Archive for Law

Making the Case against Sarcasm on the Supreme Court (addendum)

April 23, 2012 Rebecca Reynolds Law, Leadership

Thanks to Geof Stone, University of Chicago law professor, for pointing out an unintentional omission in my post last week on sarcasm and the Supreme Court: examples of the Court’s sarcasm. I realized that this trend is so glaring in my mind, I assumed it was in others’. Oops. So, here’s my amendment with cites and explanation.

As an enthusiastic listener to NPR’s legal correspondent Nina Totenberg, who brings the Supreme Court to life by reading excerpts from oral arguments, I’ve noticed an increased use of sarcastic tones by Totenberg when quoting some of the Justices. It isn’t Ms. Totenberg’s sarcasm. It’s theirs. And that’s what prompted me to write Supreme Court: No Place for Sarcasm.

And then on This American Life in a piece called Take the Money and Run for Office, Senator John McCain also mentioned sarcasm on the Court as he described his experience listening to oral arguments in the Citizens United case:

First, I was outraged…the questions that were asked, the naiveté of the questions that were asked, the arrogance of the questions was just stunning, particularly Scalia, with his sarcasm.

And then McCain imitated Justice Scalia’s sarcastic attitude. You can listen to it here.

As it turns out, I’m not the first to discuss the use of sarcasm on the Court or to question its appropriateness there. Erwin Chemerensky, Dean of the University of California Irvine Law School, wrote a thorough review of Scalia’s penchant for sarcasm back in 2000, making the case as it concerned law students and attorneys:

Justice Scalia’s opinions are distinctive because of his frequent sarcasm and pointed attacks on his colleagues. No doubt, this makes his opinions among the most interesting to read and teach….But I am greatly distressed by the message that his sarcasm and his attacks on other justices transmit to law students and to attorneys about how it is appropriate to speak and talk to one another in judicial settings.

But the story that provoked me to write my blog post was Totenberg’s March 20th report on the Court’s hearing of two cases about life without parole sentences for minors. Here is some of the exchange, according to Totenberg:

Justice Antonin Scalia noted that 39 states have laws that make life without parole the punishment for murder, even for juveniles. He asked whether he should “just consult my own preference” instead of “what seems to be a consensus of the American people?”

[Attorney] Stevenson contended that in fact, most states have not agreed to subject 14-year-olds to life without parole. Only 18 states have actually imposed the penalty on those 14 and younger. Moreover, he said,  state legislatures pass laws that allow juveniles to be tried as adults and then the juveniles are automatically subject to the same penalty as adults — in these cases, mandatory term of life without parole for murder.

Justice Samuel Alito questioned Stevenson’s statement that state legislatures did not know what they were doing.

“If you think these legislators don’t understand what their laws provide, why don’t you contact them?” he asked sarcastically. (My emphasis.)

The final straw for me here was Justice Alito’s snarky remark. It’s one thing for a single petulant personality to bring his invective to the Court (just like some bratty nephew at the holidays, we all somehow put up with Justice Scalia), but it’s quite another to think this is becoming acceptable practice across the board.

The Supreme Court, as I said, depends on its credibility for its authority. Justice Breyer (in a talk he gave at the Aspen Ideas Festival last summer, which I wrote about here) reminded us that the authority of the Supreme Court took some 100 years or more to establish in this country. And although by this point it is indeed well-established, it’s not an impossibility for that position to be challenged in the future – especially if the Court continues to make extreme decisions such as Bush v. Gore and to undermine both its credibility and its position of power with behavior that is so clearly beneath it.

 

 

 

 

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The Supreme Court: No Place for Sarcasm

April 11, 2012 Rebecca Reynolds Government, History, Law, Leadership

Courtesy of The Christian Science Monitor

There’s been a lot of talk about the recent Supreme Court case on the Affordable Care Act, and good thing, too. The Court seems to be on an unhappy trajectory of proactive decisions that upend long-standing legal precedent or chart entirely new territory under the guise of judicial restraint. It’s a puzzling sleight of hand, which we have to thank for Bush v. Gore, Citizen’s United, Wal-Mart v. Dukes, and others.

