First Amendment & Free Speech

Iran Battles the Digital Future & Global Culture

by on October 18, 2006

The U.K.’s Guardian newspaper reports that Iran has just banned high-speed Internet connections in an effort to restrict access to foreign culture:

“In a blow to the country’s estimated 5 million internet users, service providers have been told to restrict online speeds to 128 kilobytes a second and been forbidden from offering fast broadband packages. The move by Iran’s telecommunications regulator will make it more difficult to download foreign music, films and television programmes, which the authorities blame for undermining Islamic culture among the younger generation. It will also impede efforts by political opposition groups to organise by uploading information on to the net. The order follows a purge on illegal satellite dishes, which millions of Iranians use to clandestinely watch western television. Police have seized thousands of dishes in recent months.”

One wonders how long such a strategy can really work since communications and computing devices continue to get smaller and faster every day. Unless you shut down all the networks and tightly restrict access to all the potential digital devices out there, especially wireless devices, then this approach is not likely to work in the long run. For example, a recent story in the Washington Post noted how despite strict communications and media laws in Saudi Arabia (the country once sought to ban cell phone cameras), the youth of that country are finding ways around media restrictions:

“Cellphone technology is changing the way young people meet and date in the Kingdom of Saudi Arabia, one of the most insular, conservative and religiously strict societies in the world. Calls and texting–and more recently, Bluetooth–are breaking down age-old barriers and giving young men and women discreet new ways around the sentries of romance.”

Nonetheless, the combination in Iran of a totalitarian religious state and a traditionally closed culture could mean that their restrictions will be fairly effective, at least in the short term, in preventing people from gaining access to culture and information outside their borders. But we’ll see how long they can hold back the growing tide of digital information and the relentless march of technological progress.

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The Ultimate Online Predator Solution

by on October 17, 2006

As I have written here before, the only way we are ever going to solve the online predator problem is to get serious about weeding out and prosecuting the vermin who commit crimes against children. As I pointed out last week in my response to Sen. Joe Lieberman’s online child protection manifesto, regulating Internet websites or online communications to solve this problem avoids the real issue: The bad guys don’t serve enough time and are out on the streets (and behind keyboards) because of our government’s failure to adequately punish them.

What got me thinking about all this again was this new Wired report by Kevin Poulsen. He explains how he helped New York law enforcement officials track down and apprehend a sex offender by writing a program that searched MySpace’s 1 million-plus profiles for registered sex offenders. Here’s what struck me about the specific perpetrator that they nabbed, a 39-year-old man named Andrew Lubrano:

“Lubrano was sentenced to three years probation in 1987 for sexual abuse against a 7-year-old boy, according to police. In 1988, he got another probation term for second-degree sex abuse. In 1995, he earned a 3 to 9 year prison term for sexually abusing two boys he’d been babysitting, one 11, the other 9. The parole board turned Lubrano down three times, and he was cut loose in September 2004 largely unsupervised, having served every day of his nine-year max. By November 2005 he was on MySpace, making friends.”

When I read stuff like this, I literally start screaming at my computer: “Why? Why? Why?” Why in the hell is this guy on the streets? Why is he even able to get online at all when he should be sitting in a jail cell? Why is it MySpace’s problem to solve instead of the government’s? And why is it my responsibility to have to monitor both MySpace and sex offender registries to see if these creeps might be preying on my children?

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National Freedom of Speech Week

by on October 16, 2006 · 6 comments

This week is National Freedom of Speech Week. It’s good opportunity for those of us in America to remember how lucky we are to live in a country that respects freedom of the press and freedom of speech. After all, we could live in country like China, where dissent, press freedoms and online communications are frequently punished with penalties or prison time. (They even censor news coverage of disasters over there!)

Or consider Russia, where journalists live in fear for their lives for reporting the news, or where the state has continued its push to monopolize the media industry. For example, in July 2004, a state-controlled entity took over Russia’s independent NTV television network and began canceling programs that were critical of the government, including, ironically, one talk show called “Freedom of Speech”!

Of course, there is still plenty of push-back against speech rights here in the USA. Over just the past few years, for example, we have witnessed a major government crack-down on “indecent” speech on broadcast TV or radio; a new push to expand indecency laws to cover cable and satellite TV; threats of wireless / mobile media regulation; a continued push for the regulation of video games; ongoing proposals to regulate Internet speech and online expression (including social networking sites); and stringent new campaign finance laws that grotesquely curtail political speech in the weeks before an election.

