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.
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:
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As I noted earlier, the U.S. Supreme Court today handed down a historical First Amendment decision in the case of Federal Communications Commission v. Fox Television Stations. The Court ruled in the FCC’s favor by a 5-4 margin. My initial general thoughts are here. In this piece, I’ll talk a bit more about the majority’s decision in the case.
The most important thing to realize about the Court’s 5-4 decision in
FCC v. Fox is that the Court has intentionally dodged all the serious constitutional issues in play here and instead decided the case solely on procedural grounds. “We decline to address the constitutional questions at this time,” the majority says. (p. 26) Writing for the majority, Justice Scalia says:
There is… no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position… and may sometimes need to account for prior fact finding or certain reliance interests created by a prior policy, it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.
Of course, it’s not entirely unusual for the Court to decide important regulatory cases by sticking to administrative law / APA issues, but what’s different in this case is that we’re not talking about the regulation of widgets here. We are talking about the regulation of freedom of speech and expression. Shouldn’t the administrative law analysis change a bit when the issues at stake implicate profound constitutional imperatives? I think so, but the majority doesn’t address that.
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As I noted earlier, the Supreme Court just handed down a historical First Amendment decision in the case of Federal Communications Commission v. Fox Television Stations. Here are my initial general thoughts on the case that were just sent out in a PFF press release. Again, more commentary to follow later today as I continue to digest the decision.
While the Court decided this case on purely procedural grounds, its failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years. Practically speaking, as Justice Thomas noted, what’s the point of continuing to apply a censorship regime to one of the oldest mediums—broadcast TV and radio—when kids are flocking to unregulated mediums in large numbers? At this point, we’re doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process.
Until the Court clearly addresses the First Amendment protection of broadcasting in light of the Digital Revolution, we’ll just have to speculate as to how to reconcile the broadcast law of bygone era with the Court’s recent Internet jurisprudence—which has strongly supported the First Amendment. Although new media technologies and platforms are not covered currently by FCC content controls, the specter of regulation now haunts all media as platforms continue to converge and broadcast content gets repurposed on other platforms.
Finally, what makes the Court’s ruling even less sensible is that all parents have an extensive array of tools and strategies at their disposal to control media in their homes and in their lives of the children. That is especially the case for broadcast television programming, which is easier to control than ever before. The Court has held that user empowerment and private blocking solutions should shield the Internet from content regulation. Why shouldn’t the same principle apply to broadcasting?
I’ve been quite depressed to witness Bruce Schneier’s ongoing conversion from opponent of government intervention in the high-tech economy (at least on encryption) to vociferous proponent (at least in terms of privacy regulation). Anyway, his latest cheerleading piece for government privacy regulation in The Wall Street Journal includes lots of fear-mongering about private website data collection for, God forbid, purposes of trying to better target advertising and market us products we might actually want.
Schneier uses the term “deceptive” several times in the piece to refer to privacy policies that don’t make it explicitly clear that some of the information you leave on a site, or that is collected preemptively by them, will be used to craft more targeted marketing efforts. Like many other would-be privacy regulators, Schneier seemingly wants companies to fly blimps over your desk as you surf the Net with big signs that basically say: ‘Hey stupid, your info may be used to market you stuff.’ It’s hard to be against more disclosure, of course — and most sites spell out what they do with data in their privacy policies — but it never seems to be good enough for most privacy advocates, who paint consumers out to be mindless sheep who cannot be trusted to make wise decisions for themselves. Sorry, but I just don’t buy it.
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Here’s a terrific piece by Harry McCracken over at Technologizer asking “Whatever Happened to the Top 15 Web Properties of April, 1999?” McCracken goes through the hottest web properties of April 1999 and asks, “How many of 1999’s Web giants remain gigantic today — assuming they still exist at all?” Instead of reproducing his entire list here, I’ll just encourage you to go over to Technologizer and check it out for yourself, especially because McCracken also compares the old list to today’s top 15 Web properties. Anyway, here’s the key takeaway from his piece:
to summarize, four of April 1999’s top Web properties remain in the top fifteen (plus AltaVista, Excite, and GeoCities, which are extant and part of top-10 properties). Four more are in the top 50, or are part of properties that are. Two exist but have fallen out of the top 50. And two (Xoom and Snap) no longer exist. Bottom line: If you were one of the Web’s biggest properties a decade ago, chances are high that you remain in business in some form in 2009… but you probably aren’t still a giant.
In other words, it’s a dynamic marketplace with a lot of churn and creative destruction. Sure, some big dogs from the late 90s remain (Microsoft, AOL, Yahoo, and CNet). But they have all been humbled to some extent. Moreover, lots and lots of other players were driven from the top ranks or disappeared altogether. (GeoCities, Lycos, Excite, AltaVista, Xoom, Snap). And there have been new technologies, platforms, and players that have come out of nowhere in a very short time to become the household names of 2009 (Google, Facebook, MySpace, Wikipedia). But, as McCracken points out, it’s anyone’s guess which of today’s top Web properties will still be booming in 2019. Anyway, I encourage you to check out McCracken’s very interesting essay, and if you find this sort of restrospective piece interesting, you might also want to check out my essay from earlier this year, “10 Years Ago Today… Thinking About Technological Progress“.
