Yesterday’s Supreme Court decision in Citizens United v. FEC essentially stands for the proposition that free speech is free speech regardless of the speaker. The 5-4 majority for the Court ruled that “We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion.” (at 25)  Echoing its early decision in Bellotti, the Court noted that “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.’” (at 33) “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas.” (at 35) “There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations.” (at 37)

Somehow this has proven controversial, even radical, to some.  But, as George Will correctly notes, “This was radical only because after nearly four decades of such ‘reform’ the First Amendment has come to seem radical. Which, indeed, it is. The Supreme Court on Thursday restored First Amendment protection to the core speech that it was designed to protect — political speech.”  Essentially, the decision gets Congress out of the game of picking who, or what platform, deserves full First Amendment protection when it comes to uttering political speech. And there’s nothing radical about that.

Indeed, as Justice Kennedy noted for the majority, there is nothing surprising about this reasoning once you realize that almost every other type legislative or regulatory speech restriction has been struck down as a violation of the First Amendment. “The law before us is an outright ban [on political speech], backed by criminal sanctions,” Kennedy noted (at 20).  “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” (at 33)  Think about this for a second: Criminal sanctions or jail time for political speech! How in the world did we get to the point in this nation where criminalizing political speech became acceptable to our legislators?  Ignoring the obvious answer—it’s all about protecting incumbents—what is really “radical” here is not that the Supreme Court setting us back on the right path, but that our legislative branch has veered so far off of it.

I also agree with Tim Lee and Eugene Volokh who note that corporate money has always been part of politics and it is silly to think the restrictions in play here would really do much to change things in Washington in terms of diminishing “corruption.” Frankly, if you want less corruption in government, you need to begin by shrinking the powers of government to a more sensible level.  Big government breeds corruption opportunities simply because the “return on investment” for dollars spent trying to influence politics depends on how much money politicians can control through spending and regulation.

And political advertising or “electioneering communications” in the days leading up to an election are about the last thing you should be worrying about if you really want to “clean up the system.”  You don’t strengthen democracy by stifling freedom of speech or issue advocacy. That’s the equivalent of burning the village in order to save it.

For technology policy, the most important part of the decision is probably the following passage:

Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers… Today, 30-second television ads may be the most effective way to convey a political message… Soon, however, it may be that Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues…The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech…[viii][viii]

As Seth Cooper correctly argues:

These passages… are clearly at odds with Red Lion Broadcasting v. FCC’s assertion sixty years ago that “differences in the characteristics of news media justify different in the First Amendment standards applied to them.”

Eugene Volokh makes much the same point. Perhaps we are finally seeing an end to America’s “First Amendment Twilight Zone” as I have called it [see this video presentation] and, with any luck, a consistent First Amendment for the Information Age.

With today’s historic Supreme Court decision in FCC v. Fox, I have been commenting on the logic and implications of the decision. Part 3 dealt with the majority’s decision in the case, which was driven solely by procedural / admin law considerations.  This installment will discuss the very interesting concurring opinion penned by Justice Thomas, which is the only one that takes a serious look at the constitutional foundations of the FCC’s current regulatory regime.  While I was sad to see Justice Thomas join the majority’s decision upholding the FCC’s radical expansion of speech regulation in recent years, he joined that majority only on straightforward procedural grounds.   On the underlying constitutional issues at stake here, it is clear from his concurring statement that he is ready for the Court to hear a challenge to the previous court precedents and traditional regulatory doctrines that have long supported FCC speech and media controls.

“I write separately,” Justice Thomas says “to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”  Specifically, he addresses the two key cases upon which almost all FCC speech regulation rests: Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) and FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Thomas continues: “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

BOOM!  With those words, Justice Thomas has dropped the hammer and taken what will hopefully be the first swing at toppling the house of cards that is modern FCC speech regulation.  Justice Thomas goes on to itemize the many problems with what I have referred to as “America’s Jurisprudential Twilight Zone” when it comes to how we apply the First Amendment to media platforms in this country.  He states:

This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. […]  First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the ‘scarcity of radio frequencies’… to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity…  Second, even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. […]

Moreover, traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. Broadcast and other video programming is also widely available over the Internet. And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices.

Indeed, along with my friends as the Center for Democracy & Technology, I documented these trends in an amicus brief to the Supreme Court in this case and pointed out that, at some point, these facts must impact the constitutional equation when it comes to the way the FCC continues to regulate broadcast programming uniquely.  Justice Thomas appears to agree:

The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today. […] These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis. […] For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.

Unfortunately, this case apparently was not “the proper case” for Justice Thomas and so he joined the majority’s APA-driven decision and left the thorny constitutional issues for another day.  Eventually, however, the Court is going to have to come to grips with the issues that Justice Thomas has put front and center in his concurring opinion today.

Finally, in his otherwise outstanding statement, I was disappointed that Justice Thomas made no mention of the Court’s recent Internet jurisprudence, which has all gone squarely in favor of robust First Amendment protection for the Net and online speakers.  In particular, the “least restrictive means” test that has developed in those cases (i.e., deferring to user self-help tools before allowing state regulation) is equally applicable to programming television programming.  Just as parents have been empowered to take control of the online content that comes into their homes using filters and other tools, so too have parents been empowered to restrict or tailor television program to their tastes and values. How, then, is it the case that the Court upholds this logic in cases like Reno (the CDA case), Ashcroft (the COPA case), & Playboy (the cable TV signal scrambling case), but not in the case of broadcast TV programming, which is easier to control than ever before?  It makes zero sense.

Regardless, I hope other judges are listening to what Justice Thomas had to say today and taking these arguments seriously.

Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak.  And our own Tim Lee is currently studying there as well.  I wish I was smart enough to get into that program!

The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.

The presentation is based upon several other essays, court filings, and law review articles I have written on the topic, including:

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, 7/10/07.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,” by Adam Thierer, 1/20/09.
• Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008

My new article on “FCC v. Fox and the Future of the First Amendment” has just been published in the February 2009 edition of Engage, the journal of the Federalist Society. Here’s how it begins:

On November 4th, 2008, the Supreme Court heard oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. This case, which originated in the Second Circuit Court of Appeals, deals with the FCC’s new policy for “fleeting expletives” on broadcast television. The FCC lost and appealed to the Supreme Court. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — was heard in the Third Circuit Court of Appeals. The FCC also lost that case and has also petitioned the Supreme Court to review the lower court’s ruling. These two cases reflect an old and odd tension in American media policy and First Amendment jurisprudence. Words and images presented over one medium-in this case broadcast television-are regulated differently than when transmitted through any other media platform (such as newspapers, cable TV, DVDs, or the Internet). Various rationales have been put forward in support of this asymmetrical regulatory standard. Those rationales have always been weak, however. Worse yet, they have opened the door to an array of other regulatory shenanigans, such as the so-called Fairness Doctrine, and many other media marketplace restrictions. Whatever sense this arrangement made in the past, technological and marketplace developments are now calling into question the wisdom and efficacy of the traditional broadcast industry regulatory paradigm. This article will explore both the old and new rationales for differential First Amendment treatment of broadcast television and radio operators and conclude that those rationales: (1) have never been justified, and (2) cannot, and should not, survive in our new era of media abundance and technological convergence.

I go on in the piece to make the case against the those rationales and the call for the Supreme Court to use the Fox and CBS cases to end this historical First Amendment anomaly of differential treatment of broadcast platforms relative to all other media providers.

This article can be downloaded as a PDF here, or viewed down below the fold in the Scribd reader.

FCC v Fox and Future of First Amendment (Thierer-PFF) http://d.scribd.com/ScribdViewer.swf?document_id=12683998&access_key=key-epitk15wtp38l34jow7&page=1&version=1&viewMode=list

Here’s some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:

It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny. […] Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.

But it most certainly would not pass muster is applied to cable or satellite:

It does not appear that the Fairness Doctrine may be applied constitutionally to cable or satellite service providers. The Supreme Court has held that content-based restrictions on the speech of cable and satellite providers are subject to strict scrutiny. Strict scrutiny requires that the restriction at issue advance a compelling government interest and that the restriction be the least restrictive means of achieving that interest. Content-based regulations of speech in the print media are accorded strict scrutiny. The Supreme Court has recognized that regulations similar to the Fairness Doctrine, when applied to the print media, are not constitutional. If regulations similar to the Fairness Doctrine could not withstand strict scrutiny when applied to the print media, it appears unlikely that similar regulations would withstand such scrutiny when applied to cable or satellite providers.

Complete report is embedded below as a Scribd document.

CRS Fairness Doctrine Report http://d.scribd.com/ScribdViewer.swf?document_id=12301246&access_key=key-ck3gk7wdn7wz0e6pihg&page=1&version=1&viewMode=list

The Federal Communications Commission (FCC) lost another major First Amendment-related case today involving its recent efforts to expand the parameters of “indecency” enforcement for broadcast programming. The case involves the now infamous “wardrobe malfunction” that occurred during an unscripted 2004 Super Bowl halftime performance involving singers Justin Timberlake and Janet Jackson. When Ms. Jackson’s breast was exposed on camera for nine-sixteenths of one second, the FCC immediately launched an investigation into the incident and fines were eventually levied on the grounds that the fleeting exposure of Ms. Jackson’s breast was a violation of broadcast decency standards. CBS challenged the FCC’s decision, leading to a legal showdown in the U.S. Court of Appeals for the Third Circuit.

In today’s decision, CBS Corp. v. FCC, the three-judge panel of the 3rd Circuit ruled that the Federal Communications Commission “acted arbitrarily and capriciously” when it imposed a $550,000 fine on CBS for the incident. The court’s 102-page decision, which can be found here, was decided squarely on procedural grounds. That is, it didn’t touch the more substantive speech-related issues or precedents such as the Pacifica or Red Lion decisions that constitute the foundations of all modern FCC broadcast regulation.

The case is important because it now joins the June 2007 decision handed down by the Second Circuit Court of Appeals in the case of Fox Television Stations v. FCC. That was the indecency case involving the FCC’s new policy for “fleeting expletives.” In that 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” As a result, the FCC’s order was vacated and remanded to the agency. [And the FCC is now challenging the decision in the Supreme Court.]

