Relax, It’s Not the Thought Police

I get paid to defend unpopular speech. And, I’m the first to jump at the slightest hint of government censorship or coercion in the free market of ideas, as our recent comments critical of the IRS’s plans to regulate non-partisan political speech will attest.

But many conservatives are wrongly invoking the First Amendment to slam a survey of various media outlets, administered by the Federal Communications Commission, which is intended to collect information to help the FCC identify “critical information needs” in American communities. The survey’s findings will be central in efforts to maintain competition among newsrooms and protect viewpoint diversity, both crucial First Amendment values. (I’d also note that this is a case where the FCC is affirmatively trying to get a sense of the market before regulating, also a good move for speech.)

Complaints range. Some, like FCC Commissioner Ajit Pai, call it a latter-day “fairness doctrine,” the very old rule at the FCC that broadcast licensees had to cover and present both sides of controversial issues. Others have gone much further, going so far as to accuse the FCC of thought policing. As much as I’d like to join another strange bedfellows First Amendment alliance, both concerns are seriously overwrought.

Let me start with the fairness doctrine. The FCC implemented the rule in 1949, in the very early years of television. It was, in fact, the second year of the CBS Evening News, which pioneered the use of the now standard regular anchor. Market dynamics were much different. It was an age of extreme concentration in the fledgling television industry, and similar problems in radio.

As a result, the FCC implemented a policy with two prongs. One, licensees had to try and cover controversial public issues. Two, they had to present competing perspectives (though not necessarily on an equal footing). To be sure, the doctrine served an admirable purpose – avoiding monopolization of the airwaves by the supporters on one side of an important issue. Nevertheless, violations of the doctrine were backed up by a big stick: license revocation.

This is not that.

The FCC’s current plan is a confidential, anonymous survey of station managers, news editors, line reporters and others about whether the people who work in the newsroom feel that they are serving their market communities effectively. There is no mention, whatsoever, of any potential consequence for refusing to answer or for giving a particular answer. Indeed, the anonymity of the survey and disaggregation of the results guarantee that no respondent will face any retaliation for any response, and the survey will be conducted by an independent contractor to preserve that anonymity.

The thought police argument is more easily disposed of. The FCC does literally police thought by levying fines for broadcasters who air sexual, scatological or profane material, which, ironically, many of the conservatives calling foul here actually support. Again, this is not that. There is no enforcement threat. And there is nothing obvious on the face of the survey that will have a coercive effect on the content of the news.

Concededly, it’s certainly true that government laws and regulations seeking “voluntary” cooperation can censor or chill speech. But those cases of indirect coercion are relatively clear.

For instance, in one of the primary Supreme Court cases on the question, Bantam Books, a Rhode Island state commission on obscenity would regularly send notices to booksellers. The notices would ask the merchant’s “cooperation” in removing books that the commission had adjudged obscene, and noted, importantly, that the commission was duty-bound to report the merchant to the authorities for prosecution if they continued to sell the material at issue.

Similarly, we’ve strongly inveighed against the use of “soft” power by the government, most notably in the context of “voluntary” rating systems by the entertainment industry. There lawmakers ominously say: police yourself, or we’ll do it for you. Government can’t force voluntary cooperation to achieve a result that it wouldn’t be able to constitutionally achieve directly.

In any event, I do appreciate the sensitivity of a couple of the questions in the survey, which have since been removed at the direction of Chairman Wheeler. But, with the First Amendment, as important as it is to be vigilant, it’s also important to resist crying wolf. Too many are unfortunately doing so here.

Updated: Shortly after this post went up, the FCC announced that it wouldn't be surveying station owners, managers or reporters at all.  The analysis above, however, still stands.  While even indirect government coercion can offend the First Amendment, absent any coercion, the government is free to collect information to inform policy making (and does so all the time).

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bernie in New ...

"In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it." Syme, 1984 later executed

"State power in the shape of the Soviets takes all the printing presses and all the newsprint and distributes them equitably: the state should come first — in the interests of the majority of the people, the majority of the poor, particularly the majority of the peasants" VI Lenin
-- those peasants were later forcibly starved and collectivized against their will. They got neither the Land,Bread nor Peace promised them by the early Bolshevik slogans.

