As part of a revise-and-resubmit process, I’ve been spending much of my summer upgrading my draft book, Intellectual Privilege: A Libertarian View of Copyright. That effort has led me to revisit copyright’s constitutional foundations. I find them very shaky, indeed. This passage (with footnotes excerpted) explains why modern copyright law often fails “to promote the Progress of Science and the useful Arts”:

What would copyright look like if we took the Constitution at its word, requiring that copyright promote the progress of both science and the useful arts? We would then have to look askance at the current practice of affording copyright protection to such purely artistic creations as songs, plays, novels, paintings, and sculptures. Even supposing that “science” reaches broadly enough to cover all of the humane sciences—a reading that Malla Pollack documents as an original meaning of the term—copyright law today focuses far more on the expressive arts than on the “useful” ones.

Taking “Science and useful Arts” seriously would thus radically narrow the proper scope of copyright. The first Copyright Act, enacted in 1790 by some of the same people who wrote and ratified the Constitution, covered only maps, charts, and books. Permitting copyrights in first two types of works plainly promoted both science and the useful arts. Lawmakers in 1790 probably regarded books, too, primarily as tools rather than diversions. Novels had yet to rise to prominence, after all; the first American one, William Hill Brown’s THE POWER OF SYMPATHY, had appeared only the year before, and even it aimed at practical ends, promising “to Expose the fatal consequences of SEDUCTION.” Judging from the titles in libraries and on sale, fiction made up only a small portion of the books available in late eighteenth century America. The 1790 Copyright Acts moreover excluded such purely artistic expressions as songs, plays, paintings, and sculptures—even though its drafters undoubtedly knew of and appreciated those sorts of works.

It appears, then, that “[t]o promote the Progress of Science and useful Arts” originally meant that that copyrights had to serve practical ends, rather than merely expressive ones. But originalists should not alone embrace that constitutional limitation on copyright’s scope. Given that “Science” now connotes a more technical and specialized endeavor than it did in the eighteenth century, the plain, present, public meaning of the Constitution likewise counsels against extending copyright protection to purely artistic works. Whether we give the Constitution’s text its original meaning or its current one, therefore, copyright should cover little more than maps, charts, non-fiction books, illustrations, documentaries, computer programs, and architecture. Most songs, plays, fictional books, paintings, sculptures, dances, movies, and other artistic works, because they fail to promote the progress of science and the useful arts, would on that reasoning not qualify for copyright protection.

However rigorously logical, that argument against the constitutionality of almost all modern copyright law will, I grant, probably generate more grins than agreement. Courts and commentators have hitherto hardly bothered to distinguish between “Science and useful Arts”; still less have they taken those words to impose real limitations on federal power. Here as elsewhere, acquiescence to long-accepted practices has dulled us to the Constitution’s bracingly straightforward words. We should read them anew and reflect that the Founding generation did not evidently think that granting statutory privileges to such purely artistic creations as romantic operas or pretty pictures would promote the progress of both science and the useful arts. Furthermore, most citizens today would, if presented with the Constitution’s plain language rather than the convoluted arguments of professional jurisprudes, probably say the same thing about pop songs, blockbuster movies, and the like. That is certainly not to say that purely expressive works lack value. They may very well promote such important goals as beauty, truth, and simple amusement. The Constitution requires that copyright promote something else, however—”the Progress of Science and useful Arts”—and a great many works now covered by copyright cannot plausibly claim to do both.

[[Crossposted at Agoraphilia, TechLiberation Front.]

This week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution.  The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.  It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:

We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York , 390 U.S. 629 (1968). Applying strict scrutiny, we  hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.

The law’s lead sponsor, California Sen. Leland Yee, is encouraging the state to appeal the law to the Supreme Court.  No word yet from Gov. Schwarzenegger whether the state will pursue that course of action. If they do, this will become the first major First Amendment case regarding video game speech that our nation’s highest court will consider.  The video game industry has racked up an uninterrupted string of First Amendment victories, so it would be quite shocking if the Supreme Court took up this case and then held differently.  It would also be shocking in light of the many Internet-related free speech decisions that the Court has handed down since the mid-90s, which all favored greater First Amendment freedoms.  But you never know.

Here’s some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:

It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny. […] Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.

But it most certainly would not pass muster is applied to cable or satellite:

It does not appear that the Fairness Doctrine may be applied constitutionally to cable or satellite service providers. The Supreme Court has held that content-based restrictions on the speech of cable and satellite providers are subject to strict scrutiny. Strict scrutiny requires that the restriction at issue advance a compelling government interest and that the restriction be the least restrictive means of achieving that interest. Content-based regulations of speech in the print media are accorded strict scrutiny. The Supreme Court has recognized that regulations similar to the Fairness Doctrine, when applied to the print media, are not constitutional. If regulations similar to the Fairness Doctrine could not withstand strict scrutiny when applied to the print media, it appears unlikely that similar regulations would withstand such scrutiny when applied to cable or satellite providers.

Complete report is embedded below as a Scribd document.

CRS Fairness Doctrine Report http://d.scribd.com/ScribdViewer.swf?document_id=12301246&access_key=key-ck3gk7wdn7wz0e6pihg&page=1&version=1&viewMode=list

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.

Scalia is certainly correct that states have passed laws banning the sale of pornographic material to minors, but their are two important differences between those bans and a ban on the sale of video games to children. One is obvious: No video game has ever been defined as “obscene to minors.” Now, it may be the case that some game will be defined as such in the future. But for now, the primary concern about video games to sales has related to the violence in video games, not the sexual content. And violence has never been equated with obscenity, although Kevin W. Saunders of Michigan State University has been making the argument for many years that the two should be equated in an effort to ban violent video game sales. And there are others who agree with him. But no legislature or court has yet agreed with that reasoning. So, that’s the first difference that Scalia ignores.

The second difference Scalia ignores is the mechanism of controlling the sale of video games to children. Every legislature that has so far sought to regulate the sale of video games has proposed that the bans been linked to the sale of games rated a certain way by the game industry’s private rating body, the Entertainment Software Rating Board (ESRB). And every one of those measures has been struck down by the courts as unconstitutional. One of the reasons the laws have been overturned is because other court precedents have held that the state may not give a private, voluntary rating system the force of law.

Again, when state governments regulate obscenity, they are not doing so by co-opting some private industry rating system. In the case of video games, however, the states would seek to use “AO” (Adults Only) or even “M” (Mature) ratings that were assigned by the ESRB as the trigger for the law to kick in. That’s generally been forbidden by the courts when some states in the 1970s and 80s sought to use the movie industry’s private rating system (the MPAA system) to regulate or ban the showing of certain movies or their sale. The reason the courts have blocked such enactments is not just because it would be misguided to allow a private labeling code to become a tool of public censorship. The other reason is actually more compelling: As I pointed out in my big PFF study on video game regulation, if a state sought to use a voluntary rating system to ban certain types of content, it would likely kill voluntary rating systems:

why would game developers continue to voluntarily rate their content if the threat of fines or prosecution looms overhead? Fearing such liability, there is a real risk that many in the industry would likely stop rating games altogether since there would be no penalty for refusing to label content. If this were to occur, parents and all game consumers would lose valuable information about the age appropriateness and content of the games that they are thinking of buying.

So, these are just a few of the factors that Justice Scalia and the Supreme Court would need to consider if a case came before them dealing with the constitutionality of regulating video game sales to minors. This is not to say anyone is in favor of actually selling mature or adult-oriented games to minors. It’s just to say that there are more sensible (and constitutional) ways of handling this problem. 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 study and parental controls book for more details on all these things.]

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…

“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.

For example, we know the old regulatory regime is in trouble when consumers can use a device such as the Sony PlayStation Portable not just to play games and watch movies, but also to surf the Internet, e-mail or instant message friends, download music and videos, and even watch live TV. Similarly, Apple’s wildly popular iPod, which can be used to enjoy music and video anywhere consumers wish, has spawned a whole new world of mobile media opportunities and imitators. And in late 2005, TiVo announced it would be making its popular video “space-shifting” services available through both iPods and PlayStation Portables, meaning that almost any piece of televised video content will also be accessible over those (and other) devices in the future.

And technologies like the PlayStation Portable, the iPod and TiVo are just the tip of the iceberg. Just as wireless technologies have revolutionized the telecommunications sector, in a few years, most consumers will own some sort of mobile media gadget (probably several) that enables “anywhere, anytime” media consumption. This book will document countless other technologies and services that are currently undermining traditional content control regimes.

Importantly, content controls can be broadly defined to not only include the regulation of “objectionable” content (whatever that might include), but also the promotion of so-called “public interest” content or other media quality objectives. Examples would include children’s television programming mandates, free airtime for politicians, “must-carry” mandates, and “PEG” (public, educational, and governmental) access requirements. Such content controls are also doomed. Whether government is regulating with the intention of repressing or promoting specific viewpoints or content it makes little difference; both types of controls are being rapidly undermined by new marketplace developments and realities.

These developments are the inevitable outgrowth of the relentless pace of technological and social change and that society will need to adapt to these changes very quickly because there is no reversing these trends. For millions of parents like me, this will mean we will need to find methods of countering the problems that technology has created in terms of offering us abundant and ubiquitous media options. Parents will need to harness other technologies and services to control their children’s access to objectionable programming or lead them to the sort of programming they want them to consume. While that sounds like a formidable challenge, the good news is that there is more enriching and educational fare available today than ever before, and more ways for parents to filter access to the objectionable content they do not want their children to see or hear. Admittedly, however, the challenge of controlling access to unwanted content will be great, and parents will have to be more vigilant than ever.

Many policymakers and pro-regulatory special interest groups will dwell on the types of content that they find distasteful and continue to advocate a generous role for government as protector of morality, taste and “quality” programming. But this is fool’s errand. In our modern world of media abundance, rapid proliferation of distribution outlets, the digitization of all information, and relentless technological change and convergence, there is simply no way that government can effectively control information and content flows absent extreme measures.

From Information Poverty to Information Abundance To understand why traditional content controls are doomed, it’s necessary to step back and take stock of just how far we’ve come in recent decades in terms of media and information diffusion.

[Note: At this point in the narrative, I spent a few pages illustrating exactly how much better off society is today than ever before in terms of the abundance of information and entertainment at our collective disposal. But then I pointed out that…]

Alas, life in the “Information Age” has its detractors. The funny thing about information and media is that the more you have, the more people find to complain about. Nowhere is this more clearly evident than in the debate over the regulation of “indecent” content on television, radio, cable or the Internet. This is not a new debate, of course. The impulse to control content is as old as the press or even writing itself. The first day someone put pen (or quill) to paper was likely also the first day someone proposed censoring the message that writer sought to convey.

In the wake of a handful of high-profile incidents on broadcast television and radio over the past few years, a significant new regulatory push has been underway in Congress and at the Federal Communications Commission (FCC). Critics aim to crack down on indecency on broadcast radio and TV. The regulation of “excessive violence” is also a commonly stated goal of these regulatory advocates. Such efforts to regulate violence in media are based on many of the same theories or arguments as indecency regulation.

