Preventing Network Discrimination


In the last decade, and coincident with the advent of broadband Internet technology, Internet regulation has been the subject of intense public debate over network neutrality, a legislative concept designed to provide Internet consumer/producers the right to open and non-discriminatory access to the network.  At the heart of the debate is the determination of whether the Internet constitutes a commons, and if so, whether the commons needs to be regulated to protect equal and anti-discriminatory access in what is now, a largely privatized network.  Of course, the Internet is not the first privatized network that engendered the commons debate.  Arguably, while the Internet is a unique infrastructure in many respects, it also has significant similarities to earlier networks, such as roads, railroads, the telegraph, telephone networks, radio networks, and television networks (Blondheim, 2004).  Indeed, many of these networks created positive network externalities that constituted public goods, and as such were considered commons subjected to common carriage law, a form of regulating the network infrastructure to protect the public good.  Therefore, examining the Internet network neutrality debate through the lens of common carriage, while not new, is useful insofar as it centers the discussion on the firm foundation of historical precedent, and captures the essence of what is at stake.  As such, this paper will cover a brief historical background of common carriage, describe the application of common carriage principles in the early Internet, compare and contrast proposed network neutrality legislation with common carriage principles, and conclude with a considered recommendation advocating for network neutrality legislation.

Common Carriage Background

            Common carriage is a legal principle that intends “to guarantee that no customer seeking service upon reasonable demand, willing and able to pay the established price, however set, would be denied lawful use of the service or would otherwise be discriminated against (Noam, 1994, p. 436).  The origins of common carriage law predate English law and whose precursors “go back to the Roman Empire and the legal obligations of shipowners, innkeepers and stable keepers” (Noam, 1994, p. 437).  English common law supports the notion of common carriage, beginning with the 1701 case, Lane versus Cotton, in which Justice Holt asserted “that one in the public employment can not refuse the duty incumbent upon him and that there would thus be causes of action for a postmaster refusing a letter, inn keeper refusing a guest or blacksmith refusing to shoe a horse” (Moglen, 2009, p. 1).  As such, common carriage’s core principal is that of anti-discrimination.

Common carriage was applied in the United States initially as common law, most notably to regulate the activity of the railroads, in absence of specific congressional legislation governing interstate commerce (“Western Union Telegraph Co. v. Call Pub. Co.,” 1901).  In addition, common carriage was applied to the first U.S. telecommunications infrastructure, the telegraph network, as a result of discriminatory behavior by Western Union (“Western Union Telegraph Co. v. Call Pub. Co.,” 1901).  Western Union’s discriminatory practices extended far beyond choosing winners and losers in the open market; the company went so far as to practice censorship by choosing political sides and only offering the perspectives of candidates whose policies favored Western Union (Rock, 2012; Wu, 2006a).  As a result of this and other corporate abuses of monopoly power over the telecommunications network, common carriage over telecommunications was codified into law with Title II of the 1934 Communications Act (Noam, 1994).  Since then, regulated telephone companies have been generally referred to as ‘common carriers’ and as such, have the obligation to provide non-discriminatory access to telephone service across the nation, and in exchange are not held liable for the content of traffic across the network.

The Internet and Common Carriage

            To say that the Internet was created as a result of the common carriage principle of non-discrimination is not an overstatement.  There was a time, prior to the 1980s, when consumers had to purchase their telephones from a Bell company and were not allowed to attach any other device to their phone line (Wu, 2006b).  However, a series of court decisions, including the Hush-A-Phone and Carterfone decisions, led to the FCC to enact “a strong non-discrimination rule for consumer network equipment, and even blocked the regional Bell operating companies from offering such equipment” (Wu, 2006b, p. 33).  The rule sparked a new wave of commercial innovations that saw the development of fax machines and modems, antecedents of modern networking.

Moreover, principles of non-discrimination were built into the very architecture of the Internet.  According to Lessig and Lemley (2001), the design of both the Internet and it’s predecessor ARPANET were based on the end-to-end design principle which organizes the placement of intelligence at the ends, while making the communications protocols simple. “One consequence of this design is a principle of non-discrimination among applications” (Lessig & Lemley, 2001, p. 927).  In essence, the network is a highly sophisticated set of dumb pipes, in the sense that any network or device can interconnect to the Internet by following the basic communication protocols.  Of course, the last thing that cable and DSL providers want to be are ‘dumb pipes’ and therefore, many use a variety of strategies, including discrimination, to avoid becoming a commodity (Knowledge@Wharton, 2009).  Indeed, there is little to prevent broadband providers from using their monopoly power over the network to introduce discriminatory behaviors that favor their commercial interests.

