Just the other day, I complained about the fact that New York Federal district court overseeing the Google Books settlement apparently doesn’t plan to webcast the final public hearing that will take place on February 18 in this hugely important case about the future of digital books and copyright. Now I discover that the 11th Circuit Court of Appeals (which covers Florida, Georgia & Alabama) has issued a decision with even more far-reaching applications—allowing prosecutions for online obscenity distribution according to local “community standards” wherever a user might have downloaded the material—without even publishing the landmark decision!

Adam discussed this obscenity/localism issue in detail back in 2004. Eugene Volokh explains the substance of this decision:

United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed — which means the government can try to download the material in the most restrictive community, and prosecute the distributor there.

If left to stand, this decision could essentially amount to a ban on hardcore pornography in the U.S.—with the definition of “obscenity” being left to local puritanical politicians in the country’s most socially traditionalist backwaters, subject only to some general restraint by the courts as to just how far the definition of “obscenity” can be pushed. Volokh continues:

[The 11th Circuit’s decision] may well be correct, given the Court’s decision in Ashcroft v. ACLU (I); and the Ninth Circuit’s contrary decision in United States v. Kilbride might well be mistaken. Still, it seems odd that the Eleventh Circuit’s opinion — which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.

In case you non-lawyers are wondering how the heck this travesty of transparency happened, the short explanation is that the Supreme Court regulates much of the practice of the federal courts through the Federal Rules of Civil Procedure, Appellate Procedure and Evidence.  But beyond those basic rules, every Circuit makes its own rules on many other issues—including under what circumstances a district or appellate court may decide not to publish a particular decision. Why not publish all decisions? Because courts issue lots of opinions and other less significant orders and memoranda and it’s just easier for them not to have to give each one the attention it would deserve if it were going to be published officially.

This is a pretty arcane debate involving multiple questions (you can read more here if you’re interested). The Supreme Court finally barred the Circuits from prohibiting the citation of unpublished opinions in 2006. So at least now, if a decision’s out there and you manage to find it, you can cite it as support for your argument before any federal court. That was a major step to ensuring that the rule of law wasn’t undermined by allowing courts to issue decisions that were both hard to find and ostensibly disclaimed any precedential effect on other cases.

The next big challenge facing the judiciary is publishing more, if not all, decisions. I’m no expert in this area and I have very limited appellate experience (having clerked for a lowly district judge). But In an era of information abundance and perfect searchability, it’s really hard to see why any court decision shouldn’t be published and made as easily accessible as possible.

At the very least, there’s simply no excuse for not publishing decisions as important as this one. Was the court perhaps hoping to minimize criticism of its decision by “hiding the ball?” I’d like to think we could expect better from those to whom we give life-time appointments and trust to be above the pressures of politics and public opinion.

On the issue of accessibility, I point you to the excellent RECAP project led by my former TLF colleague Tim Lee, which aims to break down the silly barriers the Judiciary has erected around published court documents with their pathetically antiquated and user-unfriendly PACER database. It’s also worth noting that Google Scholar late last year began allowing users to search some published legal opinions. This kind of innovation will certainly make the workings of the judiciary more accessible to citizens, but until the judiciary starts publishing more of the decisions, we’ll all be left in the dark about important decisions like this one by the 11th Circuit (which is available neither on PACER nor on the 11th’s Circuit’s webpage for recently released decisions).

I got some feedback from readers about my post last night regarding the irony of the FCC’s newly-created MySpace page containing some rather vulgar user comments. I wondered if the agency would continue to allow such comments when the agency regulates similar words when they are uttered on broadcast TV or radio.  A few people asked me why the agency hasn’t bother using the comment management tools that MySpace puts at the public’s disposal.  It’s a good question, and actually I’m not sure why they didn’t do that right from the start.  Perhaps the agency is concerned about being accused of censoring public comment. [Incidentally, the White House and some federal agencies have MySpace pages, so perhaps I need to look into how those agencies manage comments.]

Regardless, the FCC now has taken steps to deal with this. John Eggerton of Broadcasting & Cable and Kim Hart of The Hill point out that the agency has removed some vulgar comments on their MySpace page (namely, any comment with the F-bomb in it).  And I assume the agency is now taking steps to screen comments going forward. For those who are not aware, MySpace empowers users (including government agencies if they choose to set up profiles) to require approval before new comments appear on their profiles (accessed by clicking “My Account” and then “Spam”).  Here are the options:

Moreover, I should also mention that if people want to see the FCC’s MySpace profile but don’t want to see all the comments, they can always change their default view to MySpace’s “Lite View,” which hides all comments, third party applications, and some other sections of a page. To switch to Lite View, click on “My Account” in the upper-right corner of any MySpace page, then click on “Miscellaneous” to access the Default View setting. It’s another nice way that MySpace empowers users to control their site experience.

