First Amendment & Free Speech

Pacifica Anniversary Week, Part 1 (General Overview)

by on June 26, 2008 · 9 comments

Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America’s greatest modern social satirist George Carlin, whose infamous “seven dirty words” monologue prompted the Supreme Court’s Pacifica decision. After a Pacifica Foundation radio station aired Carlin’s monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor “indecent” content on broadcast radio and television stations.

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I’ll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I’ll be highlighting some of the original deficiencies of the “pervasiveness doctrine.” Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

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Fairness Doctrine Debate: Less and More than Meets the Eye

by on June 25, 2008 · 25 comments

Human Events’ John Gizzi is reporting today that House Speaker Nancy Pelosi “signalled her strong support” for revival of ‘The Fairness Doctrine,'” yesterday at a breakfast meeting hosted by the Christian Science Monitor.  The report sparked a flurry of activity by supporters of Rep. Mike Pence’s stalled Broadcaster Freedom Act, which would permanently ban re-institution of the regulation.  

The reaction to Pelosi’s comment is rather surprising, given that its hardly news that the Democratic leader would support the doctrine.   Last year, in fact, it was reported that she would “aggressively” pursue reinstituting the doctrine.   That never happened, and in fact the House ended up voting for a one-year appropriations rider banning the FCC from reviving it.   

News or not, the renewed attention for the Pence effort is welcome.   Still, supporters of free speech shouldn’t fool themselves into thinking that this is the whole of the battle, or even the main theater of conflict.  In truth, while many still give lip service to the Fairness Doctrine, the real battle over media regulation is moving forward — with closed lips — elsewhere.   Free Press and the Center for American Progress laid out the strategy last year in a report on how to balance the “conservative bias” on talk radio.   Their recommendations ranged from media ownership restrictions to vague “public interest” requirements enforced by the FCC.  Tellingly, the report dismissed the Fairness Doctrine itself as ineffective.

The battle over stealth fairness regulation may already underway at the FCC, which has already launched a proceeding to consider imposing rules on broadcasters to ensure local content and diversity on radio and TV, giving regulators renewed powers to control what is said and heard.     And, as Cord Blomquist has pointed out: “Localism will compel speech of which FCC Commissioners … approve. In a world of limited broadcast hours, compelling one sort of speech means sacrificing speech of another, effectively censoring speech.”

We’ve heard that song before.

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Our Exceptional First Amendment

by on June 12, 2008 · 9 comments

Lest any of us forget how lucky we are to live in a country where our speech rights are (largely) protected from oppressive government laws… Adam Liptak of the New York Times reminds us today in a wonderful front-page article: “Unlike Others, U.S. Defends Freedom to Offend in Speech.”

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New York AG pressures ISPs to cut off Usenet access

by on June 11, 2008 · 24 comments

Time Warner, Verizon, and Sprint will restrict access to tens of thousands of Newsgroups in order to stem illegal child pornography as part of an agreement with New York State Attorney General Andrew Cuomo announced yesterday. Although ISPs have no obligation to provide newsgroup access, and there are plenty of alternative methods for users to browse Usenet discussion groups, the agreement raises serious Constitutional questions.

The agreement is supposedly “voluntary,” but this doesn’t necessarily resolve all First Amendment concerns. Hans Bader, CEI’s Counsel for Special Projects, posted a good overview on the Constitutional implications of the New York announcement over at OpenMarket.org:

“In truth, the settlement blocking access to newsgroups is not really “voluntary.”  It’s the coercive result of threats of litigation from the New York Attorney General’s office.  Supposedly “voluntary” settlements can constitute government regulation that violates the constitution.   The Supreme Court has said that even a State’s “contractual condition” is subject to constitutional scrutiny (See South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984)), and federal appeals courts have observed that the fact that a state official and a business “have entered into an agreement does not necessarily insulate it from scrutiny under” the Constitution.  (See Automated Salvage Transport, Inc. v. Wheelabrator Ent’l Sys. Inc., 155 F.3d 59, 78 (2d Cir. 1998)).  And a “voluntary agreement” incorporated into a consent decree can constitute state regulation that is preempted by federal law, as the Supreme Court observed in 1981.  (Ridgway v. Ridgway, 454 U.S. 46, 47, 53 (1981)).

This isn’t the first time Andrew Cuomo has pressured firms to engage in online censorship. Back in October 2007, I discussed how Facebook “voluntarily” agreed to censor user content to reduce the chances that minors would encounter obscene images.

Mr. Cuomo seems awfully effective at persuading providers to curtail user speech–perhaps he made an offer the ISPs couldn’t refuse.