This is very similar to what the 3rd Circuit said today in the CBS case. Specifically, the court held that:

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS. (p. 14)

The court reached that finding by noting that the agency’s previously “restrained” enforcement policy had changed quite suddenly and dramatically, and without much justification. “[A]n an agency must be afforded great latitude to change its policies, but it must justify its actions by articulating a reasoned analysis behind the change,” the court argued. (pp. 30-31) “The agency’s obligation to supply a reasoned analysis for a policy departure requires an affirmative showing on record.” (p. 32). But the FCC failed in that regard, the court said:

The Commission’s conclusion on the nature and scope of its indecency regime – including its fleeting material policy – is at odds with the history of its actions in regulating indecent broadcasts. In the nearly three decades between the Supreme Court’s ruling in Pacifica and CBS’s broadcast of the Halftime Show, the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. (pp. 36-37)

The FCC was basically arguing that its actions in the Fox and CBS cases were nothing new and that the agency should be allowed to impose significant new penalties for fleeting words or images. But neither the 2nd or 3rd Circuits bought that argument. In today’s decision the 3rd Circuit, for example, the judges held:

In sum, the balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion. Accordingly, we find the FCC’s conclusion on this issue, even as an interpretation of its own policies and precedent, “counter to the evidence before the agency” and “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. Because the Commission fails to acknowledge that it has changed its policy on fleeting material, it is unable to comply with the requirement under State Farm that an agency supply a reasoned explanation for its departure from prior policy. (pp. 47-48)

As you might have guessed from the context of that passage, the State Farm case referenced by the court dealt with how an agency must reach a decision by examining relevant data and articulating a reasonable explanation for the rational connection between that data and the decision made by the agency. Again, the court today held that the FCC did not pass that test nor the requirements of the Administrative Procedure Act: “Consequentially, the FCC’s new policy of including fleeting images within the scope of actionable indecency is arbitrary and capricious under StateFarm and the Administrative Procedure Act, and therefore invalid as applied to CBS.” (p. 49)

The court also rejected the FCC’s assertion that CBS should be held liable on the common law doctrine of respondeat superior, which allows liability to be imposed on employers for the actions of employees. The question is: Where Timberlake and Jackson CBS employees? The court said no:

it is undisputed that CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. Similarly, as the FCC notes, CBS personnel reviewed the performers’ selections of set items and wardrobes, but the performers retained discretion to make those choices in the first instance and provided some of their own materials.

Instead, the court held that Timberlake and Jackson were “independent contractors” for CBS and that the FCC was trying to breathe far too much life into the doctrine:

Under the FCC’s rationale, band members contracted to play a one-song set on a talk show or a “one-show-only” televised concert special presumably would be employees of the broadcaster. These performers – who frequently promote their work through brief contractual relationships with media outlets – would be “employees” of dozens of employers every year.

So, what happens next? It’s likely that the FCC will appeal, just as it has in the 2nd Circuit Fox case. One wonders why the agency doesn’t just throw in the towel. As my boss Ken Ferree, President of PFF, noted in response to today’s decision: “Perhaps it is time to read the handwriting on the wall: the guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny. A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society. We allow government to meddle in that marketplace at our peril.”

You will not be surprised to hear that I agree with Ken! And I summarized some additional concerns about the FCC’s expanded activism on this front in a joint amicus brief with the Center for Democracy & Technology to the 3rd Circuit before this case was heard. You can find that filing here.

Early in 2007, I started penning—but somehow failed to continue—a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past. But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.

Amicus briefs are starting to be filed in the matter, and you won’t be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC’s authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left—namely the Supreme Court’s 1969 Red Lion decision and FCC’s ambiguous “public interest” authority to comprehensively regulate media markets. Consider this filing submitted by several liberal activist groups like Free Press, New America Foundation, Consumer Federation of America, Consumers Union, Participatory Culture Foundation, Acorn Media Foundation, as well as a couple of academics, like Susan Crawford and Monroe Price. These are some of the leading lights of the Left on communications and media policy.

With the Fox case, we have, quite possibly, the one major chance in a generation to make profound statement about the role of the FCC in policing speech in society. And what do these leading intellectual lights of the Left do in their 42-page brief to the court? They relegate the First Amendment to the equivalent of a footnote in the matter. The First Amendment is barely even mentioned in this filing; it is an afterthought.

Instead, they make everything subservient to saving Red Lion and maintaining the FCC’s authority to comprehensively regulate media markets. Red Lion, you will recall, is the Supreme Court’s historic 1969 decision legitimizing the hideously misnamed “Fairness Doctrine.” Of course, it also serves as the foundation for just about every other sort of media regulation that the FCC enforces: i.e., ownership restrictions, educational TV mandates, advertising restrictions, political advertising mandates, must-carry rights, and so on. The lynchpin of the Red Lion decision is the scarcity doctrine. In essence, the court held that the supposed scarcity of media outlets (or at least broadcast spectrum licenses) somehow justified comprehensive regulation of the media marketplace.

Liberals have long been in love with Red Lion and continue to rely on the case in one filing after another before the FCC and the courts in support of their efforts to justify existing or proposed media regulations. Of course, in light of the explosion of media options and competition, Red Lion and the “scarcity doctrine” have become utterly intellectually bankrupt rationales for regulation. But that hasn’t stopped the Left from pinning all their regulatory hopes on the doctrine and attempting to breathe new life into it at every turn.

Even more troubling is the fact that their filing argues that the Internet is some how touched by Red Lion. “[Q]uestioning Red Lion,” they say in their brief, “could throw media, spectrum, and Internet policy into chaos.” (p. 15) Excuse me? The Internet will be thrown into chaos if Red Lion is altered or abandoned by the court in the Fox case? I wasn’t aware that Red Lion had suddenly empowered the FCC to regulate this abundant medium known as the Net!

I won’t belabor this point about the scarcity rationale being dead and Red Lion being bad law, instead I’ll just refer you to the last major thing that the FCC said on the matter. Three years ago, the FCC published a staff report by John Beresford, an attorney with the FCC’s Media Bureau, entitled, “The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed.” That title pretty much says it all, but Beresford went on to say: “[T]he Scarcity Rationale for regulating traditional broadcasting is no longer valid” and from there laid out a devastating case against Red Lion and the scarcity rationale. Calling the scarcity rationale “outmoded” and “based on fundamental misunderstandings of physics and economics,” Beresford went on to show why just about everything the FCC every justified on this basis was misguided and unjust. He points out what countless economists have concluded through the years, namely that:

(1) the scarcity the government complained of was “largely the result of decisions by government, not an unavoidable fact of nature.” In other words, the government’s licensing process created artificial scarcity.

(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.

(3) even if there ever was anything to the scarcity doctrine, there certainly isn’t today in our world of information abundance.

Anyway, you get the point. Even people working at the FCC don’t take Red Lion or the scarcity rationale seriously anymore! Why then do these liberal academics who filed in the Fox case? They would be better served by shifting their regulatory rationales away from the hopelessly ambiguous and intellectually bankrupt “scarcity rationale” and toward an antitrust-based form of analysis based on market power considerations. But it is precisely because Red Lion provides them so much more regulatory wiggle room that they remain wedded to such a discredited theory. One wonders how long that farce will continue.

Regardless—and getting back to my main point here—it is absolutely shameless that these liberals would use this rare occasion to file a brief before the highest court in the land and not bother defending the First Amendment and free speech rights. We know we can’t trust the Right to defend the First Amendment, but the fact that the Left is abandoning it too is really troubling.

The Administrative Law Review at American University will hold a pretty interesting symposium next Friday on media regulation and the legacy of Red Lion v. FCC. Don’t let their horrendous program design scare you (PDF), they have some top notch speakers scheduled, including Cass Sunstein. Check out TLF’s Red Lion coverage over the years here.

Back in 2005, I threw away a book I was writing. Well, I didn’t exactly toss it in a garbage can or take a match to the manuscript; I just abandoned the project to work on other things, including a different book and a big law review article. I’m still mad at myself for never finishing it up because I think it put forward a provocative thesis: Censorship is dead. Specifically, as I argued in the first lines of the book, “A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming.” Accordingly, the running title for the book was: “The End of Censorship?: The Future of Content Controls in a World of Media Convergence.”

Anyway, I recently unearthed an old draft of this discarded manuscript and thought I might as well at least throw the introduction online. In it, I outline my thesis and the “5 Reasons Content Controls Will Break Down.” I also highlight how governments will fight back and discuss what alternatives are out there to address concerns about objectionable content. Someone out there might be interested in all this even though much of what I say here is now widely accepted or been said better by others. I’ve stripped out all the footnotes and cut out significant sections to make what follows more readable. So, here it goes…

“The End of Censorship? The Future of Content Controls in a World of Media Convergence.”

Content regulation–at least as it has been traditionally defined and enforced in the United States–is doomed. A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming. Specifically, it is the distribution channel-based system of content regulation employed in the U.S. and many other nations that is breaking down. That is, the ability of governments to regulate speech and expression by regulating its distribution channel or provider (such as broadcasting), represents in increasingly ineffective and illogical method of policing content flows.

The demise of traditional content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.

For example, we know the old regulatory regime is in trouble when consumers can use a device such as the Sony PlayStation Portable not just to play games and watch movies, but also to surf the Internet, e-mail or instant message friends, download music and videos, and even watch live TV. Similarly, Apple’s wildly popular iPod, which can be used to enjoy music and video anywhere consumers wish, has spawned a whole new world of mobile media opportunities and imitators. And in late 2005, TiVo announced it would be making its popular video “space-shifting” services available through both iPods and PlayStation Portables, meaning that almost any piece of televised video content will also be accessible over those (and other) devices in the future.

And technologies like the PlayStation Portable, the iPod and TiVo are just the tip of the iceberg. Just as wireless technologies have revolutionized the telecommunications sector, in a few years, most consumers will own some sort of mobile media gadget (probably several) that enables “anywhere, anytime” media consumption. This book will document countless other technologies and services that are currently undermining traditional content control regimes.

Importantly, content controls can be broadly defined to not only include the regulation of “objectionable” content (whatever that might include), but also the promotion of so-called “public interest” content or other media quality objectives. Examples would include children’s television programming mandates, free airtime for politicians, “must-carry” mandates, and “PEG” (public, educational, and governmental) access requirements. Such content controls are also doomed. Whether government is regulating with the intention of repressing or promoting specific viewpoints or content it makes little difference; both types of controls are being rapidly undermined by new marketplace developments and realities.