Regardless, this will be a difficult issue for federal agencies to manage going forward. If agencies are going to take the plunge and boldly enter the social networking world, they’ll need to understand that the vibrant exchange of views will sometimes entail some salty language and occasional insults.  Yet, when they take steps to deal with some of the most offensive comments posted on their pages, accusations of censorship are bound to fly. It’s a tough position for agencies to be in since they want to encourage maximum public interaction and input, and yet some of that input is bound to get heated, even ugly.

So, here are some questions that both agencies and policy wonks will need to consider going forward. Will government agency profiles on social networking sites be considered “public forums” under traditional First Amendment jurisprudence?  While there are important limits on how government can regulate the “time, place, and manner” of speech on government property, the Supreme Court has allowed government-run schools to regulate the use of profanity to some extent. It probably makes sense for government agencies to have the discretion under the First Amendment to impose some basic ground rules on the use of profanity comments on their social networking profiles, as well as on the kinds of crowd-sourcing discussion platforms that the Obama administration has been experimenting with.  Most agencies already have some policies in place for public comments directly to their websites. And yet, with a little effort, one can find the same sort of profanity in comments submitted to the FCC’s own website. But social networking sites are much easier to use than the FCC’s existing Electronic Comment Filing System.  They’re easier to use in two respects: It’s easier for people to submit comments, and it’s easier for others to see those comments. So that’s why government agencies would be well-advised to establish and publish clear ground rules for online comments.

But even with posting guidelines in place, there are other sticky questions here, especially for the FCC. As Broadcasting & Cable’s John Eggerton points out, the agency does have moderation policies for its other sites, but those policies raise still more questions because of positions the FCC has taken in court on other First Amendment matters:

“We have moderation policies for blog and Ideascale comments,” said an FCC spokesman, “and are applying those principles to MySpace while we draft a moderation policy specific to that site.” The Blogband moderation policy excludes “slurs; abusive or obscene language,” so profanity of the S- and F-word varieties could fall under that prohibition. But a check of the moderation policy for Ideascale, a crowd-sourcing site the FCC is employing for comments on policies and proposals, revealed the following: “Comments which include any of the following may be removed from the public site: Threats or incitements to violence; Obscenity; Duplicate posts; Posts revealing your own or others’ sensitive/personal information (e.g., Social Security numbers); Information posted in violation of law, including libel, condoning or encouraging illegal activity, revealing classified information, or comments which might affect the outcome of ongoing legal proceedings; Promotion of commercial services or products; Spam.” Hmmm. That creates another potential problem. The only category a post simply containing the F-word would seem to fit in is “obscenity.” But, as First Amendment attorneys will tell you, obscenity in content control terms is a legal definition for speech that is totally unprotected. If the FCC is suggesting cursing is obscene in the legal sense, then it is wholly unprotected and could be banished entirely from the online waves and from the airwaves, too, safe harbor be doggoned.

In other words, we’re back to the legal fight we’ve been having in court for decades about the meaning of terms like “indecency,” “obscenity,” and so on.  The FCC is going to be walking a bit of legal tightrope here, and other agencies will likely encounter similar problems in the future.

If readers are aware of how other agencies or government officials are dealing with this, I’d appreciate your comments below.  I have not studied this issue that closely in the past, but plan to do so now.

Berin Szoka and I just released a short article on the FCC’s proposed follow-up to the failed 700 mhz D Block auction:  a free, nationwide wireless service that would serve public safety users as well as consumers.  It’s attached down below or the PDF can be found here.