The Internet and Net Neutrality

            The advent of the Internet has ushered in new era of debate over non-discrimination on the network, partly because with the Telecommunications Act of 1996, the FCC designated cable and DSL as ‘information services’, rather than telecommunications (United States. Congress., 1996), and as such, they are not designated as common carriers.  Moreover, freed from constraint, telecommunications providers have used their network power to discriminate against perceived threats.  For example, Telus Corporation blocked subscriber access to a Union website critical of their labor practices (CBC News, 2005).  In addition, Madison River Communications, a DSL provider, blocked subscriber access to Vonage, a company with voice-over-IP technology that allows subscribers to place calls over the Internet, rather than paying for traditional phone service (Sandvig, 2007).  Finally, Comcast Corporation intentionally blocked subscriber access to Bit Torrent, a popular peer-to-peer file sharing protocol (Weiser, 2009).  Nor is the discrimination likely to end any time soon.

For example, former AT&T Chairman and CEO Whitacre (BusinessWeek, 2005) described the motivation for AT&T to discriminate against Internet upstarts like Google, Vonage, and MSN, noting:

Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes? (p. 1)

It is not surprising, that when freed from the constraint of common carrier classification, broadband providers use discriminatory practices to create and sustain competitive advantage; it is in their nature to do so.

However, the Federal Communications Commission (2010) recently passed a set of Open Internet rules to address broadband discriminatory practices.  The Open Internet rules force broadband providers to be transparent about their network management practices, prevent the blocking of legal content, applications, services, or devices, and prevent unreasonable network discrimination (Federal Communications Commission, 2010).  While the rules appear to provide a basis for the FCC to deal with discriminatory practices, there are several problems worth exploring.

First, the FCC treats fixed broadband and wireless broadband differently, providing far more leeway for cellular providers to discriminate, particularly against competing services.  Second, there remains considerable question as to whether the FCC has the legal authority to enforce such rules, particularly given the FCC’s original classification of broadband as an ‘information service’.  In fact, the DC Court of Appeals, ruling on the Comcast and BitTorrent FCC decision, recently “struck down a federal rule that required broadband providers to keep their networks open” (Puzzanghera & Guynn, 2010, p. 1).  Furthermore, Senate Republicans recently attempted to put a bill on the floor to overturn the FCC’s Open Internet rules, however the bill was narrowly rejected (Puzzanghera, 2011).   It appears likely that the FCC Open Internet rules will continue to be challenged in the legislature and the judiciary until the Internet is treated legally as a commons.

Of course, the critical issue with the Open Internet rules is the lack of legal recognition of the Internet as a commons.  Instead, the emphasis is on the Internet is as an important commercial platform for innovation and growth that must be protected with administrative rules rather than law.  While the Open Internet rules are an important step in anti-discrimination, they fall short of common carriage law insofar as they fail to treat the Internet as a legal commons that produces a public good.  Moreover, the Open Internet rules are not a legislative solution and remain dependent on the support of the FCC.  This author suggests that the anti-discrimination principles inherent in network neutrality proposals come largely from the common carriage principles of earlier legislation.  Moreover, the current Open Internet rules contain important anti-discrimination principles, but lack the force of law.  This author recognizes that despite the progress inherent in the FCC rules, net neutrality legislation is required to assure a lasting solution that recognizes the importance of the Internet to public good.

Conclusion

            From the telegraph to the Internet, each new communication technology creates a similar debate.  To what degree does the network constitute a public good and require regulation as a commons?  In the past, common carriage laws have been used to assure that corporations are unable to use their network ownership to discriminate.  However, the recent net neutrality rules enacted by the FCC, while providing an administrative basis to prevent the worst forms of discrimination, falls far short of common carriage legislation of the past, and continues to be challenged by lawmakers and the judiciary.  Therefore, this author suggests that the fight against network discrimination has only just begun, until such a time where anti-discrimination law for the Internet is a reality.

