First Amendment & Free Speech

new Internet Safety Technical Task Force

by on February 28, 2008 · 0 comments

The Berkman Center for Internet & Society at Harvard Law School has just announced the formation of the Internet Safety Technical Task Force, and they were kind enough to ask me to serve as a member. According to the press release they sent out this morning:

The Task Force will evaluate a broad range of existing and state-of-the-art online safety technologies, including a review of identity authentication tools to help sites enforce minimum age requirements. The Task Force is a central element of the Joint Statement on Key Principles of Social Networking Safety announced in January 2008 by MySpace and the Attorneys General Multi-State Working Group on Social Networking. Fifty Attorneys General adopted the “Joint Statement” with the goal of improving online safety standards industry-wide.

[I discussed the details of that My Space-AG “joint statement in this report back in January.] The Task Force is composed of industry-leading Internet businesses, non-profit organizations, and technology companies, including: AOL, Aristotle, AT&T, Bebo, Center for Democracy & Technology, Connectsafely.org, Comcast, Enough is Enough, Facebook, Google, the Family Online Safety Institute, iKeepSafe, the Institute for Policy Innovation, Linden Lab, Loopt, IDology, Microsoft, MySpace, NCMEC, Progress and Freedom Foundation, Sentinel Tech, Symantec, Verizon, WiredSafety.org, Xanga, and Yahoo! The Task Force will be chaired by John Palfrey, executive director of the Berkman Center.

Over the past year, I have been very active on many of the issues that will be at the core of the task force’s mission, including the identify authentication / age verification debate. For those who might be interested, I’ve included the relevant PFF studies and links down below the fold. I’m looking forward to working with the other members of the Task Force to conduct a comprehensive review of these issues. I’m sure I will be reporting here occasionally on our progress.

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Mobile phone censorship regime coming?

by on February 27, 2008 · 9 comments

As I mentioned way back in 2005, the specter of FCC content controls for cell phone and other mobile media devices is growing. And, according to this new Radio Ink report, it’s now under serious consideration at the FCC:

FCC Commissioner Deborah Taylor Tate says the FCC is looking into how its indecency regulations could extend to the increasing availability of audio and video content delivered to mobile devices. In a recent speech delivered at the Association of National Advertisers Advertising Law and Business Affairs Conference, Tate said, “As we enter the age of content delivery over mobile devices, there is a whole new set of questions to address regarding how to provide ratings, how to block objectionable content, and whether the FCC has a role to play in this arena.”

To be fair, Commissioner Tate also praised the voluntary steps that industry has already taken to empower parents to deal with this privately. And Tate also said that, “market-based solutions are the best way to achieve our shared goals and to provide parents the tools they need to be the first line of defense for their children.” But the threat of more aggressive intervention by the FCC still looms in light of her earlier comments. Stay tuned; much more to come on this front.

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Are All Video Games Violent?

by on February 26, 2008 · 3 comments

If the comments of some lawmakers and video game critics were any guide, the public would be led to believe that most video games are filled with explicit violence or sexual themes. But that’s a myth. The fact is, as I pointed out in my 2006 PFF study “Fact and Fiction in the Debate Over Video Game Regulation,” the vast majority of video games are appropriate for young kids. That is, the majority of video games are rated “E” for “Everyone” or “E 10+” for “Everyone 10 and older” by the Entertainment Software Rating Board (ESRB).

I decided to put together an updated chart illustrating this fact in preparation for a keynote address I will be delivering at a Penn State University conference in early April entitled, “Playing to Win: The Business and Social Frontiers of Videogames.” Here is the breakdown of ratings by major category from 2003-2007.

video game ratings breakdown

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Scalia on video game regulation

by on February 20, 2008 · 20 comments

Anthony Prestia of Laws of Play, a blog dedicated to covering legal developments in the gaming industry, somehow got some face time with Supreme Court Justice Scalia and was able to ask for his feelings concerning the constitutionality of recent state video game legislation. “In particular,” Prestia says, “I asked him whether as an originalist he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment.” Here’s Prestia’s summary and analysis of Scalia’s answer:

In his most succinct reply of the day, Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not–-he instantly drew the parallel to regulation of pornography sales. However, Justice Scalia emphasized that unprotected speech, such as obscenity–which he was unwilling to define for reasons that are immediately evident to any constitutional scholar–-can be prohibited from sale regardless of the purchaser’s age. I think the important thing to note here is that Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment despite his strict originalist beliefs.

