After I posted something opposing Brett Kavanaugh’s nomination, I received this comment from someone who prefers not to be named:
I voted for Hillary and most Democrats. Hillary lost. Trump won. The Republicans won. They get to govern and part of governing is choosing and confirming a judges. You can voice opposition, but when you are not in the majority, there is little else you can do. You are best advised to stop tilting at windmills with meaningless protests, petitions, and propaganda and instead find better candidates, finance them, work your precincts, get out your vote, win your elections, and become the majority again.
US Supreme Court building, Washington, DC
This is my response:
1. A little history lesson. Judges on both sides of the spectrum have been successfully blocked if enough people see them as extremist. Nixon failed to get Hainsworth and Carswell. LBJ couldn’t get sitting SCOTUS Justice Abe Fortas into the Chief Justice seat. Reagan failed with Bork.
2. Kavanaugh’s positions on presidential power alone disqualify him as extremist. He wants to preclude any possibility that DT can be held accountable for his many crimes. Even some Republicans are saying Helsinki was treasonous. And DT was fully aware on the day he took office that he was violating the domestic and foreign emoluments clauses of the Constitution. And then there are DT’s consistent violations of so many other laws. (Click here for a listing of specifically criminal activity and here for an Atlantic Magazine piece on DT scandals, many of which involve criminal activity; both contain several source links–and both were published well before the current kerfluffle.) Since he is an Executive Branch absolutist, it would not surprise me if Kavanaugh even wanted to overturn 215 years of precedent and say that the courts have no power to declare something unconstitutional–something John Marshall created as Chief Justice during Thomas Jefferson’s presidency in his ruling in Marbury v. Madison, 1803 and does not actually appear in the Constitution. Right now, the courts are our best check on executive overreach or criminal behavior other than public pressure.
3. Lawrence Tribe, noted legal scholar, has stated that a president under investigation should not be allowed to appoint the person who will ultimately decide his fate. This has gained some traction and makes more sense to me than attempting to use the despicable McConnell precedent that allowed the theft of one seat from the Democrats (with the cooperation of Obama, who should have fought it much harder).
4. You talk about majorities. Let’s remember that even as weak a candidate as she was, Hillary won the popular vote with about 3,000,000 more than DT. If that group were a city, it would be bigger than the in-city-limits population of every city in the country other than NYC or L.A.. Bigger than Chicago or Houston, nearly twice as big as Philadelphia.
Why This Matters: A Metaphor for Something Much Deeper
Why am I going on about this? Why does it matter? Isn’t it just some people having fun making a feel-good film?
Answer: I do marketing and strategic profitability consulting for green and social change organizations, as well as for authors and publishers–and I’m also a lifelong activist. This combination of activism and marketing gives me another set of lenses to filter things, as well as a magnificent toolkit to make the world better. My activism also brings a strong sense of ethics into the marketing side.
Both as a marketer and an activist, I pay careful attention to how we motivate people to take action–to the psychology of messaging, One category for this post is psychology; click on that category to get posts going back many years. I worry deeply about our tendency as a society to crowd out facts with emotions. (I also worry about another tendency, to crowd out emotions with facts, but that’s a different post.)
And this is an example of crowding out facts with emotion. While this particular instance is innocuous as far as I can tell, we see examples of overreach on both the left and right, and they work to push us apart from each other, talk at each other instead of seeking common ground, and push real solutions farther and farther out of reach.
My inbox is full of scare-tactic emails from progressive, environmental, or Democratic Party organizations. Because I’m in the biz and understand what they’re doing, I leave most of them unopened. I just searched my unread emails for subject lines that contain the word “Breaking” and came with hundreds, including this one from a group called Win Without War:
An unarmed man with a small flag stops four Chinese tanks in Tiannanmen Square, Beijing,
It’s a clear attempt to generate hysteria, to have people perceiving tanks in the streets with their guns pointed at dissenters.
Only in the body of the email do we find out what’s really going on:
Shel —
Last night, the Washington Post broke the story that Donald Trump has ordered a giant military parade with tanks, guns, and troops taking over the streets of our nation’s capital. [1] This is the kind of parade that dictators around the world use to intimidate their enemies and, more importantly, their own citizens.
This is what authoritarian dictatorships look like.
But Trump can’t change the fact that we still live in a democracy — which means Washington, D.C.’s local government gets to have a say before Donald Trump’s tanks roll down its streets.
Note the use of mail merge software to appear personal. Does that really fool anybody anymore? But OK, even when you know it’s a mail merge, it still generates at least a small warm fuzzy.
