Version 3.1 release: “Parental Controls & Online Child Protection”
Just FYI, the latest update of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now live. The new version, Version 3.1, provides minor updates to all sections of the book and a new appendix of relevant research in the field. I issue major updates early each year and 1 or 2 tweaks during the course of the year to reflect the evolution of the parental control and online child safety market and debate. 
For those not familiar with the report, it explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”
The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past two years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.
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Disgraceful defense: “Video Games Made Me Do It”
GamePolitics.com reports on a murder trial in Alabama in which the attorney for a disturbed teenager is blaming video games for his barbaric behavior:
The lawyer for a man being tried for murder is trying to convince an Alabama jury that the defendant believed he was acting out a video game when he murdered an 80-year-old man on Halloween, 2005.
As reported by the Decatur Daily, Andrew Reid Lackey, 24, does not dispute that he stabbed, shot and gouged out the eye of his victim, Charlie Newman. However, Lackey’s attorney, Randy Gladden, is pointing the finger at video games. From the newspaper report:
Actions that led to a deadly confrontation between a defendant and an 80-year-old widower resembled a video game to the accused… [Attorney] Gladden described Lackey… as a computer geek who had immersed himself in video games and lived in “a different world than you and I.”
Tapes of a 911 call made by the victim during the fatal confrontation, however, indicate that old-school greed may have been the motive. Lackey is heard to demand of the victim, ”Where’s the vault?” seven different times. Charlie Newman’s grandson had previously told Lackey that the victim kept a large sum of money in a vault under the stairs. However, no such vault existed.
It’s just disgraceful–but perhaps not all that surprising–that this desperate defense attorney would employ tactics like this. Video games have become the universal excuse du jour for violent behavior. It’s absurd for all the reasons I have pointed out here before. It’s abundantly clear that old fashion greed and a disturbed mind motivated this particular crime, and if you think that sort of thing didn’t happen before video games came along, then you just haven’t read any history. Of course, they instead just blamed movies, comics, and books for the crimes back then! There’s always someone else or something else to blame. It’s the never-ending search for a universal scapegoat for irrational or criminal behavior. The twisted logic = Don’t blame the individual, blame the media.
Pathetic.
Scalia on video game regulation
Anthony Prestia of Laws of Play, a blog dedicated to covering legal developments in the gaming industry, somehow got some face time with Supreme Court Justice Scalia and was able to ask for his feelings concerning the constitutionality of recent state video game legislation. “In particular,” Prestia says, “I asked him whether as an originalist he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment.” Here’s Prestia’s summary and analysis of Scalia’s answer:
In his most succinct reply of the day, Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not–-he instantly drew the parallel to regulation of pornography sales. However, Justice Scalia emphasized that unprotected speech, such as obscenity–which he was unwilling to define for reasons that are immediately evident to any constitutional scholar–-can be prohibited from sale regardless of the purchaser’s age. I think the important thing to note here is that Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment despite his strict originalist beliefs.
That’s an interesting response in that Scalia’s latter comments imply that even older, more conservative judges are coming around to understanding how video games are a form of artistic expression deserving the protection of the First Amendment. But Scalia’s earlier suggestion that state laws banning sales of certain video games to minors maybe constitutional deserves a response.
Why hasn’t violent media turned us into a nation of killers?
One of the things I find most interesting about calls to regulate “excessively violent” content on television, in movies, or in video games is the way critics make massive leaps of logic and draw outrageous conclusions based on myopic, anecdotal reasoning. I was reminded of that again today when reading through an interview with Sen. Jay Rockefeller (D-W.Va), one of the most vociferous critics of all sorts of media content and a long-time proponent of regulation to censor such violent content in particular (however it is defined). (I have written about his past regulatory proposals here and here).
Here’s what he recently told the editorial board of The Register-Herald of West Virginia:
Parental Control Perfection
PFF has just released my latest paper entitled “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation.” In the report, I focus on the extent to which new video technologies, such as digital video recorders (DVRs) and video on demand (VOD) services, are changing the way households consume media and are helping parents better tailor viewing experiences to their tastes and values. I provide evidence showing the rapid spread of these technologies and discuss how parents are using these tools in their homes. Finally, I argue that these developments will have profound implications for debates over the regulation of video programming. As parents are given the ability to more effectively manage their family’s viewing habits and experiences, it will lessen—if not completely undercut—the need for government intervention on their behalf.