Importantly, many of the latest regulatory proposals would expand media regulation in significant new ways, not only for over-the-air broadcast licensees, but also for subscription-based outlets such as cable and satellite networks. This would be the case even though recent First Amendment judicial decisions dealing with new media outlets, namely the Internet and video games, are pushing in the opposite direction. The courts have held that attempts to regulate content on the Internet, or violence in video games, are unconstitutional burdens on freedom of speech and expression.

The 5 Reasons Traditional Content Controls Will Break Down Thus, America’s media policy is now stuck in a jurisprudential Twilight Zone. Speakers using the Internet or print outlets (i.e., newspapers and magazines) are guaranteed the gold standard of First Amendment protection, while those using broadcast radio and television to speak are only accorded the equivalent of second-class free speech rights. Meanwhile, cable and satellite speakers are caught somewhere in the middle with the courts generally granting them more freedom than broadcasters, but not as much as speakers using the Internet or newspapers. And it remains to be seen how emerging media technologies and outlets will be classified.

As the authors of one popular communications law book note: “The central problem is that communications law has always been based on different rules for different media—different regulations, different jurisdictions, even… different levels of First Amendment protection. Unfortunately, this no longer reflects technological reality.” (Carter, Dee, and Zuckman, Mass Communications Law, 2000) Indeed, this current distribution channel-based legal arrangement is unjust, indefensible, and ultimately unsustainable for five reasons:

(1) Convergence: A jurisprudence so radically divided cannot stand in an age of rapid technological convergence. Media content and outlets are blurring together today thanks to the rise of myriad new technologies and competitors. These new media technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. In other words, convergence means that media content is increasingly being “unbundled” from its traditional distribution platforms and finding many paths to the consumers. As a result of these developments, it is now possible to consume to the same piece of content via a broadcast TV or radio station, a cable channel, a satellite system, on a DVD player, on a cell phone or mobile media device, on a portable gaming system, or over the Internet. In this “multiplatform” environment, consumers can increasingly dictate when, where and how they consume media content. “For us, multiplatform is more than the buzzword of the day,” says MTV President Christina Norman. “It is the way this audience lives.” Thus, contrary to the famous assertion of media analyst Marshall McLuhan that “the medium is the message,” today the medium is just another medium or distribution path; it is the message (or content in general) that is now truly king.

Thus, convergence will make it increasingly complicated and intrusive for lawmakers to apply old media standards and regulations to newer technologies and outlets. “The phenomenon of convergence has… rendered obsolete a regime in which differential content regulation is applied based on the technology used to deliver content,” argued Jeff Eisenach and Randolph May of the Progress & Freedom Foundation in 2000.

The following examples illustrate how convergence renders the old regime obsolete as Eisenach and May suggest. In March 2006, following an FCC decision to impose steep new indecency fines on certain broadcast television shows, the WB Network decided to self-censor several scenes from a new drama that was about to air on its broadcast television affiliates. The network was concerned that it might be subjected to fines for airing the new show without certain edits. But before they aired the edited pilot episode on their WB broadcast television outlets, the network decided to air the unedited version on their Internet website. According to the New York Times, “It [was] the first time a network has offered on another outlet an uncut version of a program it has been forced to censor.”

But this won’t be the last time this happens in a world of proliferating media platforms and delivery options. Indeed, just a few months after WB took this step, CBS television network affiliates came under pressure from certain regulatory activist groups to self-censor or not air an award-winning documentary about the “9/11” terrorist attacks because it contained profanities uttered by firefighters or citizen under great duress. Several local CBS affiliates bowed to the pressure and decided not to air the documentary. But CBS Corp. responded by airing the entire unedited version of the documentary on its website so that consumers in areas where it had been blacked out could see it.

Opportunities for such cross-platform marketing are exploding. … [I then provided dozens of additional examples.]

In sum, because convergence is shattering the distribution-based business and regulatory distinctions of the past, it means that media regulation in general, and speech controls in particular, will be severely strained.

(2) Scale: Because technological and media convergence is now upon us, in the future, a regulatory attack on one type of media outlet or technology could be tantamount to an attack on all media. This is especially the case given the increasingly global scale of the Internet and modern media networks and digital communications technologies.

In the past, the reach of media was limited by geographic, technological, and cultural / language considerations. Today, by contrast, media can now flow across the globe at the click of a button because of the dramatic expansion of Internet access and broadband connectivity. While important cultural / language barriers remain, many traditional geographic and technological limitations are fading away. As New York Times columnist Thomas Friedman argues, the world is becoming more “flat” or interconnected.

Thus, the scale of modern digital media content and operations will greatly complicate government efforts to impose “community standards” on one type of content or distribution outlet given the borderless nature of most modern media. Nonetheless, lawmakers–local, national, and global–will almost certainly attempt to expand regulations (including content controls) to cover emerging media technologies and outlets as they become more popular. Lawmakers in the United States are already debating how to expand indecency controls to cable and satellite networks, for example. And policymakers in Europe, Canada and Australia are also grappling with this and proposing the expansion of traditional regulatory regimes to new technologies or providers.

(3) Volume: But as policymakers continue to push out the confines of traditional media / content regulation, the sheer volume of media activity that exists today will greatly complicate the task before them. In simple terms, there is just too much stuff for regulators to police today relative to the past. As a blue ribbon panel assembled by the National Research Council reported in 2002: “The volume of information on the Internet is so large–and changes so rapidly–that it is simply impractical for human beings to evaluate every discrete piece of information for inappropriateness.”

While it may have been possible to oversee a handful of TV and radio stations in each community or nation in the past, today’s electronic media universe is so diverse and enormous—and evolving so quickly—that content controls will gradually break down in light of the enforcement burden at hand. A few numbers regarding Internet growth and usage, in particular, can help put this “problem” into perspective:

[A half dozen factoids then followed documenting the growth of online activity.]

(4) User-Generated Content: Considering the relative youth of this new communications / entertainment medium, these are astonishing growth numbers. This explosive growth is a direct result of the seismic shifts underway in our new world of organic, bottom-up media creation—what Wired editor Chris Anderson refers to as “the Age of Peer Production”:

“The tools of production, from blogging to video-sharing, are fully democratized, and the engine for growth is the spare cycles, talent, and capacity of regular folks, who are, in the aggregate, creating a distributed labor force of unprecedented scale.”

In this new world in which every man, woman and child can be a one-person publishing house or self-broadcaster, restrictions on viewing, listening or downloading will be become increasingly difficult to devise and enforce. …

[Still more examples followed that illustrated how this trend was also undermining content control efforts.]

(5) The First Amendment: Given the problems of convergence, scale, volume, and the rise of user-generated content, regulators might react by simply sticking to the regulation of licensed electronic media providers, namely, television and radio broadcasters. After all, lawmakers already have a great deal of leverage over those media outlets and they might hope that by regulating them alone, a message will be sent to other media providers regarding what is acceptable content.

But that is a false hope. Traditional “free, over-the-air” broadcasting represents a steadily shrinking portion of our modern media universe. In recent years, the hegemony of the “big 3” television networks and the powerful local radio broadcast stations has been greatly eroded. Indeed, broadcasters are now struggling to adapt and survive in a world of media abundance and intense competition. Consequently, if regulators simply continue to regulate licensed broadcasters alone, it will simply accelerate the decline of broadcasting relative to its many new competitors. Asymmetrical regulation will be the death warrant for free, over-the-air broadcasting.

Eventually, the very existence of this asymmetry will force a major Supreme Court showdown testing the legitimacy of the bedrock cases upon which America’s broadcast content control regime rests: Red Lion Broadcasting Co. v. FCC (1969) and FCC v. Pacifica Foundation (1978). Red Lion held that broadcast television and radio could be regulated differently than traditional print outlets (newspapers and magazines) because broadcast outlets were more “scarce” than other media outlets and, therefore, required government licenses to operate. Consequently, speech controls were viewed as a natural outgrowth of government licensing and oversight responsibilities in the name of protecting “the public interest.” Pacifica held that broadcasters shouldn’t receive the same First Amendment protections as other media because broadcasting was more “pervasive” throughout society and also more “uniquely accessible” to children. To reiterate, these standards were only applied to broadcast radio and television, not print media and generally not cable or satellite.

There have always been serious intellectual deficiencies associated with the “scarcity” and “pervasiveness” rationales for America’s schizophrenic media policy. What is increasingly obvious to most observers, however, is that the Red Lion and Pacifica rationales for asymmetrical regulation will simply no longer work in the modern media environment. Red Lion’s “scarcity” rationale is now an absurd basis for regulation in light of the sheer volume of media at our disposal. And the problem with Pacifica’s “pervasiveness” standard as a regulatory rationale is that it proves too much; it could cover anything public officials deem to be widely available or “uniquely accessible” to children. (In terms of what children see or hear, is broadcasting really more pervasive than cable, cell phones, video games or the Internet today?) Moreover, although some lawmakers would like to make it so, the new regulatory calculus cannot magically become “popularity equals pervasiveness.” Merely because a given media outlet or technology gains more widespread use throughout society, it does not mean its First Amendment status should change. The courts will likely reject any effort by government to say that 51% market penetration results in diminished speech protection for a given media outlet or provider.

But one powerful rationale for the expansion of content controls remains: the “level playing field” argument. Many lawmakers, and potentially even some traditional broadcasters, will use “level playing field” arguments to justify the extension of the old regulatory regime to new media technologies–cable, satellite, cell phones, and the Internet–in the name of fairness. But, again, as these and other new technologies and outlets come to dominate America’s media landscape, lawmakers should reject the urge to impose old rules on new technologies and services. Already, the courts have firmly rejected the Communications Decency Act (CDA) of 1996 and subsequent efforts–both federal and state-based–to impose speech controls on the Net. As a result, the Internet now receives the same level of strict First Amendment scrutiny and protection as print outlets. In choosing how to level the regulatory playing field between print, the Net, cable, satellite, broadcasting and all other media, it should be done in the direction of greater freedom for all speakers, not less. Ironically, it was the FCC that most succinctly captured this principle when it decided to abandoned the so-called Fairness Doctrine in 1987:

[T]he role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. … First Amendment protections against content regulation should apply equally to the electronic and the printed press.

The FCC was right; the standard that governs print media should apply to all electronic / digital media as well. The fact that the Internet has already won significant judicial protection from legislative efforts to regulate online content indicates that the courts have already moved to adopt this position. It is increasingly unlikely that the courts will accept the extension of broadcast-era content regulations to new media outlets and technologies. The courts appear ready to apply stricter scrutiny to all speech controls in the future, especially since judges are not blind to the convergence and scale / volume problems outlined above. This is the “higher First Amendment standard” problem which all new content-related legislative and regulatory enactments will now face in America.

The Empire Strikes Back Governments won’t give up, of course. As legal, technological and cultural changes continue to erode the effectiveness of the distribution-based regulatory methods of the past, governments will search for new ways to continue to exert control over content flows. But, as previously mentioned, it will likely take extreme measures by government to accomplish this task in the future. Two approaches deserve close consideration, and they are outlined succinctly in a new book by Jack Goldsmith and Tim Wu entitled Who Controls the Internet: Illusions of a Borderless World.

