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.
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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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.
Back in 2005, I threw away a book I was writing. Well, I didn’t exactly toss it in a garbage can or take a match to the manuscript; I just abandoned the project to work on other things, including a different book and a big law review article. I’m still mad at myself for never finishing it up because I think it put forward a provocative thesis: Censorship is dead. Specifically, as I argued in the first lines of the book, “A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming.” Accordingly, the running title for the book was: “The End of Censorship?: The Future of Content Controls in a World of Media Convergence.”
Anyway, I recently unearthed an old draft of this discarded manuscript and thought I might as well at least throw the introduction online. In it, I outline my thesis and the “5 Reasons Content Controls Will Break Down.” I also highlight how governments will fight back and discuss what alternatives are out there to address concerns about objectionable content. Someone out there might be interested in all this even though much of what I say here is now widely accepted or been said better by others. I’ve stripped out all the footnotes and cut out significant sections to make what follows more readable. So, here it goes…
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“The End of Censorship? The Future of Content Controls in a World of Media Convergence.”
Content regulation–at least as it has been traditionally defined and enforced in the United States–is doomed. A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming. Specifically, it is the distribution channel-based system of content regulation employed in the U.S. and many other nations that is breaking down. That is, the ability of governments to regulate speech and expression by regulating its distribution channel or provider (such as broadcasting), represents in increasingly ineffective and illogical method of policing content flows.
The demise of traditional content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.
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TLF readers may be interested in reading a piece I just wrote with John Berlau, a colleague of mine at CEI, about Hillary Clinton’s stance on video game regulation. Senator Clinton has taken a very aggressive stance against video game violence, suggesting the FTC should oversee how games are rated, opening the door to further interference with the ESRB system.
We’ve quickly received feedback from one of the heavy-hitters in the anti-gaming world. None other than Jack Thompson emailed John today. Thompson, a famous anti-gaming lawyer and activist, has supported a wide variety of legislative solutions to the supposed plague of video game violence. His email to John contained no text in the body, but the subject line read as follows:
You’re wrong. Video games inspire violence. It’s a public safety hazard and a legitimate governmental concern
He attached a PDF of a Stephen Moore column for the Wall Street Journal to back up this assertion. In the piece, Moore complains that his children have turned into zombies, claiming that video games are the “new crack cocaine.” Though I love Moore and his columns for the WSJ and agree with him more often than not, this is one of those instances of not.
Video games are addictive, I’ll say that from personal experience, but I’ve been able to wean myself off a nearly debilitating addiction to Company of Heroes–I’m now down to a reasonable 4 hours a week. But games aren’t the new crack, they’re just a new diversion that neither kids nor adults should invest too much time into. Kids don’t have the self control to keep themselves away from them, so once parents let the kids vegetate for 8 hours a day, it is a tough job for parents to refuse kids their endorphin-producing joy-machines, but government won’t do a better job.
Instead of pushing for government action, which would be a 1st Amendment violation in addition to being ineffective, Jack Thompson ought to be trying to educate parents about sensible limitations for little ones and pointing them in the direction of Adam Thierer’s Parental Controls and Online Child Protection: A Survey of Tools & Methods.
One of the things I find most interesting about calls to regulate “excessively violent” content on television, in movies, or in video games is the way critics make massive leaps of logic and draw outrageous conclusions based on myopic, anecdotal reasoning. I was reminded of that again today when reading through an interview with Sen. Jay Rockefeller (D-W.Va), one of the most vociferous critics of all sorts of media content and a long-time proponent of regulation to censor such violent content in particular (however it is defined). (I have written about his past regulatory proposals here and here).
Here’s what he recently told the editorial board of The Register-Herald of West Virginia:
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Seth Schiesel of the New York Times seems to be channeling me in his piece yesterday entitled, “Courts Block Laws on Video Game Violence.”
As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed. Citing the Constitution’s protection of free speech, federal judges have rejected attempts to regulate video games in eight cities and states since 2001. The judge in a ninth place, Oklahoma, has temporarily blocked a law pending a final decision. No such laws have been upheld.
I’ve been doing a lot of writing on this subject in recent years and have pointed out that every single court that has reviewed the constitutionality of video game regulation has concluded that:
(1) Video games are a form of expression protected by the First Amendment.
(2) Not a single court in America has supported the theory that a causal link exists between exposure to video games and real-world acts of actual violence.
(3) Parents have many less-restrictive means of dealing with underage access to potentially objectionable games—such as the industry’s private rating and labeling system, third-party ratings and info, console-based controls, and the fact that they don’t have to buy the games in the first place! [See my paper and book for more details on all these things.]
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The video game industry’s string of unbroken First Amendment court victories continued this week with a win in the case of Video Software Dealers Association v. Schwarzenegger. [Decision here.] In this case, the VSDA and the Entertainment Software Association brought a suit seeking a permanent injunction against a California law passed in October 2005 (A.B.1179), which would have blocked the sale of violent video games to those under 18. Offending retailers could have been fined for failure to comply with the law.
The court’s decision overturning the law was written by Judge Ronald Whyte and it echoed what every previous decision on this front has held, namely:
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This is the final installment of my 10-part series of essays that have coincided with “Internet Safety Month.” Many of these essays have focused on the variety of parental controls tools on the market that can help parents better control, or at least monitor, their children’s Internet usage or online communications. (See parts 1, 2, 3, 4, 5, and 6.) Other essays focused on the importance of education, building public awareness, and the need for stepped-up law enforcement efforts aimed at prosecuting online predators. (See parts 7, 8, and 9).
In this final installment, I want to focus on what I believe is the most important—and most frequently overlooked—part of the parental controls and online safety discussion: Good parenting!
Specifically, it is important to realize that many household-level rules and informal parental control methods exist that represent the most important steps that most parents can take in dealing with potentially objectionable content or teaching their children how to be sensible, savvy media users. Indeed, to the extent that many households never take advantage of the many technical tools I outlined in earlier essays, it is likely because they rely instead on the informal household media rules and strategies discussed below.
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Well, I know I’m starting to sound like a broken record on this point, but it never ceases to amaze me how some policymakers get away with speaking so poorly of parents during policy debates about media content. First, you will recall that, in late April, the Federal Communications Commission released a report calling for the regulation of violent video content on the grounds that parental control tools and efforts were ineffective. (For details, see my essay: “FCC Violence Report Concludes that Parenting Doesn’t Work.”) Then, just last week, at a House Commerce hearing on “The Images Kids See on the Screen,” Rep. Ed Markey and several other members of the committee argued that parents just couldn’t cope with modern media and that government needed to step in on their behalf. But nothing could top the performance of Sen. John Rockefeller at today’s Senate Commerce Committee hearing on “The Impact of Media Violence on Children.”
Sen. Rockefeller opened the hearing with a verbal tirade “repeatedly bashing TV and its executives as though they were Dan Aykroyd’s Irwin Mainway SNL character out to sell bags-o-glass to unsuspecting kids,” as John Eggerton of Broadcasting & Cable noted. Sen. Rockefeller, who is planning to soon introduce legislation to regulate “excessively violent” television programming, said that the industry is being “cowardly” and “debasing our culture” in a “never-ending race to the bottom.”
Rockefeller went on to say that the industry was “blaming parents” for not dealing with the problem of objectionable content with private controls and methods instead of censoring content themselves before it ever got on air. “Parents do not want more tools,” he argued, “they want the content off the air.” Of course, that point is debatable as I’ll discuss more below.
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