The video game industry’s string of unbroken First Amendment court victories continued this week with a win in the case of Video Software Dealers Association v. Schwarzenegger. [Decision here.] In this case, the VSDA and the Entertainment Software Association brought a suit seeking a permanent injunction against a California law passed in October 2005 (A.B.1179), which would have blocked the sale of violent video games to those under 18. Offending retailers could have been fined for failure to comply with the law.
The court’s decision overturning the law was written by Judge Ronald Whyte and it echoed what every previous decision on this front has held, namely:
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As Braden mentioned, we were both down in Raleigh, North Carolina this week testifying at a big hearing on mandatory age verification for social networking sites.
It was quite a heated battle. The legislation, SB 132, was supported at the hearing by North Carolina attorney general Roy Cooper, several of his staff attorneys, a couple of NC senate lawmakers, and some folks from Aristotle, a company that claims it has devised a workable age verification solution for social networking purposes. A vote on the proposal was delayed and we’re still awaiting the final outcome.
Down below, I have attached the outline of my remarks in which I argued that age verification mandates would actually make kids
less safe online. Here’s why:
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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.”
http://documents.scribd.com/ScribdViewer.swf?document_id=2887127&access_key=key-17dpa2kpdbyetd67b4f5&page=&version=1&auto_size=true
Well, I know I’m starting to sound like a broken record on this point, but it never ceases to amaze me how some policymakers get away with speaking so poorly of parents during policy debates about media content. First, you will recall that, in late April, the Federal Communications Commission released a report calling for the regulation of violent video content on the grounds that parental control tools and efforts were ineffective. (For details, see my essay: “FCC Violence Report Concludes that Parenting Doesn’t Work.”) Then, just last week, at a House Commerce hearing on “The Images Kids See on the Screen,” Rep. Ed Markey and several other members of the committee argued that parents just couldn’t cope with modern media and that government needed to step in on their behalf. But nothing could top the performance of Sen. John Rockefeller at today’s Senate Commerce Committee hearing on “The Impact of Media Violence on Children.”
Sen. Rockefeller opened the hearing with a verbal tirade “repeatedly bashing TV and its executives as though they were Dan Aykroyd’s Irwin Mainway SNL character out to sell bags-o-glass to unsuspecting kids,” as John Eggerton of Broadcasting & Cable noted. Sen. Rockefeller, who is planning to soon introduce legislation to regulate “excessively violent” television programming, said that the industry is being “cowardly” and “debasing our culture” in a “never-ending race to the bottom.”
Rockefeller went on to say that the industry was “blaming parents” for not dealing with the problem of objectionable content with private controls and methods instead of censoring content themselves before it ever got on air. “Parents do not want more tools,” he argued, “they want the content off the air.” Of course, that point is debatable as I’ll discuss more below.
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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.
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With the release last month of its report on Violent Television Programming and Its Impact on Children, the FCC teed up the issue of regulating televised violence and tossed it over to Congress with a recommendation that lawmakers go ahead and swing for the fences. And Congress appears ready to oblige, although not necessarily in the way some at the FCC had originally envisioned.
You will recall that FCC Chairman Kevin Martin used the FCC’s violence report as another opportunity to engage in his monomaniacal, Moby Dick-like quest to impose a la carte regulation on cable and satellite operators. Martin argued that “Requiring cable and satellite television providers to offer programming in a more a la carte manner would be a more content neutral means for Congress to regulate violent programming and therefore would raise fewer constitutional issues.” But it doesn’t appear that the chairman is going to get his whale this time around.
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Legislation is expected to be introduced in Congress very soon that would regulate television programming deemed to be “excessively violent.” This follows the release of the FCC’s recent report calling on Congress to act and to give the agency the power to regulate such programming on broadcast television and potentially even cable and satellite TV.
In response to these proposals, I wanted to draw your attention to an event that I will be hosting this week as well as a new study (and a few old ones) that PFF has published on this issue:
(1) EVENT THIS FRIDAY: PFF will be hosting a congressional seminar this Friday, May 18 from Noon-1:30 on “The Complexities of Regulating TV Violence.” The event will take place in Rayburn House Office Building , Room B354. Panelists will include:
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Henry Geller, Former General Counsel, Federal Communications Commission
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Robin Bronk, Executive Director, The Creative Coalition
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Robert Corn-Revere, Partner, Davis Wright Tremaine LLP
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Jonathan L. Freedman, Professor of Psychology, University of Toronto and Author, Media Violence and its Effect on Aggression
If you are interested in attending this free seminar, please RSVP here: http://www.pff.org/events/upcomingevents/051807complexitytvviolence.asp
(2) NEW STUDY: PFF has just released a new study, “The Right Way to Regulate Violent TV,” which outlines the many ways parents have to deal with potentially objectionable media content, including violent programming. The 23-page study highlights the many technical and non-technical parental control tools and methods that families can use to tailor video programming to their own needs and values. In the report, I argue that:
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In late March, I hosted a congressional seminar entitled “Age Verification for Social Networking Sites: Is It Possible? And Desirable?” I brought together 5 experts in the field to debate the issue, including:
- John Cardillo, President & CEO, Sentinel
- Jay Chaudhuri, Special Counsel to North Carolina Attorney General Roy Cooper
- Raye Croghan, Vice President, IDology, Inc.
- Tim Lordan, Executive Director, Internet Education Foundation
- Jeff Schmidt, CEO, Authis
It was an outstanding discussion and I’m happy to report that the transcript is now available online here. Also, you can listen to the audio from the event here. Also, you can find the big study of mine that we discussed that day here.
http://documents.scribd.com/ScribdViewer.swf?document_id=2887394&access_key=key-18jii1mp0o9wovvaijjs&page=&version=1&auto_size=true
Jennifer Medina of the New York Times penned an article yesterday on the debate over social networking fears leading to calls for age verification mandates. She noted that measures are moving in several states that would require social networking sites to age-verify users before they are allowed to visit the sites or create profiles there. But Medina also noted that there are many difficult questions about how age verification would work and how “social networking” would even be defined. (I summarize these questions in my recent PFF report, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions.”)
Ms. Medina was also kind enough to interview me for the story and she summarizes some of what I had to say in her piece. In a nutshell, I stressed that the most effective way to deal with this problem is to get serious about dealing with sex offenders instead of trying to regulate law-abiding citizens. We need to be locking up convicted sex offenders for a lot longer in this country to make sure they behind bars instead of behind keyboards seeking to prey on our children.
I also stressed the importance of online safety education as part of the strategy here. But my comments on that didn’t make the cut in the story. But you can read my big recent paper on this issue for additional details.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.