Varied forces besiege free expression, but youth embraces it

Thursday, November 30, 2000
Lee Tien

SAN FRANCISCO — Free expression is under siege — as

It was clear from the discussion yesterday on “The State of Free
Expression (at the real start of the
new millennium)” that new ways, some ingenious, some unintended, always
pop up to isolate, reduce, control or shut down free expression.

But some speakers also noted ways in which people, especially the
young, are embracing the freedom to communicate.

The program was the final public event at The Freedom Forum’s Pacific
Coast Center, which will close as part of restructuring to enable the
foundation to carry out a $250 million project to build an expanded Newseum in
Washington, D.C.

In a daylong discussion, seven presenters offered summaries of six
areas of free expression issues:

On the Internet

The idea of private rights to information is being used either to lock
up or to get leverage over speech, said Lee Tien, senior staff attorney at the
Electronic Frontier Foundation.

“It’s not just copyright law or trademark or patent or trade
secret. It’s also privacy law. It’s also the idea that government may have
information that is proprietary to some business firm, so to make sure the
government can get information it wants, it will enact an exemption to the
Freedom of Information Act,” Tien said. “All of these are examples of
a general problem with some kind of private-right information.

“The second big theme is the clash between the global Internet
and national jurisdictions,” he said. If you accept that some segments of
an audience can be closed off, “you usher in a bunch of issues about how
to close them out, how do you know who they are. These can cause

United Kingdom libel law is extremely pro-plaintiff and it’s hard to
beat a libel claim, Tien said. “It’s one thing if it’s going against big
publishers, but another if you publish something on your personal Web site and
somehow it manages to defame someone in England. Then you have some difficult
questions about transnational jurisdiction.”

Another issue from the past few days is Yahoo! carrying a
sale of Nazi memorabilia that is
outlawed in France, Tien said. Yahoo! thought it could solve the problem by
carrying the information only on the U.S. site and not the French.

If you bow to this, where does it stop? he asked.

“One of the problems with the Internet and free speech right now
is that there are a whole lot of different choke points that we have to be
aware of, that can cave to pressure and act in ways that are inimical to free
speech,” Tien said.

“One kind of choke point is a user choke point. We’re seeing this
in libraries and schools, the imposition of filtering software. We have the
selection choke points, represented by ratings systems and entities able to
influence simply because there is so much out there that we have to go with
someone else’s recommendation. And then ISPs and other service provider choke
points. You can go to the provider and say, ‘You may be liable for passing this

Tien explained the Digital Millennium Copyright Act by beginning with
traditional copyright law: “Authors get the rights to reproduce,
distribute, adopt and the right to public display and performance. … The
public gets the right to private performance under the first-sale doctrine
— once you buy it you can resell it or give it away. There’s fair use
— parody, satire, criticism, comment, scholarship, research, news
reporting, teaching. There’s reverse engineering — important to the
software industry. Personal use, under the Audio Home Recording Act, you can
record a CD on a cassette to play in your car. And at each end of the spectrum
of things we can get, there are the book ends. The first is the idea-expression
dichotomy — whatever else you can do with copyright, you cannot copyright
the ideas that are going to be unprotectable, that everyone can use. And at the
other end of all these uses, when the copyright runs out, the expressions goes
into the public domain and we can all have access to it without having to pay a

“DMCA changes everything.”

It creates digitally related rights for those who originate
copyrighted material, he said. “If you protect a work that is copyrighted
with an access-control measure — for example, encrypting — it is
unlawful to circumvent that technical measure to gain access to that
work.” The act also makes unlawful “technology and devices used for
that circumvention.”

Copyrights vary depending on the work, Tien said. In a compilation,
for example, protections differ depending on whether the collection is fiction
or nonfiction. DMCA makes no such distinctions. One copyright expert said it
would lead to a pay-per-view or pay-per-use world, Tien said. “Access is a
precondition to anything you would do with the work, so the ability to control
access is the ability to control use. That is something that has historically
been anathema to copyright law.”

In the Sony Betamax case, involving a device that the movie industry
called illegal because it allowed unauthorized copying of movies, the Supreme
Court decided 5-4 that Betamax was not illegal, essentially holding that it was
not a copyright but a civil rights issue, Tien said. “The test was that
the device must be capable of substantial non-infringing uses,” he said.
He added that Mr. Rogers, the children’s TV host, testified that he thought
“it was great that parents could tape his show and show it to their kids
over and over again.”

“DMCA changes this. The Betamax standard is not applicable
anymore. That’s what the tools and devices provision does.”