 

 

 

References

Blondheim, M. (2004). Rehearsal for media regulation: Congress versus the telegraph-news monopoly, 1866-1900. Federal Communications Law Journal, 56(2), 300-328.

BusinessWeek, B. (2005). Online Extra: At SBC, It’s All About “Scale and Scope”, from http://www.businessweek.com/stories/2005-11-06/online-extra-at-sbc-its-all-about-scale-and-scope

CBC News. (2005, July 24). Telus cuts subscriber access to pro-union website, from http://www.cbc.ca/news/canada/story/2005/07/24/telus-sites050724.html

Federal Communications Commission. (2010). Report and Order: In the Matter of Preserving the Open Internet Broadband Indusrty Practices.  Washington, DC: FCC, Retrieved from http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-201A1_Rcd.pdf.

Knowledge@Wharton. (2009, December 9). Comcast-NBC Universal: Will the Marriage of Cable and Content Work?  , from http://knowledge.wharton.upenn.edu/article.cfm?articleid=2401

Lessig, L., & Lemley, M. (2001). The end of end-to-end: Preserving the architecture of the Internet in the broadband era. UCLA Law Review, 48, 925-987.

Moglen, E. (2009, February 2). Lane v. Cotton, from http://moglen.law.columbia.edu/twiki/bin/view/EngLegalHist/LanevCotton

Noam, E. M. (1994). Beyond liberalization II: The impending doom of common carriage. Telecommunications Policy, 18(6), 435-452.

Puzzanghera, J. (2011). Senate rejects attempt to overturn FCC’s net neutrality, from http://latimesblogs.latimes.com/technology/2011/11/senate-net-neutrality-vote-.html

Puzzanghera, J., & Guynn, J. (2010). Appeals court overturns FCC rule on net neutrality, from http://articles.latimes.com/2010/apr/07/business/la-fi-fcc-comcast7-2010apr07

Rock, R. (2012). What Hath God Wrought: Commonality Between the Telegraph and the Internet [1-6]. Essay Retrieved from https://journey24pointoh.com/2012/09/05/what-hath-god-wrought-commonality-between-the-telegraph-and-the-internet/

Sandvig, C. (2007). Network neutrality is the new common carriage. info, 9(2/3), 136-147.

United States. Congress. (1996). Telecommunications Act of 1996. (0160534887). Washington DC: U.S. G.P.O. : For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office Retrieved from http://transition.fcc.gov/Reports/tcom1996.pdf.

Weiser, P. J. (2009). The future of Internet regulation. University of California, Davis Law Review, 43, 529-590.

Western Union Telegraph Co. v. Call Pub. Co., No. 181 U.S. 92  (U.S. Supreme Court 1901).

Network neutrality: Competition, innovation, and nondiscriminatory access, United States Congress 1-7 (2006a).

Wu, T. (2006b). Why have telecommunications law? Anti-discrimination norms in communications. Journal on Telecom and High Tech, 5(7), 15-46.

 

 


Agency and Structure at Work in Municipal Wireless Broadband Adoption


Community owned and operated wireless broadband is one of the fronts in a widespread battle over the future what Benkler (2006) considers the ‘institutional ecology’ of the Internet, or all of the social, political, and economic constitutive choices faced by society as it grapples with the implications of the network.  In essence, the series of choices and decisions will determine the extent of agency and constraint, as described by Croteau, Hoynes, and Milan (2012), provided or imposed over various public and private stakeholders in institutional ecology of the network.  The future of municipal wireless broadband represents one such choice faced by society with important implications for the future of network access.

