First Amendment & Free Speech

Since 2000, the Federal Trade Commission (FTC) has surveyed the marketing and advertising practices of major media sectors (movies, music and video games) in a report entitled Marketing Violent Entertainment to Children. (The reports can be found here). According to the agency, the purpose of these reports is to examine “the structure and operation of each industry’s self-regulatory program, parental familiarity and use of those systems, and whether the industries had marketed violent entertainment products in a manner inconsistent with their own parental advisories.” Toward that end, the agency hires a firm that conducts “secret shopper” surveys to see how well voluntary media rating systems (MPAA, ESRB, RIAA) are being enforced at the point of sale. The research firm recruits a bunch of 13- to 16-year-olds who make an attempt to purchase such media without a parent being present.

Although I’ve always had some questions about these undercover surveys, which I will get to in a moment, the bottom line is: Ratings enforcement has generally been improving over time, and in the case of the ESRB system for games, it has improved dramatically in a very short period of time. For example, the latest survey shows that whereas 90% of kids were able to purchase an “Explicit Lyrics” CD back in 2001, that’s fallen to just over 50% in the latest survey. R-rated cinema admissions have dropped gradually, from almost 50% of kids getting in in 2001, to about 35% today. R-rated DVD sales for teens have falled from 81% in 2001 to 47% today. And the video game industry’s outstanding education and awareness-building efforts have shown the most success, with M-rated video games only being sold to 20% of teens today, down from 85% back in 2000. That’s an impressive turn-around in a very short amount of time.

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Larry Magid in the San Jose Mercury News on the limits of the age verification proposals being discussed to protect kids online. A quote:

Some attorneys general want to see the electronic equivalent of showing an ID at the door. . . But Sentinel Chief Executive John Cardillo told me age- and identity-verification schemes typically rely on credit reports and other data that is accessible for most adults but generally not available for people under 17. One could, in theory, access school, birth or Social Security records, but for a variety of good reasons, these databases are off-limits to private entities. . . . [E]even if age verification is possible, I still question whether it’s desirable. I worry about some teens – including victims and youths questioning their sexual identity – being harmed because they’re denied access to online support services that could help them or even save their lives.

Arguments concerning age verification and showing harm from restricting minors’ access to the Internet were made in challenging provisions of the Communications Decency Act restricting “indecency” online back in 1997/1998. At the time, age verification was judged impracticable, and the Supreme Court’s ruling upholding free speech rights online in some part rested on this conclusion. If age verification proposals now move forward, the issue might be revisited again.

Free speech rights are some of the healthier provisions of the Bill of Rights protection. But the area of minors continues to be troublesome. The challenges to the “indecency” laws are made on behalf of members of an adult audience; they are in effect restricted to child-safe material even though the law only is intended to protect kids. Almost everyone seems to accept without question the premise that such challenges may not be brought on behalf of the children themselves.  The lack of attention to this point seems to stem, first, from observation that of course children do not have rights to free speech as against their parents or other private caretakers. I tell The Grub to hush, he must hush, or I will give his racetrack a time-out. But this power of parents and their delegates is a common law matter. It ought to have nothing to do with the resolution of the constitutional question, regarding the free speech rights of kids as against the government.

One now contends with a second argument: It is common sense that children (differently for different ages) must have different rights than adults, they are not all at the same stage of development and so on and so on. Again, the same objection. One is not dealing with the common law of contracts here. This has to do with constitutional rights. The constitution says “Congress may make no law….”  It is a restriction on the power of government. It gives government no special powers with respect to minors. If in fact Congress has such powers, where does it get them? If it can get them somewhere else, what is the limit?

Imagine if one made the “children can’t possibly have the same rights as adults” with respect to other provisions of the Bill of Rights. The anti-establishment clause for example. Government may not establish a religion for adults, but if we read exceptions into the Bill of Rights for children, evidently it *can* establish such a religion for children? That is nonsense. Similarly the right against self-incrimination. It is not okay for the police to torture adults, but if we are to read exceptions in the Bill of Rights against children, evidently it is okay for the the police to torture children? More nonsense. May Congress take the property of children without compensation? Subject them to cruel and unusual punishments? It seems to me that if the answer to any of these questions is “no,” then it must be “no” to all of them (including, to the outrage of many, to the right to bear arms and the right to trial by jury). Congress has no more powers over kids than it has over adults. May the next free speech challenge to age verification will be brought on behalf of the kids themselves.

Much hemming and hawing and lawyering will follow. I know, I know.

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As I have pointed out here many times before, education is a vital part of online child protection efforts. In fact, if there is one point I try to get across in my report on “Parental Controls and Online Child Safety,” it is that, regardless of how robust they might be today, technical parental control tools are no substitute for education, media literacy and online safety awareness training. To the extent lawmakers feel the need to “do something” about online safety issues, education-based efforts will bear much more fruit than regulatory initiatives.