Goldsmith and Wu are proponents of what David Post has referred to as the “unexceptionalist” school of thinking about Internet governance and media regulation. Unexceptionalists believe that the problems created by the rise of the Internet and new digital media outlets and technologies are really not all that different than the problems lawmakers had to deal with before when the telegraph, telephone and television first appeared. “Exceptionalists,” by contrast, believe that the Internet and the many other new media technologies and developments really are quite different than previous technologies and pose a more formidable challenge to traditional legal arrangements.

While unexceptionists like Goldsmith and Wu often concede that the Internet and new media technologies present unique challenges, they argue that domestic and international legal systems can adapt to accommodate local preferences and respect territorial regulations, including content controls. At root, their argument is that we should never underestimate the power of state coercion to essentially beat people, companies and technologies into submission. Using various coercive powers, the state can contain speech flows even in our new multimedia, multiplatform world, they say.

But the two primary approaches they identify to accomplish this task are riddled with problems:

The “Great Wall” Approach: One obvious approach to controlling content flows is for government to control the underlying “means of production” and information dissemination. In today’s Internet world, that means government would seek to control of the routers, servers, and other computing or networking devices that constitute the heart of modern information infrastructure. This is the approach that more repressive regimes like Saudi Arabia, China, North Korea and Iran have adopted to control “undesirable” information flows. Indeed, China’s highly restrictive system has been dubbed the “great firewall of China.”

But “great wall” regulatory solutions are almost completely untenable in more advanced economies since the information genie is already well out the bottle. In the United States and most European nations, for example, private ownership of means of information production is so diffuse and decentralized that it would be impossible for governments to gain control over the system and control information flows. Moreover, governments in democratic nations have a greater respect for the rule of law, property rights and various free speech values in more advance economies where the Internet has already taken root.

Thus, this solution is really only tenable in less developed economies that are just witnessing the sort of digital media renaissance we have seen in the U.S., Europe and Asia. Even in those countries that have adopted this approach, it is unlikely it is a workable solution well into the future. Networks expand. Technologies evolve. The “Net-izenry” (online population) grows. The scale and volume numbers cited above, while remarkable, only represent a trickle before the flood. Again, only 15 percent of the world’s population has found its way online so far. What happens when that number hits 25 percent, and then 50 and then 75+? And what happens as wireless and satellite-based technologies become even more advanced and every laptop and mobile media device on the planet offers wirelessly accessible Internet access? 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 the 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.”

The Washington Post now includes a section on its website called “Digital Revolution” that highlights stories “about high technology’s impact on politics, culture and society throughout the world.” And other tools of evasion are coming… [ I went on to describe some of them]

The “Deputize the Middleman” (Secondary Liability) Approach: A more realistic solution discussed by Goldsmith and Wu that could be tapped by governments (including those in advanced economies) would involve stringent liability schemes for major communications / Internet intermediaries.

[I never finished this section up, and that’s too bad because this is exactly where the debate over content controls stands today. But, I had outlined that…]

There are serious dangers with this approach as well:

• over-reaching self-censorship
• significant costs for intermediaries
• creates incentive to move offshore or operate surreptitiously outside the confines of law using encryption, anonymizers, and host of other tools

[Note: My TLF colleague Jim Harper wrote an important essay on these issues: “Against ISP Liability,” Regulation, Spring 2005, pp. 30-33.]

The Challenge Ahead If the thesis set forth here is valid and the days of traditional content controls are truly numbered, what happens next? Specifically, if government restrictions become largely ineffective or constitutionally impermissible, will parents or others be left powerless to stop what some believe is an onslaught of objectionable material?

This is reasonable concern. Like most parents, there are some types of content that I do not want my children to see or hear, especially at a very young age. And access to such materials is growing increasingly easy as children begin using communications technologies at earlier ages. Meanwhile, children continue to grow increasing technology-savvy. Since the rise of the personal computing in the 1980s and the Internet in the 1990s, there has been a running joke about how kids have to teach their parents and even teachers how to use these new digital tools.

No doubt, there is a great deal of truth in that notion. But does that mean children will be left on their own and expected to raise themselves in cyberspace? Are we facing a sort of “Lord of the Flies” scenario in which there are no constraints on what our children can do and they are left to enact rules of the road for themselves?

This seems to be the fear many parents and policymakers have today when they express frustration about what their children can see and hear in our media-saturated culture. To some, information abundance is a curse instead of a blessing; a problem to be dealt with, possibly even through extreme government measures such as “great wall” solutions or harsh liability sanctions like Goldsmith and Wu suggest.

But, again, any effort to deal with the “problem” of information abundance must begin with a realization that there is no putting the genie back in the bottle. As China and other repressive regimes are finding out today, once a sophisticated information infrastructure is in place, it is extremely difficult to stifle political dissent or even less threatening types of unfavored speech and expression. For more liberal regimes with fewer restrictions on human expression, there will still be social standards or cultural norms that are challenged by this modern multimedia universe. Some regimes or cultures will decry hate speech online. Others will lament sacrilegious cartoons. And for many others it will be various forms of pornography that spark official condemnation. In each case, these modes of speech or expression—offensive as they may be at times—will be impossible to eradicate from our new digital Information Society. Absent extreme measures, aimed at hobbling the sophisticated communications infrastructure that undergirds it, there will simply be no way of suppressing the flow of bits in our new digital, borderless, multimedia, multiplatform world.

The challenge that lies ahead, then, is for media companies, private organizations, family groups, educators and others to work together to devise reasonably workable solutions to the problem of underage access to objectionable content.

[Actually, it was at this point that I abandoned this manuscript entirely and set off to write the booklet that would answer those questions and concerns. It resulted in “Parental Controls and Online Child Protection: A Survey of Tools and Methods,” which I have discussed here many times before. In that report, I begin with the working assumption that content controls are in serious trouble and that parents and policy makers need to find constructive alternatives to traditional legal and regulatory tools. My book provides an exhaustive list of options and highlights the many tools and information that media companies and other organizations are providing parents to help them make media decisions for their families. However, I concluded my discarded manuscript by noting that…]

The traditional “mass media” era is coming to a close, however. An age of organic, bottom-up, collaborative, “we-dia” (We-Media) is now dawning. Who will play the “gatekeeper” role in this world of endless, instantaneous media creation? For example, in an online environment, parents have traditionally been concerned about what their children can download. Increasingly, however, it is what children can upload that is becoming a bigger problem. With the cost of computers, camcorders, digital cameras, cell phones, and Internet access all plummeting, the tools of information creation and dissemination are now within the reach of almost all citizens, including the youngest.

Clearly, this is not a problem that can be easily solved–if it can be solved at all–by public policy. In the end, for those parents who realize that information flows will be increasingly difficult to control, there is simply no substitute for talking to children in an open, loving and understanding fashion about the realities of this world, including the more distasteful bits.

[I had then planned to conclude the introductory chapter with a discussion of the importance of educational strategies, media literacy efforts, and parental empowerment tools and strategies that could help us address concerns about access to objectionable content as censorship efforts became increasingly less effective and largely faded away. Again, that’s when I diverted all my attention to detailing those things in my book on parental controls and online child protection. And so ends my story about the book I threw away!]

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:

Violent content has a way of desensitizing impressionable minds, he said, alluding more than once in the interview to school shootings, especially the horrific massacre at Virginia Tech. To buttress his point, the senator told of an 80-year-old World War II veteran who visited him at home and described his wartime experiences, how he helped blow up German troop trains. “He said that he just got numb, that he lost any feeling,” he said. “One thing was that he couldn’t see them. And that’s also true with troops on the ground. It gives them post-traumatic stress disorder.” Then the senator borrowed a line from Gen. George Patton’s obscenity-laced rallying speech to troops, about making the other man die for his country — except Rockefeller omitted the salty-tongue warrior’s allusion to the enemy’s paternity. “That is the point — you get immune to it,” he said.

Except that you don’t–at least not entirely, and Sen. Rockefeller’s examples prove that point. How is it, after all, that these brave soldiers witnessed and endured unspeakable acts of violence during those years and yet came home and became known as “The Greatest Generation”? They rebuilt post-war America and turned us into the greatest economic powerhouse on Planet Earth. But if we are to believe Sen. Rockefeller’s logic, they should have instead come home and turned America into a nation of murders, thieves, and thugs. After all, it’s “monkey see, monkey do,” right? If you witness violence, you will later perpetrate violence, or so the theory goes.

But, again, they didn’t. Why is that? It’s a really interesting question and it is one that many folks continue to ask with regards to exposure to violent media content in movies, TV shows or video games. After all, many people find something intuitively appealing about “monkey see, monkey do” explanations. Namely, it provides one possible and simplistic explanation for why some people do engage in violent behavior.

In reality, however, most humans possess a sort of moral compass or moral check on their behavior. They can witness something extremely violent–whether it is real or just a dramatization–and process that information in a rational way. Millions of soldiers throughout history have witnessed (and many have been forced to engage in) horrific acts of violence on a battlefield, and yet they would never think of carrying out those same acts on a public sidewalk. Similarly, millions of average folk have watched countless acts of violence in plays, movies, TV shows and games, and yet would never consider carrying out those same acts in public. Simply stated, most people can separate fantasy from reality–even children as they come to understand social norms about acceptable behavior.

I hate to use anecdotal reasoning here but I’m going to since I think my case is not unique. I grew up watching plenty of movies and TV shows jammed packed with senseless violence. In fact–and some people with think this is sick–my Dad and I used to have a fairly impressive horror movie collection on VHS tapes and would often discuss which “slasher movie” was better or had more blood. A little sadistic? Perhaps, but we found it all quite funny. The important point is that neither of us ever picked up a machete or a chainsaw and decided to take a stroll down to a summer camp to chop up teenagers! Same goes for the millions of other people who grew up enjoying those movies.

And where do I even begin to summarize how much violent video game content I have seen through the years? From my Atari 2600 in the late 70s to my current Xbox 360 and Sony PS3, I have probably played just about ever type of violent video game imaginable. The “Resident Evil” series was a favorite and I have played every one of them start to finish, but I enjoyed most of the popular “first-person shooter” games as well. Again, there are millions of others like me out there and somehow the vast majority of us grew up, got good jobs, created the Internet, so on and so forth. We didn’t take to the streets and start murdering each other just because we played a lot of Duke Nukem or Doom.

So, while the world isn’t perfect, it isn’t the hell-hole that the “monkey see, monkey do” media critics say it is either. Matter of fact, the world seems to be getting better in many important ways–and ways that it should not be if we are to believe all those “world-is-going-to-hell” critics. Just look at the facts about leading social indicators. A new article in Commentary magazine by Peter Wehner and Yuval Levin entitled “Crime, Drugs, Welfare—and Other Good News” points out that just about all the important social indicators (murder, rape, robbery, etc) have witnessed steady decreases. (I provide all the supporting statistics in this paper, starting on page 20). They point out that:

In attitudes toward education, drugs, abortion, religion, marriage, and divorce, the current generation of teenagers and young adults appears in many respects to be more culturally conservative than its immediate predecessors. To any who may have written off American society as incorrigibly corrupt and adrift, these young people offer a powerful reminder of the boundless inner resources still at our disposal, and of our constantly surprising national resilience.

Again, how can this be happening if violent media spawns violent minds and violent acts?! After all, there’s just as much violent media content out there today as there was in the past; some critics claim much more exists now than in the past. So how is it that the kids are alright? Why are things getting so much better when the “monkey see, monkey do” theorists tell us they should be getting so much worse?