This 16-page report can be found at: http://www.pff.org/issues-pubs/pops/pop14.20DVRboomcontentreg.pdf
transcript of Prof. Tribe’s speech on the First Amendment & technological change
A few weeks ago, I outlined the amazing keynote address that Harvard University law professor Laurence H. Tribe delivered at PFF’s annual Aspen Summit. Now you can read it for yourself. PFF has just published the transcript of his speech, which was entitled, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism.”
Professor Tribe provides a 14-part indictment of new government proposals to regulate “excessively violent” content. But he also speaks more broadly about the importance of defending the First Amendment from attacks on many different platforms, and for many different types of content. Here’s one of my favorite passages from the concluding section of his remarks:
The broad lesson of this discussion of television violence is the centrality of the First Amendment’s opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.
Amen to that. And that, in a nutshell, describes what much of my research agenda at PFF has been focused on. It is a pleasure to add Prof. Tribe’s address to our growing body of research on the sanctity of freedom of speech and centrality of the First Amendment to our democratic republic as we continue “to wage that fight over and over and over.”
Who Killed TV’s “Family Hour”?
The Parents Television Council has a new report out this week about the supposed decline of the TV “Family Hour.” The City Journal has just posted my response to that PTC report here. It begins as follows…
__________________
Who Killed TV’s “Family Hour”?
It’s not who you think.by Adam D. Thierer
7 September 2007The nonprofit Parents Television Council (PTC) released a report this week lamenting the supposed death of broadcast television’s “family hour.” Though neither the Federal Communications Commission nor Congress ever mandated it, 8 to 9 PM Monday through Saturday (Eastern time), and 7 to 9 PM on Sunday, have traditionally been devoted to family-friendly programming. But the PTC’s new report claims that these blocks of time are now “no place for children,” because “corporate interests have hijacked the family hour” and “have pushed more and more adult-oriented programming to the early hours of the evening.”
One might respond to this claim by questioning the PTC’s methodology, particularly its definitions of foul language. Simon Vozick-Levinson of Entertainment Weekly’s “PopWatch Blog” takes this approach, accusing the PTC of “cooking the numbers” to suit its cultural agenda. But I don’t want to engage in methodological nit-picking, since it quickly devolves into a subjective squabble about acceptable language and appropriate programming. Instead, I want to point out the fundamental flaw in the report’s premise. The family hour may well be dead—but parents, not broadcasters, were the ones who killed it.
… read the rest at the City Journal’s website.
PBS to self-censor WWII documentary to appease FCC
I’ve written much about the potential “chilling effect” associated with over-zealous FCC regulation of speech. Some people doubt that the FCC’s regulatory wrath is really so severe that media operators will censor important programs for fear of being fined afterward. But we know that that is exactly what happened with a 9/11 documentary last year when CBS decided to censor the remarks of firefighters under duress. Imagine that, firefighters were swearing as the disaster unfolded! But apparently we need to have history whitewashed for our benefit. Absurd.
And now it’s happening again.
First Amendment & Video Games [Updated] Score: Gamers 11, Censors 0
The video game industry’s string of unbroken First Amendment court victories continued this week with a win in the case of Video Software Dealers Association v. Schwarzenegger. [Decision here.] In this case, the VSDA and the Entertainment Software Association brought a suit seeking a permanent injunction against a California law passed in October 2005 (A.B.1179), which would have blocked the sale of violent video games to those under 18. Offending retailers could have been fined for failure to comply with the law.
The court’s decision overturning the law was written by Judge Ronald Whyte and it echoed what every previous decision on this front has held, namely:
law review article: “Why Regulate Broadcasting?”
Many lawmakers and regulators are currently proposing the expansion of broadcast industry regulation. For example, fines have been greatly increased for “indecent” programming on broadcast television and radio, and efforts are underway to extend indecency regulations to cover cable and satellite television. Meanwhile, some policymakers are advocating government regulation of “excessively violent” programming on both broadcast and pay TV. In my latest law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” I hope to show why these efforts are seriously misguided, likely unworkable, and almost certainly completely unconstitutional.
This 52-page article appears in the latest volume of the Catholic University Law School’s CommLaw Conspectus. The article can be found online here.