The Electronic Frontier Foundation believes “this case is very
serious because it’s important that people have the tools to be able to make
substantial, non-infringing uses,” he said. “If DMCA is unchallenged
and everything stays the way it is, it’s going to be very easy for the
producers of anything on DVD and other kinds of electronic media to make it
hard to make fair uses of the work. It will be very hard to take clips of
movies. You’ll probably have to pay to see it more than five times. You may not
be able to fast-forward through the commercials.”

Tien concluded: “I see no reason to depart from the Betamax

Religious free speech in schools

Marcia Beauchamp

In the last 10 to 15 years, “we have been fighting a lot of our
culture-war battles,” said Marcia Beauchamp, Freedom Forum First Amendment
Center religious-liberties program coordinator.

“We’re pretty convinced and committed to the idea that it’s
wrongheaded to be fighting those culture-war battles in the very place where
we’re trying to educate students to be fully participating members of a
democratic society — where we hope we’re teaching them how to learn how
to live together with differences rather than highlighting the differences
themselves and turning up the volume on the arguments.”

The First Amendment Center did national surveys on the First Amendment
in 1997, 1999 and this year. The
2000 report
“reflects a national schizophrenia about how we feel about freedom of
expression in general and religion is now different,” she said.

“The good news is that most of the American public, 72 percent,
agrees that religious freedom and expression should protect and apply to
‘fringe’ or ‘extreme’ religious groups. … The bad news is weightier: 65
percent of the people surveyed thought that teachers and school officials
should be able to lead students in prayer. One question that immediately comes
to my mind is which one? And whose?

“Eighty-one percent agree that students should be able to decide
by a majority vote to have a public prayer at graduation ceremonies. That
should raise our hackles right away to think that the majority of the American
public think it would be OK to have a majority vote to vote away fundamental

“The third statistic that really struck me is that 61 percent
thought school officials should be able to post the Ten Commandments. Then
we’re back to the original question: Which version?”

She sees three reasons for this “confusion”:

A broad misunderstanding of the public schools as the primary
laboratory for democracy. “We’ve lost sight of one of the two primary
charges that the common schools identified when they were first formed in the
19th century. The first was to prepare students academically. The second was to
prepare them to be fully functioning members of a pluralistic, democratic
society. We lost sight of that piece of the mission.”

The second is “little understanding of the roots of our
arrangement for freedom of conscience or religious liberty in this country.
Those ideas do come out of a philosophical and religious history. In their
inception, they were a reaction to forced religious conversion, forced
conformity in matters of faith. They were about protecting religion from this
big engine of the state. We’ve now morphed into a new era where most people
think about the First Amendment religious liberty clause as protection
from religion. It’s part of it, but
not the most important part.”

The third “is just a fear of change and loss of
power.” California is no longer a white majority and the rest of the
country feels embattled by the diversity around them “and they don’t know
how to cope with it. They don’t see how the First Amendment and the religious
liberty clause in particular provide a framework for living with out
differences and finding some common ground without compromising our most deeply
held convictions.”

“All that binds us together is an agreement to live under the
principles on which the country is founded,” Beauchamp said.


Conference participants watched a 25-minute documentary on the pros
and cons of a flag-burning amendment. The filmmaker was Roger Sorkin, who made
the documentary as his master’s thesis for Stanford University Department of
Communication documentary, film and video program.

Sorkin is a former student of Jim Wheaton, senior counsel and
co-founder of the First Amendment Project, based in Oakland, Calif.

“The fight is not going to go away,” Wheaton said in a
discussion. “The goal here is not to stop flag-burning. There is no
epidemic of flag-burning. There has been perhaps a score of incidents in the
past five to six years.” The regulation to get rid of old flags is to burn
them, he noted, so the proposed amendment isn’t to stop flag-burning per

“It’s all about what’s in people’s heads. That’s what makes it so
dangerous,” Wheaton said, “but it will continue to pass in Congress
with a two-thirds majority until the cows come home.”

Most people who oppose the amendment tend to treat it as nonsense and
do nothing about it, he said. “Write to your congressman,” Wheaton
urged. “People on the other side are writing all the time. And it’s
important to get editorial support.”

Sorkin said he learned in his research for the documentary that
flag-burning incidents tend to increase “when we go to the war —
World War I, World War II.”

Teaching the First Amendment

Erna Smith

Erna Smith, interim program director at the Maynard Institute for
Journalism Education, said she didn’t fully understand the implications of the
First Amendment until she became a college newspaper adviser.

And she figured out that students didn’t really understand it until
they had firsthand experience not only with their freedoms but also with the

Two-thirds of the people responding to the First Amendment Center
survey said schools do a fair to poor job of teaching the First Amendment.
“We’re hypocritical about it,” Smith said, noting that in 44 states
principals have the right to censor student journalists. “It is through
our actions that we teach the most powerful lessons.”