But there’s another trend that concerns me – the broader one of the Court’s diminishing credibility.

As this country’s supreme arbiter of what’s legal or not, the Court represents the gold standard on decision-making. It is, interestingly, the closest thing we have to a monarchy: life appointment to sit in final judgment over the most complex and challenging legal issues of our time. But, unlike a sovereign, the Court is comprised of
nine of these would-be monarchs, who collectively share the mantle “Supreme.”
It’s an interesting set-up.

Interesting in particular to me since I’m in the business of collective leadership and decision-making. I support clients of all kinds to develop governance, process, and behavior by which they’re able to achieve big things together. The courtroom has long been, for me, a model for the importance of process, as well as a source of fascination for its rhetoric and code of ethics. Ever since I first sat in on a trial as a teenager (my mother was a juror and brought me along to learn about our justice system), I’ve been addicted to courtrooms.

Not only, then, is the Supreme Court our highest example of shared decision-making, it’s also the courtroom of all courtrooms. For this reason, I follow with great interest the Court’s proceedings and decisions. But for a while now, my intense interest has been tainted by something alarming. In case after case, sarcasm seems to be an increasingly prevalent actor*. And that’s the problem. The Supreme Court is just no place for sarcasm.

I’m adamant on this and here’s why.

First, as the final decision-maker of our nation’s most challenging legal issues, the Supreme Court is, by definition, a serious institution. By the time a case arrives there,
it’s been through years (sometimes decades) of trials, expense and extreme
hardship for the parties involved. A case before the Supreme Court has earned –
as have its parties, attorneys, and the American public at large, since we foot the bill – the right to an audience before the Justices. This audience has, in fact, been granted by the Justices themselves in agreeing to hear it. The Court’s business then is serious business, the most serious, deserving of a level of sincerity and gravity possibly without parallel in this country. Sarcasm, used to mock and ridicule, to convey scorn or insult, is a clear nonstarter in such an environment.

Second, the charge of the Court is to seek understanding of issues so complex that many courts and judges have been tested in their review. If such understanding and decision-making were easily come by, the Supreme Court wouldn’t be needed. Therefore, again, I see no place for sarcasm, which takes as its premise that the person wielding it is of superior intellect to those to whom the remarks are delivered.

The Justices have been given (and we hope have earned), a life appointment on the bench. Nine justices together have the awesome authority (and responsibility) to finally decide these cases. Therefore, no one Justice can presume him/herself above anyone else, and in fact, should endeavor, we would hope, to listen to the many learned colleagues on the bench (not to mention in the role of advocate), with the intent of arriving at a right and just decision. I see no utility in smugness or sarcasm with such a sacred trust shared among such esteemed peers.

Finally, sarcasm is defined as an attack – a cruel and malicious one with a single intent: to harm another. Not only is this type of behavior inimical to truth-seeking and the serious business of reaching shared understanding of deeply complex issues, it’s also dishonorable. It is especially so in a Supreme Court Justice.

The reason is simple: due to long-established rules of procedure, the individuals to whom the sarcasm is directed - generally, the attorneys arguing the case – are constrained from responding in kind. It is the very position of Supreme Court Justice, referred to, as if to remind us, as “Your Honor,” that should preclude attack, (including the verbal flaying of sarcasm) – for who with honor attacks someone who is both at your mercy and without the means of retaliation? We usually refer to such people as tyrants.

Sarcasm on the Court, although it may seem to liven up the complicated and at times ponderous discussion, undermines the very role the Court exists to serve. We need to believe in the superior experience, capability, wisdom, and dare I say it, restraint (personal, if not judicial) of the Court to fulfill its role of deciding the nation’s most serious legal issues on our behalf. We depend on this belief because without it we teeter on the perilous edge of anarchy. But if the Court persists in demeaning itself to the level of Judge Judy for the sake of popularity, entertainment value, or worse, to feed the egos of a few Justices, it will lose the credibility on which it and we depend.