These developments are the inevitable outgrowth of the relentless pace of technological and social change and that society will need to adapt to these changes very quickly because there is no reversing these trends. For millions of parents like me, this will mean we will need to find methods of countering the problems that technology has created in terms of offering us abundant and ubiquitous media options. Parents will need to harness other technologies and services to control their children’s access to objectionable programming or lead them to the sort of programming they want them to consume. While that sounds like a formidable challenge, the good news is that there is more enriching and educational fare available today than ever before, and more ways for parents to filter access to the objectionable content they do not want their children to see or hear. Admittedly, however, the challenge of controlling access to unwanted content will be great, and parents will have to be more vigilant than ever.

Many policymakers and pro-regulatory special interest groups will dwell on the types of content that they find distasteful and continue to advocate a generous role for government as protector of morality, taste and “quality” programming. But this is fool’s errand. In our modern world of media abundance, rapid proliferation of distribution outlets, the digitization of all information, and relentless technological change and convergence, there is simply no way that government can effectively control information and content flows absent extreme measures.

From Information Poverty to Information Abundance To understand why traditional content controls are doomed, it’s necessary to step back and take stock of just how far we’ve come in recent decades in terms of media and information diffusion.

[Note: At this point in the narrative, I spent a few pages illustrating exactly how much better off society is today than ever before in terms of the abundance of information and entertainment at our collective disposal. But then I pointed out that…]

Alas, life in the “Information Age” has its detractors. The funny thing about information and media is that the more you have, the more people find to complain about. Nowhere is this more clearly evident than in the debate over the regulation of “indecent” content on television, radio, cable or the Internet. This is not a new debate, of course. The impulse to control content is as old as the press or even writing itself. The first day someone put pen (or quill) to paper was likely also the first day someone proposed censoring the message that writer sought to convey.

In the wake of a handful of high-profile incidents on broadcast television and radio over the past few years, a significant new regulatory push has been underway in Congress and at the Federal Communications Commission (FCC). Critics aim to crack down on indecency on broadcast radio and TV. The regulation of “excessive violence” is also a commonly stated goal of these regulatory advocates. Such efforts to regulate violence in media are based on many of the same theories or arguments as indecency regulation.

Importantly, many of the latest regulatory proposals would expand media regulation in significant new ways, not only for over-the-air broadcast licensees, but also for subscription-based outlets such as cable and satellite networks. This would be the case even though recent First Amendment judicial decisions dealing with new media outlets, namely the Internet and video games, are pushing in the opposite direction. The courts have held that attempts to regulate content on the Internet, or violence in video games, are unconstitutional burdens on freedom of speech and expression.

The 5 Reasons Traditional Content Controls Will Break Down Thus, America’s media policy is now stuck in a jurisprudential Twilight Zone. Speakers using the Internet or print outlets (i.e., newspapers and magazines) are guaranteed the gold standard of First Amendment protection, while those using broadcast radio and television to speak are only accorded the equivalent of second-class free speech rights. Meanwhile, cable and satellite speakers are caught somewhere in the middle with the courts generally granting them more freedom than broadcasters, but not as much as speakers using the Internet or newspapers. And it remains to be seen how emerging media technologies and outlets will be classified.

As the authors of one popular communications law book note: “The central problem is that communications law has always been based on different rules for different media—different regulations, different jurisdictions, even… different levels of First Amendment protection. Unfortunately, this no longer reflects technological reality.” (Carter, Dee, and Zuckman, Mass Communications Law, 2000) Indeed, this current distribution channel-based legal arrangement is unjust, indefensible, and ultimately unsustainable for five reasons:

(1) Convergence: A jurisprudence so radically divided cannot stand in an age of rapid technological convergence. Media content and outlets are blurring together today thanks to the rise of myriad new technologies and competitors. These new media technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. In other words, convergence means that media content is increasingly being “unbundled” from its traditional distribution platforms and finding many paths to the consumers. As a result of these developments, it is now possible to consume to the same piece of content via a broadcast TV or radio station, a cable channel, a satellite system, on a DVD player, on a cell phone or mobile media device, on a portable gaming system, or over the Internet. In this “multiplatform” environment, consumers can increasingly dictate when, where and how they consume media content. “For us, multiplatform is more than the buzzword of the day,” says MTV President Christina Norman. “It is the way this audience lives.” Thus, contrary to the famous assertion of media analyst Marshall McLuhan that “the medium is the message,” today the medium is just another medium or distribution path; it is the message (or content in general) that is now truly king.

Thus, convergence will make it increasingly complicated and intrusive for lawmakers to apply old media standards and regulations to newer technologies and outlets. “The phenomenon of convergence has… rendered obsolete a regime in which differential content regulation is applied based on the technology used to deliver content,” argued Jeff Eisenach and Randolph May of the Progress & Freedom Foundation in 2000.

The following examples illustrate how convergence renders the old regime obsolete as Eisenach and May suggest. In March 2006, following an FCC decision to impose steep new indecency fines on certain broadcast television shows, the WB Network decided to self-censor several scenes from a new drama that was about to air on its broadcast television affiliates. The network was concerned that it might be subjected to fines for airing the new show without certain edits. But before they aired the edited pilot episode on their WB broadcast television outlets, the network decided to air the unedited version on their Internet website. According to the New York Times, “It [was] the first time a network has offered on another outlet an uncut version of a program it has been forced to censor.”

But this won’t be the last time this happens in a world of proliferating media platforms and delivery options. Indeed, just a few months after WB took this step, CBS television network affiliates came under pressure from certain regulatory activist groups to self-censor or not air an award-winning documentary about the “9/11” terrorist attacks because it contained profanities uttered by firefighters or citizen under great duress. Several local CBS affiliates bowed to the pressure and decided not to air the documentary. But CBS Corp. responded by airing the entire unedited version of the documentary on its website so that consumers in areas where it had been blacked out could see it.

Opportunities for such cross-platform marketing are exploding. … [I then provided dozens of additional examples.]

In sum, because convergence is shattering the distribution-based business and regulatory distinctions of the past, it means that media regulation in general, and speech controls in particular, will be severely strained.

(2) Scale: Because technological and media convergence is now upon us, in the future, a regulatory attack on one type of media outlet or technology could be tantamount to an attack on all media. This is especially the case given the increasingly global scale of the Internet and modern media networks and digital communications technologies.

In the past, the reach of media was limited by geographic, technological, and cultural / language considerations. Today, by contrast, media can now flow across the globe at the click of a button because of the dramatic expansion of Internet access and broadband connectivity. While important cultural / language barriers remain, many traditional geographic and technological limitations are fading away. As New York Times columnist Thomas Friedman argues, the world is becoming more “flat” or interconnected.

Thus, the scale of modern digital media content and operations will greatly complicate government efforts to impose “community standards” on one type of content or distribution outlet given the borderless nature of most modern media. Nonetheless, lawmakers–local, national, and global–will almost certainly attempt to expand regulations (including content controls) to cover emerging media technologies and outlets as they become more popular. Lawmakers in the United States are already debating how to expand indecency controls to cable and satellite networks, for example. And policymakers in Europe, Canada and Australia are also grappling with this and proposing the expansion of traditional regulatory regimes to new technologies or providers.

(3) Volume: But as policymakers continue to push out the confines of traditional media / content regulation, the sheer volume of media activity that exists today will greatly complicate the task before them. In simple terms, there is just too much stuff for regulators to police today relative to the past. As a blue ribbon panel assembled by the National Research Council reported in 2002: “The volume of information on the Internet is so large–and changes so rapidly–that it is simply impractical for human beings to evaluate every discrete piece of information for inappropriateness.”

While it may have been possible to oversee a handful of TV and radio stations in each community or nation in the past, today’s electronic media universe is so diverse and enormous—and evolving so quickly—that content controls will gradually break down in light of the enforcement burden at hand. A few numbers regarding Internet growth and usage, in particular, can help put this “problem” into perspective:

[A half dozen factoids then followed documenting the growth of online activity.]

(4) User-Generated Content: Considering the relative youth of this new communications / entertainment medium, these are astonishing growth numbers. This explosive growth is a direct result of the seismic shifts underway in our new world of organic, bottom-up media creation—what Wired editor Chris Anderson refers to as “the Age of Peer Production”:

“The tools of production, from blogging to video-sharing, are fully democratized, and the engine for growth is the spare cycles, talent, and capacity of regular folks, who are, in the aggregate, creating a distributed labor force of unprecedented scale.”

In this new world in which every man, woman and child can be a one-person publishing house or self-broadcaster, restrictions on viewing, listening or downloading will be become increasingly difficult to devise and enforce. …

[Still more examples followed that illustrated how this trend was also undermining content control efforts.]

(5) The First Amendment: Given the problems of convergence, scale, volume, and the rise of user-generated content, regulators might react by simply sticking to the regulation of licensed electronic media providers, namely, television and radio broadcasters. After all, lawmakers already have a great deal of leverage over those media outlets and they might hope that by regulating them alone, a message will be sent to other media providers regarding what is acceptable content.

But that is a false hope. Traditional “free, over-the-air” broadcasting represents a steadily shrinking portion of our modern media universe. In recent years, the hegemony of the “big 3” television networks and the powerful local radio broadcast stations has been greatly eroded. Indeed, broadcasters are now struggling to adapt and survive in a world of media abundance and intense competition. Consequently, if regulators simply continue to regulate licensed broadcasters alone, it will simply accelerate the decline of broadcasting relative to its many new competitors. Asymmetrical regulation will be the death warrant for free, over-the-air broadcasting.

Eventually, the very existence of this asymmetry will force a major Supreme Court showdown testing the legitimacy of the bedrock cases upon which America’s broadcast content control regime rests: Red Lion Broadcasting Co. v. FCC (1969) and FCC v. Pacifica Foundation (1978). Red Lion held that broadcast television and radio could be regulated differently than traditional print outlets (newspapers and magazines) because broadcast outlets were more “scarce” than other media outlets and, therefore, required government licenses to operate. Consequently, speech controls were viewed as a natural outgrowth of government licensing and oversight responsibilities in the name of protecting “the public interest.” Pacifica held that broadcasters shouldn’t receive the same First Amendment protections as other media because broadcasting was more “pervasive” throughout society and also more “uniquely accessible” to children. To reiterate, these standards were only applied to broadcast radio and television, not print media and generally not cable or satellite.

