowa?

Simple. The Supreme Court is said to have created this "interpretation" of the word "Congress," by adhering to Humpty Dumpty's assertion that, "When I use a word it means just what I choose it to mean" [Lewis Carroll, Through the Looking Glass, chapter 6, "Humpty Dumpty," (1871).]

Being lawyers, the justices’ logical analysis was not, in fact, that simple. Consider the case of Gitlow v. New York, 268 U.S. 652 (1925). Although the facts involve a fascinating bit of American history giving rise to New York’s punishment of Gitlow for his speech, we’ll jump to the Court’s reasoning. True, the words of the First Amendment don’t apply to New York. However, the words of the Fourteenth Amendment do: "nor shall any State deprive any person of life, liberty, or property, without due process of law." This led the Court to reason — or leap, as you may see it — to assert:

freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. [268 U.S. 652, 666]

There you have it. The Bill of Rights, including the First Amendment, which are not, by their words, applicable to the states, are simply "incorporated" into the "due process" clause of the Fourteenth Amendment, which clearly is applicable to the states. ["Incorporation of the Bill of Rights," Wikipedia.org]

And that is how the University of Iowa became "Congress," forbidden by the First Amendment to either "establish" a religion, or prevent a religion’s "free exercise."

# # #
Some Newspaper Coverage and Related Matter
Naomi Hofferber, "UI expels Christian student club over leadership requirement," The Daily Iowan, December 12, 2017

Christian Legal Society v. Martinez, 561 U.S. 661 (2010)

” One Iowa Responds to Becket Fund’s Lawsuit Against the University of Iowa,” December 13, 2017;

Vanessa Miller, "Christian Organization: UI Ban Was Religious Bias; University of Iowa Dropped Student Group Over Its Treatment of Gay Member," The Gazette, December 14, 2017, p. A1;

Andy Davis, "Religious Liberty Case: Ousted Christian Student Group Sues UI," Iowa City Press-Citizen, December 14, 2017, p. A1;

Vanessa Miller, "Christian Organization: UI Ban Was Religious Bias; University of Iowa Dropped Student Group Over Its Treatment of Gay Member," The Gazette, December 14, 2017, p. A1

Andy Davis, "Religious Liberty Case: Ousted Christian Student Group Sues UI," Iowa City Press-Citizen, December 14, 2017, p. A1 Michael Fitzgerald, "Christian Group Banned For Kicking Out Gay Student Sues University of Iowa," Towleroad, December 15, 2017;

Vanessa Miller, "Rejected Christian student group wants to recruit at University of Iowa; Motion for injunction says campus recruiting fairs 'crucial' to its existence," The Gazette, December 20, 2017, p. A1

Jacob Estell, "Why Did UI Single Out Christian Group?" Des Moines Register, December 14, 2017 (also, Iowa City Press-Citizen: Jacob Estell, "Why Did UI Single Out Christian Group?" Iowa City Press-Citizen, December 20, 2017, p. A7)

Zachery Schmidt, "University of Iowa Derecognizes Christian Club Because of 'Sexual Moral Conduct' Rules for Leaders: Suit," The College Fix ("Your Right-Minded News and Commentry"), December 20, 2017

David Pitt, "Iowa lawsuit pits gay rights against religious freedom," Associated Press, January 15, 2018

Leigh Jones, "University of Iowa Forces Christian Group Off Campus," World Magazine, January 17, 2018 (with discussion of cases at UC Hastings Law School (5-4 U.S. Supreme Court, favoring school) and Vanderbilt University)

Vanessa Miller, "Federal judge presses University of Iowa on singling out religious student organization," The Gazette, January 19, 2018, p. A1

Vanessa Miller, "Judge Tells UI to Let Faith Group on Campus For Now; Business Leaders in Christ Was Banned For Bias Against Gay Student," The Gazette, January 24, 2018, p. A1 ("U.S. District Court Judge Stephanie Rose sided with Business Leaders in Christ in granting a temporary injunction, which — for now — reinstates the group’s status as a student organization and allows it to recruit at a fair in the Iowa Memorial Union. 'BLinC’s motion is granted based solely upon the university’s selective enforcement of an otherwise reasonable and viewpoint neutral nondiscrimination policy,' Rose’s order states.")

# # #
Additional labels: religion, civil rights, human rights, LGBTQ, University of Iowa, Iowa City, Business Leaders in Christ, student organizations, Becket Fund for Religious Liberty, Hobby Lobby, Donors Trust, Charles Koch, David Koch, Christianity, Constitution, First Amendment, free exercise of religion, establishment of religion, public forum, limited public forum, Vanessa Miller

# # #

Media's Role and Future

"The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them."

-- Thomas Jefferson to Edward Carrington," January 16, 1787, Julian P. Boyd, ed., The Papers of Thomas Jefferson, 11:48-49 (emphasis supplied).

In an effort to save costs, some media owners are giving us the choice between -- to borrow from Thomas Jefferson -- newspapers without reporters, or reporters without newspapers, while in the process creating both.

-- Nicholas Johnson

Contents Democracy's Media
Newspapers' Decline
Newspapers' Challenges
Government Without Newspapers

Note: There are some discrepancies in the cited statistics, below, owing to different sources, dates, and methods of calculation, although they generally support comparable conclusions. Readers disturbed by this are invited to do their own research, and report their findings to the author.

Democracy's Media. When Thomas Jefferson wrote that if put to the choice he would choose "newspapers without a government," he was writing about the essential pillars of a democracy -- of which citizens' opinions, informed by the media, was one. [Photo source: Wikimedia; statue in Jefferson Memorial, Washington, D.C.]

Note that the quote, above, continues that everyone "should receive those papers and be capable of reading them." That sentence covers three more of democracy's pillars: (1) a postal system with reduced rates for books, magazines and newspapers; (2) free public libraries; and (3) free public education -- to which he would later add the First Amendment's protections for "freedom of speech, or of the press."

As evidence of Jefferson's inclusion of education as one of democracy's pillars, he limited his gravestone's inscription to "Here was buried Thomas Jefferson, Author of the Declaration of American Independence, of the Statute of Virginia for religious freedom, & Father of the University of Virginia." ["Jefferson's Gravestone," Monticello, Thomas Jefferson Foundation.] In other words, he put more importance on his creation of a university than his having served as president.

Given the fundamental role of a free and independent media in our democracy, President Trump's deliberate efforts to diminish the public's respect for, use of, and dependence upon the media stand in stark and worrisome contrast to President Jefferson's design for our democracy. Here are some excerpts from Trump's comments about the media (he refers to as "they") on August 22, 2017:

30. "And yes, by the way -- and yes, by the way, they are trying to take away our history and our heritage. You see that."
31. "I really think they don't like our country. I really believe that."
32. "Look back there, the live red lights. They're turning those suckers off fast out there. They're turning those lights off fast." [narrator voice]: They weren't.
33. "CNN does not want its falling viewership to watch what I'm saying tonight, I can tell you."
34. "If I don't have social media, I probably would not be standing."

Chris Cillizza, "Donald Trump's 57 Most Outrageous Quotes From His Arizona Speech," CNN, August 23, 2017.

In a democracy dependent upon citizens' trust in the independence of the media, President Trump has kept up a drumbeat of attacks on the media's integrity and accuracy. On February 17, 2017, Trump even went so far as to tweet that the media "is the enemy of the American people." Michael M. Grynbaum, "Trump Calls the News Media the 'Enemy of the American People,'" New York Times, February 18, 2017, p. A15 (the full text of the tweet read: "The FAKE NEWS media (failing @nytimes, @CNN, @NBCNews and many more) is not my enemy, it is the enemy of the American people. SICK!" February 17, 2017, 4:32 p.m.).