That’s an interesting response in that Scalia’s latter comments imply that even older, more conservative judges are coming around to understanding how video games are a form of artistic expression deserving the protection of the First Amendment. But Scalia’s earlier suggestion that state laws banning sales of certain video games to minors maybe constitutional deserves a response.

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Leading pornographer lecturing Google & Yahoo about cleaning up online porn

by on February 15, 2008 · 9 comments

So here we have one of the world’s leading pornographers lecturing Google & Yahoo about doing more to protect kids for online porn. Just bizarre. Next thing you know, Larry Flynt and Hugh Hefner will be lecturing pay TV operators for not doing enough to stop people from viewing adult VOD channels!

But before Mr. Hirsch makes silly statements like “None of the search engines and portals, but particularly Yahoo and Google, has taken any significant steps” to keep children from viewing online pornography, perhaps he should click on the “Safe Search” buttons on each of those sites to see what each search provider already offers. As I pointed out in my book on “Parental Controls & Online Child Protection,” those safe search tools are surprisingly effective in rooting out most of that porn that Mr. Hirsch and his colleagues produce.

Update: Harold Feld and I often clash on issues, but he’s an incredibly gifted writer and it shows in this absolutely hilarious response to the Hirsch episode. The first paragraph is just priceless:

Every now and then, hypocrisy reaches a level of such cognitive dissonance that it approaches the level of art — or perhaps really low humor. Such is the case of Vivid Entertainment co-founder Steven Hirsch, who recently expressed his deep concern that Google, Yahoo! and other search engines may expose children to porn. Hirsch called on search engines to “erect strong barriers” to children finding pornography. No doubt he also offered to “increase the size of their filtering package” so that their defenses against “naked porn stars and exxxplicit sex acts” could be “rock hard.” Sadly, his personal emails to Eric Schmidt and Jerry Yang on the subject keep getting caught in their spam filters.

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Criminal sanctions for poor parental judgment?

by on February 11, 2008 · 0 comments

In an essay earlier today, I discussed why I believe that private censorship is superior to public censorship since it lets each family dictate for themselves what is in their own best interest. Public censorship, by contrast, expects regulators to dictate for all families what is best for them by imposing a single arbitrary standard on the entire nation. The ideal state of affairs, I argued, would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s media consumption habits to their specific values and preferences. That would include the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families.

But, for the sake of argument, let’s assume that this ideal state of affairs exists but that many parents continue to allow their children to experience some types of media content that others believe is harmful. What should be done about that?

I ask because I was just reading through this month’s Federal Communications Law Journal, which includes the transcript of a Federalist Society symposium on the “Expansion of Indecency Regulation.” The discussion included remarks from FCC Chairman Kevin Martin and Robert W. Peters, the President of Morality in Media among others. During the discussion, both Chairman Martin and Mr. Peters suggested that it if we really wanted to get serious about protecting children from media content somehow deemed “harmful to minors,” then we might need to consider criminal sanctions for parents who voluntarily bring such fare into their homes.

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Who decides what’s appropriate for our families?

by on February 11, 2008 · 0 comments

Everybody loves to blame the media for the woes of the world. Is your candidate losing? Blame the media. Is the war in Iraq not going the way you want? Blame the media. Is the economy slowing down and heading into recession? Blame the media.

Indeed, one of the entertaining things about being a media policy analyst is that you get to hear various media critics say the most outlandish things about the role of media in our society. And that’s not just the case for news; it’s even truer for culture and entertainment, of course. There’s never been a shortage of self-appointed culture cops in our society who want to tell us that they–or at least some benevolent ruling class acting on their behalf–are in the best position to dictate standards of decency and quality entertainment. And sometimes the antics of such critics are as entertaining as they are outrageous.

Take this recent press released by Concerned Women for America entitled, “Oh, Be Careful Little Eyes What You See: The Influx of Broadcast Indecency.” So desperate are they to expand the scope of government regulation over media that they’ve now resorted to equating broadcasters to murderers and thieves: “If we allow the networks to set the standards of public decency, isn’t that like allowing the criminal to decide what’s illegal?”

Seems a bit over-the-top to me, but let’s try to answer that question by answering another question CWA sets forth in their press release: “Who decides the standards by which we protect our children and ourselves from indecent broadcasts over the public airwaves?”

That is an excellent question, and one that I have devoted much of my life’s work to answering. What CWA is implying in that question is that if the government does not set “standards” to protect society from “indecent broadcasts,” then society will essentially descend into a nihilistic moral abyss. Only by empowering regulators to police “the public airwaves” can we restore and defend moral order.