More importantly, note that the actual content is totally different from the expectation in the headline. We can argue the foolishness of Trump wanting a military parade (I think it’s foolish, and an expensive attempt to stroke his ego)–but in no way is this the same as attacking demonstrators in the streets of Washington, DC.
The right wing is at least as bad. I don’t subscribe to their e-blasts, but I found this juicy example (with an introduction and then a rebuttal by the site hosting this post) in about ten seconds of searching.
And then there are DT’s own Tweets, news conferences, and speeches, both during the campaign and since he took the oath to uphold the constitution as President of the United States (an oath he has been in violation of every single day of his term). They are full of lies, misrepresentations, name-calling, bullying, and fear-mongering. They are hate speech. I will not give them legitimacy by quoting them here; they’re easy enough to find.
As a country, we are better than this..
How You Can “Vaccinate” Yourself Against Sensationalist Fear-mongering
Before sharing any news story or meme, run through a series of questions to help you identify if it’s real.And if it passes that test, pop on rumor-checking site Snopes and check its status. For that matter, go through a similar questions for advertising claims.
The questions will vary by the situation. Here are a few to get you started:
Does the post link to documentation? Are most of the linked sites reputable? If they advance a specific agenda, does the post disclose this? (Note that THIS post links to several reputable sites, including NPR, New York Times, history.com, Wikipedia, Youtube, Google, CNN, Snopes, and my own goingbeyondsustainability.com and greenandprofitable.com. Yes, I am aware of the issues in using Wikipedia or Youtube as the only source. I am also aware that Google gives them a tremendous amount of “link juice” because on the whole, they are considered authoritative. For both those citations, I had plenty of documentation from major news sites.) Strong documentation linking to known and respected sources is a sign to take the post seriously.
Does the post name-drop without specifics? See how the Win Without War letter mentions the Washington Post but leaves out the link? Remember that ancient email hoax citing longtime NPR reporter Nina Totenberg? Name-dropping to buy unsusbstantiated respect is not a good sign.
Are the language and tone calm and rational, or screaming and sensationalist or even salacious?
Is the post attributed? Can you easily contact the creator?
And last but far from least, the most important question: Who benefits from the post’s point of view ? What are their relationships to the post’s creator? (Hello, Russian trollbots!). Don’t just follow the money. Follow the power dynamics, too.
I could go on but you get the idea. Please share your reactions in the comments.
Parkland HS activists including David Hogg, left, and Emma Gonzales, in tank top. Photo courtesy of Wikimedia Commons.
Editor’s note: This was written back in February. I don’t know why I never hit Publish. Unfortunately, even the Parkland activists—as amazing and powerful as they are—even the mass rallies they organized, even the wide public outcry—has not ended the violence even at schools yet, though they’ve already made more progress than anyone has ever done on this issue. In Arizona alone, there were 17 shooting threats (not actual shootings) just between Valentine’s Day and March 10th. I hope their activism sparks a massive rejection in November of guns-uber-alles politicians.
Meanwhile, just in the past week, we’ve seen a merchant of hatred, the always-despicable Milo Yiannopoulos, call for “vigilantes” to attack journalists. Yiannopoulos was forced to backpedal, but this is getting even uglier. The crazies will take this stuff seriously. We’ve also seen consistent, repeated attacks against the press by the current occupant of the Oval Office. And we’ve seen a mass shooting inside a newspaper newsroom in Maryland. Everything Kropotkin says below about people who make death threats against child activists is true of those who attack journalists, too, and thus this post is more relevant than ever. Remember: when dictators take over, they start restricting the press.
Guest Post By Pyotr Kropotkin
In the wake of the horrible (and so could-have-been-avoided) shooting at Marjory Stoneman Douglas High School in Parkland, Florida, several of the surviving students have spoken out. In this short time, they’ve shown themselves as articulate spokespeople for common sense, and they are changing the conversation around the right to own any type of weapon versus the right to personal and public safety.
But despite the incredible trauma they’ve been through, quite a few people don’t think they should be speaking out. Some are even making death threats against these kids!
