First Amendment & Free Speech

Keeping Abreast of Objectionable Content

by on May 4, 2006 · 1 Comment

Personally, I’m not sure I believe children will be scarred for life if they see a virtual bare breast before the age of 17. But, some parents apparently disagree, and I’m glad to see that the Entertainment Software Ratings Board is doing a good job of keeping such parents abreast (so to speak) of what’s in the latest video games. When it was discovered that The Elder Scrolls IV: Oblivion could be modified to remove the female players’ tops, it was quickly yanked from the shelves for re-labeling:

When game publishers submit upcoming releases to the ESRB, they also must include videos of a game’s most intense sexual or violent content. Because games like Oblivion can be played for dozens of hours without players seeing everything in them, the organization depends on publishers to send them the most potentially objectionable content.

The company said that it did not hide anything from the ratings group and that its pre-release submission on Oblivion was “full, accurate and comprehensive.”

Bethesda blamed the partial nudity of some characters on tampering by third parties who have modified the game’s art files and said it appeared in only Oblivion’s PC version. The company said it did not “create a game with nudity and does not intend that nudity appear in Oblivion” and added that it was taking steps to protect the game’s art archive from tampering.

Local game designer Brian Reynolds, head of Big Huge Games Inc. in Timonium, Md., said, “It would be a disaster for us” if the ESRB re-designated one of his titles after its release.

“That’s something you never want to see, games getting pulled off shelves,” he said.

Jason Della Rocca, executive director of the International Game Developers Association, said pulling games and re-stickering them is an expensive process.

“Many people see the ESRB as a tool of the industry–but, in fact, developers fear it,” he said. “They are tough as nails.”

Tough as nails? Don’t tell that to Hillary Clinton. It might get in the way of her grandstanding.

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Cellular Content Controls

by on April 27, 2006

There’s an interesting story on B1 of today’s Wall Street Journal about cellular companies establishing very restrictive standards for wireless media content transmitted over their devices. I have yet to see the final guidelines that the Journal gained access to, but it sounds like Verizon, Cingular, Sprint and others will be imposing some very stringent controls in an attempt to curtail nudity and sexual content, foul language, violent programming and even hate speech.

As I pointed out in my recent PFF study, “Parents Have Many Tools to Combat Objectionable Media Content,” this is just another example of the sort of steps that media providers and distributors are taking to help parents and consumers restrict or curtail objectionable content before they call upon government to do that job for them. Of course, one could argue that the only reason they are taking such steps is to avoid potential government scrutiny in the future. (Then again, the FCC does not currently possess the legal authority to regulate “indecent” or “violent” content on cellular / mobile networks or devices.) Regardless, I think it’s great that companies are establishing some voluntary guidelines and controls.

One thing that is still a bit unclear to me, however, is exactly how cellular carriers plan to police all the media content that will increasingly be flowing over their networks. The Journal article says that carriers are currently relying mostly on ad-hoc phone calls or e-mails to specific media providers to remove or edit certain types of potentially objectionable content. But even if the cellular carriers allocate more resources to such ad-hoc enforcement efforts, it certainly won’t be fool-proof. It will be easier to police content provided by large players (such as MTV or Playboy, for example), but what about all the organic, bottom-up, user-generated content?

This is the problem News Corp. has been facing in recent months with MySpace.com. Millions of average people (mostly teenagers) are posting countless bits of personal material on their sites. Some of it can get a little raunchy or offensive. That’s created a significant challenge for MySpace, but they are trying to do their best to keep up with it.

Cellular carriers will face that same challenge in coming years as more and more media goes mobile. It will be interesting to see how they deal with it and what the response of the legislative / regulatory community will be to these self-regulatory efforts. Stay tuned; another major First Amendment battle could be developing over that tiny TV screen in your pocket !

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Wrong Focus: Real Indecency Reform is Competition

by on April 27, 2006 · 4 Comments

Technology Daily (subscription) reports that several conservative groups blasted Senate leaders Tuesday for not acting on legislation to increase broadcast indecency fines, and “failing to deliver an issue to values-oriented Republican voters”. Said Amanda Banks of Focus on the Family: “[t]here is no reason why in 2006, just months before this Congress is going to be out of session, it has not passed the Senate and moved on to the [president’s] signature.”