Although "a correlation is not a cause," it would not be unreasonable to suspect that President Trump's attacks on the media are having some impact. A Politico/Morning Consult poll in October 2017 found that, "More than three-quarters of Republican voters, 76 percent, think the news media invent stories about Trump and his administration . . .. Among Democrats, one-in-five think the media make up stories . . .. Forty-four percent of independent voters think the media make up stories about Trump . . .." Steven Shepard, "Poll: 46 percent think media make up stories about Trump," Politico, October 18, 2017.

Newspapers' Decline. Trying to define "when newspapers began," or to identify "the first newspaper" is impossible without an agreed upon definition of "newspaper." Written forms of shared "news" probably go back to cave paintings and personal communications.

For an excellent essay on "The History of Newspapers," see the encyclopedia entry, Mitchell Stephens, "History of Newspapers" (undated), with illustrative examples: "'Public Occurrences, Both FORREIGN and DOMESTICK' was printed in Boston on September 25, 1690. . . . 'The Boston News-Letter,' which first appeared in print in 1704, survived for 72 years. . . . There were about 200 newspapers in the United States when Jefferson assumed the presidency in 1801."

Whenever "newspapers" may have begun, they've demonstrated a great capacity for survival, and are "still here" -- at least for now. [See, Stephen Sondheim, "I'm Still Here"]

But the stark fact is that, today, newspapers' circulation and advertising revenues have declined by roughly 50 percent (revenue from $60 to $30 billion, since 2004; weekly circulation from 50 to 20 million, since 1990). [Michael Barthel, "Despite Subscription Surges for Largest U.S. Newspapers, Circulation and Revenue Fall for Industry Overall," Pew Research Center, June 1, 2017.]

The industry's response has included largely unsuccessful efforts to increase cash flow, and devastating efforts to cut costs. Because reporters are more than just a "cost," cuts in their numbers produce a significant reduction in the quantity and quality of the unique, democracy-sustaining product they create. As a result, in an effort to save costs, some media owners are giving us the choice between -- to borrow from Thomas Jefferson -- newspapers without reporters, or reporters without newspapers, while in the process creating both.

From a citizen's perspective, it is local news that's taken the hardest hit. Although the total quantity of all reporting is down, there remain online (and sometimes delivery of hard copy) alternative sources of national news (e.g., The New York Times, The Wall Street Journal), international news (e.g., Le Monde, The Guardian, The Asahi Shimbun) -- and sometimes state news (e.g., in Iowa, The Des Moines Register). But when local papers (often monopolies) go out of business, or make deep cuts in staff, there are often few, if any, adequate alternative sources of local news.

Recently, one community's chain-owned, once-robust local paper -- that now offers its subscribers only a slim, six-page main section, with an opinion page only Wednesdays and Saturdays -- published an issue that contained no stories written by local reporters. (All copy was reprinted from USA Today, the Associated Press, and another of the chain's papers.)

By contrast, another local paper, The Gazette, which is locally owned, has a stable of local reporters who produce a constant flow of serious stories of local significance -- though possibly with fewer reporters than in years past. It has dropped its Associated Press subscription and substituted sources such as Bloomberg News, Los Angeles Times, McClatchy Washington Bureau, Miami Herald, Reuters, Tribune News Service (and Tribune Washington Bureau), Washington Post, as well as Iowa papers Burlington Hawkeye, Des Moines Register, Quad-City Times, or Waterloo-Cedar Falls Courier.

Because, today, one has access to online versions of most of the world's newspapers, television and radio stations, podcasts, blogs, and more, this is not the service it might once have been. I carry on my iPhone access to Al Jazeera, Associated Press, Bloomberg, CBS Sports, Des Moines Register, Deutsche Welle (German), Gazette, Guardian (London), Iowa Public Radio, Le Monde (Paris), New York Times, PBS News Hour, Reuters, Rudaw (Kurdistan), Shanghai Daily (China), South China Morning Post (China), Sputnik (Russia), Wall Street Journal, and Washington Post.

As a result, I don't need the Gazette to bring me news from those publications. On the other hand, I can't read each of these news sources thoroughly every day. So what the Gazette's selection of stories does provide, that my apps do not, is the added benefit of professional selection from national and global sources of stories the Gazette editor believes are the most significant for Iowa readers.

Of course, there are exceptions. Many of those working within the finance sector, or large corporations, understandably believe they simply must subscribe to a paper such as The Wall Street Journal or The Financial Times (London). Others may feel a professional need to subscribe to The New York Times or other papers -- especially if, as is often the case, the expense can be considered a "business expense."

The Times' circulation revenue continues to hover around $1 billion a year (from 2006 to 2016, starting in 2006 at $889.72 million, a high of $936.49 million in 2009, to a 2012 low of $795.04 million, followed by a steady climb to $880.54 million). "New York Times Company's Circulation Revenue from 2006 to 2016 (in million U.S. dollars)," Statista, 2017. Its current circulation of the hard copy editions is 571,500 (daily; November 2016) and 1,087,500 (Sunday; May 2016). Its rapidly increasing digital-only subscriptions are now twice the Sunday hard copy numbers, at 2.2 million (May 2017). The New York Times, Wikipedia.org. (By way of comparison, 25 years ago "The New York Times had a circulation of 1.2 million daily and 1.8 million Sunday in 1993 . . .." Mitchell Stephens, "History of Newspapers" (undated).

Newspapers' Challenges. Equally as serious as the President's continuous assaults on our democracy's independent media are the hurricane-like consequences from strong and shifting winds of cultural, technological and economic change during the past decade.

The newspapers' challenges from technology are nothing new.

The telegraph, ultimately recognized as an aid to journalism, was initially seen by publishers as a threat.

"At first, most newspaper owners failed to see the advantage of this disruptive technology; they were actually threatened by it. After all, why would you even need a newspaper when the news could travel between telegraph operators?" Ron Miller, "The Telegraph, Newspapers, and 19th-Century Disruption," EContent Magazine, May 8, 2012.

The radio, and then television with its pictures, provided an instantaneous form of delivery that printing presses, trucks, and delivery persons couldn't match.

Bad enough with three dominant TV networks through the 1950s, the arrival of "cable television," with its 500 channels, caused even the networks to lose nearly half of their audience share. And today, in addition to the 24-hour news channels, the telegraph's grandchild -- the ubiquitous, instantaneous Internet -- has become the competitor the telegraph operators failed to create, providing links to billions of sites, including most of the world's newspapers, television and radio stations, podcasts, and YouTube videos.

But what may be newspapers' greatest challenge today is the ferocious fight over a slice of every individual's 168 hours a week. We have other things we want and need to do besides reading a newspaper. Every hour at work or asleep, every game of golf or fishing trip, running errands or running for health, doing dishes or helping kids with homework, watching television or listening to music, looking at iPad and iPhone screens, is time we're not reading newspapers.

And however many hours we do devote to the electronic form of the intellectual, educational, informational, artistic and entertainment portion of our lives is divided among an ever more varied and available range of sources -- Netflix and YouTube, audio books and podcasts, Facebook and Twitter.

It's bad enough that we can predict what stories will air on the evening TV news -- never mind the next day's newspaper -- but the multiple sources of news throughout the day are taking time previous generations spent with a morning newspaper and cup of coffee.

And all of this competition presumes that people are actually looking for serious discussions of important events and public policy issues. Some are -- but not many. [Mitchell Stephens, "History of Newspapers" (undated) ("In 1940, there was one newspaper circulated in the United States for every two adults, by 1990 one newspaper circulated for every three adults. According to surveys, the share of the adult population that 'read a newspaper yesterday' has declined from 85 percent in 1946 to 73 percent in 1965 to 55 percent in 1985. . . . The United States had 267 fewer newspapers in 1990 than it had in 1940.")]