If you are making death threats against people just because you disagree with them, here are some of the things we know about you:
Somewhere along the way, you lost your compassion, lost your heart
You don’t understand the difference between freedom to and freedom from—that your freedom to shoot an assault rifle ends when it impinges on others’ freedom from attack
You are mentally or emotionally unbalanced and should not have access to firearms, because you’ve made a death threat against an innocent child who has done you no harm
You should be the subject of immediate criminal investigation, for threatening the life of another
You don’t love the Constitution—the 2nd Amendment is fine for you, but not the 1st Amendment, which protects the rights of free speech, free assembly, worship, and petitioning the government to redress grievances
You probably believe that an armed presence is a deterrent to violence—even though an armed deputy was outside Stoneman High, and even though the majority of people at Fort Hood the day of that massacre were armed
You might also believe that there’s some crazy government conspiracy to take away your guns so they can take away the rest of your freedom—even though even an assault rifle is no protection against tanks and howitzers
You like to feel powerful, and you think your assault rifles and your threats make you powerful (they don’t—they make you the equivalent of a two-year-old at playtime)
You’re a bully who thinks the way to succeed is by throwing your weight around and scaring other people
You probably have not experienced enough love in your life—and I feel sorry for you.
A remarkable document came out of the G7 summit. It’s a blueprint for creating a just, fair, and environmentally viable world. Leaders of the world’s most powerful industrial economies are coming together in unity and releasing a document that I agree with almost all of. Among other things, the G7 Charlevoix Declaration:
Affirms the rights of minorities (including indigenous people) and women
Positively addresses the conflict between Israel and Palestine, tension around Korea and Iran, Russian power grabs, and even the misery inflicted by Daesh (a/k/a the Islamic State)
Calls for worker protections
Promotes sustainable and democratic health care, economic growth, and even tax structures that benefit all
Has strong language urging protection of the earth and its resources
With nearly 50 years as an activist, I find it utterly amazing that the “Leaders of the Free World” can agree on a document of such scope. We could actually call it revolutionary. The leaders of nations–and, in other forums, many leaders of major corporations–are agreeing to a manifesto of people’s and planetary rights. I’m not really used to having them on my side.
This photo released by the German government sums up the US president’s attitude.
And of course, the fly in the ointment was the disgraceful behavior of the “world leader” who happens to be in charge of my own country right now. The barrage of in-person pouts and Twitter nastygrams including repudiating the statement he signed make me embarrassed once again that this cruel, mean-spirited, and incompetent person supposedly represents me. Sigh!
Back in 1995, I cast a vote that had long-lasting consequences. We all did.
I’m speaking, of course, of the vote to add the color blue to M&Ms. Looking back, I realize now that it was the Brexit of candy votes.
But let me back up. For most of my childhood, M&Ms were as colorfully bland and reassuring as a 1970s kitchen.
Just dark brown, tan, orange, yellow and green. No red. Those caused cancer.
But by the time the 90s rolled around, America was in full 70s rejection mode, and M&Ms decided it was time to add a new color to the fabled mix.
And we got to vote on what it would be: pink, purple, or blue.
It wasn’t much of a decision, really: pink or purple clearly didn’t “go” with the rest of that harvest goal palette. I mean, really.
And so blue won in a landslide.
But the day they made that announcement, they told us something they hadn’t told us before: this “new color” was going to… replace… TAN.
And all of a sudden, this silly little vote had real consequences (as far as candy colors go, at least). And I didn’t like those consequences.
And I really didn’t like that I didn’t know about this whole “sacrificial tan” thing ahead of time.
I have no idea what the real reason was for M&M’s leadership to sacrifice tan. But whatever the reason, apparently it was a decision they made BEFORE they announced the results of the vote… and likely before they even decided to have a vote at all… because they had already decided to get rid of tan.
And yes, one of the truths of leadership is that sometimes there are these binary either/or choices we have to make in order to make a successful change. Opening a new office here means not opening one there. Hiring this person means not hiring that one.
But binary choices aren’t the problem. The real problem is when a binary choice isn’t presented as one. When we don’t give people full information about the change they’re about to make.
Why? Because we — all of us — are not rational decision makers, we are rationalizing decision makers.
We make decisions based on how we feel in the moment… and then we go back and think about them.
Which means, no matter how good you may make a decision feel in the moment, once people start really thinking about it, those once-happy, once-accepting people… aren’t.
Because they’ll feel manipulated, not led. And every time they do, they’ll be just a little less willing to trust the next change you put in front of them.
Do it enough? And you’ve lost your ability to lead change entirely.
So what can we do?
In the case of M&Ms, one single line might have made the difference between me happily eating blue M&Ms and my carrying the torch for tan all these years…
Here it is: “We’ve decided it’s time to replace tan…but, now you can help us decide what color we add next.” It’s a small addition, but a critical one, because it shows both sides of the choice. And we can only fully embrace change when we fully understand it.
