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A “Public Option” for Media? The Free Press Plan to Put Journalists on the Public Dole

by on November 24, 2009 · 25 comments

Free Press, the radical pro-regulatory media activist group, recently filed comments with the Federal Trade Commission (FTC) for the agency’s upcoming workshop on “How Will Journalism Survive the Internet Age?”  The Free Press comments provide an enlightening glimpse into the mind of how many on the Left now think about media policy in America.  Their approach can be summarized as follows:

  1. Nothing the private sector can do will save journalism (unless it is entirely non-profit / non-commercial in nature);
  2. Even if there was something that private players could do to save journalism, Free Press would likely have federal authorities forbid it anyway (especially if it involved new business ownership patterns or combinations); and,
  3. The only thing that can really save journalism is a “public option” for the press in the form of massive state subsidization of media in this country.

To elaborate on the last point, here’s how Free Press summarizes what they are looking for:

For U.S. public media to become a truly world-class system will require a substantial increase in funding. This could be accomplished by an increase in direct congressional appropriations to the Corporation for Public Broadcasting. With increased funding — to as little as $5 per person, increasing annual appropriations to some $1.5 billion — the American public media system could dramatically increase its capacity, reach, diversity and relevance.

But they stress that a simple expansion of the PBS/NPR/CPB non-commercial model will not be enough since that system is “vulnerable to repeated threats of funding cuts” and too “reliant on corporate backing, via the underwriting process.” They want to go well beyond non-commercial media, therefore, and have the state start building a massive public media infrastructure.  Here’s where their pitch for a public option for the press comes in: Continue reading →

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Son of COPA?: H.R. 4059, “The Online Age Verification and Child Safety Act”

by on November 18, 2009 · 9 comments

Rep. Bart Stupak, (D-MI) recently introduced the ‘‘Online Age Verification and Child Safety Act’’ (H.R. 4059), which would require mandatory online age verification for “any pornographic website accessible by any computer located within the United States to display any pornographic material, including free content that may be available prior to the purchase of a subscription or product.”  The measure does not specify how such verification is to be administered, saying only that “any website or online service” must “establish and maintain a system of internal policies, procedures and controls to ensure that no such material is displayed to any user attempting to access their site without first verifying that the user is 18 years or older.”

In essence, the Stupak bill is the “Son of COPA,” or the Child Online Protection Act of 1998, a law that has been constitutionally tested and come up short during an epic, decade-long legal battle in which it was made clear that mandatory age verification is unwise, unworkable, and unconstitutional under the First Amendment.

COPA sought to make it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. COPA was immediately challenge, however, and a 10-year court battle ensued.  The law was blocked by lower courts because it was too sweeping in effect and because courts held that there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

COPA’s decade-long legal battle finally concluded in January 2009 when the U.S. Supreme Court refused to revisit the law.  COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal in January, lower court rulings stood and COPA remained unconstitutional and unenforceable. The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

Many, many times here before I have documented my serious ongoing reservations about mandatory age verification.  [In particular, see this lengthy white paper and this event transcript for all the details.]  Moreover, as I pointed out in a recent PFF white paper (“Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer“), every major online safety task force that has studied the possibility of mandatory age verification for the Internet has come to the same conclusion: It won’t work, it’s unconstitutional, and it raises serious privacy concerns. Down below the fold I have pulled some of the relevant language from the five online safety task forces that have met since 2000 and considered this issue.  Continue reading →

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Video Games, Free Speech & the Lunacy of “Ecogenerism”

by on October 25, 2009 · 3 comments

I’ve been meaning to say something about this new paper by Renee Newman Knake of Michigan State University College of Law, which calls for a new paradigm to analyze, and then likely regulate, video game content. Knake’s paper is entitled, “From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations.” In it, she proposes to extend an emerging legal philosophy known as “ecogenerism” to the field of video games and the First Amendment treatment thereof. “Ecogenerism” is largely the creation of Barbara Bennett Woodhouse and the theory argues that we should apply lessons or legal frameworks from the field of environmental law to the area of media and children. “Under an ecogenerist model,” states Knake, “media harm decisions should prioritize concern about the level of ‘toxic’ media which children are exposed over free speech interests.”  Simply stated, we should treat “toxic media” like toxic chemicals.

There have been other efforts to get courts to relax the legal scrutiny applied to video game content from “strict” to something more relaxed or intermediate in character. For example, there is the “violence as obscenity” approach proposed by Kevin Saunders, who, like Knake, is also with the Michigan State University College of Law. But whereas Saunders has proposed applying an adjacent legal theory or framework (obscenity law) to legal analysis of the constitutionality of regulation of video game content, Woodhouse and now Knake propose a much broader, and more radical, reformulation of First Amendment law along the lines of entirely different body of jurisprudence — again, environment law and regulation.

