First Amendment & Free Speech

Some Great Podcasts about Online Safety & the ISTTF

by on January 27, 2009 · 12 comments

Just wanted draw everyone’s attention to a couple of great podcasts about online safety issues that include comments from members of the Internet Safety Technical Task Force (ISTTF). As I mentioned a few weeks ago, the ISTTF project and final report represent a major milestone in the discussion about online safety in America, and I was honored to serve as a member of this task force.

This in-depth “Radio Berkman” podcast featuring ISTTF director John Palfrey and co-director Dena Sacco is a really excellent (but lengthy!) overview of the ISTTF’s word. Here’s a shorter podcast that Prof. Palfrey did with Larry Magid of CNet. And I also recommend this excellent NPR “On the Media” podcast featuring my friend Stephen Balkam of the Family Online Safety Institute (FOSI).

For those interested, down below you will find a running list I have been keeping of coverage of the ISTTF. (I will try to keep updating this list here).

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Are Gamers Served by More Government Regulation and Spending?

by on January 26, 2009 · 11 comments

The Entertainment Consumers Association (ECA) is a group that does some good things to mobilize gamers to fight misguided regulation of video games. I greatly appreciate their tireless efforts to fight stereotypes and myths about games and gamers, and to specifically counter the hysteria about video games that we sometimes see in the press, and definitely see in political circles on a regular basis.  They’re a great ally in the fight for freedom of speech and artistic expression in this field.

That’s why I was so sorry to see the ECA launch a new campaign that encourages gamers to petition their congressional leaders and encourage them to regulate the high-tech economy more and waste more taxpayer dollars on inefficient universal service programs and subsidies:

Net Neutrality and Universal Broadband are not only great for America; they allow us to play the games we want at high speeds! … ECA believes that Universal Broadband and Net Neutrality are vital for the development of the national infrastructure, and believes that this bill is an important opportunity to let Congress know that you agree.

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Social Networks Awash in Paedophilia, Terrorism . . . and Gullibility

by on January 26, 2009 · 8 comments

(HT The 463) Forget the sex offenders on MySpace, Connecticut Attorney General Richard Blumenthal (and C|Net reporter Elinor Mills) should be investigating reincarnation on Facebook!!
elvis-on-facebook

Terrorism too!

athf-on-facebook

Seriously, they appear to have been completely taken in by a joke MySpace page.

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Video Games and “Moral Panic”

by on January 23, 2009 · 158 comments

Many folks are discussing Christopher Ferguson’s latest paper on “The School Shooting / Violent Video Game Link: Causal Relationship or Moral Panic?” And with good reason. It’s an important look at how “moral panics” develop in modern society, in this case around video games. [Moral panics is a subject I have written on at length here many times before.  Alice Marwick’s brilliant article on “technopanics” is also worth reading in this regard].

As I’ve noted here before, Ferguson has penned many important articles raising questions about the claims made by some other psychologists (and politicians) that there is causal relationship between exposure to violent video games and youth aggression. Ferguson has shown there are reasons to be skeptical of such claims — both methodologically and practically-speaking. More on that down below.

In his latest piece, however, Ferguson, a professor at Texas A&M’s Department of Behavioral, Applied Sciences and Criminal Justice, is more fully developing moral panic theory, which he describes as follows: “A moral panic occurs when a segment of society believes that the behavior or moral choices of others within that society poses a significant risk to the society as a whole.”  To illustrate the various forces at work that drive moral panics, Ferguson uses this “Moral Panic Wheel”:

Moral Panic Wheel [Ferguson]
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Senator Cuomo & the Coming Assault on Internet Freedom

by on January 22, 2009 · 9 comments

Caroline Kennedy has abruptly dropped her bid for Hillary Clinton’s Senate seat.  Her father, of course, probably ties with Andrew Mellon and Ronald Reagan as one of the greatest supply-side tax-cutters of all time.  The economic boom JFK unleashed probably makes up for whatever damage—personal or national—done by the Kennedy clan over the years.  

But whatever one thinks of Caroline in particular or the Kennedys in general, her departure from the “race” to succeed Clinton may go down in history as a catastrophe for Internet freedom, since it likely means that NY Attorney General Andrew Cuomo will take the seat.  

Cuomo has cast himself as a hero fighting to protect children by strong-arming ISPs into shutting down Usenets, as Ryan has explained.  Jim correctly points out the “shake down” nature of Cuomo’s operation.  And Adam has explained that this is all part of a broader assault on online free speech.  While few are willing to discuss this taboo subject, it’s fair to ask whether the “solutions” Cuomo are really the most effective way to deal with the scourge of child pornography. 