There have always been serious intellectual deficiencies associated with the “scarcity” and “pervasiveness” rationales for America’s schizophrenic media policy. What is increasingly obvious to most observers, however, is that the Red Lion and Pacifica rationales for asymmetrical regulation will simply no longer work in the modern media environment. Red Lion’s “scarcity” rationale is now an absurd basis for regulation in light of the sheer volume of media at our disposal. And the problem with Pacifica’s “pervasiveness” standard as a regulatory rationale is that it proves too much; it could cover anything public officials deem to be widely available or “uniquely accessible” to children. (In terms of what children see or hear, is broadcasting really more pervasive than cable, cell phones, video games or the Internet today?) Moreover, although some lawmakers would like to make it so, the new regulatory calculus cannot magically become “popularity equals pervasiveness.” Merely because a given media outlet or technology gains more widespread use throughout society, it does not mean its First Amendment status should change. The courts will likely reject any effort by government to say that 51% market penetration results in diminished speech protection for a given media outlet or provider.

But one powerful rationale for the expansion of content controls remains: the “level playing field” argument. Many lawmakers, and potentially even some traditional broadcasters, will use “level playing field” arguments to justify the extension of the old regulatory regime to new media technologies–cable, satellite, cell phones, and the Internet–in the name of fairness. But, again, as these and other new technologies and outlets come to dominate America’s media landscape, lawmakers should reject the urge to impose old rules on new technologies and services. Already, the courts have firmly rejected the Communications Decency Act (CDA) of 1996 and subsequent efforts–both federal and state-based–to impose speech controls on the Net. As a result, the Internet now receives the same level of strict First Amendment scrutiny and protection as print outlets. In choosing how to level the regulatory playing field between print, the Net, cable, satellite, broadcasting and all other media, it should be done in the direction of greater freedom for all speakers, not less. Ironically, it was the FCC that most succinctly captured this principle when it decided to abandoned the so-called Fairness Doctrine in 1987:

[T]he role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. … First Amendment protections against content regulation should apply equally to the electronic and the printed press.

The FCC was right; the standard that governs print media should apply to all electronic / digital media as well. The fact that the Internet has already won significant judicial protection from legislative efforts to regulate online content indicates that the courts have already moved to adopt this position. It is increasingly unlikely that the courts will accept the extension of broadcast-era content regulations to new media outlets and technologies. The courts appear ready to apply stricter scrutiny to all speech controls in the future, especially since judges are not blind to the convergence and scale / volume problems outlined above. This is the “higher First Amendment standard” problem which all new content-related legislative and regulatory enactments will now face in America.

The Empire Strikes Back Governments won’t give up, of course. As legal, technological and cultural changes continue to erode the effectiveness of the distribution-based regulatory methods of the past, governments will search for new ways to continue to exert control over content flows. But, as previously mentioned, it will likely take extreme measures by government to accomplish this task in the future. Two approaches deserve close consideration, and they are outlined succinctly in a new book by Jack Goldsmith and Tim Wu entitled Who Controls the Internet: Illusions of a Borderless World.

Goldsmith and Wu are proponents of what David Post has referred to as the “unexceptionalist” school of thinking about Internet governance and media regulation. Unexceptionalists believe that the problems created by the rise of the Internet and new digital media outlets and technologies are really not all that different than the problems lawmakers had to deal with before when the telegraph, telephone and television first appeared. “Exceptionalists,” by contrast, believe that the Internet and the many other new media technologies and developments really are quite different than previous technologies and pose a more formidable challenge to traditional legal arrangements.

While unexceptionists like Goldsmith and Wu often concede that the Internet and new media technologies present unique challenges, they argue that domestic and international legal systems can adapt to accommodate local preferences and respect territorial regulations, including content controls. At root, their argument is that we should never underestimate the power of state coercion to essentially beat people, companies and technologies into submission. Using various coercive powers, the state can contain speech flows even in our new multimedia, multiplatform world, they say.

But the two primary approaches they identify to accomplish this task are riddled with problems:

The “Great Wall” Approach: One obvious approach to controlling content flows is for government to control the underlying “means of production” and information dissemination. In today’s Internet world, that means government would seek to control of the routers, servers, and other computing or networking devices that constitute the heart of modern information infrastructure. This is the approach that more repressive regimes like Saudi Arabia, China, North Korea and Iran have adopted to control “undesirable” information flows. Indeed, China’s highly restrictive system has been dubbed the “great firewall of China.”

But “great wall” regulatory solutions are almost completely untenable in more advanced economies since the information genie is already well out the bottle. In the United States and most European nations, for example, private ownership of means of information production is so diffuse and decentralized that it would be impossible for governments to gain control over the system and control information flows. Moreover, governments in democratic nations have a greater respect for the rule of law, property rights and various free speech values in more advance economies where the Internet has already taken root.

Thus, this solution is really only tenable in less developed economies that are just witnessing the sort of digital media renaissance we have seen in the U.S., Europe and Asia. Even in those countries that have adopted this approach, it is unlikely it is a workable solution well into the future. Networks expand. Technologies evolve. The “Net-izenry” (online population) grows. The scale and volume numbers cited above, while remarkable, only represent a trickle before the flood. Again, only 15 percent of the world’s population has found its way online so far. What happens when that number hits 25 percent, and then 50 and then 75+? And what happens as wireless and satellite-based technologies become even more advanced and every laptop and mobile media device on the planet offers wirelessly accessible Internet access? A recent story in The Washington Post noted how despite strict communications and media laws in Saudi Arabia—the country once sought to ban cell phone cameras—the youth of that country are finding ways around the restrictions:

“Cellphone technology is changing the way young people meet and date in the Kingdom of Saudi Arabia, one of the most insular, conservative and religiously strict societies in the world. Calls and texting—and more recently, Bluetooth—are breaking down age-old barriers and giving young men and women discreet new ways around the sentries of romance.”

The Washington Post now includes a section on its website called “Digital Revolution” that highlights stories “about high technology’s impact on politics, culture and society throughout the world.” And other tools of evasion are coming… [ I went on to describe some of them]

The “Deputize the Middleman” (Secondary Liability) Approach: A more realistic solution discussed by Goldsmith and Wu that could be tapped by governments (including those in advanced economies) would involve stringent liability schemes for major communications / Internet intermediaries.

[I never finished this section up, and that’s too bad because this is exactly where the debate over content controls stands today. But, I had outlined that…]

There are serious dangers with this approach as well:

• over-reaching self-censorship
• significant costs for intermediaries
• creates incentive to move offshore or operate surreptitiously outside the confines of law using encryption, anonymizers, and host of other tools

[Note: My TLF colleague Jim Harper wrote an important essay on these issues: “Against ISP Liability,” Regulation, Spring 2005, pp. 30-33.]

The Challenge Ahead If the thesis set forth here is valid and the days of traditional content controls are truly numbered, what happens next? Specifically, if government restrictions become largely ineffective or constitutionally impermissible, will parents or others be left powerless to stop what some believe is an onslaught of objectionable material?

This is reasonable concern. Like most parents, there are some types of content that I do not want my children to see or hear, especially at a very young age. And access to such materials is growing increasingly easy as children begin using communications technologies at earlier ages. Meanwhile, children continue to grow increasing technology-savvy. Since the rise of the personal computing in the 1980s and the Internet in the 1990s, there has been a running joke about how kids have to teach their parents and even teachers how to use these new digital tools.

No doubt, there is a great deal of truth in that notion. But does that mean children will be left on their own and expected to raise themselves in cyberspace? Are we facing a sort of “Lord of the Flies” scenario in which there are no constraints on what our children can do and they are left to enact rules of the road for themselves?

This seems to be the fear many parents and policymakers have today when they express frustration about what their children can see and hear in our media-saturated culture. To some, information abundance is a curse instead of a blessing; a problem to be dealt with, possibly even through extreme government measures such as “great wall” solutions or harsh liability sanctions like Goldsmith and Wu suggest.

But, again, any effort to deal with the “problem” of information abundance must begin with a realization that there is no putting the genie back in the bottle. As China and other repressive regimes are finding out today, once a sophisticated information infrastructure is in place, it is extremely difficult to stifle political dissent or even less threatening types of unfavored speech and expression. For more liberal regimes with fewer restrictions on human expression, there will still be social standards or cultural norms that are challenged by this modern multimedia universe. Some regimes or cultures will decry hate speech online. Others will lament sacrilegious cartoons. And for many others it will be various forms of pornography that spark official condemnation. In each case, these modes of speech or expression—offensive as they may be at times—will be impossible to eradicate from our new digital Information Society. Absent extreme measures, aimed at hobbling the sophisticated communications infrastructure that undergirds it, there will simply be no way of suppressing the flow of bits in our new digital, borderless, multimedia, multiplatform world.

The challenge that lies ahead, then, is for media companies, private organizations, family groups, educators and others to work together to devise reasonably workable solutions to the problem of underage access to objectionable content.

[Actually, it was at this point that I abandoned this manuscript entirely and set off to write the booklet that would answer those questions and concerns. It resulted in “Parental Controls and Online Child Protection: A Survey of Tools and Methods,” which I have discussed here many times before. In that report, I begin with the working assumption that content controls are in serious trouble and that parents and policy makers need to find constructive alternatives to traditional legal and regulatory tools. My book provides an exhaustive list of options and highlights the many tools and information that media companies and other organizations are providing parents to help them make media decisions for their families. However, I concluded my discarded manuscript by noting that…]

The traditional “mass media” era is coming to a close, however. An age of organic, bottom-up, collaborative, “we-dia” (We-Media) is now dawning. Who will play the “gatekeeper” role in this world of endless, instantaneous media creation? For example, in an online environment, parents have traditionally been concerned about what their children can download. Increasingly, however, it is what children can upload that is becoming a bigger problem. With the cost of computers, camcorders, digital cameras, cell phones, and Internet access all plummeting, the tools of information creation and dissemination are now within the reach of almost all citizens, including the youngest.