According to the FCC (2011), “broadband is a foundation
for economic growth, job creation, global competitiveness and a better way of life” (p. xi).  Yet, the FCC (2011) also notes that more than 100 million Americans lack broadband access at home, roughly a third of the country.  Benkler (2006) describes the problem as a last mile problem, meaning the last mile to the home is often the most expensive mile for infrastructure providers, particularly in rural areas, or urban areas that lack an economically attractive demographic for private industry.  Moreover, Benkler (2006) advocates the buildout of municipal wireless broadband because of the positive externalities that municipalities have to gain, such as increased economic growth, improved healthcare, or lower unemployment.  Indeed, Ferree (2011), investigated the impact of broadband adoption on employment rates and unemployment, finding that  “broadband adoption has a positive impact on a county’s employment growth rate and a negative impact on a county’s unemployment rate” (p. 34).  In addition, Kolko (2006) found significant evidence of a persistent digital divide, particularly in low-income urban areas.  Moreover, Kolko’s (2006) study suggested strong evidence that increased urban broadband use translated to users seeking healthcare information online.  Thus, municipal wireless broadband can be a particularly attractive solution for both urban and rural areas suffering from the digital divide, and can create positive externalities for municipalities seeking to improve their communities.  What stands in the way?

In The National Broadband Plan, the FCC (2011) acknowledges the challenge in municipal broadband wireless deployments as a policy issue, resolving to “clarify the congressional mandate allowing state and local entities to provide broadband in their communities and do so in ways that use public resources more effectively” (p. xii).   The congressional mandate referenced is none other than the Telecommunications Act of 1996, which states that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (United States. Congress., 1996, Section 253).  Despite the clarity of the law, municipalities seeking to implement municipal broadband networks, have faced intense political and legal challenges from telecommunications industry actors.  The city of Abilene, Texas sought to implement a broadband network, however was prevented from doing so, given Southwestern Bell “persuaded the Texas legislature to pass a law that prohibited local governments from providing high-speed Internet access” (Benkler, 2006, p. 407).  After appeal, the Federal Appeals Court in Washington D.C. ruled that ‘any’ did not mean municipalities and the city was prevented from moving forward (Benkler, 2006).  This is but one example of the constraints faced by municipalities in seeking the derive the positive externalities of broadband by implementing their own network in the face of tension from corporate interests.

Of course, telecommunications corporations do not want to see the rise of municipal broadband because of the challenge to their oligopoly.  Therefore, there are intense efforts at lobbying underway.  Comcast Corporation, one of the largest broadband providers in the nation, is also one of the nations largest lobbying spenders, spending nearly $20M in 2011 alone (OpenSecrets.org, 2012).  Moreover, Comcast sits on the Communications and Technology Board of the American Legislative Exchange Council, a conservative, free market bill mill that produces draft bills for federal and state legislators (sourcewatch.org, 2012).  ALEC’s position on municipal broadband favors the telecommunication’s industry arguing that municipal broadband networks could negatively affect free markets and “erode consumer choice by making markets less attractive to competition because of the government’s expanded role as a service provider (ALEC, 2012, p. 1).  However, Sadowski and De Pender (2009) found that the presence of municipal broadband actually increased competition.  It appears to this author that the arguments against municipal broadband by telecommunications providers are more oriented towards preserving their interests rather than serving the public interest, which is exactly what a publicly-owned corporation should do.  In fact, the reason the digital divide exists, is because telecommunications providers have serviced the segment of the population that can afford broadband, a behavior that is expected.  However, their desire to constrain the agency of municipalities that are not being served is both self-serving and an obstruction of social and economic progress.

References

ALEC. (2012). Communications and Technology  Retrieved August 12,, 2012, from http://www.alec.org/task-forces/telecommunications-and-information-technology/

Benkler, Y. (2006). The wealth of networks : how social production transforms markets and freedom. New Haven Conn.: Yale University Press.

Croteau, D., Hoynes, W., & Milan, S. (2012). Media/society : industries, images, and audiences (4th ed.). Thousand Oaks, Calif.: SAGE.

FCC. (2011). Connecting American: The National Broadband Plan.  Washington DC: FCC Retrieved from http://download.broadband.gov/plan/national-broadband-plan.pdf.