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Internet Safety – Good Approach and Bad Approach

by on June 11, 2008 · 6 comments

Two contrasting examples of different paths to take for Internet Safety: beefing up our criminal laws vs. imposing pseudo-verification requirements on social networking sites.

First, the good news–a Virginia appellate court upheld the commonwealth’s law criminalizing online solicitation. The law makes it illegal to send sexual content to a minor online with the intent to engage the minor in criminal sexual conduct offline.

Enhancing existing or creating new criminal laws is the crux of a model legislation strategy NetChoice has been promoting before state legislators. It’s a way to direct an understandable legislative urge to protect children toward a productive, meaningful end. And to avoid the bad news – age verification.

Last week the Attorney General for Washington, Rob McKenna, called for sites like Facebook and MySpace to use credit cards as a way to prove identity. Now, age verification has been a pet project of AGs for over two years now. I’ve written on why age verification won’t work to keep kids safe, and so too has Adam Thierer (see his most recent post). I mean, really, don’t sexual predators have credit cards too?

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What’s Worse Than Rigged Auctions & Internet Censorship? How About Both in One Package!

by on June 6, 2008 · 7 comments

Berin Szoka and I just released a short article on the FCC’s proposed follow-up to the failed 700 mhz D Block auction:  a free, nationwide wireless service that would serve public safety users as well as consumers.  It’s attached down below or the PDF can be found here.
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What’s Worse Than Rigged Auctions & Internet Censorship?
How About Both in One Package!

a PFF Progress Snapshot
Release 4.12 June 2008

by Adam Thierer and Berin Szoka

The big spectrum policy debate in town these days continues to be the fight about how to redo the botched D block auction. As we all know, FCC Chairman Kevin Martin’s previous effort to micro-manage that auction failed miserably. Sadly, the follow-up plan isn’t much better, as the Wall Street Journal notes in an editorial today:

You’d think Chairman Martin would have learned from this experience. It’s not the role of regulators to pick winners and losers to achieve their preferred social outcomes. Private competition and the price mechanism can most fairly and efficiently find the best use for scarce spectrum. The FCC’s clumsy attempt at social engineering resulted in a failed auction that has prevented otherwise desirable spectrum from being put to commercial use.

Alas, Mr. Martin has now proposed another wireless auction for a separate piece of spectrum. And this time he wants to require the winner to offer free Internet access that filters out pornography–conditions that obviously would decrease the value of the license and turn off potential bidders. It just so happens that Mr. Martin’s proposed auction seems tailor-made for the business plan put forward by M2Z, another politically connected Silicon Valley start-up looking to enter the wireless broadband telecom market.

Continue reading →

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Debugging the Pledge of Allegiance

by on June 4, 2008 · 6 comments

The U.S. Pledge of Allegiance represents a program of sorts, one designed to run on human brains and to output obedience. Like any program, however, the Pledge can suffer from bugs and submit to hacking. I thus offer you an upgraded Pledge, v. 2008:

I pledge allegiance to the laws of the United States of America, on condition that it respect my rights, natural, constitutional, and statuory, with liberty and justice for all.

For the coder’s notes, click on over to Agoraphilia.

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Cellphones, Freedom and the Cuban Embargo

by on May 22, 2008 · 18 comments

Fidel on phoneIt’s long been clear that America’s 40-year embargo on trade with Cuba has been an abject failure. It didn’t lead to an ouster of the Castro regime and has probably hurt the Cuban people much more than it has helped. As my old Cato colleague Dan Griswold put it:

Economic sanctions rarely work. Trade and investment sanctions against Burma, Iran, and North Korea have failed to change the behavior of any of those oppressive regimes; sanctions have only deepened the deprivation of the very people we are trying to help.

And there is no better example of how we are hurting the very people we are trying to help than when we place embargoes on communications technologies. I bring this up because you may have heard that President Bush just announced that the embargo will be modified “to allow Americans to send mobile phones to family members in Cuba.” The White House press release also noted that. “President Bush repeated his offer to license U.S. non-governmental organizations (NGOs) and faith-based groups to provide computers and internet to the Cuban people – if Cuban rulers will end their restrictions on Internet access.” And, Dan Fisk, NSC Senior Director for Western Hemisphere Affairs, also noted at a White House press briefing on the subject: “if Cubans can own cell-phones or mobile phones, then they should be allowed to freely and publicly express themselves. If Cubans can own computers, then it would seem that they should be allowed to have unfettered access to the Internet.”