But Focus’s focus is wrong here. Increased fines on broadcasters would do little to help parents protect their children from programming they see as offensive. Broadcast TV, remember, is only a small part of TV viewing–most is now on cable channels not under the FCC’s authority. And that authority, for good constitutional and policy reasons, is unlikely to be extended. If anything, given the legal challenges recently filed against the FCC’s latest round of indecency fines, that authority will be pared back.

Rather than the dead-end of goverment content regulation, the real goal should be to increase the ability of consumers to themselves control the content of what appears on their TVs. Congress this week took a giant step toward that goal yesterday–as the House Commerce Committee approved legislation to speed the launch of new, Internet-based, video TV services developed by Verizon, AT&T and others. Not only will these new offerings provide welcome new choices for consumers, but the technologies they use promise to make it easier for individual consumers to get individualized TV programming packages.

Such service would be a boon to beleagured parents. Rather than criticize Congress for not increasing the FCC’s power, conservatives should be cheering on this very real step toward consumer choice.

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Do You Really “Save the Internet” By Regulating It?

by on April 25, 2006 · 2 Comments

A new pro-Net neutrality coalition has formed called the “Save the Internet Coalition.”

Hey, who can be against that? Well, I can.

You see, this coalition’s idea of “saving the Internet” is premised on regulators doing the saving. The coalition proclaims that “Congress must include meaningful and enforceable network neutrality requirements” in whatever communications reform legislation it passes this session “to ensure that the Internet remains open to innovation and progress.”

Oh, I get it… Let’s call in our benevolent-minded regulators to oversee the daily workings of something as complicated as Internet network management. Brilliant !!

Haven’t we learned anything from seven decades of communications regulation? Empowering bureaucrats to micro-manage the operation of broadband networks and Internet activities isn’t going to lead to communications nirvana; it’s going to lead to just another regulatory hell. Supporters of Net neutrality mandates are essentially saying we need more government regulation in order to be free. It’s the beginning of another sad chapter in the “burn the village in order to save it” story of modern communications regulation.

And in what I regard as an absolutely despicable contortion of the true meaning of the First Amendment, the Coalition’s “statement of principles” on its website states that: “Network neutrality is the Internet’s First Amendment. Without it, the Internet is at risk of losing the openness and accessibility that has revolutionized democratic participation, economic innovation and free speech.”

Please! How dare you employ the First Amendment in defense of your Big Government plan for Internet control. In case the members of the “Strangle the Internet”… er, uh… “Save the Internet Coalition” have forgotten, the First Amendment could not be any more clear about the role it envisions for government when it says: “CONGRESS SHALL MAKE NO LAW…”!

We used to talk about “Hands Off the Internet.” But groups like this are leading us down the path to “Hands ALL OVER the Internet.” To use the First Amendment in service of this regulatory agenda is outrageous.

If the folks in this coalition want to take a stand in favor of the REAL First Amendment, perhaps they can come join me in my daily fight against the FCC on the speech control front. Those same benevolent bureaucrats that the “Save the Internet” coalition wants to empower to regulate Net have been very busy lately regulating speech in the broadcast sector.

You might say there’s no connection between these two issues. Nonsense. We gave the regulators an inch on the broadcast front and they took a mile. Once we empowered them to regulate broadcast infrastructure, the regulation of the speech delivered via broadcast platforms followed. It’s an example of what Vanderbilt law professor Christopher Yoo has labeled “architectural censorship.” Simply stated, if government can regulate the soapbox, it can regulate the speech delivered from that soapbox as well. Do you really think things will be different once we invite the bureaucrats in to regulate the Internet?

I say if we’re going to “save the Internet,” let’s start by saving it from silly ideas like Net neutrality regulation.

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A Paranoid Parent Ponders GPS Tracking His Kids

by on April 19, 2006 · 6 Comments

Well it didn’t take long for a young, rebellious punk to turn into a paranoid, condescending parent. I’m already talking to my kids in ways that used to make me resent my own parents. And I’m already beginning to think about how to watch over their every move like a hawk to make sure that they stay out of trouble.