So, if you’re a leader or manager, don’t shy away from the truth. Tell it. And where possible, give people real options to choose from. I know the “real options” part isn’t always possible — that’s back to the hard truths of leadership.
But even telling people that helps them better understand a change, because they’ll better understand where you’re coming from. Either way, the change will be more successful as a result.
Andrew Johnson impeachment trial, 1860s (via Wikipedia)
I’ve got a few to add to his list.
Let’s not forget that the GOP considered lying an impeachable offense and stated proceedings against Bill Clinton on those grounds. DT lies constantly. It’s one thing he’s consistent about. The Washington Post documented more than 2000 in his first year in office.
Then there’s slander and libel, other things he’s consistent about. Every time he called one of his opponents adjectives like “Lyin'” or “Crooked,” that is actionable—slander if spoken, libel if written. Every time he smears entire classes of people, from those with disabilities to Mexicans to Muslims to, most recently, people from Haiti and Africa, he commits defamation anew.
There’s his open racism and discrimination against many protected groups, which is a violation of the oath he took to uphold laws that include the Americans with Disabilities Act and the various civil rights and free association laws. This has been a hallmark of his entire public career, and even earlier when he first went to work for his father—a man so known for his discriminatory renting policies that Fred T.’s tenant Woody Guthrie wrote songs condemning his landlord’s racism.
And then there’s the general question of DT competence, and whether we need to work a removal under the 25th Amendment (probably a good deal easier than impeachment). I consider him a sociopath and I worry that he and North Korea’s equally sociopathic Kim will get into a nuclear pissing contest. Oh yes, and the irregularities around voter disenfranchisement and ballot counting probably contain the seeds of impeachable offenses too.
Of course, I recognize the near-impossibility of winning a vote to impeach when both houses are controlled by people willing to accept the devil if the devil is a Republican. And I agree the prospect of a Pence presidency is scary. He’s smarter, far more stable, and well to the right of DT, plus he understands the game of politics.
But these are NOT reasons not to go forward. There comes a time when you have to say, “this behavior is unacceptable.” Otherwise we are a 3rd-rate banana republic with a strongman dictator—and the laughingstock/”scaringstock” of the world.
We said it to Nixon, who was far less appalling (and we got him out). We should have said it to George W. when he started a war against people who were not our enemy and destabilized the entire Middle East while also waging war on the freedom of Americans at home. We said it to Clinton for lying about his relationship with Monica, which had no impact on policy and just reinforced that he’s not a great human being.
I also believe that if DT is impeached, Pence will have limited ability to do harm. Among several possible scenarios:
Pence will go down with DT because DT takes him down
Pence will be implicated by others and not take power
He will assume the presidency but be seen as “damaged goods” and a lightweight, a short-term straw man like Gerald Ford, not worth giving much attention to
Pence will be much more circumspect, recognizing that his power has limits. A far worse scenario would be Pence becoming president after DT dies in office, and then he would not be in any way limited by the fate of his predecessor.
Finally, impeachment allows the Dems to differentiate themselves, which they’re not very good at outside the Northeast and Left Coast. By moving impeachment forward, quixotic though that is while the GOP has their majority, they take a stand in favor of decency, in favor of inclusivity, in favor of good government, and against corruption, “otherism,” crony politics, and all the rest—all of which can become campaign issues both this year and in 2020.
In other words, though it will fail in 2018, the impeachment attempt is an opportunity for the Democrats to show themselves as a party of principle, as a party willing to take risks, and as something considerably different from today’s Republican Party (a party that Lincoln, Theodore Roosevelt, Eisenhower, and even Reagan would not be welcome in today).
Needless to say, these kinds of behavior cause a great deal of skepticism about the virtue of supporting Democrats. Thus, mainstream Dems have to do something to win back the youth vote, the progressive vote, and those who just plain don’t like corruption and were left with no candidate they could support in November, 2016.
When Nancy Pelosi and Steny Hoyer say impeachment is not an option to pursue, the implicit messages to these folks include “Democrats are like Republicans but with but a nice veneer of soft fur so it won’t hurt quite so much”, “Blatant corruption and lawbreaking are OK with me”, and “the Democratic Party doesn’t really stand for the ideals on which this country was founded and will do nothing to protect them.” And the youth, the progressives, and those who believe in good government will once again stay home, and this vile creature will (perhaps honestly this time) win a second term.
Read this brief article. Then come back and let’s talk about it. This tab will still be open in your browser.