The critics, like Sen. Rockefeller, have no answer. They just continue to arrogantly ride around on their moral high horses and tell us that were are all just ignorant sheep who are being programmed to be killers by the media that we enjoy.

In the real world, of course, the rest of of us just yawn, turn off the TV or video game, go to bed happy, and wake up the next day to live a normal, productive lives. Sen. Rockefeller and his fellow media critics should try doing the same thing and leave the rest of us alone.

A few weeks ago, I outlined the amazing keynote address that Harvard University law professor Laurence H. Tribe delivered at PFF’s annual Aspen Summit. Now you can read it for yourself. PFF has just published the transcript of his speech, which was entitled, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism.”

Professor Tribe provides a 14-part indictment of new government proposals to regulate “excessively violent” content. But he also speaks more broadly about the importance of defending the First Amendment from attacks on many different platforms, and for many different types of content. Here’s one of my favorite passages from the concluding section of his remarks:

The broad lesson of this discussion of television violence is the centrality of the First Amendment’s opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.

Amen to that. And that, in a nutshell, describes what much of my research agenda at PFF has been focused on. It is a pleasure to add Prof. Tribe’s address to our growing body of research on the sanctity of freedom of speech and centrality of the First Amendment to our democratic republic as we continue “to wage that fight over and over and over.”

The Parents Television Council has a new report out this week about the supposed decline of the TV “Family Hour.” The City Journal has just posted my response to that PTC report here. It begins as follows…

Who Killed TV’s “Family Hour”? It’s not who you think. by Adam D. Thierer 7 September 2007 The nonprofit Parents Television Council (PTC) released a report this week lamenting the supposed death of broadcast television’s “family hour.” Though neither the Federal Communications Commission nor Congress ever mandated it, 8 to 9 PM Monday through Saturday (Eastern time), and 7 to 9 PM on Sunday, have traditionally been devoted to family-friendly programming. But the PTC’s new report claims that these blocks of time are now “no place for children,” because “corporate interests have hijacked the family hour” and “have pushed more and more adult-oriented programming to the early hours of the evening.” One might respond to this claim by questioning the PTC’s methodology, particularly its definitions of foul language. Simon Vozick-Levinson of Entertainment Weekly’s “PopWatch Blog” takes this approach, accusing the PTC of “cooking the numbers” to suit its cultural agenda. But I don’t want to engage in methodological nit-picking, since it quickly devolves into a subjective squabble about acceptable language and appropriate programming. Instead, I want to point out the fundamental flaw in the report’s premise. The family hour may well be dead—but parents, not broadcasters, were the ones who killed it.

… read the rest at the City Journal’s website.

I’ve written much about the potential “chilling effect” associated with over-zealous FCC regulation of speech. Some people doubt that the FCC’s regulatory wrath is really so severe that media operators will censor important programs for fear of being fined afterward. But we know that that is exactly what happened with a 9/11 documentary last year when CBS decided to censor the remarks of firefighters under duress. Imagine that, firefighters were swearing as the disaster unfolded! But apparently we need to have history whitewashed for our benefit. Absurd.

And now it’s happening again.

PBS just announced that Ken Burns’s upcoming documentary about WWII (“The War”) will now be censored during certain broadcasts. According to this article by Paul Fahri in today’s Washington Post:

[public television] stations are concerned that four words of profanity in the 14 1/2 -hour documentary could subject them to hefty indecency fines from the Federal Communications Commission. Their worries have prompted Arlington-based PBS to take the unprecedented step of distributing two versions of “The War” for broadcast next month: Burns’s original film and an FCC-friendly version from which the profanity has been removed.

The comments of these two PBS officials are particularly telling:

“It’s the world we live in right now,” said Joe Bruns, WETA’s chief operating officer. “My own view is that with the landscape of a 14-hour film about World War II, and given the overall obscenity of war, four words are not particularly shocking — especially given the fact that these are words used routinely at that time. But [nowadays], we have to exercise an abundance of caution.”

and

“The core problem is, we don’t really know what the FCC will do with a complaint because the guidelines aren’t clear,” PBS’s chief content officer, John Boland, said yesterday.

That’s because the FCC reserves the right to fine stations $325,000 if they broadcast something “indecent” between 6 a.m. and 10 p.m. But the FCC refuses to tell anyone beforehand whether a particular use of a particular profanity is “indecent” or not. If you think that reeks of arbitrary, unaccountable government, you are right. And yet this is the law of the land.

And what is particularly absurd about this case is that this documentary will also contain gritty war footage and plenty of carnage. That’s what happens in war, after all. But what our government seeks to protect us (or our children) from is a few dirty words that actual soldiers utter about the grim realities of war. Absolutely absurd.

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:

• “even though mere entertainment, are nonetheless protected by the First Amendment.” (p. 5) “[T]he Act is a content-based regulation and it is presumptively invalid.” (p. 12)

• “Neither the legislative findings nor the evidence submitted by [the State] suggest that the expression in violent video games is directed to inciting or producing imminent lawless action…. In addition, neither the legislative findings nor the evidence shows that playing violent video games immediately or necessarily results in real-world violence.” (p. 6) “[A]t this point, there has been no showing that violent video games as defined in the Act, in the absence of other violent media, cause injury to children.” (p. 15)

• “The State has also not shown that the Act will accomplish its goal of protecting the physical and psychological well-being of minors more effectively than the existing, narrower industry standards.” (p. 14) “To pass the strict scrutiny test, therefore, the state must demonstrate that the industry labeling standards, either alone or combined with technological controls that enable parents to limit which games their children play, do not equally address the state’s interest in protecting the physical and psychological well-being of children. The State has not demonstrated that the Act is narrowly tailored to address its purpose. Therefore, the Act cannot pass strict scrutiny.”

So, for those policy makers who have not been listening, let’s make it abundantly clear what this decision and the 10 slam-dunk decisions that came before it have ALL concluded:

(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.]

And, so, I’ll again ask the question that I have posed in every essay I write on this topic: When are state and local lawmakers going to stop wasting taxpayer dollars with unnecessary regulatory enactments and fruitless lawsuits aimed at censoring video games? After all, as I calculated before in this essay, the video game industry has recovered roughly $1.5 million in legal fees and that number doesn’t include all the money that state and local governments have wasted litigating these cases through the courts. All that money could have been plowed into educational efforts to help explain to parents and kids how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal.

[As always, for the best coverage of this recent decision and its impact, check out the reports over on GamePolitics.com, like this, this, this, and this.]

Many lawmakers and regulators are currently proposing the expansion of broadcast industry regulation. For example, fines have been greatly increased for “indecent” programming on broadcast television and radio, and efforts are underway to extend indecency regulations to cover cable and satellite television. Meanwhile, some policymakers are advocating government regulation of “excessively violent” programming on both broadcast and pay TV. In my latest law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” I hope to show why these efforts are seriously misguided, likely unworkable, and almost certainly completely unconstitutional.

This 52-page article appears in the latest volume of the Catholic University Law School’s CommLaw Conspectus. The article can be found online here.

In this essay, I make the case that the radically unfair system of modern broadcast industry regulation must be completely abolished. “If America is to have a consistent First Amendment in the Information Age,” I argue, “efforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.” I go on to make the case against all the traditional broadcast industry regulatory rationales and conclude that: “the traditional rationales for asymmetrical regulation of broadcasting — scarcity, pervasiveness, and the public interest — either no longer make sense or are increasingly impractical to enforce in an age of technological convergence and media abundance. Instead of resisting the inexorable movement toward media parity and a consistent First Amendment standard for the Information Age, policymakers should embrace these changes and focus on responding to the problem of objectionable content through education and empowerment-based strategies that enable families to craft their own household media standards.”

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.

But what Rockefeller said next was really telling. After claiming that Americans don’t want more tools to handle this on their own, Rockefeller launched into full-blown attack mode against parents and the act of parenting: “There are many parents who cannot make these things work, or they are just not there [in the home]… Americans don’t know technology well,” he said. And, most shockingly, Rockefeller concluded that, “Unless you can show that parental responsibility works, I think we have to try something else.”

I don’t know about you, but there’s something deeply insulting and troubling about that statement. As I mentioned above, Sen. Rockefeller suggested that industry is “blaming parents,” but it sounds to me like he’s the one blaming them and actually going further by accusing them of not being able to do their jobs.

Regardless, what are we to make of Rockefeller’s other contention that “Parents do not want more tools,” he argued, “they want the content off the air.” There are three problems with this argument.

First, as I discussed in great detail in this essay just yesterday, many recent polls confirm what we already know to be true: Parents are parenting. They are learning to cope with new media realities and adapt to them to make sure they can monitor and control their children’s media experiences. For example, the TV Watch poll released just this week revealed that 73 percent of parents monitor what their children watch, including 87 percent of parents whose children are ages 0-10. Also, 86 percent of parents believe that more parental involvement is the best way to keep kids from seeing what they shouldn’t see on television. Those results seem to strongly contradict Sen. Rockefeller’s contention that parental responsibility doesn’t work.

Second, we know that it cannot possibly be the case, as the Senator suggests, that all parents “just want the content off the air.” After all, I’m a parent of two young kids and some of the things that Sen. Rockefeller wants censored are my favorite shows and they are among the most popular shows on television today. (ex: CSI, The Shield, Rescue Me). Tens of millions of American parents like my wife and me tune into these shows each week and enjoy them. Are they fit for kids? Of course not, and like most other parents, my wife and I take steps to ensure our kids cannot watch them. But I think the millions of American parents who enjoy those programs would be deeply insulted by Senator Rockefeller’s suggestion that we all “just want the content off the air.” That’s a decision for us to make for ourselves, Senator.

Finally, not every home in America has kids in residence but the Senator wants to impose regulations that would treat everyone as if they were children. The majority of U.S. households, in fact, are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18. Under Sen. Rockefeller’s logic, however, we should be treating all homes as if children were present and regulating television so that it is only fit for a child. I don’t know about the rest of you parents out there, but I can’t live on just Sesame Street and Mr. Rogers alone!

Sen. Rockefeller is certainly free to get on his moral high-horse and preach to us about his vision for television: highly sanitized and apparently full of only documentaries and nature programs (just make sure none of them are about war or animals fighting each other to the death!) But it is quite another thing to mandate that vision from above using the heavy hand of government regulation as the Senator is threatening.

If the Senator wants to take a more constructive (and constitutional) approach, he might want to consider doing more to help educate parents about the many excellent parental control tools at their disposal. (Hey Senator.. send them my book! It has over 100 pages of parental control tools, tips and methods to help them.) Heck, if he doesn’t think that’s enough, then he can propose government subsidies for TiVos, personal video recorders, DVD players and VCRs so that parents can perfectly tailor TV programming to their own values!

But Senator, don’t you dare suggest that all America parents are incompetent or that we all want media censored to be in line with your values. That is deeply insulting and blatantly un-American.

I am testifying today at 10:00 in the House Energy & Commerce Committee (Telecom & Internet subcommittee) at a hearing on “The Images Kids See on the Screen.” The purpose of the hearing is to examine the negative things that children may be exposed to on various screens (TV violence, product placement, fatty foods, smoking, etc.) and what should be done about it. My prepared remarks are attached below.

