First Amendment & Free Speech

I have just released a new PFF white paper on “The Perils of Mandatory Parental Controls and Restrictive Defaults.” It points out the dangers of government mandating that parental controls be defaulted to their most restrictive position. I’ve gone ahead and just pasted the entire text below (but without the footnotes):
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During ongoing debates about parental controls, ratings, and online child safety, there have occasionally been rumblings about the possibility of requiring that media, computing and communications devices: (1) be shipped to market with parental controls embedded, and possibly, (2) those controls being defaulted to their most restrictive position, forcing users to opt out of the controls later if they wanted to consume media rated above a certain threshold.

Imagine, for example, a law requiring that every television, TV set-top box, and video game console be shipped with on-board screening technologies that were set to block any content rated above “G” for movies, “TV-Y” for television, or “E” for video games, which are the most restrictive rating designations for each type of media. Similarly, all personal computers or portable media devices sold to the public could be forced to have filters embedded that were set to block all “objectionable” content, however defined.

If “default” requirements such as this were mandated by law, parents would be forced to opt out of the restrictions by granting their children selective permission to media content or online services. In theory, this might help limit underage access to objectionable media or online content. Such a mandate might be viewed as less intrusive than direct government censorship and, therefore, less likely to run afoul of the constitution.

For these reasons, such a proposal would likely have great appeal among some policymakers, “family” groups, child safety advocates, and parents. But mandating parental controls and restrictive defaults is a dangerous and elitist idea that must be rejected because it will have many unintended consequences and not likely achieve the goal of better protecting our kids.
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I’m teaching my 6-year old daughter how to read right now. It’s slow going; she’s struggling. So, I’ve been trying a variety of techniques and approaches. One strategy that seems to be working is what we call “the newspaper game.” Each night before she goes to bed, we practice with word cards and a dry erase board. We drill though about 20-25 words at a time; I help her sound them out and then she writes them on the board. The following morning, when I bring in the morning newspapers, I ask her to search through the headlines in the Washington Post for words we might have practiced the night before. She is very excited when she recognizes one, and that helps reinforce what she has learned. We have been doing this a lot lately and she now even rushes out some mornings to get the papers for me so we can do this together. (I’m hoping it instills within her a love of fine journalism, too!)

Anyway, this morning she picked up the Washington Post and—not seeing any words she recognized on A1—flipped the page and spotted the word “Out” on pg. A3. She was very happy because that was one of the “O” words we had practiced a few nights before. So I walked over to praise her and to look at the article she was examining in a search for other familiar words. The full title of the article was: “The D.C. Madam Case, All Sordid Out.” Yikes!

Now this is a serious article, written by one of the most respected (and prolific) journalists in America today, Dana Milbank. But Milbank’s description of the trial about the now infamous Beltway prostitution ring is not exactly the sort of stuff you want to have your 6-year old reading at the breakfast table before she goes off to school. Milbank’s article includes several references to various types of sexual encounters and even some talk about how some of the hookers were “inducing orgasms” for clients. Here’s one particularly steamy passage from the article:
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I’m a big critic of the Bush administration’s foreign policy, so I was excited to see this plan, endorsed by 42 House candidates, to end the war. However, I was annoyed to find that this was part of the plan:

The lack of impartiality and skepticism on the part of the news media allowed administration claims to go unchallenged, and denied the American public a full examination of the arguments for and against going to war.

The consolidation of ownership of news organizations means that it doesn’t take long for a beltway- centric “conventional wisdom” to take shape. Due to the limited number of media outlet owners, this conventional wisdom is repeated over and over, through a variety of outlets…

This legislation would require the FCC to include greater public participation when changing regulations related to broadcast ownership, to do studies on the impact of such rule changes, and to establish an independent panel on increasing the representation of women and minorities in broadcast media ownership.

On one level, this is just empty grandstanding. Requiring “greater public participation” and writing more studies just isn’t going to have a significant effect on whether Fox News’s commentators are biased in favor of wars. As James and Adam have pointed out ad nauseum on this blog, the FCC’s decision-making process on media ownership has been glacial, and the media have been de-consolidating as well as consolidating.

But I think this proposal would actually be more worrying if it did have teeth. When you boil it down, what this plank of their plan is saying is that the bulk of the media reached a conclusion that these candidates didn’t agree with, and so they want to enact legislation that will shift the media conversation in a direction they would find more congenial. Liberals have been justifiably upset that Pres. Bush appears to be stacking the CPB with right-wingers in order to exert right-ward pressure on NPR and PBS. The same principle works the other way: if liberals don’t like the way the media have been covering the War in Iraq, the answer is not to get the federal government involved. The fact that 42 candidates for Congress frame the issue this way should concern everyone who takes freedom of the press seriously.

Today and tomorrow I am attending a terrific conference at Penn State University called, “Playing to Win: The Business and Social Frontiers of Videogames.” It features panel discussions about various legal and business issues facing the video game industry, as well as discussions about how video games are used to aid teaching and learning. There are also panels on multiplayer online worlds and virtual reality environments and the issues surrounding both. [They will apparently be posting videos from the conference on their site shortly.]
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The folks at PSU were kind enough to invite me to deliver the luncheon keynote on Day 1 and I decided to provide a broad overview of the policy issues facing video games that I have covered in some of my past work. My presentation was entitled, “Video Games, Ratings, Parental Controls, & Public Policy: Where Do We Stand?” and the entire 36-slide presentation is now available online here. Down below, I thought I would just outline a couple of the key themes I touched upon in my presentation.