First Amendment lessons tend to be on the dry side — a civics
lesson in high school, a lesson that concentrates on libel in journalism
school. Rarely is it a visceral and personal experience.

The San Francisco State University student newspaper staff some years
ago had a memorable experience when a highly controversial mural of Malcolm X
went up on a campus wall. After a thunderstorm of criticism erupted, the school
tried to paint out the mural. The students scraped off the paint. The school
tried again with a tougher paint that worked and the controversy died down.

“It was a golden opportunity to teach about a lot of things,
including the First Amendment,” said Smith, who is on sabbatical as chair
of the journalism department at SFSU. No one on the staff liked the mural, but
“the students saw this as a metaphor for freedom of expression.”

“The hardest lesson is to tolerate what you find intolerable. In
a society that is just, that is a prerequisite,” Smith said.

But as our kindergarten teachers told us: With rights come

On another occasion, a student columnist ran a photo of himself as a
toddler eating a banana and ran a crude cutline with it. The photo happened to
run next to a story about a nursery school. The parents, to put it mildly, were
irked and expressed those feelings to the staff. The students admitted
eventually that if they had kids in the school, their attitudes might have been

And at least once a year, SFSU students storm the newspaper office to
protest real or perceived outrages. At first, Smith said, the staff members are
stunned and angry that such a thing could happen when they were merely
exercising their First Amendment rights. Smith explains that the protesting
students are also exercising their First Amendment rights.

“They find out the First Amendment is not just about

Voices of the young and diverse

Pacific News Service Executive Editor Sandy Close offered evidence
that the young have embraced the word as a way of self-expression and

Pacific News Service started a series of writing workshops in juvenile
halls, called the Beat Within, she said. “This is the one thing we do as
journalists that gets more mail than anything else — easily 100 letters
from incarcerated kids a week.”

“We also have a Web site done by, with, for and about homeless
people called — a home for homeless kids on the Internet.
And we’ve just begun a special publication done by temp workers in Silicon
Valley,” the frontline workers who put things in cartons, who add bar
codes, who seal the boxes, who make $7 an hour and no benefits. “There are
about 5,000 of them and they’re very anxious to create some sort of medium for
their own voice.

“Several years ago a noted essayist, Lewis Lapham of Harper’s,
wrote a wonderful letter to his nephew, who had proffered the opinion that he
might become a writer. Lapham said in a sneering, wonderful tone: ‘That’s
ridiculous. There are not enough serious readers in America to fill Yankee
Stadium’ and pronounced the death of a literary era.”

Close heard about Lapham’s declaration from a colleague just as she
returned from juvenile hall where the kids had had a poetry slam. “I told
him they are minting words.” A few months before she saw kids in a long
line around a local theater waiting to get in to a national poetry slam.
“Teen-agers were literally hanging off the rafters, spending five hours in
something that essentially was young people getting up and reciting poems. I’ve
been struck by how poetry has become the most favorite form of expression
— even at the youth authority in Stockton, for the worst of the worst
offenders from 16 to 25. When you ask them to write something around a
particular theme, of the 18 young men in the first class I taught there, fully
half of them chose to write poems.

“To me this is an example of a hunger to communicate. It’s the
most powerful throb in the youth culture today.”

Close recalled a discussion with high school journalists and other
young journalists who worked for her news service’s YO (Youth Outlook). The
question was, “What is the worst thing to be called in school?”

“They went around the room and said things like nigger, ho and
fat. One kid from YO said the worst thing is when you’ve been in school for
three months and the teacher doesn’t know your name.”

She said words were replacing violence as an outlet for frustration
and free expression among young people.

“I came to believe that as violence began to go down among young
people from the early ’90s on that they had found a new way to connect people
through language, through their search for language. A young woman brought this
home to me when she came to work with us and changed her name from Selena to
Lady and said, well, that’s what she wanted people to treat her as. She started
going to the mosque for etiquette class. She said she wanted vocabulary to
order her relationships and give them some sort of predictability. She said all
she knew was verbal abuse and the power of the fist. That I’ve seen replicated
over and over again.

“The hunger for communication is essentially driven by a fear of
winding up alone.”

“If you doubt me, read Stephen King, as the No. 1 author in
America for young people, not to mention many of the rest of us. The standard
protagonist resonates powerfully with this generation. It’s a young person
alone in a universe of random terror whose family is too feeble to protect him
and who, if he doesn’t acknowledge evil as a reality, will die. The interesting
thing about King novels, whether you’re in San Jose juvenile hall, San Quentin
or Exeter, [is that they] are going to be somewhere next to bed or on a
bookshelf. King touches a nerve.