In this essay, I make the case that the radically unfair system of modern broadcast industry regulation must be completely abolished. “If America is to have a consistent First Amendment in the Information Age,” I argue, “efforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.” I go on to make the case against all the traditional broadcast industry regulatory rationales and conclude that: “the traditional rationales for asymmetrical regulation of broadcasting — scarcity, pervasiveness, and the public interest — either no longer make sense or are increasingly impractical to enforce in an age of technological convergence and media abundance. Instead of resisting the inexorable movement toward media parity and a consistent First Amendment standard for the Information Age, policymakers should embrace these changes and focus on responding to the problem of objectionable content through education and empowerment-based strategies that enable families to craft their own household media standards.”
Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing
Well, I know I’m starting to sound like a broken record on this point, but it never ceases to amaze me how some policymakers get away with speaking so poorly of parents during policy debates about media content. First, you will recall that, in late April, the Federal Communications Commission released a report calling for the regulation of violent video content on the grounds that parental control tools and efforts were ineffective. (For details, see my essay: “FCC Violence Report Concludes that Parenting Doesn’t Work.”) Then, just last week, at a House Commerce hearing on “The Images Kids See on the Screen,” Rep. Ed Markey and several other members of the committee argued that parents just couldn’t cope with modern media and that government needed to step in on their behalf. But nothing could top the performance of Sen. John Rockefeller at today’s Senate Commerce Committee hearing on “The Impact of Media Violence on Children.”
Sen. Rockefeller opened the hearing with a verbal tirade “repeatedly bashing TV and its executives as though they were Dan Aykroyd’s Irwin Mainway SNL character out to sell bags-o-glass to unsuspecting kids,” as John Eggerton of Broadcasting & Cable noted. Sen. Rockefeller, who is planning to soon introduce legislation to regulate “excessively violent” television programming, said that the industry is being “cowardly” and “debasing our culture” in a “never-ending race to the bottom.”
Rockefeller went on to say that the industry was “blaming parents” for not dealing with the problem of objectionable content with private controls and methods instead of censoring content themselves before it ever got on air. “Parents do not want more tools,” he argued, “they want the content off the air.” Of course, that point is debatable as I’ll discuss more below.
testimony at House hearing on “The Images Kids See on the Screen”
I am testifying today at 10:00 in the House Energy & Commerce Committee (Telecom & Internet subcommittee) at a hearing on “The Images Kids See on the Screen.” The purpose of the hearing is to examine the negative things that children may be exposed to on various screens (TV violence, product placement, fatty foods, smoking, etc.) and what should be done about it. My prepared remarks are attached below.
______________________________
Testimony of Adam D. Thierer
Senior Fellow and Director of the Center for Digital Media Freedom
The Progress & Freedom Foundation
June 22, 2007
Mr. Chairman and members of the Committee, thank you for inviting me here today and giving me the opportunity to testify. My name is Adam Thierer and I am a senior fellow with the Progress & Freedom Foundation (PFF) where I serve as director of PFF’s Center for Digital Media Freedom.
This hearing is particularly timely for me because this week PFF released a new special report that I spent the last two years compiling entitled, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” The booklet provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. (Incidentally, this booklet can be downloaded free-of-charge at www.pff.org/parentalcontrols, and I plan on making frequent updates to the report and re-posting the document online as new information comes to my attention).
As I note in my book, we live in an “always-on,” interactive, multimedia world. Parents need to be prepared to deal with media on multiple platforms, screens, and devices. While this can be a formidable challenge, luckily, there has never been a time when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms, or all the screens our children might view.
Video Game Ratings are Widely Utilized
Some lawmakers at the federal, state and local level have advocated video game industry regulation in the name of protecting children from potentially objectionable content, usually of a violent nature. In my opinion, the better approach–and one that doesn’t involve government censorship or regulation of games–is to empower parents to better make these decisions for their own families. And the key to that effort is an effective rating / labeling system for game content that parents understand and use.
Luckily, there are good signs that the video game industry’s voluntary ratings system–the ESRB (the Entertainment Software Rating Board)–is doing exactly that. The game industry established the ESRB in 1994 and it has rated thousands of games since then. (The ESRB estimates it rates over 1,000 games per year). Virtually every title produced by major game developers for retail sale today carries an ESRB rating and content descriptors. Generally speaking, the only games that do not carry ESRB ratings today are those developed by web amateurs that are freely traded or downloaded via the Internet.