Unfortunately, it is clear that not nearly enough media literacy or online safety instruction is being done within America’s educational process at any level. For the most part, media literacy is not routinely integrated into the curricula at elementary school, secondary school, high school, or college. This situation must be reversed. Luckily, my home state of Virginia is helping to pave the way. This weekend, the Washington Post ran a front-page story entitled, “Virginia Tries to Ensure Students’ Safety in Cyberspace,” that discussed the state’s effort to “launch Internet safety lessons across all grade levels, responding to a state mandate that is the first of its kind in the nation.” The text of the enabling legislation can be found here and, in September 2006, Virginia produced an outstanding report entitled “Guidelines and Resources for Internet Safety in Schools” that can serve as model legislation for other states.

The Post story summarizes the focus of the program:
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What happens as gamers grow older and become a more dominant voice in society? UK game developer Richard Bartle has some thoughts on that issue in an acerbic, in-your-face editorial in the UK Guardian this week:

I’m talking to you, you self-righteous politicians and newspaper columnists, you relics who beat on computer games: you’ve already lost. Enjoy your carping while you can, because tomorrow you’re gone. According to the UK Statistics Authority, the median age of the UK population is 39. Half the people who live here were born in 1969 or later. The BBC microcomputer was released in 1981, when those 1969ers were 12. It was ubiquitous in schools; it introduced a generation to computers. It introduced a generation to computer games. Half the UK population has grown up playing computer games. They aren’t addicted, they aren’t psychopathic killers, and they resent those boneheads – that’s you – who imply that they are addicted and are psychopathic killers. Next year, that 1969 will be 1970; the year after, it’ll be 1971.

Dwell on this, you smug, out-of-touch, proud-to-be-innumerate fossils: half the UK population thinks games are fun and cool, and you don’t. Those born in 1990 get the vote this year. Three years from now, that 1969 will be 1972, then 1973. Scared yet? You should be: we have the numbers on our side. Do your worst – you can’t touch us. We’ve already won. 15 years from now, the prime minister of the day will have grown up playing computer games, just as 15 years ago we had the first prime minister to have grown up watching television, and 30 years ago to have grown up listening to the radio. Times change: accept it; embrace it. Don’t make yourself look even more 20th Century, even more public school, than you do already. You’ve lost! Understand? Your time has passed.

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Luis Villa posed a good question in response to my essay yesterday wondering why Yale’s tech agenda for the next administration does not include anything about online free speech. I had noted that “I found it intriguing… that protecting free speech doesn’t make their radar screen, which seems both sad and puzzling since it will continue to be under attack regardless of who is in charge next year.” In response, Luis noted:

I guess I’m failing to see the significant speech problems in the modern internet, Adam- care to elaborate? Do you mean the kinds of problems Open Net Initiative has been working on, or something else? I strongly agree with you that free speech should be a core value for the internet, but at least inside the US, the internet seems to be clearly the most vibrant and free platform for speech that there is, with no significant threats to it that I’m aware of, which maybe is why it fell off this particular list.

This is a fair question. But as evidence of what I regard as the continuing threats to free speech–both online (new, interactive media) and off (old, passive media)–I would draw everyone’s attention to this compendium of Online Child Protection & Online Content Regulation Bills that CDT and PFF jointly complied. It documents the dozens of measures pending currently in Congress, and we are about to add more to the list. Importantly, if we would have included state and local measures, the index would have been much, much longer. John Morris and I each published commentaries discussing why these threats to speech should be taken seriously. (Here’s John’s; here’s mine.)

Now, one could argue that because none of these measures have yet passed into law, we have nothing to worry about. But I believe such a position would be quite short-sighted. Eventually, when policymakers throw enough stuff at the wall, something will likely stick. [Moreover, sometimes the sheer volume and nature of legislative activity can have a chilling effect on speech without every becoming law.]

One might then respond, “So what? If something passes, we’ll knock it down in court with the First Amendment like we have done for the past 10 years!” A fair point, but that’s always a risky gamble. We’ve been fortunate so far that the courts have upheld speech rights in most new media cases, but there’s a storm on the horizon that will hit when the courts are finally force to deal with this mess of asymmetrical First Amendment media standards (i.e, the differential treatment of speech on various media platforms). The key question is: How will speech be regulated as those platforms converge and speech becomes one big bucket of digital bits? If you are interested, I dealt with this dilemna in far more detail in my recent Catholic University Law School law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” As you might imagine, I favor setting the bar quite high by rejecting the old broadcast “public interest” approach to speech regulation and I instead favor the application of the print / Internet / video game standard (i.e., strict scrutiny of all speech-related regulatory efforts).

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