Ferree, P. E. (2011). The effect of broadband Internet adoption on local labor markets. Master Public Policy in Public Policy, Georgetown University, Georgetown. Retrieved from https://repository.library.georgetown.edu/bitstream/handle/10822/553724/ferreePaul.pdf?sequence=1

Kolko, J. (2006). Why should cities provide wireless broadband access? Paper presented at the Telecommunications Policy Research Conference. Available at SSRN: http://ssrn.com/abstract=2104394

OpenSecrets.org. (2012). Lobbying Spending Database: Top Spenders  Retrieved August 12,, 2012, from http://www.opensecrets.org/lobby/top.php?showYear=2011&indexType=s

Sadowski, B. M., & De Pender, M. (2009). Do municipal broadband networks foster network competition?: Case study evidence from the Netherlands. Paper presented at the Telecommunications Policy Research Conference. Available at SSRN: http://ssrn.com/abstract=1999842

sourcewatch.org. (2012). Comcast Corporation – SourceWatch  Retrieved August 12,, 2012, from http://www.sourcewatch.org/index.php?title=Comcast

United States. Congress. (1996). Telecommunications Act of 1996. (0160534887). Washington DC: U.S. G.P.O. : For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office Retrieved from http://transition.fcc.gov/Reports/tcom1996.pdf.


Sport, Politics, and the Media: A Defining Moment at the 1968 Olympics


The 1968 Olympics in Mexico City was the setting of one of the most dramatic symbolic protests in Olympics history.  Set during the turbulent 1960s, within the backdrop of the civil rights, feminism, and anti-war movements in the United States, U.S. track athletes Tommie Smith and John Carlos, winners of the Gold and Bronze medal in the 200M, used the Olympic podium in symbolic protest against structural social inequality in the U.S. and abroad (Bass, 2002).  Their raised fists and shoeless feet represented the unfinished business of the civil rights movement and defied the dominant narrative of U.S. democracy, highlighting the continued need for structural change in the social and economic institutions of the United States.  As a result, there was an immediate backlash as powerful forces discredited the legitimacy and relevance of the act (Zirin, 2008).  While Smith and Carlos are largely revered in the popular media discourse today (Brown, 2012) for their courage and prominence in the civil rights movement, their symbolic act had serious economic and social consequences for the athletes (Small & Zirin, 2008).  Moreover, structural inequality remains a pervasive social issue in the United States.  Examination of the social, political, economic, and cultural circumstances, leading up to and following the protest have explanatory power to address important questions about the use of the Olympic media event as a force for social change.  What was the role of media as a force for change?  What forces shaped the symbolic moment and how do those forces apply today?  Finally, do the Olympics remain a platform for change by activist athletes?  Examining these questions using a critical cultural lens, this author contends that while the Olympics remain an attractive media platform for protest, the consequences of protest by activist athletes are higher than ever, with strong inducements to assure that the Olympic stage is preserved for state and commercial actors and their dominant narratives.

Background

            The now-famous black power salute on the Olympic podium was not a spontaneous event, but rather a carefully planned and orchestrated protest with roots in the Black Freedom movement, heavily influenced by civil rights leaders and sociologist Harry Edwards, a professor at San Jose State University (Bass, 2002; Small & Zirin, 2008).  Both Tommie Smith and Juan Carlos were track stars at San Jose State University, where they became radicalized by Harry Edwards and became involved in black militant groups (Small & Zirin, 2008).  Influenced heavily by Muhammad Ali’s use of sport as a platform for civil rights, chance remarks by Tommie Smith may have precipitated events by postulating the possibility of an Olympic boycott by black athletes during an interview at the World University Games in Tokyo (BBC, 2012).  This pseudo-event caused significant media controversy that played out over subsequent months, leading to the formation of Olympic Project for Human Rights, an organized effort advocating the boycott of the 1968 by U.S. black athletes (Bass, 2002).

The proposed boycott received considerable media attention, usually expressed in terms of national outrage, drawing the criticism and ire of Avery Brundage, head of the International Olympic committee (Hartmann, 1996).   In contrast, the proposed boycott received the endorsement and support of notable blacks athletes and civil rights leaders, including Martin Luther King Jr., Lew Alcindor, Louie Lomax, Jacky Robinson, Stokely Carmichael, and Muhammad Ali (Bass, 2002; Earp, 2011; Hartmann, 1996).  With the support of the civil rights movement, the OPHR published a list of demands that included the restoration of Muhammad Ali’s boxing title, the removal of Brundage as head of the IOC, the exclusion of apartheid countries from the 1968 Olympics, desegregation of the New York City Athletic Club, and the placement of black coaches and administrators onto the U.S. Olympic Committee (Hartmann, 1996).  While the boycott and the subsequent demands attracted a great deal of media coverage and public outcry, the proposed boycott failed to receive the needed support from African American Olympic athletes and never materialized (Bass, 2002).  The reason that loomed largest “was that athletes who had trained their whole lives for their Olympic moment quite understandably didn’t want to give it up” (Zirin, 2008)  However, the stage had been set for the Olympic protest.