Testimony of Adam D. Thierer Senior Fellow and Director of the Center for Digital Media Freedom The Progress & Freedom Foundation June 22, 2007

Mr. Chairman and members of the Committee, thank you for inviting me here today and giving me the opportunity to testify. My name is Adam Thierer and I am a senior fellow with the Progress & Freedom Foundation (PFF) where I serve as director of PFF’s Center for Digital Media Freedom.

This hearing is particularly timely for me because this week PFF released a new special report that I spent the last two years compiling entitled, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” The booklet provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. (Incidentally, this booklet can be downloaded free-of-charge at www.pff.org/parentalcontrols, and I plan on making frequent updates to the report and re-posting the document online as new information comes to my attention).

As I note in my book, we live in an “always-on,” interactive, multimedia world. Parents need to be prepared to deal with media on multiple platforms, screens, and devices. While this can be a formidable challenge, luckily, there has never been a time when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms, or all the screens our children might view.

In the past, the OFF button was the only technical control at a parent’s disposal. Today, by contrast, parents like me have myriad tools and methods to restrict or tailor media content to their own household tastes and values. I could spend all my time here today merely discussing the restrictive tools on the market that parents can and do use to block or curtail media. Those restrictive tools include: the V-Chip and TV ratings; cable and satellite set-top box screening tools; DVD blocking controls; cell phone blocking tools; video game console controls; Internet filtering and monitoring tools, instant messaging monitoring tools; operating system controls; web browser controls; search engine “safe search” tools; media time management devices, and so on. You will find an exhaustive discussion of all these tools and many others in my book.

But while those restrictive tools are important, they are only part of the parental control story. Enabling or tailoring tools are what makes today’s parental control market so exciting. By enabling or tailoring tools I mean any tool or method that a parent might use to enable their families to see, hear, or consume content they would regard as more appropriate, ethical, or enriching.

For example, for televised media, VCRs, DVD players, and personal video recorders have emerged as important parental control devices. These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when and where it will be viewed. Pay-per-view options also help parents better tailor viewing choices for their kids. And don’t forget about the huge and growing market for educational DVDs, video tapes and computer software.

Speaking of computers and the Internet, parents can now tailor their children’s online activities in similar ways. In my new book, I document dozens of kid-friendly search engines and Internet portals that are essentially online “walled gardens” filled with pre-screened content and safe chat areas.

And even in the world of mobile media, new wireless handsets and services offer parents the ability to not only monitor the content their child might try to access, but to also establish pre-approved calling lists and tailor the communications experience to make it safe enough for even very young kids.

Also, it is vital that we not overlook the importance of informal household media rules in this discussion. Oftentimes, debates about inappropriate content get so caught up with disputes about technical controls, ratings or even regulation that we forget that parents often view all these things merely as backup plans. In my book, I identify four categories of household media rules that surveys show almost all parents use some combination of to control their children’s media consumption. These household media rules include:

(1) “where” rules (assigning a place for media consumption); (2) “when and how much” rules (creating a media allowance); (3) “under what conditions” rules (carrot-and-stick incentives); and, (4) “what” rules (specifying the programming kids can and cannot watch).

I don’t have the time here to run through all the possible examples, but certainly most of us are familiar with widely used household media rules like, “No watching TV or playing games until your homework is done,” or “You can’t watch that movie until you complete your chores.” Such household media rules can actually be more effective in controlling children’s media habits than technical controls. But debates about parental controls and media policy treat these household media rules almost as an afterthought, if they are mentioned at all. It’s time we start talking about them.

Finally, let’s not forget about the ultimate parental control tool: the “power of the purse.” In most cases, when kids want to consume a certain type of media—or even consume something they see advertised in the media—they need money to do so. Televisions, movies, video games, cell phones, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to us and ask. And, although at times it may be difficult, we all have the power to say “No.” That is the ultimate way to control the images our kids see on the screen.

Thank you again for inviting me today.

Attachments:

• “The Right Way to Regulate Violent TV,” May 14, 2007, by Adam Thierer

• “Parental Controls and Online Child Protection: A Survey of Tools and Methods,” June 2007, by Adam Thierer

• “The Complexities of Regulating TV Violence,” [a PFF event transcript]

• “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?,” May 2005, by Robert Corn-Revere.

• “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill,” April 2005, by Adam D. Thierer.

Some lawmakers at the federal, state and local level have advocated video game industry regulation in the name of protecting children from potentially objectionable content, usually of a violent nature. In my opinion, the better approach–and one that doesn’t involve government censorship or regulation of games–is to empower parents to better make these decisions for their own families. And the key to that effort is an effective rating / labeling system for game content that parents understand and use.

Luckily, there are good signs that the video game industry’s voluntary ratings system–the ESRB (the Entertainment Software Rating Board)–is doing exactly that. The game industry established the ESRB in 1994 and it has rated thousands of games since then. (The ESRB estimates it rates over 1,000 games per year). Virtually every title produced by major game developers for retail sale today carries an ESRB rating and content descriptors. Generally speaking, the only games that do not carry ESRB ratings today are those developed by web amateurs that are freely traded or downloaded via the Internet.

The ESRB applies seven different rating symbols and over 30 different content “descriptors” that it uses to give consumers highly detailed information about games. Thus, by simply glancing at the back of each game container, parents can quickly gauge the appropriateness of the title for their children.

So, how effective is this system, as measured by parental awareness and usage of the ESRB ratings and labels? Since 1999, the ESRB has asked Peter D. Hart Research Associates to study that question and conduct polls asking parents if they are aware of the ESRB ratings and if they use them. As this chart illustrates, the results are impressive with both awareness and use growing rapidly since 1999:

Better yet, all gaming platforms and most PCs can read these ratings and labels and allow parents to block games rated above a certain level they find unacceptable. But the real strength of the ESRB’s ratings system lies in the content descriptors, which give parents plenty of warning about what they will see or hear in each title. That way, parents can talk to their kids about those games or just not buy them for their kids until they think they are ready.

The game industry deserves credit not only for creating such an excellent content rating / labeling system, but also putting significant resources into public education / awareness efforts to ensure parents know how to take advantage of it. So then, why are lawmakers continuing to waste millions of taxpayer dollars litigating unneeded regulatory efforts?

Over at National Review Online today, Peter Suderman has a good discussion of the current state of video game politics. As usual, a lot of politicians are playing games; political games, that is. Suderman notes that:

…attacking the video-game industry has long been a favored sport amongst politicians eager to shore up their credibility with the concerned parent crowd. At the state level, at least ten laws banning the sale of certain video games to minors have been brought to life. In California, Governor Arnold Schwarzenegger, a guy who made his name hacking and slashing his enemies to a bloody pulp on the big screen, apparently didn’t want high schoolers doing digital imitations: He tried to ban the sale of violent games to minors back in 2005. Oregon is currently considering a similar law, and New York Governor Eliot Spitzer recently stated that he intends to pursue one as well. But these laws go down like a final level boss once they hit the courts. To date, not one of the dubious proposals has stood up to a court challenge. Some lawmakers can’t even be bothered to worry about anything so insignificant as considering whether a law is constitutional. Regarding one video-game ban, Minnesota state legislator Sandy Poppas shrugged off any such responsibility, saying, “Legislators don’t worry too much about what’s constitutional. We just try to do what’s right, and we let the courts figure that out.” The recurrent bashing of the game industry tends to resemble a major league team taking on a troop of t-ballers: Politicians get to knock a couple of balls out of the park in front of parents, but the whole thing is just a show.

Indeed it is. I made a similar argument in a piece for NRO last year as well as my big PFF study, “Fact and Fiction in the Debate over Video Game Regulation.”

The FCC has just issued its long-awaited report on Violent Television Programming and Its Impact on Children. Unsurprisingly, it recommends that the government should assume a great role in regulating the video content that comes into our homes. The agency concludes that: “We believe that further action to enable viewer-initiated blocking of violent television content would serve the government’s interests in protecting the well-being of children and facilitating parental supervision and would be reasonably likely to be upheld as constitutional.” (p. 15)

Ambiguity Defined Ironically, however, the FCC’s report goes on to undercut its own argument for regulation again and again because of the stunning level of ambiguity surrounding everything they propose. For example, in the second paragraph of the report, the FCC notes that “A broad range of television programming aired today contains [violent] content, including, for example, cartoons, dramatic series, professional sports such as boxing, news coverage, and nature programs.” Is the agency saying such things could be regulated? They never tell us.

Or consider the endless number of questions raised by this paragraph on pages 20-21:

We believe that developing an appropriate definition of excessively violent programming would be possible, but such language needs to be narrowly tailored and in conformance with judicial precedent. Any definition would need to be clear enough to provide fair warning of the conduct required. A definition sufficient to give notice of upcoming violent programming content to parents and potential viewers could make use of, or be a refinement of, existing voluntary rating system definitions or could make use of definitions used in the research community when studying the consequences of violent programming. For more restrictive time channeling rules, a definition based on the scientific literature discussed above, which recognizes the factors most important to determining the likely impact of violence on the child audience, could be developed. For example, such a definition might cover depictions of physical force against an animate being that, in context, are patently offensive. In determining whether such depictions are patently offensive, the Government could consider among other factors the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic. (p. 20-21)

Let’s try to unpack some of this because defining “excessive violence” is really the core of this debate.

When the agency says “an appropriate definition of excessively violent programming… needs to be narrowly tailored and in conformance with judicial precedent,” does the agency not realize that there is no such judicial precedent to look to here because what the FCC is proposing here is completely unprecedented?

When the agency says “a definition based on the scientific literature… which recognizes the factors most important to determining the likely impact of violence on the child audience” are they suggesting that a team of child psychologists should sign off on what programming is allowed or forbidden?

And does the agency really clarify things any when it says: “such a definition might cover depictions of physical force against an animate being that, in context, are patently offensive. In determining whether such depictions are patently offensive, the Government could consider among other factors the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic.” Needless to say, “depictions of physical force against an animate being that… are patently offensive” is a fairly open-ended regulatory mandate.

And saying that “patently offensive” programming might be defined so as to include “the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic” doesn’t really help us all that much. Would “Saving Private Ryan” or “Schindler’s List” be regulated under that standard? Where would news reports or documentaries about wars fall under that standard?

And when the agency talks about “whether the violence is realistic” as part of the standard, which way do they mean? If the violence is more realistic, is that good or bad? I ask that question because I sometimes hear some media critics bemoaning the fact that fantasy or animated violence doesn’t portray the actual consequences of violence.

We get no answers to any of these questions. The ambiguity in this report is so thick that you could cut it with a knife. (Wait, bad analogy.. The FCC might fine me for that!)