The ESRB applies seven different rating symbols and over 30 different content “descriptors” that it uses to give consumers highly detailed information about games. Thus, by simply glancing at the back of each game container, parents can quickly gauge the appropriateness of the title for their children.
So, how effective is this system, as measured by parental awareness and usage of the ESRB ratings and labels? Since 1999, the ESRB has asked Peter D. Hart Research Associates to study that question and conduct polls asking parents if they are aware of the ESRB ratings and if they use them. As this chart illustrates, the results are impressive with both awareness and use growing rapidly since 1999:
Better yet, all gaming platforms and most PCs can read these ratings and labels and allow parents to block games rated above a certain level they find unacceptable. But the real strength of the ESRB’s ratings system lies in the content descriptors, which give parents plenty of warning about what they will see or hear in each title. That way, parents can talk to their kids about those games or just not buy them for their kids until they think they are ready.
The game industry deserves credit not only for creating such an excellent content rating / labeling system, but also putting significant resources into public education / awareness efforts to ensure parents know how to take advantage of it. So then, why are lawmakers continuing to waste millions of taxpayer dollars litigating unneeded regulatory efforts?
Video Game Politics
Over at National Review Online today, Peter Suderman has a good discussion of the current state of video game politics. As usual, a lot of politicians are playing games; political games, that is. Suderman notes that:
…attacking the video-game industry has long been a favored sport amongst politicians eager to shore up their credibility with the concerned parent crowd. At the state level, at least ten laws banning the sale of certain video games to minors have been brought to life. In California, Governor Arnold Schwarzenegger, a guy who made his name hacking and slashing his enemies to a bloody pulp on the big screen, apparently didn’t want high schoolers doing digital imitations: He tried to ban the sale of violent games to minors back in 2005. Oregon is currently considering a similar law, and New York Governor Eliot Spitzer recently stated that he intends to pursue one as well. But these laws go down like a final level boss once they hit the courts. To date, not one of the dubious proposals has stood up to a court challenge.
Some lawmakers can’t even be bothered to worry about anything so insignificant as considering whether a law is constitutional. Regarding one video-game ban, Minnesota state legislator Sandy Poppas shrugged off any such responsibility, saying, “Legislators don’t worry too much about what’s constitutional. We just try to do what’s right, and we let the courts figure that out.” The recurrent bashing of the game industry tends to resemble a major league team taking on a troop of t-ballers: Politicians get to knock a couple of balls out of the park in front of parents, but the whole thing is just a show.
Indeed it is. I made a similar argument in a piece for NRO last year as well as my big PFF study, “Fact and Fiction in the Debate over Video Game Regulation.”
FCC Violence Report Concludes that Parenting Doesn’t Work
The FCC has just issued its long-awaited report on Violent Television Programming and Its Impact on Children. Unsurprisingly, it recommends that the government should assume a great role in regulating the video content that comes into our homes. The agency concludes that: “We believe that further action to enable viewer-initiated blocking of violent television content would serve the government’s interests in protecting the well-being of children and facilitating parental supervision and would be reasonably likely to be upheld as constitutional.” (p. 15)
Ambiguity Defined
Ironically, however, the FCC’s report goes on to undercut its own argument for regulation again and again because of the stunning level of ambiguity surrounding everything they propose. For example, in the second paragraph of the report, the FCC notes that “A broad range of television programming aired today contains [violent] content, including, for example, cartoons, dramatic series, professional sports such as boxing, news coverage, and nature programs.” Is the agency saying such things could be regulated? They never tell us.
Or consider the endless number of questions raised by this paragraph on pages 20-21:
We believe that developing an appropriate definition of excessively violent programming would be possible, but such language needs to be narrowly tailored and in conformance with judicial precedent. Any definition would need to be clear enough to provide fair warning of the conduct required. A definition sufficient to give notice of upcoming violent programming content to parents and potential viewers could make use of, or be a refinement of, existing voluntary rating system definitions or could make use of definitions used in the research community when studying the consequences of violent programming. For more restrictive time channeling rules, a definition based on the scientific literature discussed above, which recognizes the factors most important to determining the likely impact of violence on the child audience, could be developed. For example, such a definition might cover depictions of physical force against an animate being that, in context, are patently offensive. In determining whether such depictions are patently offensive, the Government could consider among other factors the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic. (p. 20-21)
Let’s try to unpack some of this because defining “excessive violence” is really the core of this debate.
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