My friend Anne Collier of Net Family News, one of America’s great sages on child safety issues, has produced a terrific list of reasons “Why Technopanics are Bad.” Technopanics and moral panics are topics I’ve spent quite a bit of time commenting on here. (See 1, 2, 3, 4.) Anne is a rare voice of sanity and sensible advice when it comes to online child safety issues and I encourage you to read all her excellent work on the subject, including her book with Larry Magid, MySpace Unraveled: A Parent’s Guide to Teen Social Networking. Anyway, here’s Anne’s list, and I encourage you to go over to her site and contribute your thoughts and suggestions about what else to add:
Technopanics are bad because they…
- Cause fear, which interferes with parent-child communication, which in turn puts kids at greater risk.
- Cause schools to fear and block digital media when they need to be teaching constructive use, employing social-technology devices and teaching new media literacy and citizenship classes throughout the curriculum.
- Turn schools into barriers rather than contributors to young people’s constructive use.
- Increase the irrelevancy of school to active young social-technology users via the sequestering or banning of educational technology and hamstring some of the most spirited and innovative educators.
- Distract parents, educators, policymakers from real risks – including, for example, child-pornography laws that do not cover situations where minors can simultaneously be victim and “perpetrator” and, tragically, become registered sex offenders in cases where there no criminal intent (e.g., see this).
- Reduce the competitiveness of US education among developed countries already effectively employing educational technology and social media in schools.
- Reduce the competitiveness of US technology and media businesses practicing good corporate citizenship where youth online safety is concerned.
- Lead to bad legislation, which aggravates above outcomes and takes the focus off areas where good laws on the books can be made relevant to current technology use.
- Widen the participation gap for youth – technopanics are barriers for children and teens to full, constructive participation in participatory culture and democracy.
There’s a movement afoot in Congress to advance legislation that would eviscerate the Commerce Clause of the Constitution, empower a state-based tax cartel, and potentially decimate the Internet economy in the process. Business Week has the details:
In the next week, legislators are expected to introduce bills in the House and Senate promising to do away with the “physical presence” requirement. If a bill passes — and that’s a big “if” — it would require all online retailers, except for the tiniest companies, to collect sales taxes in the 23 states that are part of the Streamlined Sales Tax Project. The states would compensate the retailers for the trouble, while promising not to sue them for tax collection mistakes that are made.
The Streamlined Sales Tax Project, or “SSTP”, sounds good in theory but would be disastrous in practice. Michael Graham of the
Boston Herald penned an editorial about the SSTP today and he does a nice job pointing out why, when it comes to “tax simplification,” the devil is always in the details and those details are typically anything but “simple” (or taxpayer-friendly for that matter).
The real danger of the SSTP, however, is what it means for the Constitution and tax competition among the states. In this 2003 paper I penned with Veronique de Rugy for the Cato Institute, we showed why the SSTP would not only fail to simplify the sales tax code, but would actually cede dangerous taxing powers to state and local governments over the interstate marketplace. In the process, Veronique and I argued, a multi-state sales tax cartel would be spawned: Continue reading →
As anyone who has spent time searching for comments on the FCC’s website can tell you, the agency doesn’t exactly have the most user-friendly website. In the interest of making it easier for others to read the comments that came in last week in the agency’s “Child Safe Viewing Act” Notice of Inquiry, I have compiled all the major comments (those over 3 or 4 pages) and provided links to them below the fold.
Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” I filed 150+ pages worth of comments in this matter last week, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.
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Today I filed comments with the Federal Communications Commission (FCC) in its proceeding examining the marketplace for “advanced blocking technologies.” This proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” My colleagues will no doubt laugh about the fact that I have dropped an absurd 150 pages worth of comments on the FCC in this matter, but I had a lot to say on this topic! Parental controls, child safety, and free speech issues have been the focus of much of my research agenda over the past 10 years.
In my filing, I argue that the FCC should tread carefully in this matter since the agency has no authority over most of the media platforms and technologies described in the Commission’s recent Notice of Inquiry. Moreover, any related mandates or regulatory actions in in this area could diminish future innovation in this field and would violate the First Amendment rights of media creators and consumers alike. The other major conclusions of my filing are as follows:
- There exists an unprecedented abundance of parental control tools to help parents decide what constitutes acceptable media content in their homes and in the lives of their children.
- There is a trade-off between complexity and convenience for both tools and ratings, and no parental control tool is completely foolproof.
- Most homes have no need for parental control technologies because parents rely on other methods or there are no children in the home.
- The role of household media rules and methods is underappreciated and those rules have an important bearing on this debate.
- Parental control technologies work best in combination with educational efforts and parental involvement.
- The search for technological silver-bullets and “universal” solutions represent a quixotic, Holy Grail-like quest and it will destroy innovation in this marketplace.
- Enforcement of “household standards” made possible through use of parental controls and other methods negates the need for “community standards”-based content regulation.
My entire filing can be found here and down below in a Scribd reader. All comments in the matter are due tomorrow and then reply comments are due on May 18th.
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