I have written before of my concerns about the Court’s diminishing credibility at the hand of its too-often politicized decisions (those signaled by the 5-4 split).  But perhaps graver still and certainly more insidious than the issues represented by these cases is the idea that the Court is becoming nothing more than a platform for a few bullies. If this is acceptable behavior on the Court, what separates it from the commons? What indeed.

Remember what happens when people lose confidence in their monarch? Heads roll. Let us all be warned.

 

*For examples, please click here.

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Days of Black: A Juxtaposition

December 28, 2011 Rebecca Reynolds Government, Law, Leadership

I spent Thanksgiving in South Africa this year. Of course, it wasn’t Thanksgiving there. In fact, it was early summer and didn’t feel a bit like Thanksgiving.

On Monday of Thanksgiving week, when normally I would’ve been buying turkey, making final decisions about table setting and menu and otherwise preparing for the family feast, instead I was exploring Cape Town with my guide, Jackie. We topped Table Mountain in a rotating gondola and drove the coastal road down to Penguin Beach and Cape Point. We lunched at an out of the way seafood place in Kalk Bay, with catch so fresh I could see the women de-boning it on the docks below. And as we drove, walked, and dined, we talked of South African politics. It wasn’t really an option – everyone was.

You see, the following day, Tuesday, a vote was to take place on the Protection of State Information, commonly referred to as the Secrecy Bill. The African National Congress (ANC) was the key proponent of the bill, which would, according to many, roll back freedom of information to intolerable levels. According to Archbishop Desmond Tutu, the bill threatened to outlaw whistle blowing and investigative journalism, and, as the bill states, subject “offenders” to up to 25 years in prison.

People I spoke with characterized the bill as another step farther from the dream of the Apartheid-era ANC, Nelson Mandela’s party, the one that led passage of one of the most progressive Constitutions in the world – which, by the way, includes a Bill of Rights that says: “Everyone has the right of access to any information held by the state.”

South Africans against the bill had named the vote day “Black Tuesday” and planned to don the color to symbolize their protest. When Jackie and I went out again on Tuesday, sure enough, shop keepers, students, people dining and more were decked out head to toe in black. But, even with the dour dress code and opposition from such luminaries as Mandela, Tutu, and Nobel Prize winning author Nadine Gordimer, the bill still passed.

This was a hard moment in South Africa. It was one of a people’s profound disappointment after the promise of democracy was chiseled down by a vote of 229 to 107.

When I went on Facebook that evening, posts about Thanksgiving dominated the space. So much glee about food preparation, family gathering and general thankfulness was tainted by my experience that day of a people’s anguish. I felt it, too. I felt it for them – a long-suffering country’s dashed hopes by the party of so much hope it had inspired the world.

And then I saw it. A post about Black Friday. I’d forgotten all about it until that moment. And the contrast hit me hard. In South Africa, a country is fighting for freedom of information against a corrupt and opaque government and is using the black moniker to gather solidarity for the cause. In the US, we too use the “black” to rally the masses, but the rallying cry is not for freedom, not for democracy, not against the powerful hiding their secrets. No. Black Friday is a call to shop. To get up early and get in line to be the first across the threshold to buy whatever.

I then felt my melancholy closer to home. For our US democracy, flagging under the weight of too much – too much privilege, too much complacency, too much information – a gluttony that Thanksgiving brought into stark relief.

We Americans enjoy unprecedented freedoms, comforts and convenience. We have been the most powerful nation the world has ever seen. We have reveled in the fruits of our innovation and our ambition, and our ability to speak our minds and do as we please.

But we are poised at a precipice – the precipice of choice. We can gather ourselves up and look beyond our borders at what the world is becoming, and choose a course more hospitable to it. Or we can continue to shuffle along the way we have, in the fog of our own undoing. An undoing symbolized, in my mind, by Black Friday – a term of dubious origin, of misplaced priority, of misguided intent.