But don’t take my word about the ambiguous, open-ended nature of this report or the Pandora’s Box of regulatory shenanigans that the FCC is opening up here. Listen to what FCC Commissioner Jonathan Adelstein had to say about the report in his statement today:

The Commission has not been able to formulate and recommend a definition of violence that would cover the majority of violent content that is inappropriate for children, provide fair guidance to programmers, and stand a decent chance of withstanding constitutional scrutiny, in light of judicial precedent. While we may want to define prohibited-violence and regulate it in conformance with constitutional standards, the Report does not refer to any court or judicial scholar that has suggested such definition is available or probable. To the contrary, the Report diminishes the extent to which courts have either expressed serious skepticism or invalidated efforts to regulate violent content. I believe we have an obligation to provide Congress with the complete analysis of this “jurisprudential quagmire,” whereby “any regulation of television violence confronts an inherent tradeoff between precision and effectiveness” and “any restriction in this area that is neither overboard nor vague will leave unregulated so much violent programming that it will no longer accomplish a compelling interest.” The central tension we face is that adults’ access to violent programming is protected under the First Amendment to the U.S. Constitution. The difficult question is precisely which violent programming, if any, the government can regulate in the interest of protecting children. That question — the most challenging Congress faces — is never answered here.

Wanna make a bet those paragraphs are quoted by the Supreme Court when they strike all this down in a couple of years as a blatant violation of the First Amendment?

Are Parents Completely Incompetent? But let’s just set aside all those meddlesome First Amendment matters for a moment and talk about some the other flawed assumptions upon which the agency’s report is built.

Reading through this report, one is struck by the fact that the FCC seems to think that parents are completely incompetent and that only benevolent-minded bureaucrats can save the day from objectionable fare that enters the home. The agency repeats the criticisms leveled by media critics and regulatory activists like the Parents Television Council and Morality in Media who claim that technical controls (ratings, V-Chip, cable set-top box controls, etc) have been a failure. The report concludes that: “although the V-chip and TV ratings system appear useful in the abstract, they are not effective at protecting children from violent content (p. 3)”… and “it does not appear that cable operator-provided advanced parental controls are available on a sufficient number of cable-connected television sets to be considered an effective solution at this time.” (p. 15).

Ironically, the FCC can’t even figure out what it really wants to say on this front. Consider this rather remarkable paragraph on pg. 17:

Experience also leads us to question whether such a ratings system would ever be sufficiently accurate given the myriad of practical difficulties that would accompany any comprehensive effort to ensure the accuracy of ratings. Moreover, such a requirement may have an unintended practical consequence. There is some evidence that TV ratings may actually serve to attract certain underage viewers to programming that is violent or is otherwise labeled as not intended for a child audience.

What a peculiar argument. On the one hand, the FCC tells us that the current TV ratings don’t work because they don’t provide parents enough information. But here, on the other hand, they’re saying that if the ratings system worked perfectly and described violent content accurately then the old “forbidden fruit” problem would kick in and kids would just try harder to watch such programming. Basically, there’s just no winning with the agency; they seem determined to find a justification for regulating using any rationale possible.

But what of the argument that the current ratings and blocking tools are ineffective? It’s rubbish. Either the FCC and the critics have never bothered trying to use the tools or they are nit-picking with the definitions of certain types of content that they feel was offensive and not blocked by a certain rating. That’s the problem with arguments like those made by the Parents Television Council and other regulatory advocates. In an attempt to persuade regulators to reshape television through regulation in the way they desire, these critics claim that certain words or images should have been screened according to their standards. Is “bitch” an indecent word? The PTC thinks so. But many in the public use it every day. So when a TV programmer doesn’t tighten a show’s rating because that word is uttered, is that really a failure of the ratings system? Same goes for violence. A pillow fight on the Brady Bunch would probably lead to calls for an “TV-MA” rating from some of these groups.

What critics consistently forget–or perhaps intentionally ignore–is that media ratings and content labeling efforts are not an exact science; they are fundamentally subjective exercises. Ratings are based on value judgments made by humans who all have somewhat different values. Those doing the rating are being asked to evaluate artistic expression and assign labels to it that provide the rest of us with some rough proxies about what is in that particular piece of art, or what age group should (or should not) be consuming it. Thus, the critics can always claim there are “flaws” in a ratings systems but that’s only because humans all have different perspectives and values that they will use to label or classify content. But that doesn’t mean the ratings can’t be an effective tool that can help parents screen out a great deal of material they might find undesirable.

But let’s forget about ratings and technical controls like the V-Chip and set-top boxes for a moment. Why? Because many parents forget about them. That is, many parents just ignore technical controls altogether and opt for informal household media rules instead. In fact, a 2003 Kaiser Family Foundation survey found that “Almost all parents say they have some type of rules about their children’s use of media.” And a 2006 Kaiser survey of families with infants and preschoolers revealed that 85 percent of those parents who let their children watch TV at that age have rules about what their child can and cannot watch. 63 percent of those parents say they enforce those rules all of the time. (Incidentally, about the same percentage of parents said they had similar rules for video game and computer usage.)

Parents employ a wide variety of household media consumption rules. Some of these can be quite formal in the sense that parents make the rules clear and enforce them routinely in the home over a long period of time. Other media consumption rules can be fairly informal, however, and be enforced on a more selective basis. Regardless, these household media consumption rules can be grouped into three general categories: (1) “Where” rules; (2) “When and how much” rules; and, (3) “Under what conditions” rules.

For example, many families establish “where” rules regarding the placement of TVs or other media devices in the home. In our home, my wife and I have assigned our kids a specific TV for the limited selection of programming we allow them watch and that TV is located in the living room where we keep and eye or ear on what their kids are watching at all times. And all of us probably heard this “under what condition” rule at some point in our childhood: “You have to finish your homework before you get to watch any TV.” And an example of a “when and how much” rule would be: “No TV or video games after 8:00,” or, more stringently: “No TV or games on a school night.”

Many families get even more creative by devising a “media allowance” for their children (especially as they get older) to allow them to consume media within certain boundaries. In our home, my wife and I generally allow our kids one hour of TV viewing per night on weeknights, and two hours on Saturdays and Sundays. Carrot-and-stick incentives can also be used with this approach. For example, better behavior or improved grades at school might be rewarded by adding additional viewing time to their overall weekly media allowance.

Of course, there’s a fourth category that could be added to the list of informal household media rules listed above: “what” rules. As in, what we allow our kids to watch at all. According to The Pew Internet & American Life Project, 77 percent of parents already have rules for what TV shows their kids can watch, 67 percent have rules for what kind of video games they can play, and 85 percent have rules about what Internet websites they can and cannot visit.

And there are countless other examples of such formal and informal household media rules, or the creative use of new technologies to control children’s media consumption. My wife and I have developed a strategy of designating a specific television in our home for most of our children’s media consumption and then using a personal video recorder to amass a large library of programming we believe is educational, enriching and appropriate for them. Dozens of programs can be cataloged and archived in this fashion and then supplemented with VHS tapes, DVDs and computer software. As a result, when we allow our children some TV time, we always know that the episodes of “Dora the Explorer,” “Go Diego Go,” “Blue’s Clues” and “The Wiggles” that we approve of for our kids will be available. Needless to say, such content tailoring was not an option for families in the past. [I summarize all these things in my forthcoming PFF special report Parental Controls and Online Child Protection: A Survey of Tools and Methods, due out in early June.]

Such informal household media rules are a vitally important, yet frequently overlooked, part of this debate. In fact, the FCC never even bothers mentioning such things in its new report. Certainly a few of the good folks down at the FCC are parents themselves. Do they not have such household media rules at work in their homes? I bet they do. And I bet a significant percentage of them just ignore all the other technologies altogether and opt exclusively for such informal household rules like many other American households.

But if you’re focused on adding fuel to the flames of an already burning political crusade, then I suppose you wouldn’t want to mention things like this. The FCC just asks us to believe that parents are completely helpless against these supposed technological “invaders” into our homes. You know… those damn $2,000 televisions that magically walked into our homes, and those meddlesome $50-a-month cable and satellite boxes and subscriptions. How dare they those devices come into our homes uninvited and make us watch them! Please FCC… save us from ourselves!

But the Whole World is Going to Hell, Right? Of course, this entire debate is premised on the theory that any exposure to violent television is going to turn our kids into aggressive thugs or worse. The FCC seems to buy that argument hook, line and sinker. Like many media critics, the FCC is convinced that the “scientific” literature on media violence is a closed case and that exposure to violent materials results in real-world aggression. A lot of psychological studies have made that claim and asked us to believe in a “monkey see, monkey do” theory of media effects.

But it’s important to realize that the academic literature on the effects of media violence is not nearly as unified as you might think. In fact, as Dr. Edward Fink of the Department of Radio-TV-Film at California State University-Fullerton, notes, you can find endless reports to support just about any thesis you want to believe in:

Do you want to believe that TV violence is bad? Plenty of research there. One example comes from Dr. L. Rowell Huesmann and associates in the American Psychological Association journal Developmental Psychology, March 2003. They found that a high level of TV violence in childhood is a predictor of more-aggressive behavior in adulthood. Do you want to believe that TV violence is not necessarily bad? There’s plenty of stuff! One example comes from Dr. Ron Warren in the Broadcast Education Association’s Journal of Broadcasting and Electronic Media, September 2003. He found that parental mediation of children’s TV viewing can both inhibit negative effects and enhance positive effects. Do you want to believe both? Once again, a bounty of data! One example is the comprehensive National Television Violence Study, published by the University of California, Santa Barbara. It concludes, “Television can be a powerful influence on social mores concerning violence and aggression, for good or for ill.”

Others have confirmed this academic schizophrenia and pointed out that, if anything, the literature on this subject is ambiguous at best and perhaps even leans against the “causal hypothesis” that media violence leads to aggressive behavior. Psychologist Jonathan L. Freedman conducted the most comprehensive review of all the major literature on this subject for his book Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence.

Freedman concluded that “the results do not support the view that exposure to media violence causes children or anyone else to become aggressive or to commit crimes; nor does it support the idea that it causes people to be less sensitive to real violence.” Freedman collected and reviewed all the laboratory experiments, field experiments, longitudinal studies, and other studies employing mixed methodologies. He concluded that “not one type of research provided the kind of supportive evidence that is ordinarily required to support a hypothesis. Not one found 90 percent supportive or 80 percent supportive or 70 percent supportive or even 50 percent. In fact, regardless of the method used, fewer than half the studies found results that supported the [causal] hypothesis–sometimes considerably fewer than half.”

Finally, when we step outside the laboratory setting and examine real world trends in a search for a supposed casual link we don’t find one there either. Consider, for example, the reversal of various social indicators over the past decade. According to FBI reports, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Aggregate violent crime by juveniles fell by a whopping 39% from 1995-2005. The biggest components of that decline were the 52% drop in juvenile robbery and the 64% drop in the juvenile murder rate. Again, while all these social trends were greatly improving, media exposure–including exposure to violent fare–was supposedly increasing according to the FCC and other media critics.

These results do not conclusively rule out a link between exposure to violence media content and violent acts in the real world. But they should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation who all too often make casual inferences about the relationship between media exposure and youth behaviors.

How do the critics respond to the fact that their theories don’t match up with real-world realities? They don’t. Their silence on this point is really quite stunning. But I guess they figure that real-world facts can be ignored when they have publicly-funded, artificial lab experiments that say there might be a link. Until the supporters of the “monkey see, monkey do” hypothesis can come up with a good explanation for why their thesis is at odds with real-world social indicators, it will be difficult to take them seriously. And their theories cannot be used to support government regulation of media content.