As I argue in every essay I pen responding to these proposals, what speech critics consistently fail to appreciate is that in a free society different people will have different values and tolerance levels when it comes to speech and media content. It would be a grave mistake, therefore, for government to impose the will of some on all. To protect the First Amendment and our heritage of freedom of speech and expression from government encroachment, editorial discretion over content should always remain housed in private, not public, hands.

However, there will always be those who respond by arguing that speech regulation is important because “it’s for the children.” (For example, just last week, I responded in detail to Sen. Joe Lieberman’s recent “for-the-children” manifesto). But raising children, and determining what they watch or listen to, is a quintessential parental responsibility. Moreover, according to the U.S. Census Bureau, almost 68 percent of American homes do not have any children under 18 years of age in residence. Thus, government regulations that seek to regulate all content the name of protecting children will cast too wide a net by ensnaring many adult-only households.

Personally, I think the most important thing I can do for my children is to preserve our nation’s free speech heritage and fight for their rights to enjoy the full benefits of the First Amendment when they become adults. Until then, I will focus on raising my children as best I can. And if because of the existence of the First Amendment they see or hear things I find troubling, offensive or rude, I will sit down with them and talk to them in the most open, understanding and loving fashion I can about the realities of the world around them.

I would hope that the critics of the First Amendment would do the same instead of seeking to undercut our nation’s rich history of freedom of speech and expression. It is one of our Founders’ enduring gifts to future generations and a precious freedom worth fighting for.

Happy Freedom of Speech Week everyone !

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A Response to Sen. Lieberman’s Online Child Protection Manifesto

by on October 12, 2006

On Monday, October 9th, Sen. Joe Lieberman (D-CT) delivered a major address about Internet content and online child safety that was intended to serve as a sort of call-to-arms for policymakers, parents and industry to get more serious about the issue.

In his wide-ranging remarks, Lieberman bemoaned the relentless pace of technological change and how the Internet and digital media technologies were making it increasingly difficult for parents to protect children from objectionable material or, worse yet, child predators. “The Internet is a wondrous, revolutionary medium,” Lieberman said. “But there is too often a thin line between the awe-inspiring and the simply awful, and with each new technological breakthrough, it seems that the opportunities for our children to fall into that awful gap grow greater and graver.”

In this essay, I will dissect Sen. Lieberman’s manifesto and provide a detailed response to his assertions and proposals. I feel this is necessary because his address touches on many of the major themes and proposals that are framing the debate over Internet regulation that is taking place in America today.

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IM: The Next Regulatory Target?

by on October 5, 2006 · 8 comments

I have nothing to back this up at this time, but I have been hearing rumors on Capitol Hill this week (and from others) that, in the wake of the Foley scandal, Congress might be considering regulating instant messaging. Specifically, someone might introduce a bill that would seek to limit access to IM services by minors.

When I first heard this rumor I thought it seemed outlandish, but upon further relection, I can see how some lawmakers might view it as a logical extension of their efforts to regulate social networks or to age-verify all minors before they get onto those networks. IM is a much more complicated thing to take on, however, and if Congress is going to regulate it, what are they going to do about e-mails? Hell, better stop the kids from talking on phones too!

Wouldn’t it just be easier to punish that freak Mark Foley and be done with it? Regulating the Internet or IM isn’t going to solve the problem posed by perverted congressman or any other perverts for that matter.

Again, I have nothing to back this up at this time but if I hear more about this effort to turn IM into the boogeyman du jour I will let everyone know.

Update: My friend Leslie Harris talks more about this issue over at CDT’s PolicyBeta blog.

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RAND on Economic Impact of EU’s “TV Without Frontiers” Directive

by on September 25, 2006 · 6 comments

Scholars at RAND Europe recently released a comprehensive analysis of the European Union’s controversial Audiovisual Media Services Directive (AVMS), more commonly known as the “Television without Frontiers Directive.” This effort, which is being coordinated by EU Commissioner Viviane Reding, aims to bring some rationality to inconsistent EU media regulations. The problem is, in an effort to make the rules more rational, Reding has essentially proposed a significant expansion of government regulation for new media outlets and operators, including the Internet. (See these three papers by my PFF colleague Patrick Ross for a detailed explanation of the dangers of Reding’s efforts to expand content regulation).

