First Amendment & Free Speech

Rasmussen: Fairness Doctrine Supported by Nearly Half of all Americans

by on August 14, 2008 · 4 comments

An interesting poll out today by pollster Scott Rasmussen:  Asked whether the government should require all radio and television stations to offer equal amounts of liberal and conservative political commentary,  47 percent — nearly half — said “yes.”  (39 percent were opposed).  Perhaps even more surprising, support has increased since last year, when Americans split evenly (41-41) on this issue.

Perhaps this shouldn’t be a  surprise.  Americans, after all, have long been lukewarm about the First Amendment, with opinion polls famously (though perhaps apocryphally) have long shown  would itself be opposed by most Americans.   Moreover, a casual answer to a pollster is a long way from active support of a particular law.

Still, the results of this poll should be troubling for defenders of free speech in general, and opponents of the fairness doctrine in particular.   Although an explicit re-institution of the long-dead doctrine is still not likely, this poll underscores the general danger of other content controls that may achieve the same ends under a different name.

Oh, and those of you who get their news from blogs shouldn’t feel too cocky about the dangers faced by the old-fashioned broadcasters.  The same Rasmussen poll showed that 31 percent of the public supports Fairness Doctrine controls on blogs, too.

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FCC v. Fox Television: All the Supreme Court briefs are in

by on August 12, 2008 · 13 comments

Lately I’ve been writing about potentially historic upcoming First Amendment case of FCC v. Fox Television Stations. The Supreme Court will hear the case on Tuesday, November 4th. All the briefs in the case are in and can be found on the ABA website here. But I’ve pasted the links for all of them below as well. In coming days and weeks I might be highlighting some of the comments from the briefs. [The docket number for the case is 07-582]. The amicus brief I filed with my friends at CDT can be found here, and I wrote about it last week here on the TLF.

The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Anyway, here are all the briefs in the case, starting with the merit briefs by the lead parties:

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Get Ready for Internet Advertising Regulation “for the Children”

by on August 12, 2008 · 9 comments

Catherine Holahan of Business Week points out that consumer and children’s advocacy groups are looking to expand their efforts to regulate fatty and sugary food advertising in the name of “protecting the children”:

Having successfully lobbied the government to place limits on junk food ads on TV, they now target marketing to kids via the Web. “While there are some rules for TV, there are no rules when you move online,” says Patti Miller, vice-president of children’s advocacy group Children Now and a member of the Federal Communications Commission’s Task Force on Media & Childhood Obesity. “We don’t want to reduce junk food advertising to kids [on TV] and then find that it has just moved to another platform.”

And so another classic case study in regulatory creep is born and the Net gets a little more regulated in the process as Uncle Sam becomes our Super Nanny. What’s that you say? Parents should take more responsibility for what their kids watch and eat? Silly you. Don’t you know that it takes a village to raise a village idiot? Or something like that.

SuperNanny

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CDT-PFF Supreme Court Brief in FCC v. Fox Case

by on August 8, 2008 · 20 comments

Supreme Court Along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology, I have just submitted an amicus brief to the Supreme Court in the potentially historic free speech case FCC v. Fox, which will be heard in November.

[Reminder: The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit’s decision here.]

The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it’s long-standing policy of restraint regarding “fleeting expletives.” That’s essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won’t know for sure until the case is handed down.

Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that “the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, ‘is entitled to the highest protection from government intrusion’ and that there is no longer a factual ‘basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.'” Citing Reno v. ACLU, 521 U.S. at 863, 870.”

A more detailed summary of our argument follows below.
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Anti-Spam Laws and the First Amendment

by on August 7, 2008 · 14 comments

I’m reading about the first-ever felony conviction for spamming. While I almost always agree with the ACLU on free speech issues, I found the Virginia ACLU’s amicus brief in the acse totally unpersuasive.

The ACLU argues that the First Amendment protects a right to anonymous speech, which I wholeheartedly agree with. However, I don’t think that right can be stretched so far as to strike down the Virginia anti-spam statute at issue in this case. This statute prohibited the falsification of email headers while sending more than 10,000 pieces of unsolicited bulk email. So this means that under the statute, someone may (a) send out an unlimited number of emails using a real email address, (b) send out 9999 emails per day (99,999 per month, 999,999 per year) while falsifying email headers, or (c) send out an unlimited number of emails with falsified addresses to people who have previously consented to receive them. I find it extremely difficult to imagine a circumstance in which these restrictions would impinge on legitimate exercises of free speech. The activities prohibited by this statute simply don’t include the kinds of situations that motivate the constitutional protection of anonymous speech—defending a point of view or releasing sensitive information without fear of reprisal or public embarrassment. Whistleblowers might want to send falsified emails to a few dozen journalists, legislators, or business leaders, but I’m having trouble thinking of a plausible situation in which a whistle-blower had a genuine need to reach more than 10,000 people.