On October 16, 1968, Tommie Smith won Olympic gold in the 200M sprint and John Carlos won the bronze.  The athletes stepped up to the podium, in front of a global audience of nearly 400 million people wearing “black stockings but no shoes, a black glove on one hand, and Smith had a black scarf around his neck…as the Star-Spangled Banner began, Smith and Carlos bowed their heads and simultaneously raised a black-gloved fist” (Bass, 2002, p. 240).  The pair received immediate condemnation from the crowd as the audience began to boo and hiss (Bass, 2002).  During an interview with Howard Cosell (1968), Smith would later comment on the symbology of the moment, explaining:

The right glove that I wore on my right hand signified the power within black America.  The left glove my teammate John Carlos wore on his left hand made an arc with my right hand and his left hand also to signify black unity.  The scarf that was worn around my neck signified blackness.  John Carlos and me wore socks, black socks, without shoes, to also signify our poverty.

Within two days, the IOC expelled the two athletes from the Olympic village and banned them from further Olympic competition.

Upon return to the United States, the athletes were greeted as heroes by San Jose State University and members of the black militant movement, but were largely condemned by the national press, and specifically sports journalists (Hartmann, 1996).  For example, Brent Musburger, a sports columnist for the Chicago American wrote (Zirin, 2008):

One gets a little tired of having the United States run down by athletes who are enjoying themselves at the expense of their country.  Protesting and working constructively against racism in the United States is one thing, but airing one’s dirty clothing before the entire world during a fun-and-games tournament was no more than a juvenile gesture by a couple of athletes who should have known better. (p. 1)

Moreover, Musburger described the pair as “a couple of dark-skinned stormtroopers” (Zirin, 2008, p. 1).  The near universal condemnation of the protest had severe social and economic repercussions for the athletes, as former job offers and career prospects evaporated (Small & Zirin, 2008).  According to Small and Zirin (2008), “Their athletic careers were ruined. For years, they received death threats and were treated like traitors to their country. They couldn’t find good jobs” (p. 1).  As a result of their protest, Smith and Carlos were to lead their lives without the cultural or economic capital typified by most successful Olympic athletes.

The Possibilities of the Olympic Stage

            The Olympics have long been an attractive venue for political statements and protests since the first modern Olympics were held in Athens (Cotrell & Nelson, 2010).  The venues attractiveness stems from of the high-profile nature of the global event, the events accessibility, the availability of transnational allies or supporters, and the “symbolic meaning that facilitates collective claim-making and widens political opportunity” (Cotrell & Nelson, 2010, p. 5).  As such, the Olympics of 1968 must have been a near irresistible opportunity for actors in the civil rights movement.  In particular, the list of OPHR demands suggests the activist organization was well aware of the opportunity, given their linkage of the U.S. civil rights movement and international apartheid.  Moreover, OPHR was likely well aware of the power of the Olympic stage, given lessons learned from the early civil rights movement in the South.

Indeed, the early civil rights movement was a brilliantly executed media campaign whose beginning coincided with the full penetration of network television and the rise of television news broadcasting (Bodroghkozy, 2008).  Television beamed dramatic images of racial injustice and civil unrest directly into the living rooms of most Americans, who hitherto had remained unaffected by the civil rights movement.  The non-violent direct action March from Selma to Montgomery serves as a case in point.  The event, labeled ‘Bloody Sunday’, with images of peaceful protesters being run down by armed troopers on horseback, spurred hundreds of individuals to head to Selma and prompted quick reaction by legislators (Lee, 2002).  Furthermore, the situation caused one network’s Washington news chief to remark, “Negroes are the architects, bricklayers, carpenters, and welders of this revolution. Television is their chosen instrument” (Monroe, 1967, p. 83).  In this sense, “television appears to put all aspects of social experience on show to all, without distinction” (McQuail, 2010, p. 125).  Undoubtedly, the new mass medium appeared to hold considerable power to raise awareness of the plight of African Americans and spur change, a lesson not lost on OPHR.