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The long-awaited final report of the UK’s Byron Review on Children and New Technology is finally out. It is called Safer Children in a Digital World. It focuses on the benefits and risks associated with the Internet and video games. I will be posting more about the specifics in coming days, but the general thrust of the report–at least from the executive summary–looks quite good. Here’s a few key quotes:

* Technology offers extraordinary opportunities for all of society including children and young people. The internet allows for global exploration which can also bring risks, often
paralleling the offline world.

* “New media are often met by public concern about their impact on society and anxiety and polarisation of the debate can lead to emotive calls for action.” … “Debates and research in this area can be highly polarised and charged with emotion.”

* “I propose that we seek to achieve gains in these three areas by having a national strategy for child internet safety which involves better self-regulation and better provision of information and education for children and families.”

* “We need to take into account children’s individual strengths and vulnerabilities, because the factors that can discriminate a ‘beneficial’ from a ‘harmful’ experience online and in video games will often be individual factors in the child. The very same content can be useful to a child at a certain point in their life and development and may be equally damaging to another child.”

I like the focus on education and parental oversight that I see in the report. Here’s a particular good recommendation that closely parallels what I have called for in my own work:

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Access Denied I previously mentioned the excellent new book, “Access Denied: The Practice and Policy of Global Internet Filtering,” which is edited by Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain. It is a comprehensive survey of the methods governments are using to stifle online expression. The contributors provide a regional and country-by-country overview of the global state of online speech controls and discuss the long-term ramifications of increasing government filtering of online networks.

Business Week has just posted an interview with one of the editors of the book, John Palfrey, executive director of the Harvard Law School’s Berkman Center for Internet & Society. John provides a nice overview of the major themes and issues covered in the book. But make sure you pick up the entire volume. It’s an important resource to have on your bookshelf.

Can technology really help liberate repressed populations? I’d like to think so, although there are times when I’ve had my doubts. When it comes to speech controls and political repression, the David-vs-Goliath / cat-and-mouse interplay of citizens versus the State is an intriguing thing to study. I talked about how “technologies of freedom” are helping to slowly liberate citizens in some countries, and here’s a new story today from VOA about China struggling to cope with criticism before the Olympics.

The Washington Post’s outstanding columnist Anne Applebaum also has a piece today along these lines that discusses what’s happening in Tibet right now. She notes:

Cellphone photographs and videos from Tibet, blurry and amateurish, are circulating on the Internet. Some show clouds of tear gas; others, burning buildings and shops; still others, monks in purple robes, riot police and confusion. Watching them, it is impossible not to remember the cellphone videos and photographs sent out from burning Rangoon only six months ago. Last year Burma, this year Tibet. Next year, will YouTube feature shops burning in Xinjiang, home of China’s Uighur minority? Or riot police rounding up refugees along the Chinese-North Korean border? That covert cellphones have become the most important means of transmitting news from certain parts of East Asia is no accident….

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Over at the popular gaming site 1up.com, a gentleman who worked briefly for the Entertainment Software Rating Board (ESRB) has posted a provocative article entitled, “How to Fix the Game Ratings System: An insider’s take on what’s wrong with the ESRB.” In the piece, Jerry Bonner, who worked at the ESRB for 6 months according to GamePolitics.com, argues that “Something desperately needs to happen [to reform the ESRB] because the alternative — a government mandated and controlled rating scheme — is a downright frightening concept.” He continues:

“let’s fix [the ESRB ratings process] before things really get out of hand and a new government-appointed ‘Secretary of Interactive Entertainment’ is making the decisions as to what we can and can’t play. I know I don’t want that. I know you don’t want that. And I know that the people at the ESRB don’t want that. Let’s all make damn sure it doesn’t happen, shall we?”

Well, I can certainly agree with Mr. Bonner that a “Secretary of Interactive Entertainment,” or any sort of extensive government regulation of video games, is a very frightening prospect. The problem is, the “solutions” he outlines in his essay could actual put us on that path.

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Paul Davidson of the USA Today called me last week seeing comment for a story he said he was putting together on the legacy of Kevin Martin’s FCC. I spent roughly 30 minutes on the phone with Davidson and went through a litany of policy issues with him itemizing the “assets and liabilities,” if you will, of the Martin regime, as viewed from the perspective of someone who cares deeply about free markets and property rights. I did not hold back during the interview. I told Davidson in no uncertain terms that Chairman Martin had gone far off the free-market reservation on a great number policy issues.

Anyway, Davidson’s story appeared today and is entitled “FCC Chief Martin Hasn’t Lost Focus on Cable.” It mentions how Chairman Martin has managed to alienate a good portion of the the free-market movement by straying far off the reservation on a great many issues, but it never really gets into the details. To get the complete story, I encourage you to read this editorial that James Gattuso and I penned for National Review as well as an editorial by the magazine’s editorial board that appeared the following day entitled, “Pulling the Cable on Martin’s Crusade.”

And those essays just cover the economic policy failings of the current FCC. To see what has been proposed on the social / speech side of things, see my essay, “FCC Violence Report Concludes that Parenting Doesn’t Work” and “The FCC’s Indecency Bomb.”