I find analogies to older technologies—and to 18th-century pamphleteers in particualr—unpersuasive in this case because this case just isn’t like anything that existed in the pre-Internet age. In 1975, there just wasn’t any way to transmit tens of thousands of messages for a fraction of a penny per message. The costliness of information transmission—any available communications technology cost at least a few pennies per message—meant that the law never had to grapple with the possibility that sending messages could become a significant enough nuisance to require regulation. Now we do live in that world, and I think it’s a mistake to put too much weight on misleading analogies to older communications technologies with vastly different properties.

A final reason anti-spam legislation doesn’t bother me from a First Amendment perspective is that I don’t see any slippery slope here. Not only is the activity being targeted unambiguously bad, but there are very few grey areas, and the grey areas are pretty bad themselves. The Virginia statute applies two very clear bright lines—spam must be unsolicited and it must consist of more than 10,000 pieces in a 24-hour period—that make it trivially easy for anyone interested in following the law to do so. Moreover, thanks to the growth of spam filters, there is an enormous gulf between bad spammers and legitimate emails users. Legitimate users who did vaguely spam-like things (say, a non-profit organization that sent out a fundraising appeal to people who hadn’t consented to receive it) would get most of their spam blocked by ISPs’ spam filters and would get contacted by email administrators very promptly to be told to knock it off. It’s hard to imagine such an organization breaking Virginia’s law (sending out 10,000 copies and forging email headers), and even if it did it’s hard to imagine a prosecutor going after them. Which means that only spammers are engaging in spammer-like behavior. It’s pretty easy to write a statute that criminalizes most spammers and few if any legitimate email users. To use the Supreme Court’s lingo, Virginia’s spam law strikes me as “narrowly tailored” to blocking an undisputed evil and is no more restrictive than is necessary to accomplish that objective. If there’s any speech restriction that should pass First Amendment scrutiny, this is it.

Update: None of this is to say that some anti-spam laws can’t be too broad. CAN-SPAM, for example, appears to criminalize the sending of “multiple” deceptive emails or the creation of more than five separate email accounts for sending commercial emails. I can certainly think of grey areas for those kinds of prohibitions, and would have serious doubts about their constitutionality.

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True Cost of Video Game Censorship (continued)

by on August 5, 2008 · 13 comments

In my July essay on “Understanding The True Cost of Video Game Censorship Efforts,” I pointed out how outrageous it was that politicians continue to burn money on fruitless regulatory measures that are destined to be struck down as unconstitutional. I argued that the nearly $2 million in legal fees and expenses recovered by the video game industry after winning its legal cases against various governments could have been spent much better by public policy makers:

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.

Well, that opportunity cost / deadweight loss grew even higher today when the state of California reimbursed the Entertainment Software Association (ESA) $282,794 for attorney’s fees after losing a recent legal battle in the case Video Software Dealers Association v. Schwarzenegger. The ESA sent out a press release about the case today that dramatically points out the opportunity cost of such regulation:

The ESA noted that this payment comes at an especially troubling time for the state, calling to mind other pressing budgetary and legislative priorities and issues, including:

* California is currently facing a $15-billion budget gap
* More than 10,000 California state employees were laid off last week in light of the budget crisis
* Governor Schwarzenegger is seeking to cut wages for nearly 200,000 state employees
* The state already cut 10 percent to its Medicaid reimbursement rate and deferred payments to vendors

“Caregivers are not well-served by court battles and legal fees. Rather, they would have been far better off if state officials worked together with our industry to raise awareness about video game ratings and the parental controls available on all new game consoles — both of which help ensure that the games children play are parent-approved.”

Indeed. And yet, the video game censorship bandwagon rolls on. Will it never end?

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Under-Appreciated Existing Legal Remedies for Trolling, Defamation and Other “Malwebolent” Invasions of Privacy

by on August 3, 2008 · 10 comments

Anyone interested in the long-running debate over how to balance online privacy with anonymity and free speech, whether Section 230‘s broad immunity for Internet intermediaries should be revised, and whether we need new privacy legislation must read the important and enthralling NYT Magazine piece  “The Trolls Among Us” by Mattathias Schwartz about the very real problem of Internet “trolls“–a term dating to the 1980s and defined as “someone who intentionally disrupts online communities.”

While all trolls “do it for the lulz” (“for kicks” in Web-speak) they range from the merely puckish to the truly “malwebolent.”  For some, trolling is essentially senseless web-harassment or “violence” (e.g., griefers), while for others it is intended to make a narrow point or even as part of a broader movement.  These purposeful trolls might be thought of as the Yippies of the Internet, whose generally harmless anti-war counter-cutural antics in the late 1960s were the subject of the star-crossed Vice President Spiro T. Agnew‘s witticism:

And if the hippies and the yippies and the disrupters of the systems that Washington and Lincoln as presidents brought forth in this country will shut up and work within our free system of government, I will lower my voice.