Clearly, this is not a problem that can be easily solved–if it can be solved at all–by public policy. In the end, for those parents who realize that information flows will be increasingly difficult to control, there is simply no substitute for talking to children in an open, loving and understanding fashion about the realities of this world, including the more distasteful bits.

[I had then planned to conclude the introductory chapter with a discussion of the importance of educational strategies, media literacy efforts, and parental empowerment tools and strategies that could help us address concerns about access to objectionable content as censorship efforts became increasingly less effective and largely faded away. Again, that’s when I diverted all my attention to detailing those things in my book on parental controls and online child protection. And so ends my story about the book I threw away!]

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.”

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 2007 The 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.

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.

PBS just announced that Ken Burns’s upcoming documentary about WWII (“The War”) will now be censored during certain broadcasts. According to this article by Paul Fahri in today’s Washington Post:

[public television] stations are concerned that four words of profanity in the 14 1/2 -hour documentary could subject them to hefty indecency fines from the Federal Communications Commission. Their worries have prompted Arlington-based PBS to take the unprecedented step of distributing two versions of “The War” for broadcast next month: Burns’s original film and an FCC-friendly version from which the profanity has been removed.

The comments of these two PBS officials are particularly telling:

“It’s the world we live in right now,” said Joe Bruns, WETA’s chief operating officer. “My own view is that with the landscape of a 14-hour film about World War II, and given the overall obscenity of war, four words are not particularly shocking — especially given the fact that these are words used routinely at that time. But [nowadays], we have to exercise an abundance of caution.”

and

“The core problem is, we don’t really know what the FCC will do with a complaint because the guidelines aren’t clear,” PBS’s chief content officer, John Boland, said yesterday.

That’s because the FCC reserves the right to fine stations $325,000 if they broadcast something “indecent” between 6 a.m. and 10 p.m. But the FCC refuses to tell anyone beforehand whether a particular use of a particular profanity is “indecent” or not. If you think that reeks of arbitrary, unaccountable government, you are right. And yet this is the law of the land.

And what is particularly absurd about this case is that this documentary will also contain gritty war footage and plenty of carnage. That’s what happens in war, after all. But what our government seeks to protect us (or our children) from is a few dirty words that actual soldiers utter about the grim realities of war. Absolutely absurd.

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.”

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.

But what Rockefeller said next was really telling. After claiming that Americans don’t want more tools to handle this on their own, Rockefeller launched into full-blown attack mode against parents and the act of parenting: “There are many parents who cannot make these things work, or they are just not there [in the home]… Americans don’t know technology well,” he said. And, most shockingly, Rockefeller concluded that, “Unless you can show that parental responsibility works, I think we have to try something else.”

I don’t know about you, but there’s something deeply insulting and troubling about that statement. As I mentioned above, Sen. Rockefeller suggested that industry is “blaming parents,” but it sounds to me like he’s the one blaming them and actually going further by accusing them of not being able to do their jobs.

Regardless, what are we to make of Rockefeller’s other contention that “Parents do not want more tools,” he argued, “they want the content off the air.” There are three problems with this argument.

First, as I discussed in great detail in this essay just yesterday, many recent polls confirm what we already know to be true: Parents are parenting. They are learning to cope with new media realities and adapt to them to make sure they can monitor and control their children’s media experiences. For example, the TV Watch poll released just this week revealed that 73 percent of parents monitor what their children watch, including 87 percent of parents whose children are ages 0-10. Also, 86 percent of parents believe that more parental involvement is the best way to keep kids from seeing what they shouldn’t see on television. Those results seem to strongly contradict Sen. Rockefeller’s contention that parental responsibility doesn’t work.

Second, we know that it cannot possibly be the case, as the Senator suggests, that all parents “just want the content off the air.” After all, I’m a parent of two young kids and some of the things that Sen. Rockefeller wants censored are my favorite shows and they are among the most popular shows on television today. (ex: CSI, The Shield, Rescue Me). Tens of millions of American parents like my wife and me tune into these shows each week and enjoy them. Are they fit for kids? Of course not, and like most other parents, my wife and I take steps to ensure our kids cannot watch them. But I think the millions of American parents who enjoy those programs would be deeply insulted by Senator Rockefeller’s suggestion that we all “just want the content off the air.” That’s a decision for us to make for ourselves, Senator.

Finally, not every home in America has kids in residence but the Senator wants to impose regulations that would treat everyone as if they were children. The majority of U.S. households, in fact, are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18. Under Sen. Rockefeller’s logic, however, we should be treating all homes as if children were present and regulating television so that it is only fit for a child. I don’t know about the rest of you parents out there, but I can’t live on just Sesame Street and Mr. Rogers alone!

Sen. Rockefeller is certainly free to get on his moral high-horse and preach to us about his vision for television: highly sanitized and apparently full of only documentaries and nature programs (just make sure none of them are about war or animals fighting each other to the death!) But it is quite another thing to mandate that vision from above using the heavy hand of government regulation as the Senator is threatening.

If the Senator wants to take a more constructive (and constitutional) approach, he might want to consider doing more to help educate parents about the many excellent parental control tools at their disposal. (Hey Senator.. send them my book! It has over 100 pages of parental control tools, tips and methods to help them.) Heck, if he doesn’t think that’s enough, then he can propose government subsidies for TiVos, personal video recorders, DVD players and VCRs so that parents can perfectly tailor TV programming to their own values!

But Senator, don’t you dare suggest that all America parents are incompetent or that we all want media censored to be in line with your values. That is deeply insulting and blatantly un-American.

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.

In the past, the OFF button was the only technical control at a parent’s disposal. Today, by contrast, parents like me have myriad tools and methods to restrict or tailor media content to their own household tastes and values. I could spend all my time here today merely discussing the restrictive tools on the market that parents can and do use to block or curtail media. Those restrictive tools include: the V-Chip and TV ratings; cable and satellite set-top box screening tools; DVD blocking controls; cell phone blocking tools; video game console controls; Internet filtering and monitoring tools, instant messaging monitoring tools; operating system controls; web browser controls; search engine “safe search” tools; media time management devices, and so on. You will find an exhaustive discussion of all these tools and many others in my book.

But while those restrictive tools are important, they are only part of the parental control story. Enabling or tailoring tools are what makes today’s parental control market so exciting. By enabling or tailoring tools I mean any tool or method that a parent might use to enable their families to see, hear, or consume content they would regard as more appropriate, ethical, or enriching.

For example, for televised media, VCRs, DVD players, and personal video recorders have emerged as important parental control devices. These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when and where it will be viewed. Pay-per-view options also help parents better tailor viewing choices for their kids. And don’t forget about the huge and growing market for educational DVDs, video tapes and computer software.

Speaking of computers and the Internet, parents can now tailor their children’s online activities in similar ways. In my new book, I document dozens of kid-friendly search engines and Internet portals that are essentially online “walled gardens” filled with pre-screened content and safe chat areas.

And even in the world of mobile media, new wireless handsets and services offer parents the ability to not only monitor the content their child might try to access, but to also establish pre-approved calling lists and tailor the communications experience to make it safe enough for even very young kids.

Also, it is vital that we not overlook the importance of informal household media rules in this discussion. Oftentimes, debates about inappropriate content get so caught up with disputes about technical controls, ratings or even regulation that we forget that parents often view all these things merely as backup plans. In my book, I identify four categories of household media rules that surveys show almost all parents use some combination of to control their children’s media consumption. These household media rules include:

(1) “where” rules (assigning a place for media consumption); (2) “when and how much” rules (creating a media allowance); (3) “under what conditions” rules (carrot-and-stick incentives); and, (4) “what” rules (specifying the programming kids can and cannot watch).

I don’t have the time here to run through all the possible examples, but certainly most of us are familiar with widely used household media rules like, “No watching TV or playing games until your homework is done,” or “You can’t watch that movie until you complete your chores.” Such household media rules can actually be more effective in controlling children’s media habits than technical controls. But debates about parental controls and media policy treat these household media rules almost as an afterthought, if they are mentioned at all. It’s time we start talking about them.

Finally, let’s not forget about the ultimate parental control tool: the “power of the purse.” In most cases, when kids want to consume a certain type of media—or even consume something they see advertised in the media—they need money to do so. Televisions, movies, video games, cell phones, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to us and ask. And, although at times it may be difficult, we all have the power to say “No.” That is the ultimate way to control the images our kids see on the screen.

Thank you again for inviting me today.

Attachments:

• “The Right Way to Regulate Violent TV,” May 14, 2007, by Adam Thierer

• “Parental Controls and Online Child Protection: A Survey of Tools and Methods,” June 2007, by Adam Thierer

• “The Complexities of Regulating TV Violence,” [a PFF event transcript]

• “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?,” May 2005, by Robert Corn-Revere.

• “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill,” April 2005, by Adam D. Thierer.

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.

When the agency says “an appropriate definition of excessively violent programming… needs to be narrowly tailored and in conformance with judicial precedent,” does the agency not realize that there is no such judicial precedent to look to here because what the FCC is proposing here is completely unprecedented?

When the agency says “a definition based on the scientific literature… which recognizes the factors most important to determining the likely impact of violence on the child audience” are they suggesting that a team of child psychologists should sign off on what programming is allowed or forbidden?

And does the agency really clarify things any when it says: “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.” Needless to say, “depictions of physical force against an animate being that… are patently offensive” is a fairly open-ended regulatory mandate.

And saying that “patently offensive” programming might be defined so as to include “the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic” doesn’t really help us all that much. Would “Saving Private Ryan” or “Schindler’s List” be regulated under that standard? Where would news reports or documentaries about wars fall under that standard?

And when the agency talks about “whether the violence is realistic” as part of the standard, which way do they mean? If the violence is more realistic, is that good or bad? I ask that question because I sometimes hear some media critics bemoaning the fact that fantasy or animated violence doesn’t portray the actual consequences of violence.

We get no answers to any of these questions. The ambiguity in this report is so thick that you could cut it with a knife. (Wait, bad analogy.. The FCC might fine me for that!)

