Scrutiny

Last week, YouTube announced on its company blog (in an entry titled “A YouTube for All of Us”) that it is tightening its restrictions on sexual content and profanity. Of course, YouTube has always had limits, mostly for pornography, spam, and gratuitous violence, handled primarily through automatic filtering that can spot X-rated scenes, and through the user community itself flagging inappropriate content for review. Now that user community is in an uproar about the recent announcement, because the restrictions will extend to sexually suggestive video and video that uses profanity. It’s not a surprise that sites like YouTube have to strike their own balance, between being an open platform for whatever users choose to post, and building a user community (not to mention a public brand) that’s acceptable to mainstream users and to the sponsors eager to sell to them. Censorship is hardly new to the Internet. What is new is the way YouTube intends to handle inappropriate videos: not only by removing some videos and placing age restrictions on others, but through “demotion.” “Videos that are considered sexually suggestive, or that contain profanity, will be algorithmically demoted on our ‘Most Viewed,’ ‘Top Favorited,’ and other browse pages.” This means that videos with too much profanity or sexually suggestive content will not be removed, but their popularity will be mathematically reduced, so they don’t show up on the lists of what’s most popular - censorship through technical invisibility. And we won’t know which videos, for what reasons. That YouTube can bury the rules, and their judgments, into the mechanisms by which users know what’s available and popular, points to the kinds of free speech dilemmas we’re likely to face in a digital future, and that we’re hardly prepared to think through.

I just saw a presentation of an amazing online resource called Metavid. It is overseen by Warren Sack at UCSC and designed largely by his students Michael Dale and Aphid Stern. Its funded by the Sunlight Foundation and a grant from the NSF.

The site houses every second of video footage from the Senate and House floor since January 2006. All of it is searchable online by the text of the speech (scraped from the closed captioning of the CSPAN broadcast), the name of the speaker, the session. You can search, with a really simple and effective interface, not only for what a certain person said on a certian topic on a certain date, but also cross-referenced by some of the information the Sunlight Foundation offers — so, you could request any mention of “health care” by anyone recieving more than X dollars from pharmaceutical industry donors.

Any clip can be very simply embedded into a blog or website. You can jump to the stream of footage and indicate the start and finish point of the clip you want, and that can be added to a blog or website. You can help label clips for content, or even repair text errors in the closed caption transcript. You can combine clips (in an astoundingly nimble drag-and-drop interface) together, and put the montaged clip into your blog or website.

I’m really, really impressed.

There has been a movement afoot to convince Lawrence Lessig, Stanford Law professor and thoughtful copyright activist, to run for Congress in the 12th district in California, a seat just vacated by the death of Democrat Tom Lantos. Apparently, he has heard the call; in a video available here, at Lessig08.org, he makes announcements: the second is that he is considering this move, and will have some answer by March 1. The first, and arguably just as important, is the pre-announcement of his project “Change Congress,” a grassroots movement to change the “economy of influence” in Washginton. This stems from the scholarship he has taken on since his work on copyright and free culture, about the power of lobbying and money in our political process.If you think highly of Lessig and his work, say so — on his site, or by joining the “Draft Lessig for Congress” Facebook group. And whether he runs or not, look into the Change Congress project. You can add your email and be alerted when the project itself goes live. I believe this issue is the most important issue today for free speech and character of the public discourse, and is a crucial piece of the puzzle of why every major political issue of our day is conducted on a far-from-level playing field. I have long said, when asked what needs to change in copyright law, that the answer is campaign finance reform. Lessig can take this point right to D.C.

While you’re at it, you might also be interested in Lessig’s video explaining his support of Barack Obama. (If nothing else, Lessig’s particular gift for lucid talks and weirdly compelling Apple-Keynote presentations would itself be a welcome addition to our nation’s political discourse. Gore-Lessig for Powerpoint-President, 2012!)

Update: Lessig has announced in his blog that he will not run for Congress, but will focus his efforts on developing the “Change Congress” grassroots project. I suppose being in Congress is not the ideal way to move one issue forward — even when that issue is endemic to all political concerns — since you would be spread across so many issues. Fair.

I wrote a post about two weeks ago, about the Morse v. Frederick decision, in which the Supreme Court found that a high school principal could stop a student from posting a banner during a school-sanctioned activity, and suspend him for it, that obliquely promoted drug use. The reasoning laid out in the court opinion, written by Chief Justice Roberts, is that the school’s obligation to teach its students about the dangers of illegal drugs justified the limitation of the student’s right to speak.

I had not had a chance to read the concurring opinion written by Justice Clarence Thomas. But apparently Stanley Fish did, and he posted a reaction on his New York Times blog. And I find myself deeply troubled by both Thomas’ argument (no great surprise) and Fish’s comments (more surprising).

Thomas agreed with the court’s decision, but wrote a concurring opinion to highlight a different reasoning for it: that public school students have no free speech rights:

In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools…

Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control…

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order…

In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules…

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools… If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.