I found it a fascinating yet quick deep-dive into the liberal versus conservative mindset. Sharing this article on Facebook (where I happened to see it), Nathan Mackenzie Brown,founder of Really American commented,
A must read if you care about politics. FYI, it’s also very short.
My take away from this is, if you are liberal, don’t fear monger, even about Trump.
The authors’ central point is that when we feel personally secure, we tilt more liberal, and when we feel, threatened we lurch rightward. Not exactly rocket science, I know. But what they bring to the table is the idea that if we address the security concerns, the political tilt is actually reversible.
This is something that DT innately understands—the power of fear. He built his base by demonizing various Others. My capitalized O is intentional; I’m talking about whole groups and classes of people (Mexicans, Muslims, the press, etc..
It’s very rare to run a successful US national campaign rooted in fear. Reagan (“morning in America”) and Obama (“hope” and “change”) both won on optimism. Laughable as it seemed at the time and even more so in retrospect, Bush II ran as a “compassionate conservative.” Even Nixon ran on his “secret plan to end the war.”
But DT mixed a very pessimistic worldview, based largely in “they’re out to get us” with a soaringly optimistic slogan (MAGA). His opponent was a centrist with close ties to the groups DT was calling out.
Hillary Clinton also failed to consistently express strong political views, and tried to harness competing slogans at cross purposes: the wimpy and ineffectual “I’m with her” and the arrogant “it’s her turn”/”it’s our turn” both reinforcing the perception that she was an in-group, establishment figure out of touch with the public, while “stronger together” was somewhat optimistic but not really rooted in vision, and seemed a reaction to DT’s divisiveness.
George Lakoff and others have written that conservative politics are often rooted in an authoritarian-father mindset, while liberals are the products of permissive-parenting thinking. I have a number of issues with Lakoff’s approach, though I see much truth in it.
Left and Right come together at libertarian AND authoritarian (copyright 2018, Shel Horowitz, all rights reserved)
But let me add one of my own long-held theories: Beyond the Left-Right axis, we have to look at another set of operating principles: where someone stands on freedom vs. control. So at the top end of this graphic (which is copyright 2018 by Shel Horowitz, as is the entire post—please contact me if you’d like to reprint), progressive environmentalists and Tea Partiers concerned about wasteful government spending join together in the Green Scissors coalition.
At the bottom end, I don’t see a lot of difference between communists and fascists other than their idea of who should control the means of production. They are both totally willing to rough up or even (historically) mass-murder their opponents, seize or maintain power by force of arms, and crush dissent. Was Hitler really so different from Stalin?
Let’s get some good discussion going on this. Comment below.
Guest post from former Florida Congressman Alan Grayson. This originally ran in his email newsletter. I’m including all his original links and reprinting with his permission. I especially love this quote: “if you are a useless lout who has done nothing good for The People, but you still aspire to public office, then negative ads really are your only alternative.”
My son is doing a science experiment on politics and negative advertising. And the results are in. But first, a few words on negative ads.
They are pervasive. Back in 2012, virtually every dollar that the national parties spent on Congressional campaigns was spent on negative advertising. (Expenditures for and against candidates are reported to the FEC separately, so you can look it up.) It’s gotten a little better since then, but more than 90% of party and PAC advertising remains negative.
Belief in negative advertising is also pervasive. I can’t think of a single political leader or political consultant who would tell you that “positives” are more effective than “negatives.” We had an interesting example of this a few months ago. When GOP Senate Leader Mitch McConnell tried to elevate Luther Strange above Roy Moore and Mo Brooks in the Alabama Senate GOP Primary, he didn’t say anything good about Strange (apparently, a hopeless task). Instead, McConnell dumped $7 million of party money going negative on Moore and Brooks, which backfired when Moore got the GOP nomination. (And the rest . . . is history.)
Which proves that if you are a useless lout who has done nothing good for The People, but you still aspire to public office, then negative ads really are your only alternative.
So anyway, my son Stone, a 7th grader, came up with the idea that for his science project, he would try to measure the effectiveness of positive and negative ads. (He really came up with this himself. Smart kid.)
He created four positive ad posters for candidate Johnson, with suitable imagery:
JOHNSON FOR CLEAN AIR AND WATER!
JOHNSON STANDS FOR EQUALITY!
JOHNSON WILL IMPROVE EDUCATION!
JOHNSON WILL RAISE YOUR SALARY!
Each ended with the tag line “Vote for Johnson.”
Then he came up with four negative ad posters for Johnson’s opponent, Smith. They read this way:
JOHNSON IS A CROOK!