Forces Shaping the Symbolic Salute

            It is likely the OPHR was aware not only of the global audience reach of the Olympics, but also of the event’s symbolic power in the ideology of liberal democracy.  According the Olympic Charter, “The goal of Olympism is to place sport at the service of the harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity” (International Olympic Committee, 2011, p. 10).  Despite the IOC charter, the IOC condemned the OPHR’s proposed boycott, arguing that there was no place for politics in the Olympics (Zirin, 2008).  Furthermore, the IOC used various tactics to shut down the boycott and silence OPHR, including sending Jesse Owens to attempt to discredit the organization. (Zirin, 2008).  Not only was the IOC a powerful organization, but in the eyes of the movement, a hypocritical organization.

In addition, the Olympics were an important symbolic event for the United States and African American athletes were an equally important part of the U.S. Olympic narrative (Earp, 2011).  However, Harry Edwards, OPHR’s leader, and both Smith and Carlos determined to undermine the hypocrisy of African American athletes being used to support a narrative that collided with their lived experience (Earp, 2011).   Moreover, the OPHR’s rejection of American Dream rhetoric was important in an international context, given 1968 was considered the height of the Cold War.  While both Jesse Owens and Jackie Robinson were popular culture examples of the dominant narrative, OPHR challenged the narrative in their founding statement (Zirin, 2008):

We must no longer allow this country to use … a few “Negroes” to point out to the world how much progress she has made in solving her racial problems when the oppression of Afro-Americans is greater than it ever was. We must no longer allow the Sports World to pat itself on the back as a citadel of racial justice when the racial injustices of the sports industry are infamously legendary. (p. 1)

It is therefore, little surprise, that the protest took symbolic shape.

Bass (2002) described the protest in terms of symbolic violence, an action that “dislocated the normative staging of the nation as well as the sprinters’ own place as national subjects….it quickly became a powerful symbol that both inspired and intimidated and simultaneously acknowledged the lack of power of many more (p. 4).   However, the protest was made up of both powerful symbols, but brilliant staging.  For example, MacAloon (1982) notes that the Olympics hold no place to represent “subnational group identities of race, ethnicity, or ideology that are for many, the core of their beings” (MacAloon, 1982, p. 108).  It was into this gap, that Smith and Carlos were able to insert powerful cultural symbols, the raised fist juxtaposed over the playing of the ideological normative Star-Spangled Banner, forcing a global audience to consider the condition of U.S. African Americans for the entire length of the song.  It is little wonder the protest created such a backlash and yet, remains in collective consciousness more than forty-four years later.

Implications for Today

Despite the Olympics being notoriously political, the Olympic charter remains opposed to demonstration, ruling, “No kind of demonstration or political, religious or racial propaganda is permitted” (International Olympic Committee, 2011).  Of course, the IOC’s stance is not surprising given the growing political and economic importance of the Olympic games.   As a case in point, the 2012 London Olympics had the largest global viewing audience for any event on record (CNN, 2012).  More importantly, the bulk of the IOC’s considerable revenue comes from the license of media rights; NBC for example, paid more than $1.2 billion for the exclusive right to broadcast the London Olympics in the U.S. market (Associated Press, 2008).  Cotrell and Nelson (2010) suggest that the scope and size of the modern Olympics has much to do with the IOC’s steadfast resistance to the politicization of the Olympics, noting:

Protecting the brand, some contend, is less about promoting the Olympic spirit and more about simply making money. From this perspective, the contemporary IOC acts as a corporate entity that is, in fact, very political — engaging in precisely the type of behavior that the Charter prohibits. (p. 16)

Viewed in the commercial sense, the IOC can be viewed as a corporate entity that has the exclusive right to commodify the Olympics and the associated international rivalry that plays out on the Olympic stage, the very commodification Smith and Carlos objected to.