What’s Worse Than Rigged Auctions & Internet Censorship? How About Both in One Package!

a PFF Progress Snapshot Release 4.12 June 2008

by Adam Thierer and Berin Szoka

The big spectrum policy debate in town these days continues to be the fight about how to redo the botched D block auction. As we all know, FCC Chairman Kevin Martin’s previous effort to micro-manage that auction failed miserably. Sadly, the follow-up plan isn’t much better, as the Wall Street Journal notes in an editorial today:

You’d think Chairman Martin would have learned from this experience. It’s not the role of regulators to pick winners and losers to achieve their preferred social outcomes. Private competition and the price mechanism can most fairly and efficiently find the best use for scarce spectrum. The FCC’s clumsy attempt at social engineering resulted in a failed auction that has prevented otherwise desirable spectrum from being put to commercial use. Alas, Mr. Martin has now proposed another wireless auction for a separate piece of spectrum. And this time he wants to require the winner to offer free Internet access that filters out pornography–conditions that obviously would decrease the value of the license and turn off potential bidders. It just so happens that Mr. Martin’s proposed auction seems tailor-made for the business plan put forward by M2Z, another politically connected Silicon Valley start-up looking to enter the wireless broadband telecom market.

The declared goal of the new plan is to provide “free” broadband to the masses while also satisfying public safety spectrum needs (though little is understood about how the propose service will support public safety). Supporting legislation introduced by Rep. Anna Eshoo (D-CA), H.R. 5846, the “Wireless Internet Nationwide for Families Act of 2008,” would require the winning bidder to:

offer, at a minimum, always-on wireless broadband services within 2 years from the date of receipt of the license, and complete the construction of such wireless network with a signal covering at least 95 percent of the population of the United States and its territories within 10 years from the initial operation of the network; [and] a data service that is faster than 200 kilobits per second one way for free to consumers and authorized public safety users without subscription, airtime, usage, or other charges.

Good luck getting anyone to bid much on that plan! It’s not really clear why anyone would think that a 200 kbps public utility service–even at zero cost–will have all that much appeal to the masses. Today, through server-side data compression, any of us can already squeeze 300 kbps out of our old dial-up lines–a service now free from companies like NetZero and generally costing less than $10/month. Even most existing wireless data plans today provide greater bandwidth. How many people are really going to want to use a “free” wireless network that pumps out far less? After all, you’re not going to be able to download many videos or big files or do anything very data-intensive on the proposed network. While a certain segment of basic smart phone users might be satisfied with such sluggish speeds for rudimentary web uses such as email, blog-reading, calendars and basic locational searches, existing equipment would not be able to connect to the proposed network because of the bands used. So, while such PDA users might seize the opportunity to use slow-but-free municipal wi-fi networks, they could not use the proposed network: an entirely new generation of wireless technologies would have to be equipped to support yet another wireless standard.

So why would any company pony up serious money at an auction to win the right to provide such a lackluster service to a minimum of 95% of the nation, including costly-to-serve low density areas, within two years? You don’t need to be a Harvard Business School grad to see why that plan doesn’t make much sense for most investors. (Never mind the fact that the auction of this much valuable spectrum with so many regulatory encumbrances will yield far less at auction to the U.S. Treasury.)

Of course, the winning bidder will likely have the right to “up-sell” customers to a higher-speed paid service. But we have no idea how well that plan will work out and, even if it did, it would call into question the logic of rigging this auction in the first place: Is the purpose truly to provide free universal broadband access, or just to hand someone a chunk of somewhat cheaper spectrum to let them up-sell customers to higher-speed, paid plans? If it’s the latter, the plan seems a little unfair to the private carriers who are already aggressively competing in the market today, having paid top-dollar for their spectrum and invested heavily in wireless data networks.

Or will the lucky auction winner be expected to rely in part on advertising revenues to pay for the up-front costs of winning the auction, building out the network and providing service–much as M2Z originally planned to do? If so, the provider would doubtless prefer to offer more profitable behaviorally targeted advertising customized for each user. The Federal Trade Commission has wisely chosen not to regulate such advertising, given its complexities and ongoing evolution, and to rely instead on enforcement of existing unfair and deceptive trade laws, while issuing voluntary guidelines for industry. But of course, the FCC would have jurisdiction over the proposed service and would likely face enormous political pressure to include its own regulatory regime for online behavioral advertising while drafting service rules. The controversy over such rules could delay the deployment of the proposed service, while any FCC regulations would inject the FCC into the ongoing debate over how to govern a practice that provides the revenue stream necessary to support a variety of content and services.

But this new spectrum-rigging plan is troubling for an entirely different reason: It demands Internet censorship. The original M2Z plan included a promise to sanitize this little patch of spectrum to make sure it was “kid-friendly.” What better way to win a spot in the heart of legislators and regulators than to promise network-wide Net filtering! After all, many lawmakers have long considered this the Holy Grail of Internet policy. Eshoo’s bill would mandate such filtering by requiring that the licensee “offer such free data service with a technology protection measure or measures that protect underage users from accessing obscene or indecent material through such service.”