Incidentally, in the context of video games, that’s exactly what every court that has looked at this issue has concluded. Following efforts to regulate violent video games, 10 different courts across the U.S. have been asked to take a look at the “media effects” literature about exposure to violent programming and its effect on real-world aggression. EVERY SINGLE ONE OF THEM has concluded that no such link has been proven. As a result, every state and local effort to regulate video games based on the supposed harm to children has been thrown out as unconstitutional and the governments in question were even forced to pay the gaming industry’s attorney’s fees! The FCC doesn’t bother considering any of this important jurisprudence in its new order. But you better believe that other courts will look at those decisions once any new TV violence regulations are implemented and then litigated.

Conclusion: Wither Personal Responsibility? The Parents Television Council, which seems to have the ear of FCC officials on this and other content regulation issues, has an interesting motto: “Because Our Children Are Watching.” It’s a tagline they use all over their website and in all their printed materials. Presumably it means that they believe regulation is justified because our children are watching television in our homes.

But whenever I see that “Because Our Children Are Watching” tagline I always ask myself: Why? Why are you’re children watching? Why are you letting your children watch shows you might find offensive or harmful? Do you not exercise any control over your kids? Do they run the household, or do you? Weren’t you the one to bring those TVs, cable boxes and satellite dishes home? Did you not set up any ground rules about what they can watch once you brought those things into the home? Do you not limit their viewing time? Do you not turn the TV off and make them do other things? Do you not talk to them about what’s on TV, what you find inappropriate, and what the difference is between fantasy and reality?

Honestly, I just don’t get it. Why do critics like the PTC and their many allies in this fight give lip service to the notion that parents should be the “first line of defense” in terms of the video programming that enters the home, but then they turn around and vociferously advocate that five unelected bureaucrats at the FCC step in an as a surrogate parent for our children? Let us be clear on this point: If you advocate a role for the government in terms of regulating violent programming on television then you have made those regulators the primary party in charge of what comes into the home. When government regulates speech it acts on everyone’s behalf and tells us what it thinks is best for ALL OF US and ALL FAMILIES.

That’s not how things should work in a free society. Decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours. Consequently, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable content to them. That’s especially the case in light of the fact that most U.S. households are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18.

Whatever happened to personal and parental responsibility in this country? I’m looking out for my own kids. FCC officials and the media critics should look out for theirs and quit treating the rest of us like we’re all children.

The Parents Television Council (PTC), a media activist group that routinely petitions Congress and the FCC for greater content regulation, recently released a new poll which they say proves that the V-Chip and parental control technologies have been a failure.

Their poll finds that only 11% of those surveyed said they used the V-chip or their cable box parental controls to block unwanted content from their television during the past week. And that result is virtually unchanged from a poll they took last September asking the same question. Therefore, the PTC concludes that recent efforts by broadcasters and cable companies to spend hundreds of millions of dollars educating families about these parental control tools have been a failure. And, unsurprisingly, the PTC feels that this again shows the need for government regulators need to step in and do more national nannying for us.

As I’ll make clear in a moment, the V-Chip and current television ratings are certainly not perfect. And I have no doubt that household usage of these tools is quite low for reasons I’ll get into. But let me first address what appears to be a rather glaring methodological deficiency of this PTC poll which makes it difficult to take seriously.

According to the PTC press release announcing the poll results, “The PTC paid for a few questions to be included in omnibus telephone surveys of adults nationwide, conducted by Zogby International.” In other words, the PTC poll randomly surveys all households, which means they are including in their polling results the millions of households that have absolutely no children in them.

This makes their poll results highly suspect. It simply does not make sense to survey all homes about V-Chip or parental control usage because adult-only homes almost certainly would not be using any parental controls to block programming. This would be like polling all Americans, including homes made up of only adults, about whether or not they had baby locks on their kitchen cabinets!

And we’re talking about a significant percentage of homes here. According to the U.S. Census Bureau, almost 68% of American homes do not have any children under 18 years of age in residence. Therefore, the only population that should be surveyed when asking about parental controls is the 32% of homes that currently have children in residence.

Moreover, it is important to keep in mind that even for those homes with children in residence, not all of them will need to use parental control technologies before a certain age (4-5) or after a certain age (15-16) because many parents do not let their kids watch much TV until a certain age and then after a certain age trust their kids or just talk to them about objectionable fare.

Now, that being said, I am sure that even if the PTC had conducted its poll properly, the numbers would still be quite low for homes with children, but that doesn’t mean that the V-Chip or parental controls are a failure. As I argue in my big upcoming report on parental controls, surveys show that many families instead rely on informal household “media consumption rules,” preferring them to technical controls such as the V-Chip or set-top box controls. For example, a 2003 Kaiser Family Foundation survey found that “Almost all parents say they have some type of rules about their children’s use of media.” And a 2006 Kaiser survey of families with infants and preschoolers revealed that 85 percent of those parents who let their children watch TV at that age have rules about what their child can and cannot watch. 63 percent of those parents say they enforce those rules all of the time. About the same percentage of parents said they had similar rules for video game and computer usage.

We’re all familiar with these household media consumption rules even though we often don’t think of them as “rules.” These household media rules can be grouped into three general categories: (1) “Where” rules; (2) “When and how much” rules; and, (3) “Under what conditions” rules.

For example, many families establish “where” rules regarding the placement of TVs or other media devices in the home. In our home, my wife and I have assigned our kids a specific TV for the limited selection of programming we allow them watch and that TV is located in the living room where we keep and eye or ear on what their kids are watching at all times. And all of us probably heard this “under what condition” rule at some point in our childhood: “You have to finish your homework before you get to watch any TV.” And an example of a “when and how much” rule would be: “No TV or video games after 8:00,” or, more stringently: “No TV or games on a school night.”

Many families get even more creative by devising a “media allowance” for their children (especially as they get older) to allow them to consume media within certain boundaries. In our home, my wife and I generally allow our kids one hour of TV viewing per night on weeknights, and two hours on Saturdays and Sundays. Carrot-and-stick incentives can also be used with this approach. For example, better behavior or improved grades at school might be rewarded by adding additional viewing time to their overall weekly media allowance.

And there are countless other examples of such formal and informal household media rules, or the creative use of new technologies to control children’s media consumption. My wife and I have developed a strategy of designating a specific television in our home for most of our children’s media consumption and then using a PVR to amass a large library of programming we believe is educational, enriching and appropriate for them. Dozens of programs can be cataloged and archived in this fashion and then supplemented with VHS tapes, DVDs and computer software. As a result, when we allow our children some TV time, we always know that the episodes of “Dora the Explorer,” “Go Diego Go,” “Blue’s Clues” and “The Wiggles” that we approve of for our kids will be available. Needless to say, such content tailoring was not an option for families in the past.

The PTCs new poll simply doesn’t take things like this into account. For those looking to conduct an honest and accurate assessment of the true state of parental control methods in homes, their polls should: (1) only survey those households with kids in them; (2) then the pollsters should also ask the approximate ages of the children in the home to determine how relevant technical controls are for the family; and, (3) ask whether the parents rely on other, non-technical methods of controlling media consumption. Only then would you be able to draw reasonable conclusions about how American families go about controlling their children’s media consumption and the role technical controls or industry ratings play in the process. But the PTC poll fails on all these counts.

In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.

For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today’s entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades–the regulation of “excessive violence” on television.

Last week, L.A. Times technology and media reporter Jim Puzzanghera wrote a detailed piece about how “Washington May Take Up TV Violence” in coming months. In his article he noted that:

With a fresh Congress sworn in and a major (FCC) report expected soon on TV gore, pressure is likely to mount to more aggressively stem graphic and gratuitous scenes in shows. One proposal would give regulators powers similar to those they have now to punish indecency and coarse language over the airwaves. In addition, TV violence is shaping up as a 2008 presidential campaign issue with some of the leading potential candidates already at the forefront of the issue. Sen. Hillary Rodham Clinton (D-N.Y.) has long talked about the effect of gory TV shows and video games on children. Sen. John McCain (R-Ariz.) favors allowing families to buy cable channels separately so they can spurn objectionable shows. Sens. Barack Obama (D-Ill.) and Sam Brownback (R-Kan.) also have bemoaned TV violence.

Puzzanghera notes that, beyond Democratic presidential front-runners Clinton and Obama, other congressional Democrats and regulators at the FCC have jumped on the regulatory bandwagon. At the FCC, Democratic Commissioner Michael J. Copps, recently argued that, “In the absence of action from the industry [to address violence on television], I think we need to be looking at all our options.” He means regulatory options, of course. And, over in Congress, Puzzanghera reminds us that in 2004, Rep. John Dingell (D-MI), the new head of the House Energy and Commerce Committee, was one of 39 House members signing a letter to the FCC asking the agency to study violence on television and how it might be restricted. With Dingell now running the committee in which most communications / media legislation originates, this could mean that regulation is on the way.

Puzzanghera also highlighted one particularly important legislative proposal that I have written quite a bit about in recent years–Senator John D. Rockefeller’s (D-W.Va) “Indecent and Gratuitous and Excessively Violent Programming Control Act.” (S. 616 in the last Congress).

As I noted in my detailed analysis of the bill in April of 2005: “If passed, S. 616 would represent the most significant congressional effort to regulate speech since the Communications Decency Act (CDA) of 1996.” That’s because the measure would significantly expand the penalties that traditional broadcast outlets face for indecency violations, and then apply those penalties to cable and satellite. More importantly, in the process, the measure also proposes to let FCC regulators embark on a grand new experiment in regulating “excessively violent” video programming, not just on broadcast television, but also on subscription-based cable and satellite TV.

Puzzanghera notes that Rockefeller plans on reintroducing the measure this session and “With his own party now in the majority, Rockefeller may get hearings and a vote, further propelling the issue.” Sen. Rockefeller tells Puzzanghera that “Obviously, the preference would be to have the industry police itself when it comes to excessive violence. However, if they can’t or won’t do it, then Congress must step in and address this growing societal problem,” Rockefeller said. “One of the most basic steps we can take is to give the FCC authority to regulate violence, and if necessary, the courts will then work out the constitutional issues on a case-by-case basis… Just sitting on our hands and doing nothing to protect children is not an option.”

But before Rockefeller and other Democrats embark on a new “it’s-all-for-the-children” crusade to rid the world of media violence, hopefully they will be willing to consider the mixed “scientific” record on this front as well as the First Amendment complexities associated with defining and regulating “excessive violence” on television.

Academic Evidence, or Lack Thereof

The academic literature on the effects of media violence is not nearly as unified as you might think. In fact, as Dr. Edward Fink of the Department of Radio-TV-Film at California State University-Fullerton, notes, you can find endless reports to support just about any thesis you want to believe in:

Do you want to believe that TV violence is bad? Plenty of research there. One example comes from Dr. L. Rowell Huesmann and associates in the American Psychological Association journal Developmental Psychology, March 2003. They found that a high level of TV violence in childhood is a predictor of more-aggressive behavior in adulthood. Do you want to believe that TV violence is not necessarily bad? There’s plenty of stuff! One example comes from Dr. Ron Warren in the Broadcast Education Association’s Journal of Broadcasting and Electronic Media, September 2003. He found that parental mediation of children’s TV viewing can both inhibit negative effects and enhance positive effects. Do you want to believe both? Once again, a bounty of data! One example is the comprehensive National Television Violence Study, published by the University of California, Santa Barbara. It concludes, “Television can be a powerful influence on social mores concerning violence and aggression, for good or for ill.” Do you want summaries of research? One example comes from the Kaiser Family Foundation’s fact sheet, Key Facts: TV Violence, Spring 2003, which outlines studies that present opposing viewpoints. If you prefer your summary from the government, have a look at Section II, “Violent Programming on Television,” of the 108th Congress’s Broadcast Decency Enforcement Act of 2004. All reasonable people, and yes, that includes most broadcasters and academicians, are sensitive to the potential–though not always the actual–harm of TV violence. This argument is not for TV violence; it is against the government’s exercising a right of censorship it does not have, not even in an election year.