The Cision U.S. newspapers' circulation list shows the following as the top seven U.S. newspapers (as of 2016) with their circulation: USA Today (2,301,917), The New York Times (2,101,611), The Wall Street Journal (1,337,376), Los Angeles Times (467,309), New York Post (424,721), Chicago Tribune (384,962), and The Washington Post (356,768). "Top 10 US Daily Newspapers," Cision, June 18, 2014, updated May 11, 2016.

Thus, given a U.S. population of 325 million, it would appear that most individual newspapers are informing far fewer than one percent of our citizenry -- an information inequality that rivals our inequalities of wealth and education. Consider the circulation of all U.S. newspapers combined in 2016 (34,657,199) and it's still about 10 percent. ["Newspapers Fact Sheet," Pew Research Center, June 1, 2017.]

Compare that news with what's happening in India:

India now has the world’s largest number of paid newspapers, and the number continues to grow, from 5,767 in 2013 to 7,871 in 2015. Over those same two years, 50 newspapers ceased publication in the US, which has less than a quarter of India’s print papers. . . . [O]ver the last decade, newspaper circulation has grown significantly in India, from 39.1 million copies in 2006 to 62.8 million in 2016 -– a 60% increase, for which there is no parallel in the world. . . . [W]while newspaper circulation grew by 12% in India, it fell in almost every other major media market: by 12% in the UK, 7% in the US, and 3% in Germany and France.

Shashi Tharoor, "There's One Country in the World Where the Newspaper Industry is Still Thriving," World Economic Forum, May 24, 2017.

Government Without Newspapers. President Jefferson said he would prefer newspapers without government to a government without newspapers. Notwithstanding his preference, we seem to be heading toward a government without newspapers.

Most countries' authoritarian leaders seek to control the media -- by disparaging their journalists and owners, or closing down papers and TV stations that fail to propagandize on the leader's behalf, or taking ownership and control, making all sources of information and opinion a form of state media. We've seen the beginnings of this in the United States, with the President's attacks on the "fake news" and the FCC's willingness to let a prominent right wing television company acquire enough stations to reach over 70% of all American homes.

But responsibility falls on the citizens of a democracy as well. If we are to be in fact as well as in theory a democratic nation of informed citizens actively engaged in self-governing, more of us need to subscribe to and otherwise support our local newspapers -- and read more than the sports pages, comics, crossword puzzle, and obituaries. More of us need to watch the PBS NewsHour and turn off the commercial networks' "junk news" (as distinguished from "fake news"); see, "Two Nights with 'World News Tonight,'" in "Three Legged Calves, Wolves, Sheep and Democracy's Media," December 1, 2014. More of us need to take an occasional break from the silo, echo chambers that reinforce our predispositions More of those of us who are retired, or otherwise have some free time, need to pick a government body (e.g., city council, school board, county board of supervisors, state legislative committee), track its work, and "report" on it in letters to the editor, op ed columns, blogs, and other social media.

There is much more to think and write about, such as: What are "the media's" alternative futures thirty years from now? What can be done to minimize presidential disparagement of a democracy's independent media? What might K-12 and college educators do to improve citizens' media literacy and "civics" education generally? What are the most effective business plans for sustaining commercial media? What potential is there for "citizen journalism"? How might the FCC be reformed to encourage the use of its "public interest" powers to restrain corporate control of an ever-increasing number of outlets, or a content-neutral Fairness Doctrine approach to content diversity? But this is more than enough for one blog post.

# # #
Random Additional Thoughts
(1) What's the question? A question, to be an answerable question, needs to suggest the process, or data, one would need in order to find the answer. As such, research is more about drafting questions than finding answers.

(2) Elements and ultimate goals. Is the ultimate goal to "save newspapers" -- the hard copy paper one reads with morning coffee? It is for some, and is a perfectly sensible goal. But how does the pursuit for answers change if the goal is expressed as maintaining the existence, quantity, quality, and social/political role of journalists and the journalism they produce? In short, a focus on the content and function of what's now produced by journalists, and distributed by newspapers. That distribution could be (and some is) in the form of online services, aggregators, journalists' blogs and Web pages, books and magazines, or distribution orally on television, radio, podcasts, YouTube videos, or even presentations in schools, churches, community town halls, and public lecturers on national tour.

(3) Product and audience. If by "journalism" we mean what's found in newspapers we include the sports section, comics, crossword puzzles, obituaries, and classified ads. If, on the other hand, we are really seeking that portion of journalism relevant to a functioning democracy, it's the slice of a paper's content that involves government, politics, public policy and projects, and reports of the communitarian forces that make for a fully functioning "community."

How many Americans are reading those news stories, columns, and letters to the editor? For starters, 43% of Americans "read" at a basic, or below basic, level (2003). It's unlikely many in that group are subscribers. In fact, well less than half of all Americans, or American homes (by some counts as few as 10%) subscribe to a hard copy or online newspaper. Local news is what's most threatened. But even among our major national papers -- New York Times, Wall Street Journal, Washington Post -- none can claim a readership of even one percent of all Americans. How many of those who do see a paper devote more than 5 or 10 minutes to it daily? Of those, how many read the government/politics/policy-related stories, editorials and columns? Of those, how many use that information in their public activism in their community?

(4) Prerequisites. Basic evidence of civic engagement is voting. Roughly 20% of the Americans eligible to register don't. Of those who could vote, 45% choose not to. And that's presidential elections. Turnouts of 5% to 10% are not uncommon in city council and school board elections. We have among the lowest political participation rates of any country.

No matter the quality of your seed corn, if you scatter it on a mall parking lot it's not likely to produce much of a crop. How much difference would it make in voting turnout, and other civic participation, if a quality local paper were delivered to every home? Would it be read -- by the adults, by the children? How well are we preparing our children to be "public citizens"? How many schools integrate newspapers into their curriculum? How many high school graduates, following exposure to a social studies curriculum, register to vote when they turn 18? Should we be rephrasing the question, focusing on the seed bed rather than the seed?

(5) Basic fundamentals. Before we can even begin with civic education, the basic needs of that 40% to 50% of our fellow citizens must be addressed: housing, nutrition, public health and healthcare, increased minimum wage, job training, and public education (through community college) -- including bringing as many as possible above "basic" reading ability and a heavy dose of civics (one of the original purposes of public education).

# # #

Free Speech Rights

Trump vs. NFL

Right: "A moral or legal entitlement to have or do something."

-- Concise Oxford English Dictionary, p. 1238, "right. n.2"

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As you may have noticed, the latest target of the President of the United States, right up there with North Korea, appears to be the National Football League (NFL) organization, owners, coaches and players. The kerfuffle involves, in part, the players' "right" to express disagreement with the president by failing to stand or otherwise participate in national anthem ceremonies prior to football games. (The protest involves both his attacks on the NFL, and his less than firm rejection of systemic and overt racism, neo-Nazis, and unwarranted police shootings of African-Americans.) [Photo credit: The Tennessean. Detroit Lions players "taking a knee" during national anthem, Sept. 24, 2017.]

At least for today, I will leave to others the effectiveness of this mode of protest, the cultural role of the national anthem, the Pentagon's payments to the NFL (plus fly-overs and other efforts to militarize sports), colleges' treatment of athletes (especially women), football's concussions and other health hazards (especially for players under 18), and other issues.

My limited focus at the moment is the widespread use of the word "rights" in this dispute -- especially the express or implied suggestion that the players' "constitutional" or "First Amendment" rights are somehow involved.

