[NOTE: The following is a template for how to script congressional testimony when invited to speak about online safety issues.]

Mr. Chairman and members of the Committee, thank you inviting me here today to testify about the most important issue to me and everyone in this room: Our children.

There is nothing I care more about than the future of our children. Like Whitney Houston, “I believe the children are our future.”

Mr. Chairman, I remember with fondness the day my little Johnny and Jannie came into this world. They were my little miracles. Gifts from God, I say. At the moment of birth, my wife… oh, well, I could tell you all about it someday but suffice it to say it was a beautiful scene, with the exception of all the amniotic fluid and blood everywhere. I wept for days.

Today my kids are (mention ages of each) and they are the cutest little angels on God’s green Earth. (NOTE: At this point it would be useful for you to hold up a picture of your kids, preferably with them cuddling with cute stuffed animals, a kitten, or petting a pony as in the example below. Alternatively, use a picture taken at a major attraction located in the Chairman’s congressional district.)

So, let me be clear: I love my children. And I will do anything to keep them safe. I hope you will, too.

That’s why I am here today to testify in favor of H.R. 1776, “The Keep our Innocent Darlings Safe Act.” The “KIDS SAFE” bill is essential if we love our children and care about their future. It would take sensible steps to shield them from the many evils of the world around us, especially the dangerous villains who haunt the Internets.

Let me tell you about those evils fiends.

Predators are everywhere, I tell you.  At any given second, their hands could reach right through the computer screen and abduct our kids. It could happen, I tell you.  But we mustn’t allow it if we love our children. That’s why we ask you to support “CyberCop,” or proposal to have trained law enforcement officers who visit everyone’s home once a year just to see how everyone is doing and to warn the kiddies about the dangers of the Net.

Then there’s all the smut and nasty talk online.  Who’s going to help me clean it up? If we love our children, we must. That’s why I hope you’ll support our new software tool, “CyberScrubber,” which will sanitize the Net and make it safe for our children.  We’d like to see all ISPs forced to install this software once you’ve mandated our solution as the law of the land. We can make them a very generous deal for bulk installments.

And let’s not forget about the vilest wretches of them all: Advertisers! These nefarious scum are trying to do the unthinkable: Convince our kids to buy their products. We all know what happens next. Little Johnny and Jannie will put a gun to Mom and Dad’s head and force them to drive right to the store to buy whatever it is their innocent little eyes have seen online. There’s no stopping them once the commercial devil has corrupted their souls, I tell you! Thus, we propose a ban on online ads and jail time for any online company who tries to produce free websites that are powered by commercial messages.

Sure, some will say all this is a matter of personal and parental responsibility, but… (NOTE: At this point it is important to deflect any thought in the minds of the Committee that parental responsibility has a role to play here. Find a crafty way of telling the Committee that, in essence, parents are naïve dopes who don’t really know how to raise their own children or what’s in their best interest. Sure this contradicts your overall message that everybody loves and cares about their own kids, but remember: YOU care about them even more!)

I propose we give parents a helping hand. They can’t do it alone. Uncle Sam needs to sitting right beside them for the ride.

That’s why I favor the proposal in the KIDS SAFE Act to create a new federal Office of Humanity, Child Love, & Adolescent Protection (OH-CLAP).

OH-CLAP should be generously funded and fully staffed with trained child development experts and others like me who profess a profound passion for loving children. By spending billions of taxpayer dollars and regulating all online speech and commerce, we can prove to the world how much more we Americans love our children.

I beg you to not listen to those nattering nabobs of negativism who raise pesky questions about technical implementation, constitutional limitations, or fiscal constraints. Clearly, these people just don’t love the children.

Intentions are all that matter here. Neither our Constitution nor technical feasibility should stand in the way of us doing all in our power to protect the fragile, impressionable minds of our children.

In closing, let me again reiterate — as I have the previous four dozen times you have invited me here to testify — the importance of fully funding groups like mine that truly care about the children. Thanks to the tireless work and dedication of Congressmen ____ and ___, my organization was able to secure another $90 million grant through an earmark in the latest Department of Defense authorization bill.