“What they have come to understand in this culture is that the
worst thing to be is alone.”

This generation is criticized for not voting, but it realizes that
“what matters is not the vote but the voice because the voice will get a
response,” Close said.

What does it mean to be a citizen “in this vast, mega-corporate,
powerful economy? For a lot of young people I work with, you exist if you have
a voice, and if somebody hears it and responds and if you hear the other voice,
communication is so visceral. … Poetry is the language of this
generation. Not rap. Poetry, because it is the language of seduction. It
seduces. It is designed to get you to respond to me.”

“You have this tremendous hunger for voice,” Close said,
“and this proliferation of information technology, and that’s resulted in
an explosion of youth media.”

Which led her to an interesting question for mainstream media:

“What is mainstream media if there is no mainstream? What do you
reflect? How do you put on the front page of your paper stories that reflect
the mainstream?”

“What I’ve learned from the young people I work with is a new way
of imaging communications. We call our culture the communication culture, but
there is very little communication going on that they would regard as the
equivalent of getting a handwritten letter.”

In one exchange among young people, she asked what frightened them the
most. A blonde girl from Orinda said studying the Holocaust. The others asked
why. Because it gave her a recurring nightmare that she was in her parents’
house in Orinda and they were in the bedroom and it was a concentration camp,
she said. One young man asked why she dreamed that. She said it was because her
parents were German and her grandparents were Nazis.

“Everyone in that room had a totally new understanding of what it
meant to be a kid in the suburbs. I thought this was an exchange more important
than anything PNS puts out today. This is what communication can be about
— facilitating, bringing together people who might otherwise never talk
to each other.

“And if you can do it with these kids, well maybe you can do it
with black media and Chinese media, with all sorts of people in the culture who
are hungry. Communication can be about more than gathering, interpreting and
disseminating information. Maybe we can invent some new and more powerful way,
as the pariah profession now, not just reflecting who we’re becoming but
creating sets of civic connection.”

Book publishing

Patricia Holt

Online book columnist Patricia Holt (, former book
editor and critic at the San Francisco
laid out major problems facing book publishing.

She said she started noticing about 10 years ago “a thinning of
literature … I found myself walking around the office looking for serious
books on history, biography, social affairs, the sciences, essays, books in
translation, literary novels. There were fewer and fewer every year.”

By the late 1980s, large conglomerates were buying independent
publishers, she said. “When I started in 1969, there were about 50
publishers. If you go back to the 1930s there were about 100 publishers. Today
we say that five publishers control 80 percent of the sales, which is very
scary information.”

Editors used to see many audiences waiting for many kinds of books,
Holt said, “a reflection of our democracy, many different voices
expressing many different ideas, all struggling for consensus. If the editor
could find books that were responsibly written, that filled a need, people
would buy the books and return enough of a profit to keep that editor’s job
paid for.”

“The profit margin used to be comfortable around three percent,
always aiming for seven percent, ideally 10 percent. Now come the larger
corporations (and) they’re asking for 30 percent. It’s a huge leap, and it
pushes the editor, who should really act in isolation looking for books that
are good and responsive to different audiences, to looking for books that will

And on the other side — book selling — independent
booksellers are being pushed out by large chains, and the “Amazon, Costco,
Price Club, Target, Wal-Mart element has come in to take the bestsellers away
because they can charge half price,” she said. “That meant the
publishers raised the prices artificially so they could afford to sell these
books at a discount and (make) the same profit, which meant that the consumers
pay more and the independents charging full price are going to be out of

Holt said she thought this was a “true incursion of freedom of
speech in which the demands of the marketplace were pushing good books out. The
(newspaper) stories were more Goliath vs. Goliath, how will Barnes & Noble
fight Amazon. I felt that every time an independent bookstore closes, we are
losing a little bit more of our choices. So I quit to write this e-mail
column” to cover these issues, she said.

“Can we get some education to the public about what is at
stake?” she asked.

Bertelsmann bought Doubleday and Random House with many imprints, but
“they all have to answer to the same profit and loss approach,” she
said. “Then they bought one-half of Barnes &, the online
bookseller, and this is when I threw a fit in print.”

When Barnes & Noble decided to buy Ingram, which is the largest
book distributor in the country distributing to independent booksellers that
are in competition with Barnes & Noble, “I and everybody threw a fit
and the public protest to the Federal Trade Commission was so huge” that
the FTC “leaked their displeasure and Barnes & Noble backed

“This is an invisible thing happening in the marketplace and yet
it’s right in front of us,” Holt said.

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