But the more extreme of these “disrupters of systems” might also be compared to the plainly terroristic Weathermen or even the more familiar Al-Qaeda.  While Schwartz himself does not explicitly draw such comparisons, the scenario he paints of human cruelty is truly nightmarish:  After reading his article before heading to bed last night, I myself had Kafka-esque dreams about complete strangers invading my own privacy for no intelligible reason.  So I can certainly appreciate how terrifying Schwartz’s story will be to many readers, especially those less familiar with the Internet or simply less comfortable with the increasing readiness of so many younger Internet users to broadcast their lives online.

But Schwartz leaves unanswered two important questions.  The first question he does not ask:  Just how widespread is trolling? However real and tragic for its victims, without having some sense of the scale of the problem, it is difficult to answer the second question Schwartz raises but, wisely, does not presume to answer:  What should be done about it? The policy implications of Schwartz’s article might be summed up as follows:  Do we need new laws or should we focus on some combination of enforcing existing laws, user education and technological solutions?  While Schwartz focuses on trolling, the same questions can be asked about other forms of malwebolence–best exemplified by the high-profile online defamation Autoadmit.com case, which demonstrates the effectiveness of existing legal tools to deal with such problems.

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Product Placement in Historical Context

by on July 30, 2008 · 23 comments

Texaco Star Theater Last month I posted a tongue-and-cheek piece thanking policymakers for taking steps to save us from loud TV ads and product placements. The whole thing just strikes me as the height of absurdity; it’s a stupid way for regulators to spend their time and it’s a complete waste of taxpayer dollars. Backers of such regulations assume that we in the public are little more than ignorant sheep whose minds will be subliminally programmed to want to drink certain colas or drive certain cars just because they saw them in a TV show. Absurd.

The other thing that kills me about this debate is how some people seem to imagine that product placement has somehow come out of nowhere recently and taken over broadcast TV and radio to an unprecedented extent. That’s either revisionist history or ignorance of it. The fact is, broadcasting has been filled with product placement for years. Media guru Jack Myers points this out in a good piece on the issue this week:

Those old enough to recall the early days of television news recall that Camel cigarettes and Timex sponsored the NBC News with John Cameron Swayze. On-set signage was prominent. Local radio personalities have always used their relationships with consumers to advance their sponsors’ interests.

But it goes way beyond that. For God’s sake, has everyone forgotten about the “Texaco Star Theater“? It was the top-rated show of the 1950s, pulling in a stunning 61.6 rating in 1950-51 alone. How did the show begin? Here’s how the Wikipedia entry describes it:

On television, continuing a practice long established in radio, Texaco included its brand name in the show title. When the television version launched, Texaco also made sure its employees were featured prominently throughout the hour, usually appearing as smiling “guardian angels” performing good deeds of one or another kind, and a quartet of Texaco singers opened each week’s show with the following theme song:

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NPR spot on Third Circuit decision in Janet Jackson case

by on July 29, 2008 · 5 comments

I was on NPR’s “On the Media” program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC’s fines in the “Janet Jackson case.” As I noted in this lengthy analysis of the decision, the court said that the agency’s recent efforts to expand the parameters of “indecency” enforcement for broadcast programming went too far, too fast. “[T]he 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,” the Court held.

“On the Media” host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below…

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Joint FCC Filing on Internet Filtering Plan for AWS-3 Spectrum

by on July 29, 2008 · 14 comments

This week I was pleased to join a diverse collection of think tanks and public interest groups in submitting joint comments to the FCC opposing the proposed content filtering mandate that would be part of a future AWS-3 auction. That’s the proposed auction that would create a “free” nationwide wireless broadband service. As part of the deal, the company would need to need to take steps to provide a “clean” Internet connection by filtering content. This joint filing points out why that is a bad idea:

* the reach of the filtering mandate is extraordinarily broad, and would attempt to censor content far beyond any content regulation regime that has been previously upheld in the face of constitutional challenge.
* even if the scope of the filtering mandate were more narrowly focused, it would conflict with the First Amendment analysis that the Supreme Court applied to Internet access in the seminal Reno v. ACLU decision.
* even if the Commission were to require filtering on an “opt out” or “opt in” basis, the Constitutional problems would not be avoided. Opt-out filtering would impose an unconstitutional burden on listeners and recipients of Internet communications, and both opt-out and opt-in filtering would violate the First Amendment rights of speakers and other content providers on the Internet. Simply put, the First Amendment does not allow a government mandated “blacklist” of websites to be blocked.
* would also violate the terms and intent of two federal statutes – 47 U.S.C. § 326 (which prohibits the Commission from “interfer[ing] with the right of free speech”) and 47 U.S.C. § 230 (which promotes user control over content and limits burdens on service providers).
* would also limit what people could do online using the free AWS-3 service so dramatically that the usefulness of the service would be radically reduced.
* would also certainly lead to legal challenges that would delay the implementation of the proposed access service.
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