I’ll bet good money that if Cuomo makes it into the Senate, he’ll continue this fight on a broader scale—perhaps by pushing for legislation to mandate network-level filtering a la Cleanfeed.

Update: Gov. Paterson has decided to appoint Rep. Kirsten Gillibrand to this seat rather than Cuomo. That’s the good news.  The bad news is that this bully is still Attorney General of the Empire State.  I have no doubt he’ll continue his war on free speech in his current position.

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Book Review: Post’s Jefferson’s Moose & the State of Cyberspace

by on January 22, 2009 · 29 comments

Post Jeffersons MooseI used to have a (semi-crazy) uncle who typically began conversations with lame jokes or bad riddles. This sounds like one he might have used had he lived long enough: What do Thomas Jefferson, a moose, and cyberspace have in common?

The answer to that question can be found in a new book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, by David G. Post, a Professor of Law at Temple University. Post, who teaches IP and cyberspace law at Temple, is widely regarded as one of the intellectual fathers of the “Internet exceptionalist” school of thinking about cyberlaw.  Basically, Post sees this place we call “cyberspace” as something truly new, unique, and potentially worthy of some special consideration, or even somewhat different ground rules than we apply in meatspace. More on that in a bit.

[Full disclosure: Post’s work was quite influential on my own thinking during the late 1990s, so much so that when I joined the Cato Institute in 2000, one of the first things I did was invite David to become an adjunct scholar with Cato. He graciously accepted and remains a Cato adjunct scholar today. Incidentally, Cato is hosting a book forum for him on February 4th that I encourage you to attend or watch online. Anyway, it’s always difficult to be perfectly objective when you know and admire someone, but I will try to do so here.]

Post’s book is essentially an extended love letter — to both cyberspace and Jefferson. Problem is, as Post even admits at the end, it’s tough to know which subject this book is suppose to teach us more about. The book loses focus at times — especially in the first 100 pages — as Post meanders between historical tidbits of Jefferson’s life and thinking and what it all means for cyberspace. But the early focus is on TJ.  Thus, those who pick up the book expecting to be immediately immersed in cyber-policy discussions may be a bit disappointed at first.  As a fellow Jefferson fanatic, however, I found all this history terrifically entertaining, whether it was the story of Jefferson’s Plow and his other agricultural inventions and insights, TJ’s unique interest in science (including cryptography), or that big moose of his.

OK, so what’s the deal with the moose? When TJ was serving as a minister to France in in the late 1780s, at considerable expense to himself, he had the complete skeleton, skin and horns of a massive American moose shipped to the lobby of his Paris hotel. Basically, Jefferson wanted to make a bold statement to his French hosts about this New World he came from and wake them up to the fact that some very exciting things were happening over there that they should be paying attention to. That’s one hell of way to make a statement!

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Martin Blames Others for His Own Mismanagement of FCC

by on January 22, 2009 · 10 comments

When the history books are finally written, I think it’s clear that outgoing FCC Chairman Kevin Martin will likely go down as one of — if not the — most aggressively pro-regulatory Republican chairman in the agency’s history.  Despite his occasional claims of believing in free markets and his support for a couple of legitimately deregulatory decisions, his tenure at the FCC has generally been characterized by a growth of government power, spending, and bureaucracy. But don’t take my word for it; read the report he issued last week called “Moving Forward,” which to some of us looks more like moving backwards (or at least stuck in the same ol’ mud).

Martin, however, touts his regulatory actions and expansion of FCC power as uniformly pro-consumer. Martin is just another in the long line of statists who claims that consumer welfare can only be enhanced by adding layers of government mandates and regulatory red tape.  History teaches us a different lesson: That regulation and bureaucracy typically stifle innovation and competition and hurt consumer welfare in the process. Moreover, there are some constitutional considerations and limitations that should trump — or at least limit — the powers of unelected bureaucrats to run roughshod over our rights. But hey, who cares about those meddlesome little things like the First, Fifth, Tenth, or Fourteenth Amendments?!  Certainly not Kevin Martin.

What’s equally troubling about Martin’s tenure at the agency is the track record of mismanagement and the bad blood that seemingly surrounds everything and everyone he comes in contact with. The picture painted in the House Energy & Commerce Committee’s 110-page report, “Deception and  Distrust: The FCC Under Chairman Kevin J.Martin,” is not a pretty one — although the report failed to mention that waste, mismanagement, and other regulatory shenanigans have been going on at this agency under the days of Democratic rule, too.

Martin’s response to the House report was all too predictable: The evil corporate interests are out to get me!  “[M]ost of the criticisms contained in the Majority Staff Report,” Martin says in a letter released a few days ago, “reflect the vehement opposition of the cable and wireless industries to my policies to serve and protect consumers.”

Whatever.