What follows is not a "legal opinion." If you have a personal stake in these issues, talk to your lawyer. There are constitutionally acceptable limitations on First Amendment "rights" (e.g., you cannot lie in your stock prospectus, operate a sound truck through residential neighborhoods late at night, falsely shout "fire" in a crowded theater, advocate "imminent lawless action," or joke with the airports' TSA employees, among a great many other examples). Outcomes turn on the applicability of law to, and the specific facts of, individual cases.

Call me fussy if you must, but the relevant language of the First Amendment is, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . .." Since its adoption, the word "Congress" has been interpreted to mean any form of "state action," whether by Congress, the executive branch, states, cities, or state universities.

Among the values, or consequences, of the First Amendment are (1) its role in meeting the needs of a self-governing citizenry to be informed, (2) its importance to the search for truth in a "marketplace of ideas," (3) its relationship to the "checking value" of the media, as it watches for, and reports, abuses by large institutions, (4) its bearing on "self-actualization," basic liberty, and individual freedom, and (5) the "safety valve" it provides, permitting dissidents the opportunity to express their dissatisfaction verbally, rather than through violence.

Variations on the values represented in that constitutional language, the reasons for its existence, may be equally applicable elsewhere by virtue of social norms or a moral entitlement referenced in the definition of "right," above.

Parents and teachers may reject the old adage, "children should be seen and not heard," believing that children (and adults!) will benefit when children are encouraged to speak. Employers may choose to reward, rather than punish, workers' desire to participate in management by criticizing present procedures and suggesting improvements. A university president may welcome, rather than resist, "shared governance" with the faculty.

But these applications of First Amendment values in other contexts do not constitute the bestowal of constitutional or legal rights on children or employees. The First Amendment does not say, and has not been interpreted to mean, that "no institution or individual shall abridge the freedom of speech of another." Other applications of First Amendment values are merely opportunities to speak, bestowed as a matter of grace, not as a matter of legal right.

Do NFL players have a First Amendment right to speak (by words or actions) from the football field, during a nationally televised game, on matters other than football? No; not unless their speech is being restrained by "state action." I'll leave to others whether the President's efforts to silence them could constitute that state action. Their right to speak could be granted by some other constitutional provision, federal or state law or administrative regulation, or a contract provision, just not by the First Amendment.

In what sense could someone have a "right" to violate an express prohibition of particular speech? In the case of government laws and regulations, the violation could be "civil disobedience" -- deliberate violation as "speech," protesting the law, knowing that there will be punishment for doing so, and with a willingness to accept that punishment (fine or imprisonment).

In the workplace setting, the employer is given wide discretion in setting the terms of employment with regard to employee behavior, dress, and some aspects of speech. Like civil disobedience, the overt flouting of contractual standards may be grounds for dismissal -- though it could be said that the employee has the "right" to violate them and accept the punishment for doing so. Of course, with "employment at will" contracts an employee can be fired for any reason at all, without either just cause or warning. [At-Will Employment, Wikipedia.org.]

Thus, when it comes to speech, citizens and employees are granted some rights to speak (without being punished) by the First Amendment (government); contracts and employee manuals (employment); forbidden some speech (for which they can be punished) by legislation or company policies; and left in limbo with regard to other speech (for which there are no standards).

As with most controls of human behavior, social norms rather than "the law" are the most common restraints.

However you may feel about the content of the players' "speech" (as distinguished from the time, place and manner of its expression), it's useful for them, the commentators, and the rest of us to remember that whatever "rights" the players may have, they do not come from the First Amendment of the U.S. Constitution.

# # #

Not All Criticism is 'Defamation'

Note: To put this piece in context, it is a response to an article in the Iowa City Press-Citizen: Holly Hines, "School Officials' Emails Raise Free Speech Concerns; First Amendment Experts Say Legal Threats May Amount to Intimidation," Iowa City Press-Citizen, June 24, 2017, p. A1. The story reported and discussed, among other things, that citizens were concerned that they might be sued if they criticized the Iowa City Community School District superintendent. (And see also, Holly Hines, "External Reviewer Sought for School District; Culture Concerning Whistleblowers is Under Investigation," Iowa City Press-Citizen, September 1, 2016, p. A1.)

Without expressing a view regarding the justification for the criticism, I thought a brief statement of the law of defamation might be useful -- as set forth below. Following Holly Hines story, and my explanation of defamation, the Press-Citizen editorial board published the following editorial: "Alter Culture of Fear in School District," Iowa City Press-Citizen, July 1, 2017, p. 7A (the Press-Citizen only publishes an opinion page on Wednesdays and Saturdays.) Here is my brief explanation on June 28th:

Is Superintendent Criticism 'Defamation'?
Nicholas Johnson
Iowa City Press-Citizen, June 28, 2017, p. 7A
There’s a local issue regarding limits on citizens’ criticism of school superintendents. Can the critics be sued for defamation?

I won’t take sides on whether the criticism is warranted. Moreover, social norms may be more relevant than “the law.” In either case, one’s reputation is a thing of value. [Citizen Julie VanDyke speaking to ICCSD School Board members; photo credit: Sandhya Dirks/Iowa Public Radio]

Not all criticism is defamatory. There must be an unambiguous, clearly false, factual statement (not just opinion), that causes measurable harm to one’s reputation among a relevant group (such as potential employers or customers).

The false assertion that a superintendent stole $97,000 from the schools’ playground fund could be defamation. Saying, “I think he’s doing a lousy job” would not be.

Moreover, the Supreme Court has ruled that while citizens need only show falsity, public officials must prove “that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not.” Why? Because protection of political speech lies at the heart of First Amendment guarantees.

As Justice Brenan wrote in New York Times v. Sullivan, “[we have] a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

This is for newspaper readers only, not legal advice. If you’re involved in a defamation case, get a lawyer.

Nicholas Johnson
Iowa City
# # #

What Trump Needs to Know About Libel

[This commentary is not legal advice, and we do not have a lawyer-client relationship. If you are involved in, or contemplating, suing or being sued for defamation you should consult a lawyer, preferably one with experience in such matters. Lest you wonder, that cannot be me; I've long since turned my bar memberships in Iowa, Texas, and the District of Columbia to "inactive" status. -- N.J.]

I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. . . . So when The New York Times writes a hit piece which is a total disgrace . . . we can sue them and win money instead of having no chance of winning because they're totally protected. . . . we're going to have people sue you like you've never got sued before."

-- Presidential candidate Donald Trump, Rally, Ft. Worth Texas, Friday, February 26, 2016, Hadas Gold, “Donald Trump: We're going to 'open up' libel laws,” Politico, February 26, 2016.

President Donald Trump campaigned, and now governs, with ongoing attacks on the judiciary and the media – two institutions designed by the drafters of our Constitution to provide a check on presidential abuse of power. For those who look to the “original intent,” that was the original intent.

The president’s attack on the media has included the assertion that he is going to “open up our libel laws” so that he can sue newspapers like the New York Times.

Trump can already sue for libel. For starters, he already has the legal right to sue any newspaper or other media outlet for defamation (“libel” if written, “slander” if spoken). Anyone can sue for defamation. That includes the president.

Whether the plaintiff will win involves many elements of a defamation claim, but here’s a summary. There is a statement, about the plaintiff (not always obvious), the meaning of which must be ascertained (not always obvious), as understood by the individuals of relevance (such as customers of the plaintiff, neighbors, or members of the plaintiff’s profession), that was factual in nature (as distinguished from “opinion”), false, and which caused a measurable harm to the plaintiff’s reputation (among those individuals of relevance).

In short, it's simply not true, as Trump has asserted, that the reason he hasn't sued the media is he has "no chance of winning because they're totally protected."

(Many of the president’s tweets and other informal comments attacking and demeaning individuals and institutions would seem to fall within that definition of defamation. But the issues involved when a citizen wishes to sue the president for defamation would require another commentary.)