JOHNSON WILL RUIN THE ECONOMY!
JOHNSON WILL RAISE TAXES!
And the inevitable:
JOHNSON IS A COMMIE! (featuring a picture of Marx, Lenin and Mao).
Each ended with the tag line “Vote for Smith.”
So the 7th graders saw the posters, and voted as follows:
Johnson 19
Smith 12
When my son told me the results, I felt an enormous sense of relief. I really wanted Johnson to win, and not just because he’s a Commie. No, I wanted Johnson to win because his positive ads are an effort to convey to the voters the enormous power that we all have. What power? The power to make the world a better place, by making better rules for everyone.
That’s why I do it, anyway.
You can look at these results and feel a renewed faith in humanity. Or if not all humanity, at least seventh-graders.
“The Post” lives up to the hype. It takes a very cerebral story and builds it into high drama, spurred by strong performances from Meryl Streep as publisher Katharine Graham) and Tom Hanks (editor Ben Bradlee).
The overall message, about the power of the free press, and the need for the press to defend its Fist Amendment freedom, despite the whims of a paranoid and dictatorial president (Nixon, in this case—a different example today).
It tracks Daniel Ellsberg’s smuggling out massive quantities of classified documents from the Rand Corporation, where he worked, and releasing them first to the New York Times, and then to the Washington Post. The movie also dramatizes the frenetic effort throughout the newsroom to absorb the information and turn it into stories on very tight deadlines, not even knowing if the presses would run, while the Times suffered under the first pre-publication censorship of journalism in the history of the United States. Known as “The Pentagon Papers,” these documents proved that US high officials knew by the early 1960s that the war was unwinnable, and that presidents Eisenhower, Kennedy, Johnson, and Nixon all lied to the American people about it.
And it covers the legal battle: the government’s attempt to shut them down and the papers going all the way to the Supreme Court to secure their rights. The timing of these events happened to threaten The Post’s long-awaited IPO, which adds to the drama and the sense of what’s at stake for Graham, Bradlee, and their journalists.
BTW, just as the movie gives lessons on how to survive a paranoid, media-hating president facing serious doubts about his honesty, the Nixon link above focuses on some very interesting parallels between his presidency and that of the current occupant of 1600 Pennsylvania Avenue, Washington, DC. However, let’s remember the differences. Nixon had a very impressive record on the environment—I describe him as the president with America’s second-most environmentalist track record (behind Obama but ahead of both Jimmy Carter and Teddy Roosevelt) also, despite the Vietnam war, did much to break down the barriers between the US and both the Soviet Union and China.
Thank you, Commissioners Mignon Clyburn and Jessica Rosenworcel for speaking truth to power. Since this is published on the FCC website, Clyburn’s is an official federal document, and thus automatically in the public domain. Please reprint widely. Rosenworcel’s may be as well, but I found it on CNET so am linking, not reprinting.
Note: I met Commissioner Clyburn several years ago when she addressed a National Conference on Media Reform. I was impressed with her as a speaker Now I am impressed with her as a writer, too.
DISSENTING STATEMENT OF COMMISSIONER MIGNON CLYBURN Re: Destroying Internet Freedom, WC Docket No. 17-108
Dissenting FCC Commissioner Mignon Clyburn in 2014 (courtesy Wikipedia)
“I dissent. I dissent from this fiercely spun, legally lightweight, consumer-harming, corporate-enabling Destroying Internet Freedom Order.
“I dissent, because I am among the millions who is outraged. Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers. Why are we witnessing such an unprecedented groundswell of public support, for keeping the 2015 net neutrality protections in place? Because the public can plainly see, that a soon-to-be-toothless FCC is handing the keys to the internet — the internet, one of the most remarkable, empowering, enabling inventions of our lifetime — over to a handful of multibillion dollar corporations. And if past is prologue, those very same broadband internet service providers, that the majority says you should trust to do right by you, will put profits and shareholder returns above what is best for you.
“Each of us raised our right hands when we were sworn in as FCC Commissioners, took an oath and promised to uphold our duties and responsibilities ‘to make available, so far as possible, to all the people of the United States, without discrimination… a rapid, efficient, nationwide and worldwide wire and radio communication service with adequate facilities at reasonable charges.’ Today the FCC majority officially abandons that pledge and millions have taken note.
