Articles by Adam Thierer 
Senior Fellow in Technology & Innovation at the R Street Institute in Washington, DC. Formerly a senior research fellow at the Mercatus Center at George Mason University, President of the Progress & Freedom Foundation, Director of Telecommunications Studies at the Cato Institute, and a Fellow in Economic Policy at the Heritage Foundation.
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.
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Via ParisLemon… Here’s a really outstanding (albeit somewhat vulgar) slide show about the increasing importance of social media and how social networking is profoundly changing the way we humans communicate. Some great stats in there.
There’s an interesting discussion going on over at Editor & Publisher in which E&P columnist Steve Outing and Mark Potts of the now-defunct Backfence.com are debating media localism and recent efforts to give dying newspapers a new lease on life by focusing on the “hyper-local” coverage and community services. Potts obviously didn’t take too kindly to Outling saying of Backfence that: “We know from its experience that relying too heavily on non-paid citizen contributors isn’t a winning strategy.” And that the: “content is often of low quality and boring, and dull just doesn’t fly in the hyper-competitive Web environment. In response, Potts suggests that other factors were responsible for the site’s demise and that hyper-localism and user-generated local content is the future of the industry:
It’s also unfair to suggest that hyperlocal content is “of low quality and boring,” as Steve does in his column. Low quality? To a professional editor, maybe, but the fact is that most participants in user-generated sites can communicate very well. It may not be “journalism,” but it’s still quite readable and interesting. And “boring” is in the eye of the beholder. To an outsider, any hyperlocal information is probably boring. It may be to a transient resident, too. But to someone with a stake in the community, kids in the schools, paying taxes, dealing with community services, patronizing local merchants, etc., those arcane town council meetings, zoning disputes, tips on finding good pizza and kids’ sports scores are incredibly important — more so than just about anything a lot of us think of as journalism.
I think they both make some interesting points, [and there is a running exchange going here] but I want to add a few other frequently overlooked points about the whole “media localism” debate, which continues to stir up so much controversy within the industry and especially here in Washington policy circles. There are two fundamental realities about “localism” that few industry analysts or media critics bother discussing that I want to focus on:
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[Note: This is the fourth in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. This installment will examine why that logic is even more misguided in light of modern developments.]
Whatever legitimacy
Pacifica’s “pervasiveness rationale” might have once had, it has been largely eroded by modern media developments.
First, the pervasiveness rationale for media regulation fails today because new content tailoring technologies make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an “intruder” in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.
When Justice Stevens argued in
Pacifica that broadcast signals represented an “intruder” in the home, he supported that claim by noting that: “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to “tune in and out” at will, and they have abundant “prior warnings” about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences.
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GamePolitics.com points out that Minnesota will reimburse the video game industry to the tune of $65,000 for their attorneys fees it incurred when challenging Minnesota’s 2006 “fine-the-buyer” law. The Minnesota law was unique in that it sought to impose fines on the buyers rather than the sellers of games rated either “M” for Mature or “AO” for Adults Only under the industry’s voluntary ratings system. Other state and local laws that have been struck down in recent years imposed penalties mostly on game retailers who sold games rated M or AO to minors. In a scathing opinion handed down back in August 2006, James M. Rosenbaum, Chief District Judge of the District Court of Minnesota, struck down the Minnesota law as unconstitutional.
But here’s what’s really important about the fact that the industry recovered legal fees in this case and others. As the Entertainment Software Association noted in its press release about the Minnesota settlement: “The ESA [has] prevailed over similar unconstitutional laws in nine other jurisdictions [and] now has been awarded close to $2 million in fees and expenses spent in defending gamers, developers and publishers’ First Amendment rights.”
As I have noted previously, these cases make it clear that there is a significant opportunity cost associated with censorship efforts. That $2 million in recovered legal fees could have been plowed into educational efforts to help explain to parents how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal. Moreover, that $2 million in recovered industry legal fees does not account for the resources that state and local officials put into these regulatory efforts. So, we are talking about a much greater deadweight loss for society and taxpayers.
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Oakland Wireless appears to be in trouble. Add it to the list.
[Actually, is anyone out there keeping a running tally of the muni failures? If so, let me know so I can just start linking to it instead of all the random blog links. ]
[Note: This is the third in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. This installment will examine the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. Part 4 will then examine why that logic is even more misguided in light of modern developments.]
For the past three decades, regulation of television programming has been premised on the “pervasiveness rationale” as articulated in the landmark Supreme Court case
FCC v. Pacifica Foundation. In Pacifica, in a 5-4 plurality decision, the Court held:
Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.
In one portion of the decision, Justice John Paul Stevens, who authored the majority opinion, even referred to broadcast signals as an “intruder” into the home.
There were always serious problems with the “media-as-invader” logic of Pacifica.
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Beyond what Harper already said about it, I was searching for the right words to express how silly I find the far-fetched rhetorical B.S. being flung about to describe this quixotic new “Broadband for Everyone” crusade. And then I found this great little comment by Steve Boriss over at The Future of News blog. He really nails the utopian silliness that animates this movement in his essay, “Net neutrality proponents’ ideals as contradictory as French Revolution’s“:
Government regulation always begins with a call from those who claim they are only trying to right some hard-to-argue-against wrongs, but whose consequences are poorly thought out. Today we learn of a new such party, InternetForEveryone.org, which has a mission so contradictory that it almost makes my head explode. Their ideals call to mind the French Revolutionists, who called for “liberty, equality, and fraternity,” not realizing that liberty and equality are incompatible — that making people equal requires liberty-suppressing force. The new group calls for guaranteed high speed Internet access for everyone (a basic right of all Americans, they say), lower usage prices, more competition, and more innovation. Tell me, if we force Internet providers to give access to everyone, then force them to charge less than the marketplace tells them they should, where will the money come from for innovation? And what would happen to the potential profits that might entice others to join in the competition? Guess it will have to come from taxpayers and that government will have to run the show. InternetForEveryone.org claims to be neutral on the net, but it is surely not neutral on government — they want a lot more of it.
Exactly. It’s ‘something-for-nothing’ economics meets utopian egalitarianism as applied to broadband. But, as Steve notes, there is no free lunch. Every time I debate one of the people or groups involved in this movement, I always ask questions like: What about incentives to invest and innovate? What role do they play in your model? Where is the risk capital going to come from to build these high-fixed cost networks going forward? How will those networks be upgraded over time? And so on.
And they never have any good answers. To the extent they have any answers at all, it always seems to come back to the idea of treating broadband networks like a lazy public utility. You know, because we’ve had so much success with those! And yet, this crowd seems wants to paint a revisionist history of public utilities and try to convince us that we are just ONE MORE muni fiber or muni wi-fi experiment away from getting it right! Uh-huh, sure we are. Meanwhile, taxpayers are bailing out those past failed experiments all over America right now.
The fundamental problem with the entire Net neutrality movement can be summarized as follows: They obsess about investment and innovation
at the margin of networks but spend little time thinking about the preconditions for serious innovation and investment at the core of networks. Government micro-management ain’t ever going to get us where we need to be in that regard.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.