"Freedom of speech means freedom from interference, suppression or punitive action by the government—and nothing else." --Ayn Rand

""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, 1787. ME 6:57


We can now add the ACLU to the list of Obama Administration lapdogs. Apparently, the ACLU is only interested in protecting the rights and freedoms of Americans when it is the Republican Party who are at fault.


A subtle, "soft" way for the FCC to quietly intimidate independent media. I am disappointed in the ACLU position on this issue.


Nothing to see here, move along, ignore the use of the IRS to suppress voting for Obummers enemies, ignore the use of the NSA to spy on all Americans, ignore the arrest of a filmmaker who made an anti-obama movie, etc.
The FCC is from the Govt, they are here to help.

Vicki B.

That's just great and makes you look REALLY "intelligent" to quote Ayn Rand, who was a goddam FICTION writer, not some political pundit or guru to the world.
If I were going to quote someone I sure as hell wouldn't choose a FICTION author over someone who at the very least actually has knowledge in Political Science or Law. Unless it's Stephen King, but that's the exception to the rule.

I was raised in a Republican family but none of its members was EVER as rude as any of the "people" I see online. In fact, I've never met ANYone who talks in person the way people do online, and I'm fully sick of seeing what are probably no-account bullies running around acting like they're something they've never been in real life (only virtual existence) and lying to the whole damn world about themselves.
A bully is a scared little girl or boy hiding behind a curtain like the man in the movie 'The Wizard of Oz.' Even after he's exposed he continues to lie about it.

I have respect for people with different opinions.
Except when they choose to express it by like a bully or something else that's not the real them.

Iva Masters

Abuse of Power at Major University Defies Constitutional Rights of Straight A Grad Student.

Article by Rev. James Ramsey
and Iva Masters

I used to believe that American public universities were rock-solid bastions of intellectual freedom dedicated to the advancement of knowledge. Not any more. After two years of fruitless struggle against a university faculty determined to avoid dialogue and impose a “one-size-fits-all” agenda on mature and aspiring students, I have learned otherwise. ...The hard way.

On July 8th, 2013, I was expelled from my degree program at The University of Tennessee at Chattanooga, (UTC), by the School Psychology program faculty despite having completed 15 courses, (over three-quarters of the required coursework), with a cumulative 3.9 GPA, (and at the cost of around $60,000 plus, of investment and student loans in which I would be in debt for, into that education). My crime you ask? It is ultimately connected to my ability and inclination to think critically and creatively, and on occasion, even ask questions. In the face of intense pressure to conform my thinking to established patterns,
I had the audacity to think. ...(Sometimes outside 'the box' and /or to explore all possibilities.)

In 2010 at the age of 49, having already earned a Masters Degree, (from the same University), and following a successful 10-year career as a clinical mental health counselor, I decided to return to UTC to pursue a new career in school psychology.

I was accepted into the program on the basis of prior coursework and two previous degrees from the same institution, along with strong recommendations from previous UTC professors. There was nothing in my academic or professional background to indicate that I had anything but a bright future ahead in my newly chosen profession.
I began the School Psychology program with great enthusiasm; looking forward to a fulfilling learning experience and making a worthwhile intellectual contribution to the program.

I was progressing well with my studies, when nine months into the program I received an e-mail notification from the school's Psychology Program Director, Dr. Pamela Guess.
The e-mail contained a totally unexpected negative evaluation from faculty members in the same program. She had scheduled a meeting, (from which I had to miss work to attend), for the next day; and was asked if I had reviewed the evaluation.

When I attended this meeting, present were 2 other professors as well as Dr. Guess.
As I then would learn, this was something referred to as a “professional fitness review.”
In it, the program faculty members alleged that 'the philosophical views' I expressed in class and in response to course assignments were “incompatible” with those of a future school psychologist. More puzzling still was the assertion that I had been “unmindful” of the “impact” the sharing of my views would have on my fellow students; despite the fact that all views expressed were conducted in the context of legitimate class discussions.