This assertion is incorrect on multiple counts. I could focus on the constitutional challenges associated with defining “indecent” and “moral” content in a pluralistic society such as ours. Or I could focus on the practical considerations of regulating broadcasters uniquely in our multi-media, multi-platform world. But I would rather focus on that “Who Decides?” question set forth by CWA in their essay, because that’s what is really at the center of all these debates. And here’s the way I counter that logic in my book on “Parental Controls & Online Child Protection”:

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New Mexico’s video game nanny tax

by on February 11, 2008 · 4 comments

I have an editorial appearing on CNet News today about “New Mexico’s video game nanny tax.” Quick background: The New Mexico legislature has introduced a new tax measure that would force consumers to pay a 1 percent excise tax on purchases of video games, gaming consoles, and TVs. The revenue generated from the game and TV tax would be used to fund a new state educational effort aimed at getting kids out of the house more. True to the aim of the measure, they have even given the bill the creative title, “The Leave No Child Inside Act.” In my editorial, I argue that:

legislators shouldn’t be using the tax code to play the role of nanny for our kids. It is the responsibility and right of parents to determine how their kids are raised. Many of us would agree that more outdoor time is a laudable goal. But should the government be using the tax code to accomplish that objective?

I point out that the proposal raises serious fairness questions that makes a constitutional challenge likely since older court cases dealing with other media have also made it clear that public-policy makers are forbidden from using the power to tax in an effort to discriminate against speech or expression that they disfavor. Moreover, on the fairness point:

Why just blame video games for kids not getting enough time outdoors? How about a tax on social-networking Web sites or instant messaging? Many kids are spending almost as much time online right now as they do playing video games. And what about other types of non-digital games that might keep kids indoors? My daughter spends a lot of time playing Sudoku puzzles, for example. Perhaps we should tax Sudoku books, chess boards, and even arts and crafts! After all, the goal here is to do whatever it takes to get kids outside, right? Or is it really just to get kids to stop playing video games?

Read the entire piece here if you are interested.

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new PFF-CDT index of free speech / content bills

by on February 6, 2008 · 4 comments

Though not yet complete, the 110th session of Congress has already witnessed an explosion of legislative proposals dealing with online child safety, or which seek to regulate media content or Internet communications in some fashion. More than 30 of these legislative proposals are cataloged in a new joint legislative index that was released today by the Center for Democracy and Technology (CDT) and the Progress & Freedom Foundation (PFF).

John Morris, Senior Counsel at CDT, and I compiled this index to help ourselves and others keep track of the growing volume of legislative activity on these fronts. Each bill is indexed according to title and topic, the chamber in which it was introduced, and the agency or organization that the measure affects or empowers. The entry for each bill includes: a concise summary of the legislative proposal, a link to the legislation, and links to relevant analysis by CDT or PFF. The compendium will be placed on both the CDT and PFF websites and updated as needed. The index will hopefully make it easier for the public and the press to analyze ongoing legislative developments pertaining to online child safety or free speech.

Although an exact count of related legislative activity in previous sessions of Congress is not available, there is little doubt that lawmakers have been more active on this front during this session of Congress than ever before. That, in and of itself, is probably cause for some concern since it means the Internet, media operators, and other speakers run the risk of being subjected to greater regulatory burdens.

In addition our joint index, John and I have also separately released papers today outlining what we each felt were some of the most problematic bills introduced so far in this session. John’s report is here, my paper is here. After the fold, I will summarize some of the bills I am concerned about.

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Good for Obama: He favors parental empowerment over censorship

by on February 1, 2008 · 0 comments

In case you didn’t catch it the debate last night, Sen. Obama had some very encouraging things to say when asked about the role of government when it comes to media content. “[T]he primary responsibility is for parents,” Obama said. “And I reject the notion of censorship as an approach to dealing with this problem.” He then stressed the importance of making sure that parents have the tools to make these determinations for their families (something I’ve spent a lot of time stressing in my work):

“[I]t is important for us to make sure that we are giving parents the tools that they need in order to monitor what their children are watching. And, obviously, the problem we have now is not just what’s coming over the airwaves, but what’s coming over the Internet. And so for us to develop technologies and tools and invest in those technologies and tools, to make sure that we are, in fact, giving parents power — empowering parents I think is important.”

Good for him. That’s the exactly the right position, and one that his opponent Mrs. Clinton would be wise to adopt. After all, she’s had some rather misguided views on these issues through the years.

Here’s the transcript if you care to read more.

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