Different standards for plaintiffs who are public officials. If what Trump meant to say is that, as a public official, he must meet a slightly different standard than you or I to recover a judgment for defamation, he is right. That standard was set in a Supreme Court case.

What was new about Justice Brennan’s analysis for the Supreme Court in the landmark defamation decision, New York Times v. Sullivan, 376 U.S. 967 (1964), was that he approached the language involved from a First Amendment perspective rather than, or in addition to, solely a defamation analysis. [Supreme Court Justice William J. Brennan, Jr., photo credit unknown.]

He wrote,

“[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Sullivan, the plaintiff, was one of three elected commissioners in Montgomery, Alabama –- and therefore a “public official.” As such, the Court held, he had a right to sue for defamation, but to prevail on the elements just itemized he would need to show not just that the Times story had some factual errors.

He would need to show what the Court called “actual malice” – an unfortunate choice of words, since the everyday meaning of “malice” was no part of the standard. “Actual malice” meant that he would need to show “that the statement was made . . . with knowledge that it was false or with reckless disregard of whether it was false or not.”

The standard involving plaintiffs who are ordinary citizens focuses on, recognizes and protects the asset value of individuals’ reputations – with the byproduct of reducing remedies involving violence. Unlike the standard involving ordinary citizens, which only requires a false statement, public officials must show a measure of fault on the part of the media. This is because of the First Amendment value of speech involving public policy and public officials – speech that lies at the heart of what the First Amendment was designed to protect.

Balancing the desire to offer citizens a means for protecting their reputations against the value of First Amendment speech, this is where the Court came out.

Constitutional restraints on congressional and presidential law making. Article I of the Constitution lays out what in high school we call, “how a bill becomes law” (in Article I, Section 7). Clearly the president cannot create “law” all on his own; he cannot “open up our libel laws,” or any other laws for that matter.

Nor can Congress make any laws it pleases. Congress only has the power to legislate regarding what the Constitution grants in the 18 clauses within Article I, Section 8 – none of which come remotely close to libel laws. The “interstate commerce clause” (Article 1, Section 8, clause 3: “The Congress shall have power . . . To regulate Commerce . . . among the several States . . ..”) has been stretched pretty wide by the courts. But defamation? Originating in the English “common law” (judicial decisions) at least in the early 17th Century, if not before, has been considered a matter for the U.S. states.

Hopefully, Mr. President, you’ll find this analysis helpful in your quest to “open up our libel laws.”

# # #

Who Are We?

"All That We Share," a production of Denmark's TV2Danmark, was published January 27, 2017. The video is described by the network as follows: "We live in a time where we quickly put people in boxes. Maybe we have more in common than what we think?" (The video was brought to my attention by Gregory Johnson, Resources For Life.)

Trump has in an instant damaged American soft power but we have also seen lawyers flock to American airports to give free advice, while an American judge has ruled that those with green cards and visas can enter. It is heartening to see American soldiers who served in Iraq standing up for interpreters who worked with them. . . . We have seen the worst of Trump's America but also the best of America in the actions of lawyers, judges and people demonstrating for visitors and refugees. . . . President Roosevelt described the Japanese attack on Pearl Harbor in 1941 as a day of infamy. Trump's ill-considered and fruitless actions amount to a self-inflicted day of infamy for America and will long be remembered as the moment that pointlessly alienated America's allies and assisted its enemies.

-- Excerpts from Gary Kent, "America's Sad Day of Infamy," Rudaw [a newspaper and media network based in Erbil, Kurdistan Region of Iraq], January 30, 2016 (for additional excerpts, see below.)
____________________
There is little more that can be or need be added to the world's overwhelming negative responses to President Trump's mean-spirited, ill considered, negligently executed, serious blow to our national security and international reputation from his "Executive Order" restricting immigration by refugees and other individuals from seven designated Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). Made all the worse because he excluded from the ban Muslim countries in which he is doing business, and "Christians" from the seven designated countries (which looks like a violation of the First Amendment's "establishment" and "free exercise" of religion prohibitions).

But I think it is important for all who have access to a blog, or other means of communication, to take a stand at this time for American values. The excerpts from Gary Kent's piece from Kurdistan, recognizing the efforts of Americans to come to the aid of those most adversely and unfairly impacted, is one more reason why public opposition to Trump's action is helpful in retaining as much as possible of America's reputation as a nation of welcoming people. Kent's reaction in this regard is consistent with what I have heard from delegations from Turkey and Russia with whom I met yesterday and today. [Photo credit: AFP.]

So here are some truncated random thoughts about this disaster.

Putting "Terrorism" in Perspective. Obviously, we want, and have every right, to minimize the death and injury of Americans, and damage to our property, from what we call "terrorist acts." (1) But to the extent we're concerned about death, injury and property damage, that which is occasioned in America from "terrorism" is almost statistically insignificant compared with the 400,000 who die from tobacco-related disease, the result of alcohol and drug abuse, or the roughly equivalent numbers (about 35,000) who die from guns or automobile accidents. (2) And to the extent we do care about "terrorist acts" (or "hate crimes" involving death or serious bodily injury) many-to-most are caused by (a) those who would self-identify as "Christian" or non-believers rather than as Muslims, and (b) those -- including Muslims -- who were born in the U.S., or are otherwise legally here rather than refugees or new immigrants. (3) The handful Trump describes as "radical Islamic terrorists" in the U.S. have for the most part (and perhaps exclusively) been known to law enforcement and were "radicalized" here in the United States. In short, the return on this investment of time, effort, money -- and loss of American goodwill -- is not likely to produce much return.

[Since writing this I came upon a CNN presentation, consistent with what is written here, including the fact that you have only a 00.00003% chance of being killed in a foreign-born terrorist attack in the U.S. A.J. Willingham, Paul Martucci and Natalie Leung, "The Chances of a Refugee Killing You -- And Other Surprising Immigration Stats," CNN Politics, January 31, 2017. And see, Philip Bump, "The White House would like America to focus on terror attacks. Let's add context," Washington Post, February 8, 2017.]

Putting the Seven Countries in Perspective. I'm not going to do the research and produce the links to document what follows in this paragraph. But I believe it is a fair reading of what I've seen so far to say that (1) none of the seven countries Trump has chosen (originally singled out by President Obama for other reasons) have produced Muslims who have carried out terrorist attacks in the U.S., (2) he has excluded from his designated list countries those that have produced terrorists who attacked America (e.g., most of those involved in the 9/11 attacks on New York's Twin Towers came from Saudi Arabia), and (3) he has also excluded Muslim countries in which he has business interests. Whatever else one may think of this travel ban, this approach is simply irrational in terms of the stated purpose of the exercise: "to keep Americans safe." If there really were a serious likelihood of a flood of immigrants and refugees coming into the U.S. to do us harm -- because of their Muslim religion -- for which there is no evidence of which I am aware or to which Trump hinted, then the ban should have been applied to all countries with substantial Muslim populations. If a selection of countries was to be made, it would have made more sense to select those, based on past history, most likely to produce those wishing to do us harm rather than these seven.

Was Trump's travel ban an "anti-Muslim" action? He appeared to be stirring up Islamophobia among his supporters during his campaign, promising to do something like what he has just done. And even more telling is what Rudy Giuliani reports regarding his exchange with Trump. Amy B. Wang, "Trump asked for a 'Muslim ban,' Giuliani says -- and ordered a commission to do it 'legally,'" Washington Post, January 29, 2017 ("Former New York mayor Rudy W. Giuliani said President Trump wanted a 'Muslim ban' and requested he assemble a commission to show him 'the right way to do it legally.' Giuliani . . . appeared on Fox News late Saturday [Jan. 28] night to describe how Trump's executive order temporarily banning refugees came together. . . . 'How did the president decide the seven countries?' [Fox News host Jeanine Pirro] asked. . . . 'I'll tell you the whole history of it,' Giuliani responded eagerly. 'So when [Trump] first announced it, he said, "Muslim ban." He called me up. He said, "Put a commission together. Show me the right way to do it legally."'")