Of course, as anyone would, I had questions as to how, why, and from which of my 'philosophical views' did they derive to the conclusion that would deem me, in their opinions, as unfit to become a school psychologist. ...Their response?
Dr. Ted Miller, expressed the subjective assertion that "we just don't feel that you would be happy in the role of a school psychologist." ...Excuse me? Funny, they did not seem to feel that way when charging me those tens of thousands of dollars for that education, or handing me my degree when I earned my Master's Degree from that same university; the whole time I was earning that degree there was never any mention whatsoever about any "professional fitness review" in the entire 4 plus years, (plus 2 years at another college), that I attended prior to that point. ...And to spite the fact I was earning straight “A” course grades, at a 3.9 GPA, in the advanced graduate degree program; (with a perfect attendance record), and co-authored a scholarly article that was to be published WITH one of the same professors attending that meeting, and serving on the UTC Graduate Student Association.

When asking these professors, (Dr. Pamela Guess, Dr. Ted Miller and Dr. James Tucker), specifically which viewpoints that they allegedly thought and referred to as "unmindful" and of such a negative "impact" to other students and/or were deemed as "incompatible with those of a future school psychologist," I was never given any answer; nor did my grades ever drop.

It certainly does not take a PhD to discern that there is something more concerning going on here other than merely "my philosophical viewpoints" all of a sudden. In fact, Mr. Magoo could see that there is definitely something wrong with this picture.
...Especially considering that I had already been serving successfully as a mental health counselor for over ten years already at that point.

To say these allegations were disheartening and completely unexpected is quite the understatement.
It was more like shock and awe; as well as obviously intellectually dishonest.
But that is not the point of my story.

The fall-out from this first "professional fitness evaluation" was to become a critical factor, not only in terms of my survival as a student in the program, but held the unchecked and unrestrained power to potentially completely end my education, not only at the University of Tennessee at Chattanooga, but any other university as well; and ultimately equate to 'black balling' me completely in my chosen profession. ...A profession that I had already invested six and a half years of college, 10 years as a mental health counselor, somewhere in the neighborhood of close to $60,000, (not counting interest), worth of student loans to repay, just to reach that point.
More shockingly, I later discovered that the outcome of these “fitness evaluations” could be used as the basis upon which the program faculty could remove ANY student from the program for ANY reason of their choosing. ...This, in and of itself is immensely troubling, and should be of serious concern for ANY student, or parent of ANY student considering investing great sums of money into their child's further education through the University of Tennessee at Chattanooga with this policy in place.

My 12-months long efforts to have the evaluation dismissed and the record corrected were completely ignored by the program faculty to the point where it became clear that they had made a conscious decision to purge me from the program.

As the problems mounted, I was faced with no choice but to lodge a formal grievance against the faculty with the university administration. The grievance process dragged on for eight more long months; being cursorily denied at every level, from the Director of the UTC School of Education, through two Deans and the University Chancellor-ultimately being denied by the President of The University of Tennessee system, Dr. Joseph DiPietro.
Even more disheartening was that all this occurred still without any member of the faculty or university administration ever addressing the substantive issues involved.

Ultimately, this reluctance to intervene provided the green light for the School Psychology program faculty to intensify their harassment toward me, and in March 2013, I received my 2nd 'professional fitness review' in which this time they questioned my “ethical fitness” on the basis of a paper I authored as part of a course assignment in which I offered a critical analysis of the Standards of Practice of the major professional organization, (NASP), that accredits American school psychology programs, and making the argument that those Standards were responsible for the virtual elimination of intellectual debate within NASP-accredited school psychology programs, such as I had experienced first-hand at UTC. Yet, even before attempting to write on this subject, I specifically asked Dr. Pamela Guests for permission to address this issue in that assignment, was in fact granted her permission, and I even received an A on that assignment by Dr. Pamela Guest herself!