How long will we continue to lull ourselves to sleep in the rapture of consumerism? When will we awaken to our awesome potential as members of the burgeoning global community? And begin to use the tremendous power of our freedom for great good rather than, say, to pillory Coca-Cola for changing the color of its Coke can?

Or will we wait until we are crushed under the heels of our own Black Friday mobs, while the rest of the world takes its freedom seriously?

 

 

 

 

 

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The Supremes: Why We Do What They Say (and Should We?)

July 13, 2011 Rebecca Reynolds Facilitation, governance, Government, History, Law, Leadership

Supreme Court Justice Stephen Breyer spoke last week at the Aspen Ideas Festival. It was a stirring speech. He’s an eloquent and passionate speaker, and like all good orators, he got me to thinking.

Justice Breyer’s point was the importance of the Court to democracy. The Court serves the vital and essential function of a neutral actor in the mix to play referee, to stand in the fray and call foul, to stop the action and consider what really is fair, no matter the size or skill of the players. That sounds right. Without this role, games and democracies easily devolve to chaos or bullying. With this role, we can all relax into our own – whether as player or spectator.

I recognize the referee role only too well since I play a similar one. As a facilitator of process, I design and then monitor the way something gets done. The larger and more diverse the group, the more contentious the issues, the more important this work is — if I hold the space and monitor the established rules of engagement, the people participating can relax into dealing with the subject at hand. It can take a while to establish trust in this role, there may even be tests – people pushing the limits of the “rules” to see if they can be bent or broken, to see if I will notice, if I will act. But if I play it fairly, applying the same rules to everyone, people will stop worrying over process and really start attending to the issues.

So, when Justice Breyer recounted his story of this country’s test of the Supreme Court’s authority, I listened with great interest. The heart of the story involved two moments in American history. The first was in the 1830s, from when our democracy was still young. At the time, the state of Georgia, having found gold on Cherokee Indian land, wanted the Indians out. In a series of cases, known as the Marshall Trilogy, Chief Justice John Marshall wrote decisions that set precedent for tribal sovereignty. Breyer then referred to President Jackson’s response “John Marshall has made his decision. Now let him enforce it.” Although this quotation is disputed, it is undoubtedly representative of Jackson’s sentiments. He sent federal troops into Georgia to move the Cherokee off their lands, disregarding the Marshall Court and inciting what would result in the Trail of Tears.

Breyer’s point was, early in our nation’s history, the Court was still establishing the authority of its supreme arbiter role. And clearly, that power was dubious at best if the President so readily flouted it.

Breyer then turned to a case much more familiar: Brown v. Board of Education. Although the landmark case ruled segregation unconstitutional in 1954, it took three more years for it to be tested. As we all know, the test happened in the fall of 1957 in Little Rock, Arkansas. Little Rock’s school board and the NAACP planned to have nine carefully chosen students enroll at Central High. Governor Orval Faubus wouldn’t hear of it and called out the Arkansas National Guard to block the students. Like Jackson, according to Breyer, President Eisenhower sent in federal troops – and his choice of the 101st Airborne was brilliant strategy since the 101st was beloved for its role in Normandy. This time the troops backed the Supreme Court’s decision.

Breyer’s argument was that, even if we disagree with a decision, Bush v. Gore for example, or Roe v. Wade, the fact is that we, as a country, as a democracy, depend on the authority of the Court as our supreme arbiter, as the final say. And, what’s more, we adhere to it. For those of us who think we want the Court’s decisions challenged, Justice Breyer urged us to look carefully at the images of anarchy coming from places around the globe. Do we really want to live in a country where the role of referee is tenuous, even nonexistent?

His question is a good one. But then a fellow from the audience asked another.