Putting the Process in Perspective. The chaos and crises that have followed Trump's action is as good a case study as could be found of why we have government departments and agencies to aid the White House staff and president. Why we have a professional, well-educated, experienced, dedicated, patriotic civil service, bringing their well-informed experience and judgment to bear on why and how some proposals should be pursued and others should not. It appears Trump's idea was not vetted; those who could have helped were not consulted; those who would have to execute it were not informed. For someone who claimed the ability to bring sound American business practices to government, this looked more like someone headed for bankruptcy -- as indeed Trump did when he couldn't even make gambling casinos profitable.

This could go on and on, and you may think it already has. There is much more that could be said, none of it positive. It would be bad enough if imposing travel bans on another country's entire population of a given religion were merely ineffective. In this case, it's much worse. The backlash has already started. Iran has launched a missile, other countries' cabinet officers have been turned away, our universities' international students are nervous, those with "green cards" were initially turned away (before that insanity was walked back), those who served our military as interpreters are not being provided the protection they were promised, American overseas military and tourists are at greater risk, global commerce and airline operations are suffering.

Welcome to the world of government by tweets. Sad.

Who are we? If you didn't watch the video at the top of this blog essay when you began reading, watch it now. That's who we are. That's who we need to rise up and demand we will continue to be.


Additional Excerpts from Gary Kent, "America's Sad Day of Infamy," Rudaw, January 30, 2016

Many feared the worst of President Trump while others hoped he would become more presidential. Such hopes have been dashed by his edict on "extreme vetting" that Times columnist Roger Boyes says is "the bluntest of blunt instruments, sledgehammer-politik." . . . It was announced on Holocaust Memorial Day which reminded people of restrictions preventing Jews escaping the Nazis in the 1930s and ending up in death camps. . . .

Quick footwork by Foreign Secretary Boris Johnson, who persuaded the American authorities to modify the presidential decree so it largely does not apply to British citizens, will slightly lessen the issue. But expect more heartbreaking stories of family division, people being unable to visit dying relatives, start jobs while hundreds of Iraqi interpreters are reported as being in a visa limbo. Daesh must be rubbing its hands in glee. . . .

Our fear last year was that this would chill investment as people found out that going to Kurdistan would complicate later visits to the US. International business groups have expressed fears that the latest ban will harm them. No one denies that the US has the right to patrol its borders and to prevent terrorists from entering the US. But there is no evidence that current measures are failing or that a blanket ban is necessary. . . .

Trump has in an instant damaged American soft power but we have also seen lawyers flock to American airports to give free advice, while an American judge has ruled that those with green cards and visas can enter. It is heartening to see American soldiers who served in Iraq standing up for interpreters who worked with them. We will see in the near future whether further changes can be made and whether the State Department can induce Trump to find a face-saving formula to rescind the order soon. . . .

Trump will probably continue to govern in this disruptive, defiant and divisive manner and this presents big difficulties for America's allies. . . . [Former British Foreign Minister Alistair Burt] suggested that a diplomatic excuse for postponing Trump's planned state visit to the UK in the summer might be wise.

We have seen the worst of Trump's America but also the best of America in the actions of lawyers, judges and people demonstrating for visitors and refugees. . . .

[Professor Eliot Cohen, a former adviser to Secretary of State Condoleezza Rice] writes in The Atlantic that: "Precisely because the problem is one of [Trump's] temperament and character, it will not get better." Cohen argues it will worsen as power intoxicates Trump and those around him, and probably end in calamity such as substantial domestic protest and violence, broken international economic relationships and major alliances, and one or more new wars, even with China. He would not be surprised if Trump is impeached.

More optimistically Cohen concludes that "There is nothing great about the America that Trump thinks he is going to make; but in the end, it is the greatness of America that will stop him." The ban may be further modified or lifted but leaves a lingering bad taste.

President Roosevelt described the Japanese attack on Pearl Harbor in 1941 as a day of infamy. Trump's ill-considered and fruitless actions amount to a self-inflicted day of infamy for America and will long be remembered as the moment that pointlessly alienated America's allies and assisted its enemies.

# # #

An Outrageous Merger

It’s outrageous that AT&T and Time Warner may be permitted to merge.

Of course, there are antitrust issues.

If it’s approved, some competitors will go out of business, others won’t get started, and consumers will pay more and get less.

Antitrust law is not designed to regulate anti-competitive behavior; it is designed to prevent anti-competitive behavior.

Permitting AT&T to acquire Time Warner would be like (with credit to Mason Williams) giving a small boy a ball and then saying, “Now don’t bounce it” – or hiring someone to watch him.

Regulation doesn’t work. What’s called “agency capture” is widespread and well documented. In the BP oil spill case, it involved the regulators literally sleeping with the regulated. Even if an agency isn’t captured it probably doesn’t have enough personnel to do meaningful regulation. The FCC of my day had three employees to respond to 85,000 complaints, and they travelled in pairs.

The only way to prevent anti-competitive corporate behavior is to forbid the mergers that make it possible.

But antitrust law and lawyers often have ways of finding adequate competition when no one else can see it. Moreover, the serious antitrust issues and economic impact of this proposed merger are the least of our concerns.

Mergers of media firms, unlike those in other industries, raise issues involving our democracy, analogous to those associated with the First Amendment.

Some involve politics and governing. Major media owners are more politically powerful than major donors. When a single owner has dominant control of newspapers, radio, television and cable systems within a state or region it can affect elections. When a weapons manufacturer also owns a network, it creates an appearance of possible conflict in its war coverage.

Other issues involve the creative community. Suppose a single corporation owns movie studios, theaters, a TV network, book publishers, newspapers, and other forms of media. It can favor its movies in its theaters, make its authors guests on its TV shows, and advertise all its products in its newspapers.

Both AT&T and Time Warner are among the world’s largest corporations. Time Warner’s HBO and Cinemax programming is sold in 150 countries, its Turner programs in 200. AT&T is the largest telecommunications company in the world, also in 200 countries. Both are holding companies, conglomerates, that together own dozens of corporations. Many are known to you, like CNN, HBO, or DirectTV. Check their corporate Web pages for more.

Worst of all, and what ought to absolutely preclude this merger, they will represent a gigantic combination of programming and delivery (“content and conduit”) -– the ultimate choke-hold on the distribution of a diversity of content.

The AT&T of old only provided distribution, the conduit. Everyone was entitled to a phone. And once you got one, you could send any ideas you wanted into that phone and through AT&T’s lines. Other institutions might come after you for disclosing national security secrets, fraudulent marketing, or defamation, but not AT&T.

There was a legal “right of entry” into the old AT&T network. No longer. There will be no legal rights for America’s creators of content. Nor will there be a financial incentive for AT&T to carry their content.

From any perspective, it would be outrageous for regulators to approve this merger.
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Nicholas Johnson, a former FCC commissioner (1966-73), played a significant role in frustrating ITT’s efforts to acquire ABC. Blog: FromDC2Iowa.blogspot.com Contact: mailbox@nicholasjohnson.com

Note: This blog essay was published online by OpEdNews, October 26, 2016.

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Threats and Sensibilities: Presidents Kim, Lynton and Mason

December 20 and 22, 2014, 10:00 a.m.