Thomas’ hideous argument aims to roll back more than a century of progress in pedagogy. It perfumes its reprehensible position with a whiff of constitutional originalism, when it suits his argument. And in the end, it falls back on a gross assumption that choosing your child’s school and its policies is as simple as choosing this or that brand of soap. Just shop around for the best public school, or move to a more expensive neighborhood, or pony up the cash for private school, if you don’t like that Clarence Thomas refuses to set any guidelines on school principals and how they choose to stifle your child’s efforts to speak, think, or criticize.
But don’t look to Stanley Fish to note any of this. In his post (requires subscription to TimesSelect), so absurd it may even be a pristine parody of itself, he lauds Thomas’ principled stance, even wants to extend it:

If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

One reason that students (and many others) have come to believe that they have these rights is a confusion between education and democracy. It is in democratic contexts that people have claims to the rights enumerated in the constitution and other documents at the heart of our political system – the right to free speech, the right to free assembly, the right to determine, by vote, the shape of their futures.

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy – the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

What this means is that teachers don’t have First Amendment rights either, at least while they are performing as teachers. Away from school, they have the same rights as anyone else. In school, they are just like their students, bound to the protocols of the enterprise they have joined. That enterprise is not named democracy and what goes on within it – unless it is abuse or harassment or assault – should not rise to the level of constitutional notice or any other notice except the notice of the professional authorities whose job it is to keep the educational machine running smoothly.

I find myself speechless that a university professor, especially one as accomplished as Fish, could honestly espouse such a position. It’s the worst kind of academic exclusionism, an ivory dungeon where students are not only treated as entirely separate from the real world, but are locked there for their own good and disciplined into submission. I can only say, there are plenty of ways to combine good pedagogy and a progressive position on the civil rights of students and teachers, plenty of ways to teach democratic principles and live them at the same time, plenty of ways to host education and democracy in the same classroom.

Amidst my long-standing obsession with copyright, I try my best to also keep up with free speech issues. I guess the idea, in my latest thinking, is that I study “what structures culture,” the rules and constraints and pressures and assumptions that shape the terrain on which we participate in and build our cultural conversation. Free speech cases strike me as particularly important, though in some ways they’ve grown quaint in the shadow of the Internet, which seems like a fully open space for speech but most certainly isn’t, in all sorts of ways we haven’t yet gotten a grasp on.

In the recent slate of decisions issued by the Supreme Court, led by the newly-minted and carefully conservative Chief Justice John Roberts, two cases dealt with the speech laws of the First Amendment. One had to do with the rules established in the McCain-Feingold campaign reforms of 2002, banning special-interest advertisements in the month before an election that could be construed as campaigning directly for or against a particular candidate. The decision went in favor of the Wisconsin Right to Life group accused of violating the rule, when they ran ads gunning for, ironically, Senator Feingold. The SCotUS decision argued that the ads were not directly urging voters to vote against Feingold, only to contact him and express displeasure about his recent filibuster they didn’t like — against Bush’s conservative judicial nominations (hmm…). This could be construed as a ruling supporting free speech, in that the speaker was protected from government restriction, though I have long suspected that we’re going to have to significantly reconsider our First Amendment protections of corporate and non-profit campaigning in light of the incredibly power and financing of 527s and activist groups.

The second decision is one of those quaint ones, reminiscent of the landmark decisions in the 1960s about anti-war armbands, profanity on the back of a jacket, burned draft cards — except in place of politics, we’ve got the quirky dynamics of postmodern media celebrity. The case, Morse v. Frederick, pitted a public school student against his principal. The school had ushered the students outside to watch the Olympic torch pass; there, a group of students unfurled a banner that said “Bong Hits 4 Jesus”. Principal demanded it be removed; one student refused and was suspended for it. The student, Frederick, claimed it was simply a meaningless statement meant to get them on TV; the principal, Morse, said it encouraged the use of illegal drugs. The Supreme Court found against the student, arguing that their rule against student messages encouraging drug use was not a First Amendment violation.

The relevant precedent here is Tinker v. Des Moines Independent Community School District, in which the court ruled that a school could not stop students from wearing black arm bands protesting the Vietnam war. The Tinker court argued that student speech could not be restricted “if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” But the Roberts court, in an earlier decision, had established that a school could restrict certain kinds of speech even if it is not a substantial disruption, based on the “nature of what is appropriate for children” - in that case, lewd and indecent speech, and here, the presumed celebration of drug use. Concurring opinions from Alito and Kennedy specified that drug use is a special case that justifies intervention.
I’m not suggesting that students can say anything and everything in any circumstances. But establishing that the school can restrict speech — not actions, mind you, just speech — not only if it disrupts the education of others, but if it goes against their sense of decency — worries me. Certainly there are wildly inappropriate things that could be said in school, and should not. But it is notoriously easy for school administrators to take way too conservative a stance on what is appropriate, either because they tend to be a conservative, puritanical, and jumpy breed, or because it is easier to limit the rights of students than risk offending a parent or two. But we have an obligation as educators, not only to sustain a protected and uplifting environment for our kids, but also — and this is much harder — to show them by example that our society is committed to free speech, even when its less then pretty. School is a should be rarified space where children can flourish, but they also need to flourish as citizens, in a public institution dedicated to public values. As Garrett Eppse noted in a sharp Salon article about these decisions,

The idea that that in a free society debate should be, as a former Supreme Court said in New York Times v. Sullivan in 1964, “uninhibited, robust, and wide-open” does not apply to the young. Solemn acquiescence is the major skill of citizenship to be taught in the schools of our democracy, and those who will not learn the lesson can be punished.