“Would the cynicism toward the Court be reduced if the decisions could be 6-3 instead of 5-4?” Justice Breyer responded to this question by talking about our desire for a Court more in agreement with itself, citing Europe’s policy not to publish dissenting opinions as a way of solidifying the rule of law. This surprised me. What I heard in the fellow’s question was not a desire for more agreement, but for less partisanship among the Justices.

Too many of the major decisions (e.g., Citizens United and Wal-Mart v. Dukes) being made by the Court are being decided 5-4, with the conservative Justices (Roberts, Scalia, Kennedy, Thomas and Alito) on one side and the liberal ones (Ginsburg, Breyer, Sotomayor and Kagan) on the other. It is this, more than what the actual decisions are, that is so inimical to our trust in the Court as the neutral actor we need it to be. This partisanship is what is eroding our confidence in the Court as the ultimate power of judicial review in this country. If the Court can do no better than Congress in deciding the issues that threaten to tear us apart, if the Court is no more than a reflection of the rancor and polarity that run through our public discourse, then the Court is no longer deserving of the role of supreme arbiter and the ensuing powers that role commands.

Like any leader, I am only able to function as an effective facilitator as long as the people I serve perceive me as such. When I start to show bias, when I begin to take sides, especially if I do so under the guise of fairness, I am no longer useful in my role. If I do not correct my behavior, or step aside, the people will (and should) take care of it themselves. This too is inherent to democracy. In fact, it is the very idea upon which this country was founded: equal justice under the law.

For a related blog from Aspen Institute: http://www.aspeninstitute.org/about/blog/does-supreme-court-follow-people

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Woman-Owned Small Business

May 8, 2011 Rebecca Reynolds Government, Law, Leadership

I started my company 20 years ago and have been the sole owner of it ever since. I didn’t know many women in my early days with their own businesses, nor did I realize how unusual and risky (25% of start-ups fail in the first year) my decision was. I also didn’t think about why women start businesses – many reports cite women’s disgruntlement with working in traditional workplaces as the number one reason.

I’m not sure whether the disgruntlement is related to working a traditional work day away from home and children, or if it has more to do with male-centric work environments proving challenging for women seeking advancement and higher compensation. My first boss told me, when I asked to be considered for the next logical promotion in his small outfit, “I don’t want a girl running my company.” That certainly motivated me to move on from job #1, which I did tout de suite for a promotion running another company (of course, boss #1 offered me the job a few months later, and when I reminded him of his earlier words, he claimed never to have uttered them – discriminator and liar, check.)

But the motivation for starting my business had to do with the part of the traditional workplace that meant 9 to 5 in an office. I wanted freedom over how I spent my time and with whom I spent it. But once out on my own, I realized that it was my attraction to large-scale transformation work that had really propelled me out of the standard work environment. Organizations like big change now and again, but need periods of stability and maintenance – that is just when I lose interest. Consulting, in particular, turned out to be a great way for me to move from one project to another, thereby satisfying my penchant for change work without being labeled a flibbertigibbet (something boss #2 warned me about when I told her I was resigning after 18 months).

According to the U.S. Census Bureau’s 2007 Survey of Business Owners (the most recent edition), women owned 7.8 million businesses, an increase of 20.1 percent from 2002. This accounted for 28.7 percent of all businesses (excluding farm businesses) in the United States. Women-owned companies reported 7.6 million employees (6.4 percent of total employment) and generated $1.2 trillion in receipts (3.9 percent of all receipts). By contrast, men owned 13.9 million U.S. businesses (51.3 percent of all nonfarm businesses) in 2007, an increase of 5.5 percent from 2002. So, women-owned businesses grew four times as much as men-owned in the same period, even though men still own nearly twice as many businesses. It looks like more and more women are choosing to work for themselves, and it would come as no surprise to me if the reasons are largely the same: more personal freedom and control over one’s destiny.