Of course, this is nuts. The notion that words or images are as “toxic” as chemicals is preposterous, and yet that is exactly what Knake and Woodhouse want us to accept. We can determine with a great deal of certainly the physiological impact of too much mercury or lead on the development of the human brain or body. Generally speaking, we know what dose would kill or deform. The same cannot possibly be said of media, and the very allusion to toxic materials or chemicals is ludicrous to begin with since words and images have never directly killed anyone. EVER! Continue reading →

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Video from my Second Life Discussion about Government’s Place in Virtual Worlds

by on October 9, 2009 · 12 comments

I really enjoyed my Second Life appearance on “Government’s Place in Virtual Worlds and Online Communities,” which was hosted by Metanomics.  You can watch the entire segment on the Metanomics site.  But the folks at Metanomics have also posted 6 clips from the show at YouTube that highlight some of the topics we discussed.  Here’s the list of clips and the videos:

Part 1: Are the Feds about to Regulate Second Life & Virtual Worlds?

http://www.youtube.com/v/gbirOVrZ0bQ&rel=0&color1=0xb1b1b1&color2=0xcfcfcf&feature=player_profilepage&fs=1

Continue reading →

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What I Don’t Get about the FTC’s New Blogger Guidelines

by on October 7, 2009 · 15 comments

Like James Gattuso, I have a lot of questions about the Federal Trade Commission’s new “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” especially as they apply to bloggers. (And over at Silicon Angle, Mark ‘Rizzn’ Hopkins has been doing a great job keeping tabs on the many questions and hypothetical situations that others have been posing about the new rules). But the one thing I just can’t wrap my head around is how the FTC plans to enforce these rules against those speakers or media outlets who have print publications which are fully protected by the First Amendment.  So, I was pleased to see my favorite press critic Jack Shafer of Salon, ask the same question in his latest column on “The FTC’s Mad Power Grab”:

Because of a pesky thing called the First Amendment, the guidelines don’t apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don’t apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow’s blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.

Exactly.  Is the FTC just going to ignore such speakers or media organizations but enforce against everyone else?  Isn’t that just a bit silly and radically unfair?  Moreover, might such a policy end up incentivizing some folks to create token print publications to get around such the regulations?  I doubt it, but you never know.

Regardless, as Shafer notes, the rules are so hopelessly open-ended and arbitrary that they are bound to pose problems for whomever they are enforced against: Continue reading →

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Meetup.com: Tocqueville’s Democracy in (Digital) America

by on September 6, 2009 · 2 comments

Meetup.com founder Scott Heiferman explains how Meetup is all about “The Pursuit of Community” in the New York Times.

A Meetup is about the simple idea of using the Internet to get people off the Internet. People feel a need to commiserate or get together and talk about what’s important to them. Our biggest categories are moms, small business, health support and fitness. When we were designing the site, we were wrong about almost everything we thought people would want to use it for. I thought it would be a niche lifestyle venture, perhaps for fan clubs. I had no idea that people would form new types of P.T.A.’s, chambers of commerce or health support groups. And we weren’t thinking that anyone would want to meet about politics, but there are thousands of these Meetups. People have organized more than 200,000 monthly Meetups in more than 100 countries. There’s nothing more powerful than a community coming together around a purpose. We spend increasingly more time in front of screens. We’re more connected technologically, but we’re less connected physically.

Heiferman’s vision of technology bringing people together in pursuit of shared interests,passions and causes, from the political to the charitable to the trivial, would have delighted Alexis de Tocqueville, whose 1835 classic Democracy in America identified voluntary association as the unique genius of the American character.

Tocqueville concluded that representative democracy had flourished in America, rather than leading to murderous despotism as it had in Tocqueville’s revolutionary France, because, among other things, Americans built a rich civic society interposed between the atomized individual and the state. Rather than suppressing political associations as factions dangerous to the health of the state, Americans embraced political associations (parties and causes), which served as “large free schools, where all the members of the community go to learn the general theory of association.” Americans would apply that art in every other walk of life, from today’s AIDS Walks or PTA meetings to groups of rock climber enthusiasts: “The art of association then becomes… the mother of action, studied and applied by all.” Tocqueville concludes: Continue reading →

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Online Advertising: Privacy Zealot-Elitists v. Real Consumer Advocates

by on August 25, 2009 · 34 comments

Mediapost has published an interview I gave to Omar Tawakol, founder of the BlueKai registry entitled “User Empowerment, Not Regulation, Is The Answer to Privacy Concerns About Targeted Ads” in which I summarize the arguments Adam Thierer and I have been making since our “Principles to Guide the Debate” piece last September.