Others have confirmed this academic schizophrenia and pointed out that, if anything, the “scientific” literature on this subject is ambiguous at best and perhaps even leans against the “causal hypothesis” that media violence leads to aggressive behavior. Psychologist Jonathan L. Freedman conducted the most comprehensive review of all the major literature on this subject for his book Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence. He concluded that “the results do not support the view that exposure to media violence causes children or anyone else to become aggressive or to commit crimes; nor does it support the idea that it causes people to be less sensitive to real violence.” Freedman collected and reviewed all the laboratory experiments, field experiments, longitudinal studies, and other studies employing mixed methodologies. He concluded that “not one type of research provided the kind of supportive evidence that is ordinarily required to support a hypothesis. Not one found 90 percent supportive or 80 percent supportive or 70 percent supportive or even 50 percent. In fact, regardless of the method used, fewer than half the studies found results that supported the [causal] hypothesis–sometimes considerably fewer than half.”

Finally, when we step outside the laboratory setting and examine real world trends in a search for a supposed casual link, we don’t find one there either. Consider, for example, the reversal of various social indicators over the past decade. According to FBI reports, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Overall, aggregate violent crime by juveniles fell 43 percent from 1995-2004. And ongoing University of Michigan surveys have revealed that there are fewer murders at school today and fewer students report carrying weapons to school or anywhere else than at any point in the past decade. Meanwhile, the Center for Disease Control reports that although teenage suicide rates rose steadily until the mid-1990s but then began a dramatic decline which continues today. Again, while all these social trends were improving, media exposure–including exposure to violent fare–was increasing.

These results do not conclusively rule out a link between exposure to violence media content and violent acts in the real world. But they should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation who all too often make casual inferences about the relationship between media exposure and various social indicators.

First Amendment Concerns

In light of what the data tells us, one would hope that policy makers would proceed cautiously when it comes to regulating “excessively violent” media content since serious First Amendment / artistic freedom issues are at stake here. And one would especially hope that Democrats would express some skepticism about the folly of such a regulatory pursuit.

After all, why should we let five unelected bureaucrats down at the FCC determine what constitutes “excessive violence.” Are the bloody and occasionally gruesome scenes in TV shows like CSI and ER excessive, or is that a reasonable depiction of forensic and medical science? Hockey games on prime-time TV feature lots of fights, blood, and lost teeth. Should they only be shown on tape delay after kids are in bed? For decades, cartoons have offered a buffet of violent acts, and slapstick comedy of The Three Stooges variety features a lot of unforgivingly violent moments presented as humor. How about gruesome war scenes from actual combat that any child can see on the nightly news? How about Saving Private Ryan or other war movies? What about the stabbing, poisoning, and other heinous acts of violence found in Shakespeare’s tragedies? And, for God’s sake (excuse the pun), what about all the violence in the Bible or Mel Gibson’s The Passion of the Christ? Can any of it be shown on television or cable?

I could go on and on, but you get the point. This all comes down to a question of who calls the shots–parents or government–regarding what we are allowed to see and hear in a free society. This is not to say society must celebrate or even defend violence in the media; there are plenty of movies, shows and games that do contain what many parents would regard as a troubling amount of violent content for young children to witness. Parents need to act responsibly and exercise their private right–indeed, responsibility–to self-censor their children’s eyes and ears from certain things. It’s become increasingly evident, however, that a lot of parents have just gotten lazy about carrying out this difficult job. As the father of two young children, I can appreciate the hassle of constantly trying to monitor a child’s viewing and listening habits. But that’s no excuse for throwing in the towel and calling in the government to censor what the rest of the world has access to. That’s especially the case in light of the fact that, according to the Census Bureau, just one-third of U.S. households have children in them. For the two-thirds of adult-only homes, such a regulatory regime is blatantly unfair.

Again, I can cite plenty of Republicans, such as Sen. Brownback and others, who support calling in Uncle Sam to play the role of surrogate parent and police “excessively violent” media content. But the fact that so many Democrats are joining this crusade is frightening since, again, it makes you wonder if there are any free speech champions left in Washington.

(Up next in this series, I plan on talking about how Democrats are now employing similar tactics and rhetoric in their continuing effort to regulate “violent video games.” But that might get preempted by another piece on how Democrats are leading a variety new efforts to regulate Internet content. Unfortunately, there’s a lot to cover on this front these days.)

The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.

But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.

Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”

Nat Hentoff, a famous civil libertarian and one of our nation’s most tireless defenders of freedom of speech, penned an editorial for today’s Washington Times about congressional efforts to reinstitute the so-called Fairness Doctrine, which was in effect from 1949 until 1987 when the Reagan Administration FCC abolished it.

This effort, he notes, is being led by four Democrats–Sen. Bernie Sanders of Vermont and Reps. Dennis Kucinich of Ohio and Maurice Hinchey and Louise Slaughter, both of New York. Hentoff argues that these Democrats are under the illusion that by reinstituting the Fairness Doctrine they will be ensuring a greater diversity of views in the modern media marketplace. The reality, he argues, will be quite different. Hentoff was a radio broadcaster himself in the old days when the Fairness Doctrine was in effect and he notes that the threat of regulation had a severe chilling effect on free speech:

If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment–precisely the opposite of what the founders clearly intended… During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply. This happened at other stations as well.

The chilling effect associated with the Fairness Doctrine has been thoroughly documented by many media analysts and backs up what Hentoff experienced. Economists Thomas Hazlett and David Sosa provided the definitive economic treatment of the issue in their seminal 1997 study, “Was the Fairness Doctrine a ‘Chilling Effect’? Evidence from the Post-Deregulation Radio Market.” Hazlett and Sosa even created an economic model and crunched some numbers to illustrate the Doctrine’s negative impact. And the definitive legal critique of the Fairness Doctrine can be found in Chapter 9 of Thomas G. Krattenmaker and Lucas A. Powe, Jr.’s excellent treatise on Regulating Broadcast Programming. They document the many doctrinal inconsistencies associated with the Doctrine and highlight how the rule was used as a tool of political extortion by presidents from both political parties who wanted to stiffle dissent about their administrations.

But you don’t need to sweat the numbers or read lengthy legal tomes to realize just how much better off we are without the Fairness Doctrine on the books. Just look around at the amazingly vibrant and diverse media marketplace that exists today. The cornucopia of media choices is overflowing and there’s now something for every conceivable human interest under the sun.

But Hentoff notes that the Fairness Doctrine could be even more destructive to the vibrant exchange of viewpoints today because policy makers might try to impose it on these new media outlets as well:

Should this enemy of free expression become law again in coming years, it would very likely also extend to FCC bureaucrats’ taking charge of freedom of speech on cable television and the Internet and continuing new forms of expression–under the mandate of the FCC’s definers of “diversity of views.” There are liberals who preach the need for “diversity of views” in calling for the return of the Fairness Doctrine because they bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators. But these liberals ignore why we have the First Amendment. As Oliver Wendell Holmes emphasized: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not the thought that we hate.”

In closing, I should note there have been some Republicans in favor of reinstituting the Fairness Doctrine as well. But there are fewer today than in the past. Of course, that might have something to do with the fact that conservative viewpoints are getting a lot more play on the airwaves these days. Thus, some of the former pro-regulatory conservatives probably no longer favor the Fairness Doctrine, feeling that it might chill their voices instead of their opponents.

(Next up in the series: How Democrats are leading the charge to regulate “excessive violence” on television).

It is too early to say for sure but there are some encouraging signs that our public policymakers are finally starting to get the point went it comes to the sensibility (and constitutional futility) of trying to regulate video game content. Just yesterday, for example, lawmakers in the District of Columbia passed legislation that establishes a program to educate consumers about existing video game ratings and console-based controls. This represents a major shift away from the regulatory approach originally floated by incoming D.C. Mayor Adrian Fenty. While serving as a D.C. Councilman, Fenty introduced a bill that would have proposed the old regulatory combo of mandates and stiff fines on game retailers who didn’t enforce the city’s approved regulatory scheme.

But the new version of the bill, entitled the “Consumer Education on Video and Computer Games for Minors Act,” takes a very different approach. The bill requires the city to “Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain ago groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games.”

In a phrase, D.C.’s new approach is “education, not regulation.” And while some might object to the idea of government promoting education efforts about video game ratings or console controls, that approach is infinitely more sensible (and constitutionally permissible) than government censorship.

What makes D.C.’s turnabout particularly noteworthy is that is comes just a week after the 7th Circuit Court of Appeals decision in Entertainment Software Association v. Blagojevich, the Illinois case I discussed here last week. In that decision, judges once again held a state law unconstitutional for attempting to regulate video game speech. Specifically, the Circuit Court argued that the statute in question in the Illinois case was not narrowly tailored and did not represent the “least restrictive alternative” available to serve the interest of protecting children from potentially objectionable content. The Court noted that the industry’s voluntary ratings systems works quite effectively and that if the state wanted to adopt a less restrictive approach it could have simply could have adopted an educational approach. Noting that the parents are involved in well over 83 percent of their children’s video game purchases, the Court went on to argue that:

“If Illinois passed legislation which increased awareness of the ESRB [Entertainment Software Rating Board voluntary ratings] system, perhaps through a wide media campaign, the already-high rate of parental involvement could only rise. Nothing in the record convinces us that this proposal would not be at least as effective as the proposed speech restrictions.”

Again, such an approach has the added benefit of likely remaining within the boundaries of the Constitution and the First Amendment since government would not be seeking to restrict speech but simply inform and empower parents regarding the parental control options already at their disposal.

Let’s hope other lawmakers heed this advice before they waste more money litigating video game cases through the courts. According to the Electronic Software Association (ESA) which represents the video game industry and defends its rights in court, state lawmakers have had to shell out over $1.5 million in legal fees to the video game industry after losing cases in the following five cities or states:

Illinois–$510,000 Washington State–$344,000 St. Louis (8th Circuit)–$180,000 Indianapolis (7th Circuit)–$318,000 Michigan–$180,000

To be clear, that’s $1.5 million taxpayer dollars that have been squandered on fruitless efforts to censor video game content after several courts had already held similar efforts unconstitutional. And that’s $1.5 million that could have been plowed into educational efforts to help explain to parents and kids how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal.

Say it with me, state lawmakers, and repeat it 3 times so you don’t forget it:

“Education, Not Regulation.” “Education, Not Regulation.” “Education, Not Regulation.”

It’s the right answer, and the less expensive one!