For those women-owned businesses that are also small businesses, there’s some good news. And, by the way, the Federal government generally defines a small business as under 500 employees (some variation by industry), and since the majority of women-owned businesses have no employees, most qualify. (And why is this, you may ask. When I set out, limited resources were a big reason, but what persisted in keeping my company an employer of one for many years was my preoccupation with doing everything myself – a proclivity of many women entrepreneurs.)

So, what’s the good news? In February of 2011, the Small Business Administration (SBA) issued findings that some categories of small businesses are underrepresented in the federal contracting system, and has created new rules to identify these contractors and fast track the process to engage them. There are even mandated percentages of federal dollars that must be spent with small businesses: the Small Business Act requires 23% of Federal prime contract dollars to be awarded to small businesses, with awards of at least 5% of its prime and subcontract dollars to go to women-owned small businesses (WOSB). These contracting percentages are called “set asides” and are widely ridiculed in some circles. But the SBA explains their action this way: “without a specific set-aside mechanism, it was clear that agencies could not meet their goals… and ensure a level playing field on which such small businesses can compete for Federal contracting opportunities.” In other words, just because women are the sole owners of nearly a third of all businesses (and they co-own many more with male partners), they are not getting federal contracts at anywhere near that level. (And there are also similar SBA provisions for minority-owned small businesses, for the same reasons.)

My company recently became aware of these new rules and just completed the application process. We were surprised to find that the process is both straight-forward and fairly simple. The SBA has put together an excellent website that details what an applicant needs to know, and it is clearly linked to the related websites of the Central Contracting Registration (CCR) and the On-Line Representations and Certifications Application (ORCA). The program fact sheet from the SBA can be read here. So, if you are a woman who owns a business with fewer than 500 employees, you may want to check out this opportunity.

In these economic times, any leg up for small business is good news. One specifically for women, whose percent of federal business falls far short of their percentage of business ownership, calls for a hip hip hooray. At the same time, after 20 years in business, I was just a bit surprised that a program like this is still necessary.

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Net Neutrality: Who Should We Be Most Afraid Of?

March 10, 2011 Rebecca Reynolds Government, Law, Policy, Technology

The idea of open, accessible, unmoderated forums for discourse and exchange inspires me. Afterall, that is what I do for a living: I design processes that enable many people to engage in collaborative decision-making. That technology could push this process open even further, to many more people, to a borderless conversation, a churning think tank for innovation is a possibility I dream of. For this reason, I have been an increasing proponent of the growing internet trend toward social media.

I remember my first impressions of social media sometime around 2005, which were based on some vague awareness of Friendster or MySpace as being something for kids, akin to an electronic yearbook. Seeing absolutely zero utility to me and my world, I successfully ignored whatever “social media” might refer to. Some time later, I developed a more-than neutral impression based on the press and an episode of Law and Order that thinly disguised the Meghan Meier suicide case in its storyline. My neutral impression then became tainted by the sinister. I still, however, dismissed social media as largely irrelevant. (It’s plain to see, I have not been in the early-adopter crowd.)  I finally found my own personal application: communicating with my niece and nephew, then in their mid-teens, and set up a Facebook account.

Of course, before Facebook, I used Google and soon after discovered Wikipedia, both of which quickly became indispensible to both my work and personal use. YouTube came later, and I say with some chagrin, I have yet to post a video of my own. However, that’s not far off.

In the past year, I have watched, with the rest of the world, as Facebook, Twitter and YouTube have skyrocketed in prominence. Not only are they growing exponentially in users, but (and perhaps more importantly) they are also now celebrities themselves of film (“Social Network”), revolutions (Egypt), and new industry (social media technology and marketing). I have felt increasing enthusiasm over what these portals portend as possible…access, information, sharing, borderless society, innovation on a grand scale. And I have excitedly expanded who I follow on Twitter to open my world of ideas and awareness, which has meant more YouTube, more Googling, more Wikipedia visits, more trafficking in the social media world.

And in this journey into the new world, I have become vaguely aware of the growing concern about it. But it wasn’t until I attended a seminar on the First Amendment that I thrust myself into inquiry of exactly what is up. Well, a lot is.