If you think about it, isn't the elimination of intellectual debate, the free expression of ideas and questioning of establishments' rigid ideology pretty much exactly what the Soviets and Nazi did in their own educational systems? The only difference in this scenario is I was not threatened to be placed in a concentration camp or with facing a firing squad; I was threatened instead with the very real implied threat of losing the chance for furthering my education, (anywhere), my entire livelihood was definitely placed in jeopardy, and ultimately my entire future was at stake. ...Yet they had the nerve to question my ethics? And with this implied but very real threat firmly in place; does this not present a clear violation of my Constitutional rights under the First Amendment of freedom of expression AND infringe upon my Sixth Amendment (property), right, (in the form of my degree), basically holding it hostage unless I conform to their ideology without question? Definitely something to ponder if you are planning on furthering your education or planning to put your kids through school in this 'institution'. And to top it all off, they are doing this in a state and federally funded university! And the clincher is, don't think this could not happen to you, and ultimately as a tax payer, you would be paying for them to do so.
...And this would be right how?

From that point, the faculty therefore retaliated by using my open rebuttal to my second professional fitness review as a pretext to expel me from the program, making the ludicrous allegation that I constituted both "a physical and psychological threat” to the program. This too, was absolutely ridiculous, as at that time I had been an ordained and licensed minister for 17 years, (unbeknownst to them); and still am to this day. (...But nice try.) More importantly, if the faculty REALLY perceived me to be ANY form of 'threat', then WHY would they allow me, even for one moment longer, to stay in this program at that university? ...Let alone for almost two years, and while working with children.

If that were TRULY the case, it stands to reason that someone other than myself should seriously be the ones up for a "professional fitness review." ...To say the least!

For the record, at no time did I EVER make threats of any kind to anyone at UTC. This was simply a transparently engineered ruse fabricated by the faculty as an excuse to expel me from the program without which no possible other grounds existed. The faculty's reason for their false accusations of 'deeming me as a threat' came shortly after I shared with some fellow students what the faculty was trying to do to me, and I even did so via e-mail.

The final blow came in September 2013, as the UTC Chancellor summarily denied my final appeal.

In addition to the personal, professional and psychological damage I have sustained from the actions of The University of Tennessee at Chattanooga to my future educational and career prospects, the emotional toll this experience has taken on me, and the large sum of money I have paid in tuition and other expenses related to my studies in the program, the implications of UTC’s actions are staggering as we have in my case, evidence of a tax-payer supported university having infringed on my constitutionally guaranteed free-speech rights as a bona-fide graduate student in a publicly funded institution to express legitimate scholarly views. The academic free speech rights of all graduate students in public institutions of higher learning have thereby been threatened-and by extension, the foundations of our free, open, and democratic society.

Such institutional arrogance cannot go unanswered. Institutions of higher learning must be held accountable for their behavior when their actions contravene basic free speech rights of citizenship and trample on long held traditions of university scholarship. I am therefore seeking an attorney willing to represent me in a lawsuit against The University of Tennessee at Chattanooga aimed at securing justice and fair and adequate financial compensation for the damages I have sustained in this still unresolved situation. Full and complete documentation of the relevant details of my case are available.

This certainly also raises the question as to JUST HOW MANY OTHER STUDENTS have been charged tens of thousands of dollars for their education only to have the same thing done to them? If this has happened to YOU, we would be very interested in hearing from you in consideration of filing a class action lawsuit; as this sort of unchecked and unrestricted use of power should not be able to prevail in our tax funded education system.

The statute of limitations for filing my case in a court of law will expire on June 30th, 2014.
If you are an attorney who would consider representing me, please contact me at (423) 475-3382 or email me at at your earliest convenience.

And we promise to keep everyone posted throughout the press and media on any and all further developments concerning this case; as this is an issue that affects the future of us all.

The End.


I think it's awfully damn convenient that when conservatives invoke it suddenly it's "wrongly" done but not when Liberals do it.
That's TOO convenient if you ask me. Nobody's going to convince me there's never been a time in history when a Democrat did something and then "wrongly invoked" an Amendment to rationalize what they did.
I wouldn't be surprised if they were invoking one to continue drone killings.

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