While we greatly appreciate this support, this is $10 million less than the $100 million we asked for as part of our “100 Million Ways to Love the Little Lads” crusade last year. Stated differently, children will feel $10 million dollars less loved this year because of this scandalous funding shortfall.

So, if this Congress really loves the children, we’d ask that you step up your support for us, and groups like ours—but mostly us—so that we can adequately protect our kids from various online evils. (NOTE: Consider mentioning predators again to close things out.)

For the sake of the children, the time to act is now!

Thank you, and God Bless the Children.

Attachment: Invitation to annual “Kids Love Fest” celebration where we will honor the latest “Loving Lawmaker of the Year” award winners.

[Fellow members of the Society for the Prevention of Vice, I urge you to take immediate action to continue our crusade to clean up America’s media marketplace by ridding it of the scourge of media hyper-violence.  A clip has come to our attention that merits particular concern and I hope you will agree something must be done by our government before such filth gets widespread dissemination. So, please join me in signing this petition to the FCC to take action now—for the children—before such unspeakable acts of violence are mimicked by millions of youth across America.]

TO: Julius Genachowski, Chairman, Federal Communications Commission

FROM: Adam Thierer, President, Society for the Prevention of Vice (formerly known as the Society for Soft Pillow Fights)

RE:  Another example of unspeakable media violence that must be stopped

Dear Chairman Genachowski:

A video has come to our attention that displays, once again, the media industry’s utter disregard for human decency and the dignity of life, and we hope you will agree something must be done to stop its dissemination before it is too late.  In this video:

• A man’s nose is seemingly twisted off his face (as he screams in agony) and then his face is forced onto a grinding machine while sparks fly off his burning flesh (he again screams in agony);
• A shoe with an extended spike is inserted into a man’s head and then his eyeball and then his ear lobe (he screams in agony each time);
• The man who was impaled with said shoe spike then bites the offender’s foot (he, too, screams in agony);
• A blow-torch is used to light a man’s buttocks afire (he screams in agony);
• A man climbs a pole, plays with live electrical wires, is then is electrocuted after chewing on said wires, and then falls to the ground still shaking from the voltage running through his body (he screams in agony);
• A wrench is dropped on a man’s head (he screams in agony) and he then uses said wrench to hit another man over the head and violently twist his nose with it (he screams in agony); and
• Finally, the electrocuted man has a light bulb inserted into one ear and a screwdriver into the other (he screams in agony and then, bizarrely, he laughs to end the clip — as if he is mocking the depravity of what we have just witnessed!)

I have attached a clip of this unspeakably evil carnival of pain, but I warn you that it could forever darken your soul. Can you imagine, sir, if earlier generations of American youth had seen this? Could America have produced “The Greatest Generation” if the youth of the World War II era had grown up watching such filth?  We now know from several psychological studies that children will mimic whatever they see on the screen. If they see such depictions of violence in media, they will reenact it themselves in the real world. In other words, “monkey see-monkey do.”  Please, on behalf of all those signing this petition, and for the sake of our children, I beg you to help us put a stop to this moral outrage before our great civilization decays and withers away in a sea of media hyper-violence such as this: 

http://www.youtube.com/v/jocRd-aajW0?fs=1&hl=en_US

National Freedom of Speech Week is here again. As I point out each time it comes around, it’s good opportunity for those of us in America to remember how lucky we are to live in a country that respects freedom of the press, speech, and assembly. In my essay commemorating the first Freedom of Speech Week, I explained why I felt this way:

what speech critics consistently fail to appreciate is that in a free society different people will have different values and tolerance levels when it comes to speech and media content. It would be a grave mistake, therefore, for government to impose the will of some on all. To protect the First Amendment and our heritage of freedom of speech and expression from government encroachment, editorial discretion over content should always remain housed in private, not public, hands. However, there will always be those who respond by arguing that speech regulation is important because “it’s for the children.” […] Personally, I think the most important thing I can do for my children is to preserve our nation’s free speech heritage and fight for their rights to enjoy the full benefits of the First Amendment when they become adults. Until then, I will focus on raising my children as best I can. And if because of the existence of the First Amendment they see or hear things I find troubling, offensive or rude, I will sit down with them and talk to them in the most open, understanding and loving fashion I can about the realities of the world around them. I would hope that the critics of the First Amendment would do the same instead of seeking to undercut our nation’s rich history of freedom of speech and expression. It is one of our Founders’ enduring gifts to future generations and a precious freedom worth fighting for.