For starters, there is a fundamental change in how ideas and communication flow. Fifty years ago (1961: the year I was born), Americans were happily ensconced in the TV era. This new mass medium had trumped radio and was being debated by then FCC chair, Newton Minow, as “a vast wasteland.” As a result, TV was mandated to provide programming aimed at the public good. I was raised in the age of  the ubiquitous cop show and rising sitcom, free from explicit violence, sex and bad language. Commercials for liquor and cigarettes disappeared in the mid-60s,  Mr. Rogers’ Neighborhood and Sesame Street gained in popularity, and the Fairness Doctrine was enforced. TV was nice, news was smart, and channels were few. And that’s the difference: there were few speakers, speaking through a handful of regulated distributors, to a mass audience.

With the onset (or onslaught, depending on how you view it) of cable, TV changed: many, many speakers, many barely regulated distributors (remember, FCC jurisdiction stops at airwaves), to a mass audience. And we began to see explicit sex, graphic violence, and hear profane language, all the more shocking since it was coming at us out of the previously known “bland box.” And then with the arrival of the internet, the number of speakers proliferated infinitely. We are now they: bloggers, tweeters, posters, commenters, and on and on. We have gained an open forum, so open sometimes it feels too open, like when I happen across some porn site or rabidly violent one, or a blog that is scathing in ways that make me uncomfortable and sad. We have lost our intermediaries – the media no longer can be counted on like dear old Walter Cronkite to bring us news we can trust, now we must sort it out for ourselves; we have lost our protectors – the FCC abandoned the Fairness Doctrine and now it seems like a true anachronism with its goal of ensuring a diversity of viewpoints in the midst of what often feels like a free-for-all. But most important of all, we have also seen a massive decrease in media distributors, or rather, in the number of them.

Think about it. Google owns YouTube, Facebook has supplanted MySpace and Friendster with 500 million users, Murdoch owns TV and newspaper, and Comcast owns cable and AT&T. A few distributors for what has become the most massive communications infrastructure the world has ever known. The question is, are these owners of telecomm channels (or “pipes,” as they are called) more like utilities or more like content providers? And who even cares? Well, you and I should.

Enter net neutrality. The idea is that the FCC should assert its authority to keep the pipes open and accessible - to ensure a diversity of viewpoints can be expressed. In other words, should Comcast be able to decide to whom they give access to cable programming or bandwidth? Should Google be able to screen or limit searches? Should Murdoch be able to cover only the stories he cares for, or what’s more, lie about those he does not? The idea behind net neutrality is that purveyors of access, such as Comcast broadband or Sprint or Google, should have to offer that access fairly. They should not be able to exercise their preference. Sounds reasonable. They are, after all, providing access to huge numbers of people through their monopolies. But the problem is that the FCC only has jurisdiction over public resources, that is airwaves (and also, interestingly enough, phone lines, because they are considered “common carriers”). So, while they can tell telephone and network TV companies to be even-handed, they don’t have the authority to dictate to the owners of cable lines, broadband or otherwise. Nor do they have jurisdiction over Google and its search engine. Makes for some interesting concerns now, doesn’t it?

And even if we decide (and by “we” I mean Congress) that we do want the FCC to regulate net neutrality for us – to stand between us and the big media pipe owners – what will that mean for freedom of speech? Will the government stray further into regulation of cable, the internet, and Google? And will that regulation be for our good or to our detriment? Was TV in the 60s, 70s, and 80s really representative of the diversity of viewpoints in this country? Hardly. But I sure feel right now that the big pipe owners need to be held to account by somebody so that they don’t get the idea that they are arbiters of what we know or don’t. However, then I got to thinking, what the heck is the difference anymore between government and big business? Is the line that bright? Can one watchdog the other? And the real rub is, who I want to watchdog whom is dictated by whomever I am most afraid of in any given context or in any given moment. Now that’s something to think about.

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