The difference between raising a kid today versus the past, however, is that technology–much to the dismay of independent-minded children–makes this task even easier for parents. In my recent paper discussing how”Parents Have Many Tools to Combat Objectionable Media Content,” I mentioned how new cell phones targeted to kids come embedded not only with a variety of parental controls, but also GPS / geo-location technology. This enables parents to monitor the movements of their children wherever they may go.

Even though my kids are still too young to have their own cell phones, I’ve already begun thinking about how I might use such tracking technologies in the future. Even though both of my kids are under five years of age, I sometimes sit around thinking about what they are doing or exactly where they are at. This is despite the fact that I know exactly where my kids are: My daughter is always at her pre-school and my son is always at home with our nanny. Yet, I’m still paranoid, and sometimes find myself wondering if they are exactly where they should be. Could they have wondered off? Are the teachers or my nanny taking the kids places I don’t know about? Has someone snatched them?!?

I know this is all quite pathetic in one sense, but that’s the sort of paranoid thinking that sometimes goes on in the heads of parents. And in my most paranoid moments, I sometimes think how cool it would be if I could just convert the wi-fi radar on my laptop (which searches for nearby hotspots and maps them on a big radar screen on my computer) into a kid-tracker instead. It could track their cell phones, or their GPS-enable watches or lunchboxes. Or perhaps even the RFID chip I could plant under their skin!

Again, this is the sort of stuff that what have driven me into to hyper-rebellion as a kid, especially as a teenager. The thought of my parents tracking my every move would have driven me nuts, and I my computer-nerd brother and I probably would have worked hard to defeat or trick any geo-location technologies that our parents might have tired to use with us. (My brother would have probably reprogrammed them to trace our cats instead of us.)

Is there a happy balance here? I think so.

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Parents Have Many Tools to Combat Objectionable Content

by on April 12, 2006

In an editorial in CableFax earlier this week, Senator Ted Stevens, Chairman of the Senate Commerce Committee, argued that: “Our government should not be in the business of choosing which programs are appropriate for our nation’s children. By showing the public how to use available blocking mechanisms, we ensure those in the best position to make viewing decisions–parents–are able to do so.”

Senator Stevens is absolutely correct. And, luckily, there are more blocking and filtering tools available to parents than ever before to achieve this goal. In my new Progress & Freedom Foundation study, “Parents Have Many Tools to Combat Objectionable Media Content,” I document the many tools or techniques that parents can use to restrict or curtail objectionable content in their homes before they call upon government to do this job for them. Perhaps the most troubling thing about calls for media regulation to protect children–especially when those calls are coming from conservative lawmakers or groups that otherwise stress individual responsibility over government intervention–is that it ignores the fact that parents have many better and more constructive alternatives to government regulation at their disposal. This study lays out these options–for ALL media sectors and technologies–in great detail. Also, the appendix to the paper also includes a “handy tip sheet” for parents searching for ways to combat objectionable media content in the home or keep kids safe online.

In striking down the Communications Decency Act in Reno v. ACLU, the Supreme Court declared that a law that places a “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving” the same goal. This paper proves that many such “less restrictive alternatives” are available to parents today to help them shield their children’s eyes and ears from content they might find objectionable. Thus, we need not turn to Uncle Sam to play the role of surrogate parent.

The paper is attached above as a PDF file or can be found online here: http://www.pff.org/issues-pubs/pops/pop13.9contenttools.pdf

If you’re interested in more on this subject, here’s a list of related PFF research:

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Selective Morality at PTC?

by on April 7, 2006

This week, the self-appointed moral guardians for the masses over at The Parents Television Council gave its “Seal of Approval” to “The Chronicles of Narnia” even though it contains, in the PTC’s words, “Realistic, graphic and violent King Arthur-like battle scenes with axes, swords, and hatches. Beheadings, stabbing and wounding is rampant during the fight scenes.” Moreover, at one point in the movie the PTC notes that “Susan and Lucy witness Aslan’s murder and go to the body after he is dead. Also, the moments before he is killed are cruel, sadistic and humiliating as his mane is clipped off and he is tied up and dragged up the steps to the stone table where he is killed.”

Despite this, the PTC states that “The over-all and continuously uplifting message of this fine film, far outweighs any negative content” and awards it its Family Seal of Approval. The PTC’s website says that “This award is given to worthy television programs, made-for-TV movies, motion pictures, video games, and advertisers that help parents by providing/sponsoring entertainment suitable for the entire family.”