Thus far, most of the criticism of the AVMS has been based on social / content-related concerns. Rightly so. There is little doubt that the directive will threaten freedom of speech and expression on the Internet and over other new media outlets / services. But the new RAND study takes a different approach to the issue by focusing on the potential economic impact of the AVMS directive on European companies and the EU’s competitive standing in the new media world more generally. [An executive summary of the report and the full report can be found on the Ofcom website here].

RAND’s conclusions are not encouraging… unless you happen to be an American or Asian company rooting for your European competitors to be handicapped by excessive government regulation!

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Sol Schildhause

by on September 22, 2006 · 3 comments

Supporters of free markets and free speech in communications lost a friend this past week with the passing of Sol Schildhause at the age of 89. While perhaps not well-known to many today, Sol was for decades a fixture in the world of cable TV, serving as the first head of the FCC’s cable bureau from 1966 to 1974–where he fought against rules that protected broadcasters from cable TV competition–and later as an attorney and chairman of the Media Institute, where he worked tirelessly for competition in cable TV itself. He was particularly instrumental in the effort to end exclusive cable franchising on the grounds that it was an unconstitutional violation of free speech. The Supreme Court decision that resulted from those efforts established that cable television firms’ were entitled to First Amendment protection, although it stopped short of banning exclusive local franchising.

Schildhause always seemed the maverick in his work, a happy warrior fighting against the status quo. This was evident even during his years at the FCC, where he was far from your typical bureaucrat. Sometimes this caused difficulties, as related by Tom Hazlett (now of George Mason University) in a 1998 article for Reason Magazine entitled “Busy Work”:

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Randy May On Neutering the First Amendment

by on September 21, 2006

Supporters of neutrality regulation often claim the mantle of defenders of free speech. Even the pending Senate telecom bill–which largely avoids comprehensive neutrality rules–includes a section on “Application of the First Amendment,” stating that no ISP may limit content based on “religious views, political views, or any other views expressed in such content.”

The problem, however, is that the First Amendment covers governmental, not private restrictions on speech. Moreover, as Randy May of Maryland’s Free State Foundation argues this week in Broadcasting and Cable magazine, such limits may violate–rather than further–First Amendment principles. As he points out:

Under traditional First Amendment jurisprudence, it is as much a free-speech infringement to compel an entity to convey messages it does not wish to convey as it is to prevent it from conveying messages it wishes to convey.

Going farther, he says that:

….When you think about it, laws imposing “neutrality” are eerily reminiscent of the defunct Fairness Doctrine that required broadcasters to present a balanced view of controversial issues.

The last point is particularly interesting. Given that a fair number of neutrality regulation proponents have also argued for the Fairness Doctrine, one wonders if they would disagree with the comparison.

A fuller version of May’s argument was published by the Free State Foundation here. Worth reading.

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My Filing in Latest FCC Indecency Proceeding

by on September 20, 2006

For those of you following the potentially historic legal battle currently unfolding in the courts dealing with broadcast indecency regulation, you might be interested in the comments I filed at the FCC today.

Just by way of brief background, on September 7, the U.S. Court of Appeals for the Second Circuit issued a brief stay of the Commission’s latest round of indecency fines and remanded them back to the agency. (The case is Fox Television Stations v. FCC, 2nd Cir., No. 06-1760). The FCC had requested the stay to allow the broadcast networks (and others) more time to provide input on the agency’s fines. (In essence, the FCC wanted to make sure that the networks couldn’t claim that they didn’t have plenty of time to provide input to the agency.)

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Who Can Film Video Clips at a Pro Football Stadium?

by on September 19, 2006 · 8 comments

So here’s an interesting legal question that involves the First Amendment, copyright law, technology policy, and property / contractual rights: Who has the right to film videos at a professional football game? I’m not talking about the live video feed of entire games; that’s clearly copyright-protected. Instead, I’m just talking about select video clips of portions of games for journalistic purposes.

Here’s why I ask. Ten days ago, David Rehr, the head of the National Association of Broadcasters (NAB) sent a letter to the National Football League’s (NFL) new commissioner Roger Goodell inquiring about a recent NFL policy change regarding local television station coverage of games. Last year, for reasons I have not been able to determine, NFL team owners decided to reverse a long-standing policy that allowed local broadcasters to film video clips from the sidelines during football games. Apparently, local TV broadcasters will now have to get that footage from the TV network that broadcasts the game or from NFL Films, which is owned and operated by the National Football League.

I’m going to attempt to fairly weigh the arguments on both sides of this dispute even though I have a particular (and admittedly peculiar) bias in this matter that I will admit to at the end of the essay. (See * below).

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