But don’t take my word about the ambiguous, open-ended nature of this report or the Pandora’s Box of regulatory shenanigans that the FCC is opening up here. Listen to what FCC Commissioner Jonathan Adelstein had to say about the report in his statement today:

The Commission has not been able to formulate and recommend a definition of violence that would cover the majority of violent content that is inappropriate for children, provide fair guidance to programmers, and stand a decent chance of withstanding constitutional scrutiny, in light of judicial precedent. While we may want to define prohibited-violence and regulate it in conformance with constitutional standards, the Report does not refer to any court or judicial scholar that has suggested such definition is available or probable. To the contrary, the Report diminishes the extent to which courts have either expressed serious skepticism or invalidated efforts to regulate violent content. I believe we have an obligation to provide Congress with the complete analysis of this “jurisprudential quagmire,” whereby “any regulation of television violence confronts an inherent tradeoff between precision and effectiveness” and “any restriction in this area that is neither overboard nor vague will leave unregulated so much violent programming that it will no longer accomplish a compelling interest.” The central tension we face is that adults’ access to violent programming is protected under the First Amendment to the U.S. Constitution. The difficult question is precisely which violent programming, if any, the government can regulate in the interest of protecting children. That question — the most challenging Congress faces — is never answered here.

Wanna make a bet those paragraphs are quoted by the Supreme Court when they strike all this down in a couple of years as a blatant violation of the First Amendment?

Are Parents Completely Incompetent? But let’s just set aside all those meddlesome First Amendment matters for a moment and talk about some the other flawed assumptions upon which the agency’s report is built.

Reading through this report, one is struck by the fact that the FCC seems to think that parents are completely incompetent and that only benevolent-minded bureaucrats can save the day from objectionable fare that enters the home. The agency repeats the criticisms leveled by media critics and regulatory activists like the Parents Television Council and Morality in Media who claim that technical controls (ratings, V-Chip, cable set-top box controls, etc) have been a failure. The report concludes that: “although the V-chip and TV ratings system appear useful in the abstract, they are not effective at protecting children from violent content (p. 3)”… and “it does not appear that cable operator-provided advanced parental controls are available on a sufficient number of cable-connected television sets to be considered an effective solution at this time.” (p. 15).

Ironically, the FCC can’t even figure out what it really wants to say on this front. Consider this rather remarkable paragraph on pg. 17:

Experience also leads us to question whether such a ratings system would ever be sufficiently accurate given the myriad of practical difficulties that would accompany any comprehensive effort to ensure the accuracy of ratings. Moreover, such a requirement may have an unintended practical consequence. There is some evidence that TV ratings may actually serve to attract certain underage viewers to programming that is violent or is otherwise labeled as not intended for a child audience.

What a peculiar argument. On the one hand, the FCC tells us that the current TV ratings don’t work because they don’t provide parents enough information. But here, on the other hand, they’re saying that if the ratings system worked perfectly and described violent content accurately then the old “forbidden fruit” problem would kick in and kids would just try harder to watch such programming. Basically, there’s just no winning with the agency; they seem determined to find a justification for regulating using any rationale possible.

But what of the argument that the current ratings and blocking tools are ineffective? It’s rubbish. Either the FCC and the critics have never bothered trying to use the tools or they are nit-picking with the definitions of certain types of content that they feel was offensive and not blocked by a certain rating. That’s the problem with arguments like those made by the Parents Television Council and other regulatory advocates. In an attempt to persuade regulators to reshape television through regulation in the way they desire, these critics claim that certain words or images should have been screened according to their standards. Is “bitch” an indecent word? The PTC thinks so. But many in the public use it every day. So when a TV programmer doesn’t tighten a show’s rating because that word is uttered, is that really a failure of the ratings system? Same goes for violence. A pillow fight on the Brady Bunch would probably lead to calls for an “TV-MA” rating from some of these groups.

What critics consistently forget–or perhaps intentionally ignore–is that media ratings and content labeling efforts are not an exact science; they are fundamentally subjective exercises. Ratings are based on value judgments made by humans who all have somewhat different values. Those doing the rating are being asked to evaluate artistic expression and assign labels to it that provide the rest of us with some rough proxies about what is in that particular piece of art, or what age group should (or should not) be consuming it. Thus, the critics can always claim there are “flaws” in a ratings systems but that’s only because humans all have different perspectives and values that they will use to label or classify content. But that doesn’t mean the ratings can’t be an effective tool that can help parents screen out a great deal of material they might find undesirable.

But let’s forget about ratings and technical controls like the V-Chip and set-top boxes for a moment. Why? Because many parents forget about them. That is, many parents just ignore technical controls altogether and opt for informal household media rules instead. In fact, a 2003 Kaiser Family Foundation survey found that “Almost all parents say they have some type of rules about their children’s use of media.” And a 2006 Kaiser survey of families with infants and preschoolers revealed that 85 percent of those parents who let their children watch TV at that age have rules about what their child can and cannot watch. 63 percent of those parents say they enforce those rules all of the time. (Incidentally, about the same percentage of parents said they had similar rules for video game and computer usage.)

Parents employ a wide variety of household media consumption rules. Some of these can be quite formal in the sense that parents make the rules clear and enforce them routinely in the home over a long period of time. Other media consumption rules can be fairly informal, however, and be enforced on a more selective basis. Regardless, these household media consumption rules can be grouped into three general categories: (1) “Where” rules; (2) “When and how much” rules; and, (3) “Under what conditions” rules.

For example, many families establish “where” rules regarding the placement of TVs or other media devices in the home. In our home, my wife and I have assigned our kids a specific TV for the limited selection of programming we allow them watch and that TV is located in the living room where we keep and eye or ear on what their kids are watching at all times. And all of us probably heard this “under what condition” rule at some point in our childhood: “You have to finish your homework before you get to watch any TV.” And an example of a “when and how much” rule would be: “No TV or video games after 8:00,” or, more stringently: “No TV or games on a school night.”

Many families get even more creative by devising a “media allowance” for their children (especially as they get older) to allow them to consume media within certain boundaries. In our home, my wife and I generally allow our kids one hour of TV viewing per night on weeknights, and two hours on Saturdays and Sundays. Carrot-and-stick incentives can also be used with this approach. For example, better behavior or improved grades at school might be rewarded by adding additional viewing time to their overall weekly media allowance.

Of course, there’s a fourth category that could be added to the list of informal household media rules listed above: “what” rules. As in, what we allow our kids to watch at all. According to The Pew Internet & American Life Project, 77 percent of parents already have rules for what TV shows their kids can watch, 67 percent have rules for what kind of video games they can play, and 85 percent have rules about what Internet websites they can and cannot visit.

And there are countless other examples of such formal and informal household media rules, or the creative use of new technologies to control children’s media consumption. My wife and I have developed a strategy of designating a specific television in our home for most of our children’s media consumption and then using a personal video recorder to amass a large library of programming we believe is educational, enriching and appropriate for them. Dozens of programs can be cataloged and archived in this fashion and then supplemented with VHS tapes, DVDs and computer software. As a result, when we allow our children some TV time, we always know that the episodes of “Dora the Explorer,” “Go Diego Go,” “Blue’s Clues” and “The Wiggles” that we approve of for our kids will be available. Needless to say, such content tailoring was not an option for families in the past. [I summarize all these things in my forthcoming PFF special report Parental Controls and Online Child Protection: A Survey of Tools and Methods, due out in early June.]

Such informal household media rules are a vitally important, yet frequently overlooked, part of this debate. In fact, the FCC never even bothers mentioning such things in its new report. Certainly a few of the good folks down at the FCC are parents themselves. Do they not have such household media rules at work in their homes? I bet they do. And I bet a significant percentage of them just ignore all the other technologies altogether and opt exclusively for such informal household rules like many other American households.

But if you’re focused on adding fuel to the flames of an already burning political crusade, then I suppose you wouldn’t want to mention things like this. The FCC just asks us to believe that parents are completely helpless against these supposed technological “invaders” into our homes. You know… those damn $2,000 televisions that magically walked into our homes, and those meddlesome $50-a-month cable and satellite boxes and subscriptions. How dare they those devices come into our homes uninvited and make us watch them! Please FCC… save us from ourselves!

But the Whole World is Going to Hell, Right? Of course, this entire debate is premised on the theory that any exposure to violent television is going to turn our kids into aggressive thugs or worse. The FCC seems to buy that argument hook, line and sinker. Like many media critics, the FCC is convinced that the “scientific” literature on media violence is a closed case and that exposure to violent materials results in real-world aggression. A lot of psychological studies have made that claim and asked us to believe in a “monkey see, monkey do” theory of media effects.

But it’s important to realize that the academic literature on the effects of media violence is not nearly as unified as you might think. In fact, as Dr. Edward Fink of the Department of Radio-TV-Film at California State University-Fullerton, notes, you can find endless reports to support just about any thesis you want to believe in:

Do you want to believe that TV violence is bad? Plenty of research there. One example comes from Dr. L. Rowell Huesmann and associates in the American Psychological Association journal Developmental Psychology, March 2003. They found that a high level of TV violence in childhood is a predictor of more-aggressive behavior in adulthood. Do you want to believe that TV violence is not necessarily bad? There’s plenty of stuff! One example comes from Dr. Ron Warren in the Broadcast Education Association’s Journal of Broadcasting and Electronic Media, September 2003. He found that parental mediation of children’s TV viewing can both inhibit negative effects and enhance positive effects. Do you want to believe both? Once again, a bounty of data! One example is the comprehensive National Television Violence Study, published by the University of California, Santa Barbara. It concludes, “Television can be a powerful influence on social mores concerning violence and aggression, for good or for ill.”

Others have confirmed this academic schizophrenia and pointed out that, if anything, the literature on this subject is ambiguous at best and perhaps even leans against the “causal hypothesis” that media violence leads to aggressive behavior. Psychologist Jonathan L. Freedman conducted the most comprehensive review of all the major literature on this subject for his book Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence.

Freedman concluded that “the results do not support the view that exposure to media violence causes children or anyone else to become aggressive or to commit crimes; nor does it support the idea that it causes people to be less sensitive to real violence.” Freedman collected and reviewed all the laboratory experiments, field experiments, longitudinal studies, and other studies employing mixed methodologies. He concluded that “not one type of research provided the kind of supportive evidence that is ordinarily required to support a hypothesis. Not one found 90 percent supportive or 80 percent supportive or 70 percent supportive or even 50 percent. In fact, regardless of the method used, fewer than half the studies found results that supported the [causal] hypothesis–sometimes considerably fewer than half.”