And see, "Sony's 'The Interview': A Film Review," Dec. 26, 2014

Contents The Price of Free Speech
What the University Owes Students
The Values of Free Speech and a Proposal
Pictures of Presidents
"The Interview" Trailer and Pictures of "Art"
Quotations from . . .
President Barack Obama
The Guardians of Peace (the Hackers' Threats)
Sony Statement
UI President Sally Mason Statement
UI AAUP President Katherine Tachau Message
First Amendment
Alternatives to Law -- and Censorship:
Professor Lawrence Lessig
Mason Williams

The University of Iowa should consider developing a course for entering undergraduates’ first semester that exposes them to the values underlying the First Amendment, the history of protest movements in this country – and on this very campus.

-- Nicholas Johnson

Remember the line: “Gravity. It’s not just a good idea, it’s the law”?

The Price of Free Speech

So it is with free speech – it’s a good idea, and also the law. With two distinctions from the law of gravity.

(1) The “law” doesn’t always apply.

Although the First Amendment to our Constitution merely forbids Congress to make a law “abridging the freedom of speech, or of the press,” the courts interpret “congress” to mean all government action – things done by city councils, school boards, and yes, state universities like the University of Iowa. But that means the First Amendment gives you no protection from restrictions on your speech at the family dinner table, or in the corporate workplace.

Courts also permit governments to restrict “freedom of speech” in a variety of contexts – how companies can advertise and label their products and new stock offerings, restrictions on sound trucks blasting messages throughout suburban neighborhoods after midnight, and a prohibition on airline passengers telling jokes as they pass through TSA security.

(2) And even when free speech is legally protected, it’s not free.

Speech is free like food is free in a Michelin four-star Paris restaurant. You tell the waitperson what you want, it’s presented before you, and you eat it. Only after the final cup of coffee, when you’re preparing to leave, do you pay the price.

This speak-now-pay-later quality of free speech made the news recently from Iowa and California.

Serhat Tanyolacar, a visiting assistant professor in the University of Iowa art department, declaring that he was “displaying the horrifying truth, the fact of racism,” put a seven-foot sculpture of a klan robe on the university’s central campus. It was covered with prints from newspapers’ stories of our country’s racist past. The artist’s intent – not that it’s necessarily relevant – appears to have been one of encouraging more serious discussion of what has long been an American problem, to “trigger awareness” by putting in historical context the current demonstrations and other reactions to a number of police shootings of unarmed African American males.

His speech was “free.” His price was the protests of some students who said they felt threatened, which was, in turn, considered a threat by a University administration trying to increase enrollment, and which responded by censoring his art, by removing it from the campus, and censuring him for displaying it.

Among the administration’s unfortunate rationalizations for its actions were the sentiments that, “There is no room for divisive, insensitive, and intolerant displays on this campus. . . . The UI respects freedom of speech, but the university is also responsible for ensuring that public discourse is respectful and sensitive.”

Meanwhile, out on the left coast, members of the “creative community” (as they like to call themselves) had exercised their free speech in the form of a hilarious satirical film about a couple of bumbling Americans the CIA asks to assassinate North Korea’s President Kim. It cost a little more to create than Serhat Tanyolacar’s sculpture, but was otherwise just as free, in the sense that it suffered no prior censorship. It was supposed to open in theaters all across the country this Christmas week.

However, also like the sculpture, there was a price paid for this free speech. Like the students who felt threatened by the art displayed in Iowa, there were North Koreans who felt threatened by the art displayed in California. Clearly, the threats, not to mention the cyber attacks, leveled at Sony were far more serious than any consequences for the University of Iowa. (The hackers had threatened, among other things, 9/11-style attacks on the U.S. and theaters displaying the films.)

But the institutional response from both institutions (the University and Sony) were otherwise similar. Both Sony and most theater owners simply censored the art (Sony didn’t release the film; theaters refused to show it). The statue was not displayed on the campus, and the film was not displayed in theaters.

What the University Owes Students

By now it may surprise you to read that I believe there is something to be said for the University’s position – not much, but something.

During at least the first half of the last century, college administrators were said to stand in loco parentis to their students. It was an old English common law concept, Latin for "in the place of a parent," that imposed on the college the legal responsibility to take on some of the functions and responsibilities of a parent. There were separate men’s and women’s dorms, both with relatively early-to-bed curfews that carried significant penalties for violations, prohibitions on alcohol, even dress codes.

Today’s equivalent includes programs endeavoring (mostly unsuccessfully) to reduce students’ binge drinking and the resulting sexual assaults and harassment, or to control the outbreak of campus-wide flu or other disease.

Few would question universities’ efforts to protect their students from physical harm. However, many are questioning the propriety of a university’s protecting their students from intellectual and emotional discomfort by insisting that all “public discourse is respectful and sensitive.”

Abraham Maslow gets credit for the line, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” It is a contagious disease of first year law students, who begin to see the law as offering solutions for most human conflicts and challenges. Sadly, there is an occasional law professor for whom the condition is chronic.

Of course, there are legal issues involved in the kerfuffle surrounding Tanyolacar’s sculpture. For example, as a state-funded (in ever decreasing amounts) institution, the University of Iowa is constrained by the First Amendment. If the campus is a “public forum” – that is, space where the University permits all kinds of speech and displays – UI administrators cannot deny speech or art because of its content. On the other hand, if it is a “limited public forum” – that is, say, space set aside for nothing but the discussion of graduate students’ doctoral dissertations – it could forbid all other speech there. Faculty are employees. As a matter of contract, the Board of Regents could tell professors what subjects they will teach and what they will say about those subjects in the state’s classrooms – except for the fact most faculty would then resign. Similarly, if the contract provides for “tenure” and “academic freedom” there are restraints on Regents’ and administrators’ ability to fire. There are many more legal issues and nuances.

But everything is not a nail; while complying with law, there are other considerations as well in the college environment. (There are even additional systems that sometimes exert more influence over our daily behavior than “the law.”)

A university is not a Marine Corps boot camp. We don’t throw entering undergraduates into the deep end of the new recreation center swimming pool to see if they can dog-paddle their way to the surface. We may no longer be in loco parentis, but there are valid reasons to create and maintain an environment conducive to students’ learning.

I lived and worked in the South during the 1950s, when the Klan was still burning crosses on people's yards (including that of a judge on the court where I was a law clerk). As a result, I probably have even more understanding and empathy than most for the African American students' reactions to the sculpture. Especially those students who had not viewed it closely, or were otherwise totally unaware of the artist's actual intent. In no way do I trivialize their concerns.

One way to avoid those kind of reactions is the way chosen by the University of Iowa. Forbid “divisive, insensitive, and intolerant displays” and speech by “ensuring that public discourse is respectful and sensitive.” Unfortunately, in the context of higher education, that’s kind of like reducing automobile accidents by forbidding drivers to move their vehicles along roads or highways; or reducing NFL players’ injuries by forbidding any physical contact during games.

The world outside the campus – and to a significant degree on campus as well – is filled with divisive, insensitive, intolerant, and disrespectful speech and art. Central to the core mission of an institution of higher education – and what should be the mission of high schools as well – is an alternative approach to that of the University of Iowa. It is to prepare students for the world they are about to enter, rather than to shield them from it.

Provide them the opportunity to acquire the knowledge and analytical skills that enable them to confront that world. To learn of cultures, religions and languages different from their own. To understand, even appreciate, the arts – graphic, theater, dance, music – as another form of language, of communication, and the role they have played in protests throughout history. To learn the language of science, and its applicability in daily life. To challenge the beliefs with which they first arrived on campus.