It’s surprising that so few people are discussing the dangers of this portion of the proposal. After all, what we are talking about here is a blueprint for widespread, government-mandated censorship of the Internet. Many folks, including the Wall Street Journal in today’s editorial, seem to be under the impression that the mandate is strictly directed at “pornography”–and nothing more. But Rep. Eshoo’s bill clearly requires filtering of “obscene or indecent material.” Defining obscenity is difficult enough. But including “indecent” content will open up a Pandora’s Box of regulatory shenanigans. One need do nothing more than read a few pages of broadcast regulatory history to appreciate the practical challenge that awaits both providers and regulators as they attempt to monitor the network to ensure that everything is “decent” for the masses. (Moreover, is that really what the Internet that the masses want?)

Regardless, the important question is not what will be censored, but how it will be censored–a critical detail that neither Chairman Martin nor Rep. Eshoo have spelled out. But, in all likelihood, we’re talking about something more that just downloadable filters for consumers to install themselves if they so chose–leaving the decision to individuals and parents, where it belongs in a free society. Instead, it seems clear that we are talking about server-side, network-wide filtering that will essentially be forced on all users of the network. Such a technological solution will greatly slow down the already primitive network being proposed under this plan. But, more importantly, we have to wonder what sort of precedent is being established here for other broadband networks and the rest of the Net.

Of course, policymakers will respond by saying that the plan is simply another regulatory quid pro quo: We rig the auctions to drive down the cost, and you, the winning carrier, clean up the Net for us. That’s all easier said than done, and it raises a host of constitutional issues in the process. There are many better ways to protect kids, and there are certainly better ways to run a spectrum auction.

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.

Scalia is certainly correct that states have passed laws banning the sale of pornographic material to minors, but their are two important differences between those bans and a ban on the sale of video games to children. One is obvious: No video game has ever been defined as “obscene to minors.” Now, it may be the case that some game will be defined as such in the future. But for now, the primary concern about video games to sales has related to the violence in video games, not the sexual content. And violence has never been equated with obscenity, although Kevin W. Saunders of Michigan State University has been making the argument for many years that the two should be equated in an effort to ban violent video game sales. And there are others who agree with him. But no legislature or court has yet agreed with that reasoning. So, that’s the first difference that Scalia ignores.

The second difference Scalia ignores is the mechanism of controlling the sale of video games to children. Every legislature that has so far sought to regulate the sale of video games has proposed that the bans been linked to the sale of games rated a certain way by the game industry’s private rating body, the Entertainment Software Rating Board (ESRB). And every one of those measures has been struck down by the courts as unconstitutional. One of the reasons the laws have been overturned is because other court precedents have held that the state may not give a private, voluntary rating system the force of law.

Again, when state governments regulate obscenity, they are not doing so by co-opting some private industry rating system. In the case of video games, however, the states would seek to use “AO” (Adults Only) or even “M” (Mature) ratings that were assigned by the ESRB as the trigger for the law to kick in. That’s generally been forbidden by the courts when some states in the 1970s and 80s sought to use the movie industry’s private rating system (the MPAA system) to regulate or ban the showing of certain movies or their sale. The reason the courts have blocked such enactments is not just because it would be misguided to allow a private labeling code to become a tool of public censorship. The other reason is actually more compelling: As I pointed out in my big PFF study on video game regulation, if a state sought to use a voluntary rating system to ban certain types of content, it would likely kill voluntary rating systems:

why would game developers continue to voluntarily rate their content if the threat of fines or prosecution looms overhead? Fearing such liability, there is a real risk that many in the industry would likely stop rating games altogether since there would be no penalty for refusing to label content. If this were to occur, parents and all game consumers would lose valuable information about the age appropriateness and content of the games that they are thinking of buying.

So, these are just a few of the factors that Justice Scalia and the Supreme Court would need to consider if a case came before them dealing with the constitutionality of regulating video game sales to minors. This is not to say anyone is in favor of actually selling mature or adult-oriented games to minors. It’s just to say that there are more sensible (and constitutional) ways of handling this problem. Parents have many less-restrictive means of dealing with underage access to potentially objectionable games—such as the industry’s private rating and labeling system, third-party ratings and info, console-based controls, and the fact that they don’t have to buy the games in the first place! [See my study and parental controls book for more details on all these things.]