I’m sorry, but I don’t get it. PTC routinely asks the FCC to censor much less violent fare that appears on network TV, but “beheadings, stabbing and (rampant) wounding” is “suitable for the entire family.” Seems a little inconsistent to me.

You should also check out their review of ABC’s new remake of “The Ten Commandments,” which they blast mostly because it presents a more realistic, faithful interpretation of Biblical events. Here’s my favorite line from the review: “While ABC’s ‘The Ten Commandments’ incorporates incidents normally overlooked and is technically more “accurate” to the details given in the Bible, it completely lacks any sense of respect for or understanding of the Biblical story.”

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Let’s Consider the Facts Before We Call In Government to Regulate Video Games

by on April 5, 2006 · 3 Comments

Rebecca Hagelin of the Heritage Foundation recently posted a column about video games on TownHall.com that I think deserves a response. Ms. Hagelin is concerned about video games being “murder simulators” and recounts the story of one youth who killed several people last year and who also happened to play a lot of “Grand Theft Auto”

No doubt, the Devin Moore story that Ms. Hagelin uses to make her case against video games is quite sad and troubling. Before blaming video games for his behavior, however, a serious social analyst needs to weed out a host of other social / environment factors. For example, it was revealed at last week’s hearing on video game regulation that this young man was the product of a broken home and was apparently subjected to severe child abuse. Apparently his father beat both him and his brother several times a week and also forced them to work long shifts (over 16 hours at a time) at his janitorial business. Such factors need to be taken into account when evaluating what made this boy commit such heinous crimes. Yet, Ms. Hagelin ignores these facts in her essay.

But there are other facts ignored here too. I recently penned a study on the many myths and misperceptions driving the push for video game regulation in America today, including Sen. Hillary Clinton’s bill (“The Family Entertainment Protection Act”). The 30-page analysis (“Fact and Fiction in the Debate over Video Game Regulation”) can be found at the Progress & Freedom Foundation website at: http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf

The general conclusions of my research are as follows:

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New FTC Survey Shows Video Game Enforcement Improving

by on March 30, 2006 · 2 Comments

In my recent paper on “Fact and Fiction in the Debate over Video Games,” I pointed out that one of the reasons that many lawmakers were stepping-up efforts to regulate video games was because of the supposed failure of the industry’s voluntary ratings system. In particular, many critics claim that the ratings system is not enforced effectively at the point-of-sale.

As a result, Senators Hillary Clinton, Joseph Lieberman and Even Bayh argue that federal legislation like their proposed “Family Entertainment Protection Act” is needed to “put teeth in the enforcement of video game ratings” because “young people are able to purchase these games with relative ease.”

Good news: A new survey out by the Federal Trade Commission (FTC) today shows that the enforcement system is working better than ever before and that it’s not so easy for kids to buy games on their own.

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Sen. Brownback Turns Up the Heat on the Video Game Industry

by on March 29, 2006 · 2 Comments

Unfortunately, as I predicted would be the case in my National Review editorial earlier this morning, today’s hearing on video games in the Senate Judiciary Committee turned out to be quite a one-sided show trial.

Senator Sam Brownback called the hearing to blast the game industry for what he called “graphic,” “horrific,” and even “barbaric” level of violence we supposedly see in games today. Violent video games, he argued, are becoming “simulators” that train kids to behave violently and even kill cops.

And his proof? As I suspected would be the case (and, again, predicted in my editorial) it largely came down to two key games: “Grand Theft Auto” and “25 to Life.” Sen. Brownback decided to show a few clips from these games and one other title (“Postal”) to supposedly illustrate just how violent games are today. Now make no doubt about it, these games do contain some truly sickening, despicable acts of simulated violence. I don’t know why a game developer feels compelled to show thugs beating prostitutes with a baseball bat, or a criminal shooting cops with a sniper rifle, or someone torching a dead corpse and then urinating on it to put out the fire. It’s all very sick and it’s quite sad that someone is squandering their creative talents on the depiction of such disgusting, disrespectful acts of violence.

But let’s get back to the key point and ask a question that ABSOLUTELY NO ONE EVEN BOTHERED DISCUSSING AT THE HEARING. Namely: Are these games indicative of all video games out there today?

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