“I do not believe that there are any FCC or Congressional offices immune to the deluge of consumer outcry. We are even hearing about state and local offices fielding calls and what is always newsworthy is that at last count, five Republican Members of Congress went on the record in calling for a halt of today’s vote. Why such a bipartisan outcry? Because the large majority of Americans are in favor of keeping strong net neutrality rules in place. The sad thing about this commentary, it pains me to say, is what I can only describe as the new norm at the FCC: a majority that is ignoring the will of the people. A majority that will stand idly by while the people they serve lose.
“We have heard story after story of what net neutrality means to consumers and small businesses from places as diverse as Los Angeles’ Skid Row and Marietta, Ohio. I hold in my hand letters that plead with the FCC to keep our net neutrality rules in place but what is striking and in keeping with the new norm, despite the millions of comments, letters and calls received, this Order cites not even one. That speaks volumes about the direction the FCC is heading. That speaks volumes about just who is being heard.
“Sole proprietors, whose entire business model, depends on an open internet, are worried that the absence of clear and enforceable net neutrality protections will result in higher costs and fewer benefits because you see: they are not able to pay tolls for premium access. Even large online businesses have weighed in, expressing concern about being subject to added charges as they simply try to reach their own customers. Engineers have submitted comments including many of the internet’s pioneers, sharing with the FCC majority, the fundamentals of how the internet works because from where they sit, there is no way that an item like this would ever see the light of day, if the majority understood the platform some of them helped to create.
“I have heard from innovators, worried that we are standing up a mother-may-I regime, where the broadband provider becomes arbiter of acceptable online business models. And yes, I have heard from consumers, who are worried given that their broadband provider has already shown that they will charge inscrutable below-the-line fees, raise prices unexpectedly and put consumers on hold for hours at a time. Who will have their best interests at heart in a world without clear and enforceable rules overseen by an agency with clear enforcement authority? A toothless FCC?
“There has been a darker side to all of this over the past few weeks. Threats and intimidation. Personal attacks. Nazis cheering. Russian influence. Fake comments. Those are unacceptable. Some are illegal. They all are to be rejected. But what is also not acceptable is the FCC’s refusal to cooperate with state attorney general investigations, or allow evidence in the record that would undercut a preordained outcome.
“Many have asked, what happens next? How will all of this — net neutrality, my internet experience — look after today? My answer is simple. When the current protections are abandoned, and the rules that have been officially in place since 2015 are repealed, we will have a Cheshire cat version of net neutrality. We will be in a world where regulatory substance fades to black, and all that is left is a broadband provider’s toothy grin and those oh so comforting words: We have every incentive to do the right thing. What they will soon have is every incentive to do their own thing.
“Now the results of throwing out your net neutrality protections may not be felt right away. Most of us will get up tomorrow morning and over the next week wade through hundreds of headlines, turn away from those endless prognosticators and submerge ourselves in a sea of holiday bliss. But what we have wrought will one day be apparent and by then, when you really see what has changed, I fear, it may not only be too late to do anything about it, because there will be no agency empowered to address your concerns. This item insidiously ensures the FCC will never be able to fully grasp the harm it may have unleashed on the internet ecosystem. And that inability might lead decision-makers to conclude, that the next internet startup that failed to flourish and attempted to seek relief, simply had a bad business plan, when in fact what was missing was a level playing field online.
“Particularly damning is what today’s repeal will mean for marginalized groups, like communities of color, that rely on platforms like the internet to communicate, because traditional outlets do not consider their issues or concerns worthy of any coverage. It was through social media that the world first heard about Ferguson, Missouri, because legacy news outlets did not consider it important until the hashtag started trending. It has been through online video services that targeted entertainment has thrived, where stories are finally being told because those same programming were repeatedly rejected by mainstream distribution and media outlets. And it has been through secure messaging platforms, where activists have communicated and organized for justice without gatekeepers with differing opinions blocking them.
“Where will the next significant attack on internet freedom come from? Maybe from a broadband provider allowing its network to congest, making a high-traffic video provider ask what more can it pay to make the pain stop. That will never happen you say? Well it already has. The difference now, is the open question of what is stopping them? The difference after today’s vote, is that no one will be able to stop them.
“Maybe several providers will quietly roll out paid prioritization packages that enable deep-pocketed players to cut the queue. Maybe a vertically integrated broadband provider decides that it will favor its own apps and services. Or some high-value internet-of-things traffic will be subject to an additional fee. Maybe some of these actions will be cloaked under nondisclosure agreements and wrapped up in mandatory arbitration clauses so that it will be a breach of contract to disclose these publicly or take the provider to court over any wrongdoing. Some may say ‘Of Course this will never happen?” After today’s vote, what will be in place to stop them?