My question is: What took our government so long to realize this? This was all just as true 10 years ago as it is today. In my opinion, if we really wanted to be encouraging regime change in Cuba, our government should have been boxing up cell phones, PCs and other digital gadgets long ago and dropping them on Cuba’s shores! These are technologies of freedom, after all. They can empower the masses and help them organize dissent and express their opposition to the statist thugs in the ruling regime.

And why is the White House only allowing family members to send over phones, or limiting the offer of PC shipments to just NGOs or faith-based groups? We ought to let anybody who wants to donate communications and computing devices ship whatever they have over. Hell, this might me our solution to the e-waste problem in America! Just send all those old gadgets to Cuba! I’m sure the Cuban people would love to have them, and I would love to see what they might do with them if they were digitally empowered in this fashion. How sad that our government only grants selective permission for it to happen.

Of course, God only knows how they will go about getting any service on those phones or PCs in such a repressed land. Perhaps we can set up cell towers and WiMax nodes on boats circling the island 24/7!

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Everiss on Kids, Government, and Grand Theft Auto

by on May 20, 2008 · 7 comments

If you love video games and follow video game politics closely, then you really should add “Bruce on Games” to your reading list. It’s the blog of Bruce Everiss, a UK-based video games industry guru. I always enjoy reading his essays, and I almost always find myself in agreement with him. I’m not sure, however, that I would just let any kid of any age play Grand Theft Auto as he suggested in this essay a few weeks ago, “Let the Kids Play GTA IV.” I think the hyper-violent stuff should be kept away from the really young kids until parents think they are ready for it. Regardless, I absolutely love this passage from that essay:

It is the job of parents to bring up their children, it is not the job of government. Unfortunately anyone can have a child any time they want, if they are physically capable. There is no intelligence test, no aptitude test and no means test. So all sorts of unsuitable people become parents. And governments use this as an excuse to force stupid legislation on the rest of us. We have nanny states that poke their noses into areas where they have no business and where things would work a lot better without them.

Amen, brother. I also found myself giving a second “amen” out loud to this passage:
Continue reading →

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Forbes on “Making Social [Networking] Sites Safer”

by on May 15, 2008 · 9 comments

Wendy Tanaka of Forbes penned a nice article this week on “Making Social Sites Safer,” as in social networking sites. She interviews many members of the new Internet Safety Technical Task Force that is being chaired by John Palfrey of the Berkman Center for Internet & Society at Harvard Law School. Wendy was also kind enough to call me for some comments.

Wendy wanted to know how far technology could go to solve online safety concerns. Specifically, as she notes in her piece, “The discussions have centered on whether identity technologies can make social sites safer, or whether consumer education works best. State attorneys general believe more technological solutions are necessary, but some task force members contend that identity technologies on the market aren’t adequate. And even if they were better, they likely can’t prevent every unwanted incident and they could block contact between friends and relatives.”

On that point, I told her that, even if the age verification technology worked as billed (and I have my doubts), we’d have other issues to grapple with:

“So, if he’s 16 and she’s 21, they shouldn’t talk? Maybe they’re brother and sister,” says Adam Thierer, a senior fellow at the Progress and Freedom Foundation. Thierer also says that too many checks and restrictions could turn off users and hamper advertising on social networks. “There’s only so far the sites can go before undermining their business and cutting off their customer base,” he says. “At some point, it becomes an annoyance for users.”

What I meant by that is that there is a balance that must be struck between security and freedom on social networking sites because, if lawmakers (or even the site operators themselves) push too far and add too many layers of controls, their could be adverse consequences. In particular, users could flock elsewhere, including to offshore sites that have no safety guidelines or mechanisms in place. That would be a troubling outcome that could leave site users far less safe in the long-run. As I have pointed out in my big paper, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,“Whatever their concerns are about current domestic sites, parents and policy makers should understand that those sites are generally more accountable and visible than offshore sites over which we have virtually no influence but that have the same reach as domestic sites.”

Moreover, we need to be aware of the privacy and speech-related issues that arise when governments seek for force users to surrender the online anonymity. I have written more extensively about that issue in my essay here on “Age Verification and Death of Online Anonymity.”

Finally, as I told Wendy, there is no substitute for education and awareness-building efforts as the real solution to these problems. “There are no easy technical fixes for complex human behavioral problems,” I told her. “We need to teach kids ‘Netiquette.’ ” That is, we need to do a better job teaching our kids proper online manners toward their peers while also making sure they understand what risks are out there and how best to deal with them.

Anyway, make sure to read Wendy’s Forbes article for additional insights from other Task Force members.

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