Happy Freedom of Speech Week everyone.

Catherine Holahan of Business Week points out that consumer and children’s advocacy groups are looking to expand their efforts to regulate fatty and sugary food advertising in the name of “protecting the children”:

Having successfully lobbied the government to place limits on junk food ads on TV, they now target marketing to kids via the Web. “While there are some rules for TV, there are no rules when you move online,” says Patti Miller, vice-president of children’s advocacy group Children Now and a member of the Federal Communications Commission’s Task Force on Media & Childhood Obesity. “We don’t want to reduce junk food advertising to kids [on TV] and then find that it has just moved to another platform.”

And so another classic case study in regulatory creep is born and the Net gets a little more regulated in the process as Uncle Sam becomes our Super Nanny. What’s that you say? Parents should take more responsibility for what their kids watch and eat? Silly you. Don’t you know that it takes a village to raise a village idiot? Or something like that.

Along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology, I have just submitted an amicus brief to the Supreme Court in the potentially historic free speech case FCC v. Fox, which will be heard in November.

[Reminder: The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit’s decision here.]

The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it’s long-standing policy of restraint regarding “fleeting expletives.” That’s essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won’t know for sure until the case is handed down.

Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that “the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, ‘is entitled to the highest protection from government intrusion’ and that there is no longer a factual ‘basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.'” Citing Reno v. ACLU, 521 U.S. at 863, 870.”

A more detailed summary of our argument follows below. Our brief contends that the “pervasiveness rationale,” which is the basis of the FCC’s authority to regulate broadcast programming, is being challenged by technological convergence, the proliferation of new media platforms, and the widespread availability of parental control technologies. Video content available over broadcast television is available over a variety of other platforms, such as the Internet and mobile devices, and an increasing number of households subscribe to satellite or cable video services. “With broadcast television being just one of the myriad of ways that people can access lawful content (including indecent content), it no longer makes sense from a constitutional or policy perspective to give broadcast speech less First Amendment protection,” we argue.

Parental controls, such as the V-Chip and set-top box controls, allow parents to block content they deem offensive or inappropriate. Better yet, the rise of VCRs, DVD recorders, video on demand, and digital video recorders means that parents can tailor media consumption to their specific needs and values. Those tools are widely available and provide a less restrictive alternative to government regulation. As a result, the FCC can no longer justify broadcast television content censorship on “pervasiveness” grounds. [I have written much more about that point here, here and here.]

Our joint brief also states that complaint data the FCC cites as justification for the expansion of indecency enforcement, has been inflated through accounting changes. These changes in the way the complaints are counted, which were only instituted for indecency complaints, are in violation of the APA. These complaints, mostly generated by a single advocacy group, cannot be a substitute for an analysis of “community standards” and essentially represent a “heckler’s veto” that violates the First Amendment rights of other viewers.

The brief also cites the Commission’s inconsistent analysis of what it deems “indecent” as a violation of both the First Amendment rights of broadcasters and the APA. The inconsistency in what the FCC finds as indecent has a chilling effect on the free expression of content providers and provides inadequate guidance to broadcasters, which is required under FCC statutes.

The CDT-PFF brief can be found online here and I have also embedded the document below via the Scribd reader. [And those interested in this case might also be interested my recent law review article: “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”]

Incidentally, other briefs that have been filed in the matter can be found here. And, last month, I wrote about how personally troubled I was about the lack of support from liberals who have already filed in this case. See: “Liberals Abandoning the First Amendment, Part 3: The Fox Case.”