I have an editorial appearing on CNet News today about “New Mexico’s video game nanny tax.” Quick background: The New Mexico legislature has introduced a new tax measure that would force consumers to pay a 1 percent excise tax on purchases of video games, gaming consoles, and TVs. The revenue generated from the game and TV tax would be used to fund a new state educational effort aimed at getting kids out of the house more. True to the aim of the measure, they have even given the bill the creative title, “The Leave No Child Inside Act.” In my editorial, I argue that:
legislators shouldn’t be using the tax code to play the role of nanny for our kids. It is the responsibility and right of parents to determine how their kids are raised. Many of us would agree that more outdoor time is a laudable goal. But should the government be using the tax code to accomplish that objective?
I point out that the proposal raises serious fairness questions that makes a constitutional challenge likely since older court cases dealing with other media have also made it clear that public-policy makers are forbidden from using the power to tax in an effort to discriminate against speech or expression that they disfavor. Moreover, on the fairness point:
Why just blame video games for kids not getting enough time outdoors? How about a tax on social-networking Web sites or instant messaging? Many kids are spending almost as much time online right now as they do playing video games. And what about other types of non-digital games that might keep kids indoors? My daughter spends a lot of time playing Sudoku puzzles, for example. Perhaps we should tax Sudoku books, chess boards, and even arts and crafts! After all, the goal here is to do whatever it takes to get kids outside, right? Or is it really just to get kids to stop playing video games?
Read the entire piece here if you are interested.
In case you didn’t catch it the debate last night, Sen. Obama had some very encouraging things to say when asked about the role of government when it comes to media content. “[T]he primary responsibility is for parents,” Obama said. “And I reject the notion of censorship as an approach to dealing with this problem.” He then stressed the importance of making sure that parents have the tools to make these determinations for their families (something I’ve spent a lot of time stressing in my work):
“[I]t is important for us to make sure that we are giving parents the tools that they need in order to monitor what their children are watching. And, obviously, the problem we have now is not just what’s coming over the airwaves, but what’s coming over the Internet. And so for us to develop technologies and tools and invest in those technologies and tools, to make sure that we are, in fact, giving parents power — empowering parents I think is important.”
Good for him. That’s the exactly the right position, and one that his opponent Mrs. Clinton would be wise to adopt. After all, she’s had some rather misguided views on these issues through the years.
Here’s the transcript if you care to read more.
The USA Today editorial board published a nasty piece today belittling MySpace.com’s recent efforts to implement more safeguards for its users. Despite the fact that MySpace made over 70 promises to the Attorneys General as part of the agreement–the entire agreement is summarized here–that’s still not good enough for the USA Today’s editorial board, which wants full-blown identity verification before anyone is allowed on a social networking site:
“Even in the absence of a perfect software solution, interim steps are possible. How about using databases of drivers’ licenses to cross-check ages? In more than 20 states, they are public records. The point is, more effective safeguards are needed now, …. MySpace [should be] moving faster to set up age and ID verifications, not just study them.”
Well, where do I begin? I get so frustrated when I see comments like this because it is abundantly clear to me that people don’t think things through when it comes to age verification. As I pointed out in my lengthy PFF report, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,” age verification is extremely complicated, and it would be even more complicated in this case because public officials are demanding the age verification of minors as well as adults, which presents a wide array of special challenges and concerns.
What Age Verification Really Is: The Death of Online Anonymity
We need to begin by understanding what age verification really is. By definition, mandatory age verification represents an effort to make online anonymity a crime. In simple terms, citizens would be forced to “show their papers” at the door of every website or else run the risk of being denied access–simply because they do not want to surrender their name or age.
Think about what that means. It’s easy to take the benefits of online anonymity for granted. There are millions of people who comment anonymously on blogs like this one every day, or write anonymous book or product reviews on Amazon.com or eBay, or who just chat with others about various topics under the cloak of anonymity. It is a wonderful thing.
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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.
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This morning in New York City, social networking website operator MySpace.com announced a major joint effort with 49 state Attorneys General aimed at better protecting children online. (Coverage at CNet, NYT and Forbes). At a joint press conference, MySpace and the AGs unveiled a “Joint Statement on Key Principles of Social Networking Safety” involving expanded online safety tools, improved education efforts, and law enforcement cooperation. They also agreed to create an industry-wide Internet Safety Technical Task Force to study online safety tools, including a review of online identity authentication technology.
Generally speaking, the agreement is step forward for online safety. Indeed, many of the principles in the agreement could form a potential model “code of conduct” that other social networking sites could adopt. In a report I authored for the Progress & Freedom Foundation in August 2006, I argued that it was vital for companies and trade associations to take steps such as this to avoid the specter of government regulation or censorship:
All companies doing business online… must show policymakers and the general public that they are serious about addressing [online safety] concerns. If companies and trade associations do not step up to the plate and meet this challenge soon—and in a collective fashion—calls will only grow louder for increased government regulation of online speech and activities. What is needed is a voluntary code of conduct for companies doing business online. This code of conduct, or set of industry “best practices,” would be based on a straight-forward set of principles and policies that could be universally adopted by [a] wide variety of operators…
In particular, this code of conduct proposal called for companies to make specific pledges regarding improved online safety tools, expanded education / media literacy efforts, and ongoing assistance to law enforcement regarding investigations of online crimes.
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One of the things I find most interesting about calls to regulate “excessively violent” content on television, in movies, or in video games is the way critics make massive leaps of logic and draw outrageous conclusions based on myopic, anecdotal reasoning. I was reminded of that again today when reading through an interview with Sen. Jay Rockefeller (D-W.Va), one of the most vociferous critics of all sorts of media content and a long-time proponent of regulation to censor such violent content in particular (however it is defined). (I have written about his past regulatory proposals here and here).
Here’s what he recently told the editorial board of The Register-Herald of West Virginia:
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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.
Seth Schiesel of the New York Times seems to be channeling me in his piece yesterday entitled, “Courts Block Laws on Video Game Violence.”
As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed. Citing the Constitution’s protection of free speech, federal judges have rejected attempts to regulate video games in eight cities and states since 2001. The judge in a ninth place, Oklahoma, has temporarily blocked a law pending a final decision. No such laws have been upheld.
I’ve been doing a lot of writing on this subject in recent years and have pointed out that every single court that has reviewed the constitutionality of video game regulation has concluded that:
(1) Video games are a form of expression protected by the First Amendment.
(2) Not a single court in America has supported the theory that a causal link exists between exposure to video games and real-world acts of actual violence.
(3) Parents have many less-restrictive means of dealing with underage access to potentially objectionable games—such as the industry’s private rating and labeling system, third-party ratings and info, console-based controls, and the fact that they don’t have to buy the games in the first place! [See my paper and book for more details on all these things.]
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