Finally, when we step outside the laboratory setting and examine real world trends in a search for a supposed casual link we don’t find one there either. Consider, for example, the reversal of various social indicators over the past decade. According to FBI reports, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Aggregate violent crime by juveniles fell by a whopping 39% from 1995-2005. The biggest components of that decline were the 52% drop in juvenile robbery and the 64% drop in the juvenile murder rate. Again, while all these social trends were greatly improving, media exposure–including exposure to violent fare–was supposedly increasing according to the FCC and other media critics.

These results do not conclusively rule out a link between exposure to violence media content and violent acts in the real world. But they should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation who all too often make casual inferences about the relationship between media exposure and youth behaviors.

How do the critics respond to the fact that their theories don’t match up with real-world realities? They don’t. Their silence on this point is really quite stunning. But I guess they figure that real-world facts can be ignored when they have publicly-funded, artificial lab experiments that say there might be a link. Until the supporters of the “monkey see, monkey do” hypothesis can come up with a good explanation for why their thesis is at odds with real-world social indicators, it will be difficult to take them seriously. And their theories cannot be used to support government regulation of media content.

Incidentally, in the context of video games, that’s exactly what every court that has looked at this issue has concluded. Following efforts to regulate violent video games, 10 different courts across the U.S. have been asked to take a look at the “media effects” literature about exposure to violent programming and its effect on real-world aggression. EVERY SINGLE ONE OF THEM has concluded that no such link has been proven. As a result, every state and local effort to regulate video games based on the supposed harm to children has been thrown out as unconstitutional and the governments in question were even forced to pay the gaming industry’s attorney’s fees! The FCC doesn’t bother considering any of this important jurisprudence in its new order. But you better believe that other courts will look at those decisions once any new TV violence regulations are implemented and then litigated.

Conclusion: Wither Personal Responsibility? The Parents Television Council, which seems to have the ear of FCC officials on this and other content regulation issues, has an interesting motto: “Because Our Children Are Watching.” It’s a tagline they use all over their website and in all their printed materials. Presumably it means that they believe regulation is justified because our children are watching television in our homes.

But whenever I see that “Because Our Children Are Watching” tagline I always ask myself: Why? Why are you’re children watching? Why are you letting your children watch shows you might find offensive or harmful? Do you not exercise any control over your kids? Do they run the household, or do you? Weren’t you the one to bring those TVs, cable boxes and satellite dishes home? Did you not set up any ground rules about what they can watch once you brought those things into the home? Do you not limit their viewing time? Do you not turn the TV off and make them do other things? Do you not talk to them about what’s on TV, what you find inappropriate, and what the difference is between fantasy and reality?

Honestly, I just don’t get it. Why do critics like the PTC and their many allies in this fight give lip service to the notion that parents should be the “first line of defense” in terms of the video programming that enters the home, but then they turn around and vociferously advocate that five unelected bureaucrats at the FCC step in an as a surrogate parent for our children? Let us be clear on this point: If you advocate a role for the government in terms of regulating violent programming on television then you have made those regulators the primary party in charge of what comes into the home. When government regulates speech it acts on everyone’s behalf and tells us what it thinks is best for ALL OF US and ALL FAMILIES.

That’s not how things should work in a free society. Decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours. Consequently, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable content to them. That’s especially the case in light of the fact that most U.S. households are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18.

Whatever happened to personal and parental responsibility in this country? I’m looking out for my own kids. FCC officials and the media critics should look out for theirs and quit treating the rest of us like we’re all children.

The Parents Television Council (PTC), a media activist group that routinely petitions Congress and the FCC for greater content regulation, recently released a new poll which they say proves that the V-Chip and parental control technologies have been a failure.

Their poll finds that only 11% of those surveyed said they used the V-chip or their cable box parental controls to block unwanted content from their television during the past week. And that result is virtually unchanged from a poll they took last September asking the same question. Therefore, the PTC concludes that recent efforts by broadcasters and cable companies to spend hundreds of millions of dollars educating families about these parental control tools have been a failure. And, unsurprisingly, the PTC feels that this again shows the need for government regulators need to step in and do more national nannying for us.

As I’ll make clear in a moment, the V-Chip and current television ratings are certainly not perfect. And I have no doubt that household usage of these tools is quite low for reasons I’ll get into. But let me first address what appears to be a rather glaring methodological deficiency of this PTC poll which makes it difficult to take seriously.

According to the PTC press release announcing the poll results, “The PTC paid for a few questions to be included in omnibus telephone surveys of adults nationwide, conducted by Zogby International.” In other words, the PTC poll randomly surveys all households, which means they are including in their polling results the millions of households that have absolutely no children in them.

This makes their poll results highly suspect. It simply does not make sense to survey all homes about V-Chip or parental control usage because adult-only homes almost certainly would not be using any parental controls to block programming. This would be like polling all Americans, including homes made up of only adults, about whether or not they had baby locks on their kitchen cabinets!

And we’re talking about a significant percentage of homes here. According to the U.S. Census Bureau, almost 68% of American homes do not have any children under 18 years of age in residence. Therefore, the only population that should be surveyed when asking about parental controls is the 32% of homes that currently have children in residence.

Moreover, it is important to keep in mind that even for those homes with children in residence, not all of them will need to use parental control technologies before a certain age (4-5) or after a certain age (15-16) because many parents do not let their kids watch much TV until a certain age and then after a certain age trust their kids or just talk to them about objectionable fare.

Now, that being said, I am sure that even if the PTC had conducted its poll properly, the numbers would still be quite low for homes with children, but that doesn’t mean that the V-Chip or parental controls are a failure. As I argue in my big upcoming report on parental controls, surveys show that many families instead rely on informal household “media consumption rules,” preferring them to technical controls such as the V-Chip or set-top box controls. For example, a 2003 Kaiser Family Foundation survey found that “Almost all parents say they have some type of rules about their children’s use of media.” And a 2006 Kaiser survey of families with infants and preschoolers revealed that 85 percent of those parents who let their children watch TV at that age have rules about what their child can and cannot watch. 63 percent of those parents say they enforce those rules all of the time. About the same percentage of parents said they had similar rules for video game and computer usage.

We’re all familiar with these household media consumption rules even though we often don’t think of them as “rules.” These household media rules can be grouped into three general categories: (1) “Where” rules; (2) “When and how much” rules; and, (3) “Under what conditions” rules.

For example, many families establish “where” rules regarding the placement of TVs or other media devices in the home. In our home, my wife and I have assigned our kids a specific TV for the limited selection of programming we allow them watch and that TV is located in the living room where we keep and eye or ear on what their kids are watching at all times. And all of us probably heard this “under what condition” rule at some point in our childhood: “You have to finish your homework before you get to watch any TV.” And an example of a “when and how much” rule would be: “No TV or video games after 8:00,” or, more stringently: “No TV or games on a school night.”

Many families get even more creative by devising a “media allowance” for their children (especially as they get older) to allow them to consume media within certain boundaries. In our home, my wife and I generally allow our kids one hour of TV viewing per night on weeknights, and two hours on Saturdays and Sundays. Carrot-and-stick incentives can also be used with this approach. For example, better behavior or improved grades at school might be rewarded by adding additional viewing time to their overall weekly media allowance.

And there are countless other examples of such formal and informal household media rules, or the creative use of new technologies to control children’s media consumption. My wife and I have developed a strategy of designating a specific television in our home for most of our children’s media consumption and then using a PVR to amass a large library of programming we believe is educational, enriching and appropriate for them. Dozens of programs can be cataloged and archived in this fashion and then supplemented with VHS tapes, DVDs and computer software. As a result, when we allow our children some TV time, we always know that the episodes of “Dora the Explorer,” “Go Diego Go,” “Blue’s Clues” and “The Wiggles” that we approve of for our kids will be available. Needless to say, such content tailoring was not an option for families in the past.

The PTCs new poll simply doesn’t take things like this into account. For those looking to conduct an honest and accurate assessment of the true state of parental control methods in homes, their polls should: (1) only survey those households with kids in them; (2) then the pollsters should also ask the approximate ages of the children in the home to determine how relevant technical controls are for the family; and, (3) ask whether the parents rely on other, non-technical methods of controlling media consumption. Only then would you be able to draw reasonable conclusions about how American families go about controlling their children’s media consumption and the role technical controls or industry ratings play in the process. But the PTC poll fails on all these counts.

In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.

For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today’s entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades–the regulation of “excessive violence” on television.

Last week, L.A. Times technology and media reporter Jim Puzzanghera wrote a detailed piece about how “Washington May Take Up TV Violence” in coming months. In his article he noted that:

With a fresh Congress sworn in and a major (FCC) report expected soon on TV gore, pressure is likely to mount to more aggressively stem graphic and gratuitous scenes in shows. One proposal would give regulators powers similar to those they have now to punish indecency and coarse language over the airwaves. In addition, TV violence is shaping up as a 2008 presidential campaign issue with some of the leading potential candidates already at the forefront of the issue. Sen. Hillary Rodham Clinton (D-N.Y.) has long talked about the effect of gory TV shows and video games on children. Sen. John McCain (R-Ariz.) favors allowing families to buy cable channels separately so they can spurn objectionable shows. Sens. Barack Obama (D-Ill.) and Sam Brownback (R-Kan.) also have bemoaned TV violence.

Puzzanghera notes that, beyond Democratic presidential front-runners Clinton and Obama, other congressional Democrats and regulators at the FCC have jumped on the regulatory bandwagon. At the FCC, Democratic Commissioner Michael J. Copps, recently argued that, “In the absence of action from the industry [to address violence on television], I think we need to be looking at all our options.” He means regulatory options, of course. And, over in Congress, Puzzanghera reminds us that in 2004, Rep. John Dingell (D-MI), the new head of the House Energy and Commerce Committee, was one of 39 House members signing a letter to the FCC asking the agency to study violence on television and how it might be restricted. With Dingell now running the committee in which most communications / media legislation originates, this could mean that regulation is on the way.

Puzzanghera also highlighted one particularly important legislative proposal that I have written quite a bit about in recent years–Senator John D. Rockefeller’s (D-W.Va) “Indecent and Gratuitous and Excessively Violent Programming Control Act.” (S. 616 in the last Congress).