Moreover, in the intervening years since 1968, the commercialization of sport in general has increased significantly (Earp, 2011).  In the post-Michael Jordon era, successful Olympic athletes like Michael Phelps can earn endorsement deals northwards of $100 million (Mackey, 2012).  That is 100 million reasons to be careful not to challenge the dominant narratives posited by the IOC or an athlete’s representative nation.  A great Olympic example of the power of the commercialization of sport over an athlete’s media behavior occurred during the 1992 Olympics in Barcelona with the media-savvy Michael Jordan.  As a Nike brand spokesman wearing an Olympic jersey made by Reebok, Jordan took care to mount the Olympic podium with an American Flag draped over the offending brand label, rather than risk the ire of Nike (Earp, 2011).  The contrast between Jordan’s symbolic gesture and Smith and Carlos’s black power salute testifies to the power of the commercialization of sport.

Of course, the growing audience and salience of the Olympics all but assure the venue will continue to be the target of protests.  Indeed, Cotrell and Nelson (2010) find that the incident of protests are rising, however, the character of the protests are changing from the nation versus nation boycotts typified during the Cold War, and protests seeking domestic policy change, like that of Smith and Carlos, to protest of transnational issues such as globalization or the environment.  In addition, while the IOC has maintained firm resistance against such activities, host nations are becoming more adept at managing protests by providing specific zones for activist to operate within (Cotrell & Nelson, 2010).  The changing nature of Olympic protest, the growing commercialization of sport, and the growing sophistication of protest management techniques, appear to negate the likelihood of a similarly powerful protest occurring in future Olympiads.  What does this say about the future of the tripartite public sphere that has emerged in sport, politics, and the media?

It seems the implications are grim for would-be activists that seek to use the Olympic stage as a platform for social change and participatory democracy.  The array of political and economic forces surrounding the Olympics, are oriented in such a way as to assure that the narratives remain shaped by commercial and state actors.  In this sense, there is little room for the collective action frames typified in the notion of participatory democracy, rather the environment is more suitable for the notion of limited citizenship (Gamson, 2001).  Even in the era of new media, this author wonders whether the networked public sphere enabled by new media can moderate the effects of the economic and political forces that shape Olympic discourse.  As a case in point, the most dramatic social media protest of the London Olympics had to do with the NBC broadcast and issues arising from their handling of time zones and web streaming of live events, (Deitsch, 2012); not exactly a call for sweeping social change.

However, despite the challenges of political demonstration at the Olympics, there is some reason for hope that Smith and Carlos’ legacy remains an example for others.  During the London Olympics, in the backdrop of the IOC’s refusal to permit a moment of silence for the victims of the Munich Olympic terrorist attacks, French swimmer, Fabien Gilot, sported a very visible Hebrew tattoo on his left arm in commemoration of his Jewish grandfather and Holocaust survivor, that said ‘I am nothing without them’ (Lebrecht, 2012).  While it is not known whether the tattoo was in direct response to the IOC refusal, the widespread coverage of the tattoo suggests that cultural symbols retain their power in an Olympic setting.

Source Evaluation

            While this author used a wide variety of sources from both the popular press and scholarly research, there were several scholarly sources whose inclusion informed the theoretical perspectives presented in this paper, and as such, warrant brief comment.  Bass’ (2002) work utilized a critical culturist perspective in examining the events leading up to and following the black power salute.  Likewise, Hartmann (1996) follows a similar path.  Bodroghkozy (2008) appears to examine the role of television in the civil rights movement using medium theory to illuminate how the specific attributes of network television supported the movement.  Finally, Zirin (2008), and the perspective Zirin shares in the documentaries by Small and Zirin (2008) and Earp (2011), are largely discussed from a social-culturist perspective in the examination of the media sport experience to identify the forces that affected Smith and Carlos.

Conclusion

                  The powerful symbol of Smith and Carlos’ defiant protest remains in the collective consciousness of U.S. culture even today.  While Smith and Carlos’ potent gesture during the 1968 Olympics was greeted with nearly universal condemnation by the American press, in the final analysis, the athletes were proven to be on the right side of history.  While the Olympics as a platform for protest is more attractive then ever, the economic and political consequences of such action are also more severe, particularly given the rising commercialization of sport.  This author wonders whether the courage of Smith and Carlos’ defining moment would be possible in the post-modern era?  It appears more likely that today’s would-be activist athletes would succumb to the forces that assure that the Olympic stage is preserved for state and commercial actors and their dominant narratives.

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