“What we do know, is that broadband providers did not even wait for the ink to dry on this Order before making their moves. One broadband provider, who had in the past promised to not engage in paid prioritization, has now quietly dropped that promise from its list of commitments on its website. What’s next? Blocking or throttling? That will never happen? After today’s vote, exactly who is the cop of the beat that can or will stop them?
“And just who will be impacted the most? Consumers and small businesses, that’s who. The internet continues to evolve and has become ever more critical for every participant in our 21st century ecosystem: Government services have migrated online, as have educational opportunities and job notices and applications, but at the same time, broadband providers have continued to consolidate, becoming bigger. They own their own content, they own media companies and they own or have an interest in other types of services.
“Why are millions so alarmed? Because they understand the risks this all poses and even those who may not know what Title II authority is, know that they will be at risk without it.
“I have been asking myself repeatedly, why the majority is so singularly focused on overturning these wildly popular rules? Is it simply because they felt that the 2015 net neutrality order, which threw out over 700 rules and dispensed with more than 25 provisions, was too heavy-handed? Is this a ploy to create a ‘need’ for legislation where there was none before? Or is it to establish uncertainty where little previously existed?
“Is it a tactic to undermine the net neutrality protections adopted in 2015 that are currently parked at the Supreme Court? You know, the same rules that were resoundingly upheld by the DC Circuit last year? No doubt, we will see a rush to the courthouse, asking the Supreme Court to vacate and remand the substantive rules we fought so hard for over the past few years, because today, the FCC uses legally suspect means to clear the decks of substantive protections for consumers and competition.
“It is abundantly clear why we see so much bad process with this item: because the fix was already in. There is no real mention of the thousands of net neutrality complaints filed by consumers. Why? The majority has refused to put them in the record while maintaining the rhetoric that there have been no real violations. Record evidence of the massive incentives and abilities of broadband providers to act in anti-competitive ways are missing from the docket? Why? Because they have refused to use the data and knowledge the agency does have, and has relied upon in the past to inform our merger reviews. As the majority has shown again and again, the views of individuals do not matter, including the views of those who care deeply about the substance, but are not Washington insiders.
“There is a basic fallacy underlying the majority’s actions and rhetoric today: the assumption of what is best for broadband providers is best for America. Breathless claims about unshackling broadband services from unnecessary regulation are only about ensuring that broadband providers have the keys to the internet. Assertions that this is merely a return to some imaginary status quo ante, cannot hide the fact, that this is the very first time that the FCC has disavowed substantive protections for consumers online.
“And when the current, 2015 net neutrality rules are laid to waste, we may be left with no single authority with the power to protect consumers. Now this Order loudly crows about handing over authority of broadband to the FTC, but what is absent from the Order and glossed over in that haphazardly issued afterthought of a Memorandum of Understanding or MOU, is that the FTC is an agency, with no technical expertise in telecommunications; the FTC is an agency that may not even have authority over broadband providers in the first instance; the FTC is an agency that if you can even reach that high bar of proving unfair or deceptive practices and that there is substantialconsumer injury, it will take years upon years to remedy. But don’t just take my word for it: even one of the FTC’s own Commissioners has articulated these very concerns. And if you’re wondering why the FCC is preempting state consumer protection laws in this item without notice, let me help you with a simple jingle that you can easily commit to memory: If it benefits industry, preemption is good; if it benefits consumers, preemption is bad.
“Reclassification of broadband will do more than wreak havoc on net neutrality. It will also undermine our universal service construct for years to come, something which the Order implicitly acknowledges. It will undermine the Lifeline program. It will weaken our ability to support robust broadband infrastructure deployment. And what we will soon find out, is what a broadband market unencumbered by robust consumer protections will look like. I suspect the result will not be pretty.
“I know there are many questions on the mind of Americans right now, including what the repeal of net neutrality will mean for them. To help answer outstanding questions I will host a town hall through Twitter next Tuesday at 2 p.m. ET. What saddens me is that the agency that is supposed to protect you is abandoning you, but what I am pleased to be able to say is the fight to save net neutrality does not end today. This agency does not have, the final word. Thank goodness.
“As I close my eulogy of our 2015 net neutrality rules, carefully crafted rules that struck an appropriate balance in providing consumer protections and enabling opportunities and investment, I take ironic comfort in the words of then Commissioner Pai from 2015, because I believe this will ring true about this Destroying Internet Freedom Order:
I am optimistic, that we will look back on today’s vote as an aberration, a temporary deviation from the bipartisan path, that has served us so well. I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered.