As I noted in my detailed analysis of the bill in April of 2005: “If passed, S. 616 would represent the most significant congressional effort to regulate speech since the Communications Decency Act (CDA) of 1996.” That’s because the measure would significantly expand the penalties that traditional broadcast outlets face for indecency violations, and then apply those penalties to cable and satellite. More importantly, in the process, the measure also proposes to let FCC regulators embark on a grand new experiment in regulating “excessively violent” video programming, not just on broadcast television, but also on subscription-based cable and satellite TV.

Puzzanghera notes that Rockefeller plans on reintroducing the measure this session and “With his own party now in the majority, Rockefeller may get hearings and a vote, further propelling the issue.” Sen. Rockefeller tells Puzzanghera that “Obviously, the preference would be to have the industry police itself when it comes to excessive violence. However, if they can’t or won’t do it, then Congress must step in and address this growing societal problem,” Rockefeller said. “One of the most basic steps we can take is to give the FCC authority to regulate violence, and if necessary, the courts will then work out the constitutional issues on a case-by-case basis… Just sitting on our hands and doing nothing to protect children is not an option.”

But before Rockefeller and other Democrats embark on a new “it’s-all-for-the-children” crusade to rid the world of media violence, hopefully they will be willing to consider the mixed “scientific” record on this front as well as the First Amendment complexities associated with defining and regulating “excessive violence” on television.

Academic Evidence, or Lack Thereof

The academic literature on the effects of media violence is not nearly as unified as you might think. In fact, as Dr. Edward Fink of the Department of Radio-TV-Film at California State University-Fullerton, notes, you can find endless reports to support just about any thesis you want to believe in:

Do you want to believe that TV violence is bad? Plenty of research there. One example comes from Dr. L. Rowell Huesmann and associates in the American Psychological Association journal Developmental Psychology, March 2003. They found that a high level of TV violence in childhood is a predictor of more-aggressive behavior in adulthood. Do you want to believe that TV violence is not necessarily bad? There’s plenty of stuff! One example comes from Dr. Ron Warren in the Broadcast Education Association’s Journal of Broadcasting and Electronic Media, September 2003. He found that parental mediation of children’s TV viewing can both inhibit negative effects and enhance positive effects. Do you want to believe both? Once again, a bounty of data! One example is the comprehensive National Television Violence Study, published by the University of California, Santa Barbara. It concludes, “Television can be a powerful influence on social mores concerning violence and aggression, for good or for ill.” Do you want summaries of research? One example comes from the Kaiser Family Foundation’s fact sheet, Key Facts: TV Violence, Spring 2003, which outlines studies that present opposing viewpoints. If you prefer your summary from the government, have a look at Section II, “Violent Programming on Television,” of the 108th Congress’s Broadcast Decency Enforcement Act of 2004. All reasonable people, and yes, that includes most broadcasters and academicians, are sensitive to the potential–though not always the actual–harm of TV violence. This argument is not for TV violence; it is against the government’s exercising a right of censorship it does not have, not even in an election year.

Others have confirmed this academic schizophrenia and pointed out that, if anything, the “scientific” literature on this subject is ambiguous at best and perhaps even leans against the “causal hypothesis” that media violence leads to aggressive behavior. Psychologist Jonathan L. Freedman conducted the most comprehensive review of all the major literature on this subject for his book Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence. He concluded that “the results do not support the view that exposure to media violence causes children or anyone else to become aggressive or to commit crimes; nor does it support the idea that it causes people to be less sensitive to real violence.” Freedman collected and reviewed all the laboratory experiments, field experiments, longitudinal studies, and other studies employing mixed methodologies. He concluded that “not one type of research provided the kind of supportive evidence that is ordinarily required to support a hypothesis. Not one found 90 percent supportive or 80 percent supportive or 70 percent supportive or even 50 percent. In fact, regardless of the method used, fewer than half the studies found results that supported the [causal] hypothesis–sometimes considerably fewer than half.”

Finally, when we step outside the laboratory setting and examine real world trends in a search for a supposed casual link, we don’t find one there either. Consider, for example, the reversal of various social indicators over the past decade. According to FBI reports, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Overall, aggregate violent crime by juveniles fell 43 percent from 1995-2004. And ongoing University of Michigan surveys have revealed that there are fewer murders at school today and fewer students report carrying weapons to school or anywhere else than at any point in the past decade. Meanwhile, the Center for Disease Control reports that although teenage suicide rates rose steadily until the mid-1990s but then began a dramatic decline which continues today. Again, while all these social trends were improving, media exposure–including exposure to violent fare–was increasing.

These results do not conclusively rule out a link between exposure to violence media content and violent acts in the real world. But they should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation who all too often make casual inferences about the relationship between media exposure and various social indicators.

First Amendment Concerns

In light of what the data tells us, one would hope that policy makers would proceed cautiously when it comes to regulating “excessively violent” media content since serious First Amendment / artistic freedom issues are at stake here. And one would especially hope that Democrats would express some skepticism about the folly of such a regulatory pursuit.

After all, why should we let five unelected bureaucrats down at the FCC determine what constitutes “excessive violence.” Are the bloody and occasionally gruesome scenes in TV shows like CSI and ER excessive, or is that a reasonable depiction of forensic and medical science? Hockey games on prime-time TV feature lots of fights, blood, and lost teeth. Should they only be shown on tape delay after kids are in bed? For decades, cartoons have offered a buffet of violent acts, and slapstick comedy of The Three Stooges variety features a lot of unforgivingly violent moments presented as humor. How about gruesome war scenes from actual combat that any child can see on the nightly news? How about Saving Private Ryan or other war movies? What about the stabbing, poisoning, and other heinous acts of violence found in Shakespeare’s tragedies? And, for God’s sake (excuse the pun), what about all the violence in the Bible or Mel Gibson’s The Passion of the Christ? Can any of it be shown on television or cable?

I could go on and on, but you get the point. This all comes down to a question of who calls the shots–parents or government–regarding what we are allowed to see and hear in a free society. This is not to say society must celebrate or even defend violence in the media; there are plenty of movies, shows and games that do contain what many parents would regard as a troubling amount of violent content for young children to witness. Parents need to act responsibly and exercise their private right–indeed, responsibility–to self-censor their children’s eyes and ears from certain things. It’s become increasingly evident, however, that a lot of parents have just gotten lazy about carrying out this difficult job. As the father of two young children, I can appreciate the hassle of constantly trying to monitor a child’s viewing and listening habits. But that’s no excuse for throwing in the towel and calling in the government to censor what the rest of the world has access to. That’s especially the case in light of the fact that, according to the Census Bureau, just one-third of U.S. households have children in them. For the two-thirds of adult-only homes, such a regulatory regime is blatantly unfair.

Again, I can cite plenty of Republicans, such as Sen. Brownback and others, who support calling in Uncle Sam to play the role of surrogate parent and police “excessively violent” media content. But the fact that so many Democrats are joining this crusade is frightening since, again, it makes you wonder if there are any free speech champions left in Washington.

(Up next in this series, I plan on talking about how Democrats are now employing similar tactics and rhetoric in their continuing effort to regulate “violent video games.” But that might get preempted by another piece on how Democrats are leading a variety new efforts to regulate Internet content. Unfortunately, there’s a lot to cover on this front these days.)

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”

Nat Hentoff, a famous civil libertarian and one of our nation’s most tireless defenders of freedom of speech, penned an editorial for today’s Washington Times about congressional efforts to reinstitute the so-called Fairness Doctrine, which was in effect from 1949 until 1987 when the Reagan Administration FCC abolished it.

This effort, he notes, is being led by four Democrats–Sen. Bernie Sanders of Vermont and Reps. Dennis Kucinich of Ohio and Maurice Hinchey and Louise Slaughter, both of New York. Hentoff argues that these Democrats are under the illusion that by reinstituting the Fairness Doctrine they will be ensuring a greater diversity of views in the modern media marketplace. The reality, he argues, will be quite different. Hentoff was a radio broadcaster himself in the old days when the Fairness Doctrine was in effect and he notes that the threat of regulation had a severe chilling effect on free speech:

If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment–precisely the opposite of what the founders clearly intended… During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply. This happened at other stations as well.

The chilling effect associated with the Fairness Doctrine has been thoroughly documented by many media analysts and backs up what Hentoff experienced. Economists Thomas Hazlett and David Sosa provided the definitive economic treatment of the issue in their seminal 1997 study, “Was the Fairness Doctrine a ‘Chilling Effect’? Evidence from the Post-Deregulation Radio Market.” Hazlett and Sosa even created an economic model and crunched some numbers to illustrate the Doctrine’s negative impact. And the definitive legal critique of the Fairness Doctrine can be found in Chapter 9 of Thomas G. Krattenmaker and Lucas A. Powe, Jr.’s excellent treatise on Regulating Broadcast Programming. They document the many doctrinal inconsistencies associated with the Doctrine and highlight how the rule was used as a tool of political extortion by presidents from both political parties who wanted to stiffle dissent about their administrations.

But you don’t need to sweat the numbers or read lengthy legal tomes to realize just how much better off we are without the Fairness Doctrine on the books. Just look around at the amazingly vibrant and diverse media marketplace that exists today. The cornucopia of media choices is overflowing and there’s now something for every conceivable human interest under the sun.

But Hentoff notes that the Fairness Doctrine could be even more destructive to the vibrant exchange of viewpoints today because policy makers might try to impose it on these new media outlets as well:

Should this enemy of free expression become law again in coming years, it would very likely also extend to FCC bureaucrats’ taking charge of freedom of speech on cable television and the Internet and continuing new forms of expression–under the mandate of the FCC’s definers of “diversity of views.” There are liberals who preach the need for “diversity of views” in calling for the return of the Fairness Doctrine because they bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators. But these liberals ignore why we have the First Amendment. As Oliver Wendell Holmes emphasized: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not the thought that we hate.”

In closing, I should note there have been some Republicans in favor of reinstituting the Fairness Doctrine as well. But there are fewer today than in the past. Of course, that might have something to do with the fact that conservative viewpoints are getting a lot more play on the airwaves these days. Thus, some of the former pro-regulatory conservatives probably no longer favor the Fairness Doctrine, feeling that it might chill their voices instead of their opponents.

(Next up in the series: How Democrats are leading the charge to regulate “excessive violence” on television).