We argue for user empowerment over restrictive defaults (like “opt-in”) for data use and collection because, as the Supreme Court held in 2000: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.” We promote tools that let users make their own decisions about privacy, not only because those decisions are fundamentally subjective, but because regulatory mandates could stifle the development of online content and commerce.

I also note the parallels between speech controls and privacy regulation, and call for a consistent, principled approach to both:

Since 1997, the Supreme Court has struck down multiple legislative attempts to censor online and offline content [especially the CDA] because there were “less restrictive alternatives” that would not so heavily burden free speech rights. In a 2000 cable-related decision, the Court held that “targeted blocking [by users] is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.” Courts have struck down other federal and state speech controls because parents had the tools to filter their kids’ access to information online, in video games, etc., as described in my PFF colleague Adam Thierer’s ongoing catalog of these tools… Many who oppose industry self-regulation are not really “consumer advocates” because they don’t recognize that consumers have many, competing values. Those regulatory advocates are more interested in their preferred one-size-fits-all mandates than in empowering users to determine their own privacy preferences. Like advocates of censorship, privacy zealots assert great dangers to which citizens are supposedly oblivious but which urgently require government intervention-dismissing arguments to the contrary as either uninformed or irresponsible.

The comments on the interview are equally worth reading.  Jeff Chester, who has made a career out of attacking advertising, quickly posted a comment dismissing, but ignoring, my arguments about consumer welfare as corporate propaganda—just as he did with his comment on the post Adam and I wrote in June about congressional hearings on the issue featuring Chester (and Scott Cleland, the right-wing “Bizarro Chester“).  I’ve had it with Chester’s ad hominem attacks on the motives of those who disagree with him, as I explained in my reply to Chester: Continue reading →

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Transcript of 7/27 PFF Event on Child Safety, Privacy, and Free Speech

by on August 18, 2009 · 5 comments

On July 27th, The Progress & Freedom Foundation hosted a Capitol Hill panel discussion entitled “Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States.” The event featured remarks from:

  • Parry Aftab, Executive Director, WiredSafety.org
  • Todd Haiken, Senior Manager of Policy, Common Sense Media
  • Jim Halpert, Partner, DLA Piper
  • Berin Szoka, Senior Fellow, The Progress & Freedom Foundation

We’ve just released the transcript of the event, which I have also pasted down below the fold in a Scribd document reader. Also, the audio for this event can be heard by clicking below:

Download mp3

Here is the full event description: Continue reading →

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Cyber-Libertarianism: The Case for Real Internet Freedom

by on August 12, 2009 · 186 comments

libertyby Adam Thierer & Berin Szoka — (Ver. 1.0 — Summer 2009)

We are attempting to articulate the core principles of cyber-libertarianism to provide the public and policymakers with a better understanding of this alternative vision for ordering the affairs of cyberspace. We invite comments and suggestions regarding how we should refine and build-out this outline. We hope this outline serves as the foundation of a book we eventually want to pen defending what we regard as “Real Internet Freedom.” [Note:  Here’s a printer-friendly version, which we also have embedded down below as a Scribd document.]

I. What is Cyber-Libertarianism?

Cyber-libertarianism refers to the belief that individuals—acting in whatever capacity they choose (as citizens, consumers, companies, or collectives)—should be at liberty to pursue their own tastes and interests online.

Generally speaking, the cyber-libertarian’s motto is “Live & Let Live” and “Hands Off the Internet!”  The cyber-libertarian aims to minimize the scope of state coercion in solving social and economic problems and looks instead to voluntary solutions and mutual consent-based arrangements.

Cyber-libertarians believe true “Internet freedom” is freedom from state action; not freedom for the State to reorder our affairs to supposedly make certain people or groups better off or to improve some amorphous “public interest”—an all-to convenient facade behind which unaccountable elites can impose their will on the rest of us.

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A Bailout For The First Amendment?

by on August 12, 2009 · 21 comments

Dan Rather actually made the following two contradictory statements in the same speech:

I personally encourage the president to establish a White House commission on public media.

and then:

A truly free and independent press is the red beating heart of democracy and freedom.

He’s right that the free press is a “watchdog on power.” But that’s not compatible with the idea that, as reported, “the government makes an effort to ensure the survival of the free press.” A press funded, promoted, propped up, subsidized by government is not a free press. Nor is it in any position to be a watchdog; it’s more likely to become a megaphone for the states preferred ideas and expansion of government in other spheres, like health care, energy, finance, telecommunications, scientific research and policy and so on.

Democracy as a concept and political system is not at stake, as Rather thinks, when a particular business model engaged in public communications and broadcasting suffers at a particular point in history. It’s been beaten to death, but everyone knows the transformative importance of the Internet and its role in making voices heard that never had a chance when Rather and his two rival channels dominated the news and airwaves for 30 minutes each evening.

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