I’m just glad this nightmare is over. Hopefully Martin’s tenure will serve as a cautionary tale for a future Republican administration: If you actually believe in free minds and free markets, try vetting the guy you install at the FCC to make sure he’s a true believer as well.

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Closing the Book on COPA?

by on January 21, 2009 · 23 comments

gavelIt appears that the long legal saga of the Child Online Protection Act of 1998 (COPA) has finally come to a close. This morning, according to AP, the U.S. Supreme Court rejected the government’s latest request to revive the law, which was stuck down as an unconstitutional violation of the First Amendment by lower courts and never went into effect.

COPA was an effort by Congress to modify the Communications Decency Act of 1996 (CDA) in response to the Supreme Court’s decision in Reno v. ACLU finding that the CDA was unconstitutionally over-broad. COPA sought to narrow the scope of regulation and protect minors from sexual material on the Internet by making it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. Although narrower than the CDA, COPA was immediately challenged and also blocked by lower courts because it was still too sweeping in effect. Moreover, the courts found there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

Following the initial challenge, COPA then became the subject of an epic, decade-long legal battle that finally concluded today when the U.S. Supreme Court refused to revisit the law. COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal today, lower court rulings stand and COPA will remain unconstitutional and unenforceable.

The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

While COPA is now dead and buried, it would be foolish to think this is the end of efforts to legislate on this front. Although it remains unclear what the legislative response will look like during a time of Democratic rule, I am certain that legislation will be floated in short order (i.e., “Son of COPA”) to try to get around the constitutional issues and regulate objectionable online content. If legislators were smart, they’d avoid legally risky solutions like more centralized filtering mandates or age verification requirements. They’d be on safer ground to consider going the subsidy route and finding a way to get parental control tools in the hands of more families and institutions. I’m not saying that I favor such subsidies, merely that such an approach would almostly certainly pass legal muster and probably wouldn’t even be challenged in court. They might also consider more public education / PSA-driven approached to online safety. Those approaches may end up finding more support in a Democratic Congress and administration anyway.

[More coverage at NYT, Reuters, CNet and Ars.]

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Apply Fairness Doctrine to Weather Channel To Counter Pro-Weather Bias?

by on January 21, 2009 · 7 comments

Clearly, something must be done to counter the evil corporate cabal known as “the Cloud Elders” and the “Knights Doppler” who are behind the blatant pro-weather bias displayed daily on the Weather Channel. Perhaps a Fairness Doctrine for Weather Reporting?

Thank God the hard-working folks at Fairness in Media unearthed this vicious anti-democratic conspiracy.


Weather Channel Accused of Pro-Weather Bias

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What Would It Take to End Public Swearing?

by on January 16, 2009 · 7 comments

Gamepolitics.com reports on a new South Carolina bill that proposes to outlaw public profanity. The measure, S. 56, stipulates that:

It is unlawful for a person in a public forum or place of public accommodation wilfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature. A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.

Let’s ignore the free speech issues in play here — although they are numerous — and ask the 3 questions I increasingly put front and center in everything I write about modern censorship efforts: (1) How do they plan to enforce it? (2) Is there really any chance of such a law being even remotely successful? (3) How onerous or intrusive will it be to attempt to do so?

We can imagine a few examples of where such a law could create serious challenges. For example, how would law enforcement officials deal with public swearing at ball games and other sporting events? And not just in the crowd but from the players. Have you ever heard Tiger Woods after he misses a close putt? Wow. He might want to avoid the next tournament in South Carolina!  But how about profanities uttered in other public places, like hospitals during painful procedures? Man, you should have heard the profanities my wife was letting loose when our two kids were arriving in this world. Would have made George Carlin blush!  And how about the halls of Congress? Oh my, now there is an education in sailor talk, although perhaps less so with VP Cheney departing. I’m sure that more than a few choice profanities have been tossed about down in the South Carolina statehouse at times. And there are lots of other cases where enforcement would be challenging: bars, concerts, comedy shows, political protests, etc.

Bottom line: We are talking about a lot of fines and jail time down in the Palmetto State!

Look, I’m as uncomfortable with excessive public profanity as anyone else when my kids are around. But I talk to them about it because I know it will never go away.When we are surrounded by foul-mouthed hooligans at ballgames, I frequently remind my kids that it’s not appropriate to say such things and that only “stupid people use stupid words.” Of course, Dad has been known to use his share of “stupid words” at home at times, too.  My daughter recently threatened to “tell Mommy” on me when I hit my thumb with a hammer and let a choice word fly. Hey, it happens. It’s not the end of the world. We can try to change our habits and teach our kids better manners. But I doubt laws like the one South Carolina is considering will really make much of a difference.

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