I’ve been blathering on about this week’s big Supreme Court decision in FCC v. Fox, [See Parts 1, 2, 3, 4, 5], so I thought I would just wrap this series of essays up with a collection of other articles and views on the decision in case readers are looking for alternative perspectives:
I’ve been commenting on yesterday’s Supreme Court decision in FCC v. Fox, and criticizing the logic of the majority’s decision the case, which was driven solely by procedural / admin law considerations. [See Part 3.] I also discussed Justice Thomas’s very interesting concurring opinion, which took a serious look at the constitutional issues in play here and signaled his willingness to potentially overturn Red Lion and Pacifica. [See Part 4.] In this fifth installment, I will briefly outline some of the dissenting arguments.
Justice Stephen Breyer penned a lengthy dissent and was joined by Justices Stevens, Souter and Ginsburg. Like the Scalia majority decision, the Breyer dissent also focused on the procedural / APA-related issues at stake in the case. Breyer, however, was not buying the FCC’s assertion that it had adequately justified its significant expansion of indecency enforcement in recent years. Whereas the majority deferred to the agency and found “no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review,” the four dissenting justices saw things quite differently. Breyer noted that while the “law grants those in charge of independent administrative agencies broad authority to determine relevant policy,” it “does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.” He goes on to appropriately note that:
Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “‘the exercise of political oversight.’” [citations omitted] That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from ballot-box control makes it all the more important that courts review its decision making to assure compliance with applicable provisions of the law — including law requiring that major policy decisions be based upon articulable reasons.
Breyer goes on to restate much of what is already clear from the APA and all that surrounds it. “[A]n agency must act consistently. The agency must follow its own rules,” he notes. Moreover: Continue reading →
Today, the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) announced the members of the new Online Safety and Technology Working Group (OSTWG). I am honored to be among those chosen to participate in this new task force and I look forward to continuing the work started last year with the Harvard Berkman Center’s Internet Safety Technical Task Force (ISTTF), which I also served on. I was very proud of the work done by the ISTTF and the impressive final report that Prof. John Palfrey crafted to reflect our findings. I am eager to investigate these issues further and take a look at the latest research and technologies that can help us better understand how to protect our kids online while also protecting the free speech and privacy rights of Netizens.
The new NTIA working group, which was established under the “Protecting Children in the 21st Century Act,” will report to the Assistant Secretary of Commerce for Communications and Information on industry-implemented online child safety tools and efforts. Within a year of convening its first meeting, the group will submit a report of its findings and make recommendations on how to increase online safety measures.
Below the fold I have listed the complete roster of OSTWG task force members. I very much looking forward to working with this outstanding group. And I’m happy to report that my TLF blogging colleague Braden Cox will be joining me on this task force!
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: Continue reading →
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.
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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. Continue reading →
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?
Breaking news: The Supreme Court as just ruled in the important First Amendment case of Federal Communications Commission v. Fox Television Stations and held in the government’s favor by a 5-4 vote. Decision is here.
My background info about the case is here and will publish some essays throughout the day as I digest the decision. Importantly, the case was decided squarely on procedural grounds, not constitutional grounds. However, Justice Thomas has some very important and interesting things to say about those constitutional issues in his separate concurrence. Coverage from AP, Reuters, and UPI.
The full decision can be viewed below in a Scribd reader:
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.
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.
If you happen to be in the New York city area next Tuesday, April 21, stop by Cardozo Law school for what promises to be a great event starting at 11:15:
The Cardozo Public Law, Policy & Ethics Journal is pleased to present a symposium on Internet openness, net neutrality, content diversity and competition. What is the new definition of net neutrality and what are the developing mandates? How do policymakers promote or harm the richness and diversity online content/media? Join the lively debate with speakers including Sascha Meinrath (New America Foundation); Berin Szoka (Progress & Freedom Foundation); John Morris (Center for Democracy & Technology); Matthew Lasar (Ars Technica); Fred Benenson (Creative Commons); Jonathan Askin (Brooklyn Law School).
During the 11:30-1 pm panel, I’ll be talking about “Unrecognized to Internet Openness: Regulatory Mandates & Increased Liability”—explaining how the work Adam Thierer & I have been doing about privacy regulation, online advertising, Section 230, age verification mandates, etc. are all fundamentally issues of “openness.” As we noted in our recent response (PDF) to the FTC’s self-regulatory guidelines:
We stand at an important crossroads in the debate over the online marketplace and the future of a “free and open” Internet. Many of those who celebrate that goal focus on concepts like “net neutrality” at the distribution layer, but what really keeps the Internet so “free and open” is the economic engine of online advertising at the applications and content layers. If misguided government regulation chokes off the Internet’s growth or evolution, we would be killing the goose that laid the golden eggs.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.