The Values of Free Speech and a Proposal

Why is free speech a good idea as well as the law? An enormous volume of literature explores the reasons. Here are five often mentioned. (1)In our “search for truth,” a “marketplace of ideas” is far more effective than government-approved speech. (2)It can provide a “checking value” on abuses by government and other large institutions that would otherwise be supressed. (3) It is a far more peaceful way of providing an outlet for citizens’ grievances than the efforts to silence them that can end in violence – as we have recently seen. (4)Communication, expression, is central to individuals’ self-actualization and development as humans. (5) It is essential to citizens' maintenance of a successful self-governing democracy.

Note that these values, or benefits, or consequences of the First Amendment are not limited to institutions and situations to which the First Amendment is applicable. To the extent you find them valid and valuable, they are equally applicable to a retail establishment, hospital, or airline.

So what is my proposal for balancing these and other values of free speech (and the related core values of higher education) against the desire to maintain a supportive, learning environment?

The University of Iowa should consider developing a course for entering undergraduates’ first semester that exposes them to the values underlying the First Amendment, the history of protest movements in this country -– and on this very campus. What has been the role of the arts in those protests, and the changes they have brought about? Why is there a value to challenging one’s beliefs? Why is it central to a university’s educational mission to provide that challenge, to expose students to ideas they may hate – along with the tools for analyzing and presenting arguments about them?

Maybe it should be a required course for all. Maybe an elective. To be effective it needs to be more than a brief talk during orientation, or a seminar for a handful of students. Whatever form it might take, it would be clearly preferable to sabotaging education’s mission by “protecting” students from the very thing they should be coming here to acquire.

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The juxtaposition of the threats, sensibilities, and censorship involving art, North Korea and the University of Iowa has been an irresistible invitation to commentary by this blog essayist -- especially now that President Obama has taken a position on the issues (quoted below).

There is so much that could be said about the hazardous porcupine of quills projected by the issues that the commentary has been truncated -- however much it may appear to you that has not been the case.

And there's more: some photos and quotes you can explore and think about why they might have been included here.

Here are our principals: North Korea's Kim Jung-Un, SONY Entertainment's CEO Michael Lynton, and the UI's President, Sally Mason.

Pictures of Presidents

"The Interview" Trailer and Pictures of "Art"

And here are some visuals regarding the artistic content in question: A trailer for "The Interview," Serhat Tanyolacar's UI sculpture -- and for contrast and comparison, what an actual KKK member looks like, and what universally acceptable Norman Rockwell art looks like.



"The Interview Official Trailer #2" (2014), YouTube

[Image credit: Norman Rockwell,"Christmas Homecoming," Regency Singers cover art (1997)


Quotations from . . .

Here are some of the quotes I found relevant to the issues:

President Barack Obama

Sony is a corporation. It suffered significant damage. There were threats against its employees. I am sympathetic to the concerns that they faced. Having said all that, yes, I think they made a mistake. . . . We cannot have a society in which some dictator someplace can start imposing censorship here in the United States. Because if somebody is able to intimidate folks out of releasing a satirical movie, imagine what they start doing when they see a documentary that they don't like, or news reports that they don't like. Or even worse, imagine if producers and distributors and others start engaging in self-censorship, because they don't want to offend the sensibilities of somebody whose sensibilities probably need to be offended. That's not who we are. That's not what America is about. Again, I'm sympathetic that Sony, as a private company, was worried about liabilities. I wish they'd spoken to me first. I would have told them, "Do not get into a pattern in which you are intimidated by these kinds of criminal attacks."

President Barack Obama, News Conference, The White House, December 19, 2014

The Guardians of Peace (the Hackers' Threats)

The world will be full of fear. Remember the 11th of September 2001. We recommend you to keep yourself distant from the places [that show the film] at that time. (If your house is nearby, you’d better leave.)

Very wise to cancel "The Interview" it will be very useful for you. We ensure the purity of your data and as long as you make no more trouble. Now we want you never let the movie released, distributed or leaked in any form of, for instance, DVD or piracy [or] anything related to the movie, including trailers."

-- Email excerpts from hackers group, Guardians of Peace, to Sony, as reported in The Guardian and Variety

Sony Statement

We are deeply saddened at this brazen effort to suppress the distribution of a movie, and in the process do damage to our company, our employees, and the American public. . . . We respect and understand our partners’ decision and, of course, completely share their paramount interest in the safety of employees and theatergoers.

-- Brent Lang, "Sony Cancels Theatrical Release for 'The Interview; on Christmas," Variety, Dec. 17, 2014

UI President Sally Mason Statement

The goal of the University of Iowa . . . has always been to provide an environment where all members of our campus community feel safe . . .. The effects of the display [of] a 7-foot tall Ku Klux Klan effigy . . . were felt throughout the Iowa City community [and] caused Black students and community members to feel terrorized and to fear for their safety. . . .

Our students tell us that this portrayal made them feel unwelcomed and that they lost trust in the University of Iowa. For failing to meet our goal of providing a respectful, all-inclusive, educational environment, the university apologizes. All of us need to work together to take preventive action and do everything we can to be sure that everyone feels welcome, respected, and protected on our campus and in our community.

-- Sally Mason, "Mason shares UI's response to Pentacrest art display," Iowa Now, Dec. 8, 2014

UI AAUP President Katherine Tachau Statement

Unfortunately, on Sunday, Dec. 7, President Mason issued a further statement that redoubled the administration’s inaccurate and insulting treatment of Prof. [Serhat] Tanyolacar’s “In Their Shoes,” describing it not as a work of public art or sculpture – which it is – but as a “Ku Klux Klan effigy” and a “display.” According to her message, President Mason regretted “that display immediately caused Black students and community members to feel terrorized and to fear for their safety.” Like those who would censor films or books without having seen or read them, members of the UI administration, who had not viewed the actual artwork “In Their Shoes” for themselves, but who had been hearing from students who were outraged by it since Friday morning, adopted the point of view of some of the many spectators who had encountered the work, and acceded to their demands that it be removed from public view.

-- Katherine Tachau, President, University of Iowa Chapter AAUP, "President's Message," University of Iowa Chapter AAUP NEWSLETTER, Dec. 16, 2014, vol. 12, no. 2

First Amendment

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

-- U.S. Constitution, Amendment I (interpreted by the Supreme Court as applicable to all "state" action; counties, cities, school boards -- and state universities)

Alternatives to Law -- and Censorship

Professor Lawrence Lessig

Behavior . . . is regulated by four kinds of restraints.

[1] Law is just one of those constraints. . . . The law tells me not to buy certain drugs, [and] promises strict punishments if these orders are not followed. . . .

[2] Social norms do as well. Norms control where I can smoke; . . . they limit what I may wear . . .. Norms are enforced (if at all) by a community, not by a government. . . .

[3] Markets, too, regulate. They regulate by price. The price of gasoline limits the amount one drives [as the price of cigarettes is recognized as one of the most effective ways to regulate teens' smoking] . . ..

[4] [T]here is a fourth feature of real space that regulates behavior -- "architecture." . . . That a highway divides two neighborhoods limits the extent to which the neighborhoods integrate. [He goes on to explain, in the context of cyberspace, his distinction between "east coast code" (the U.S. Code, containing acts of Congress) and "west coast code" (the software that determines how the Internet functions -- a form of "regulation by architecture" in cyberspace).]

-- Lawrence Lessig, "The Law of the Horse: What Cyberlaw Might Teach," 113 Harv. L.Rev. 501 (1999)

Mason Williams

Someday I hope that someone
Could appear on television & say:
"The President screws pigs"
& the public would individually be
able to say: "That's not right,
& that's not a nice thing to say.
Next."

-- Mason Williams, head writer "Smothers Brothers Comedy Hour,"The Mason Williams FCC Rapport, July 23, 1969 (in an aural presentation to the FCC, with guitar, urging, in effect, the use of social norms, rather than government (FCC) control of content)

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