[Cross posted from Huffington Post]

Does the First Amendment allow the FCC to censor “indecent” content like the occasional curse word or a brief glimpse of a bare butt on broadcast TV? The Supreme Court hears arguments on this question Tuesday in FCC v. Fox—the first time in more than 30 years the Court will squarely confront this constitutional question. The case stems from the use of “fleeting” expletives by Nicole Richie and Cher at the Billboard Music Awards Show nearly a decade ago, which prompted a draconian crackdown on broadcasters by the Bush FCC in 2004.

Our five organizations—which differ widely on many issues—have filed a joint amicus brief urging the Court to recognize that the Constitution demands an end to FCC censorship of television, given the fundamental transformation of the media landscape. In its 1978 FCC v. Pacifica decision, the Court gave broadcasting less protection than other media (like newspapers) because it was both “pervasive” in American culture and “invasive”—an “intruder” in the home from which parents were powerless to protect their children. But that rationale long ago disintegrated.

When a federal appellate court struck down the FCC’s indecency rules last year, it hit the nail on the head: “we face a media landscape that would have been almost unrecognizable in 1978.” Back then, nearly all Americans relied on broadcasting to deliver a limited range of video media to their homes. Today, only 8 to 15% percent of American households rely on over-the-air broadcasting, with the majority subscribing to cable or satellite service. More and more Americans are getting video content online from Netflix, Hulu, YouTube, and countless other sites. These services are not “intruders” in the home, but invited guests.

More importantly, a wide range of tools empower parents to decide what broadcast content their children can access. Since 2000, every television larger than 13 inches has come with the V-Chip. This free technology empowers parents to block content based on ratings that include age-based designations as well as several specific content descriptors (coarse language, sex, violence, etc.). A wide variety of other tools have empowered parents, such as DVD players, digital video recorders and video-on-demand services, which allow parents to build, and even pre-screen, libraries of preferred programming for their children. Similar tools are available for cable content, video games, movies, and the Internet.

Today’s world of converged, customizable video media would have seemed like science fiction to the Pacifica court 31 years ago. But it is precisely the kind of world the Supreme Court contemplated in a 2000 opinion, boldly declaring: “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.”

The last decade has vindicated this vision, with parental empowerment tools flourishing even as the media landscape changed dramatically. In a dynamic world, technological tools and parental control methods need not be perfect to be preferable to government regulation.

The Supreme Court has already decided as much for cable television: in 2000, the Court struck down a law that had caused cable operators to restrict adult content on subscription channels to between the hours of 10pm and 6am. While operators scrambled these channels for non-subscribers, Congress worried that children might still be able to see or hear something on these channels during the day. But the Court insisted that total preemption of adult content was excessive, because concerned parents could request targeted blocking of the adult channels:

“[I]t is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.”

That’s precisely the right standard for the digital “revolution.” Anything less will allow the continuation of censorship of a bygone era—and help to validate censorship in countries like China, which is often justified as protecting children. We urge the Supreme Court to affirm that this standard applies just as much to broadcasting as to the Internet or newspapers. That means striking down Pacifica’s double-standard.

Invalidating the FCC’s indecency rules doesn’t mean government can do nothing. It can still assist in improving parental controls, promote awareness of existing tools and methods, and punish companies that fail to live up to their voluntary content labels. But our Constitution requires that government focus on helping parents—rather than choosing for them.

Berin Szoka is President of TechFreedom. Ilya Shapiro is Senior Fellow in Constitutional Studies at the Cato Institute. Emma Llanso is a Policy Counsel at the Center for Democracy & Technology. Lee Tien is a Senior Staff Attorney at the Electronic Frontier Foundation. John Bergmayer is a Senior Staff Attorney at Public Knowledge. All five organizations are public interest non-profits with a focus in technology policy.

Today is the 33rd anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. By a narrow 5-4 vote in this 1978 decision, the Court held that the FCC could impose fines on radio and TV broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.

Back in 2008, when Pacifica turned 30, I penned a 6-part series critiquing the decision and discussing its impact on First Amendment jurisprudence:

• Part 1:  General overview.
• Part 2: A short history of FCC indecency regulation.
• Part 3: The misguided logic of the Court’s reasoning in Pacifica.
• Part 4: How that logic of Pacifica is even more misguided in light of modern developments.
• Part 5: A joint editorial on the issue I co-authored with John Morris of Center for Democracy & Technology.
• Part 6: Wrap-up and further reading.

In addition to those essays, I brought all my thinking together on this issue in a 2007 law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”  Importantly, this could be the last year we “celebrate” a Pacifica anniversary. Earlier this week, on the same day it handed down a historical video game free speech win, the Supreme Court announced that next term it will examine the constitutionality of FCC efforts to regulate “indecent” speech on broadcast TV and radio. Here’s hoping the Supreme Court takes the sensible step of undoing the unjust regulatory mess they created with Pacifica 33 years ago. Speech is speech is speech. Lawmakers should not be regulating it differently just because it’s on TV or radio instead of cable TV, satellite radio or TV, physical media, or the Internet.

Of course, there will always be those who respond by arguing that speech regulation is important because “it’s for the children.” But raising children, and determining what they watch or listen to, is a quintessential parental responsibility. 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, then 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.  But I don’t want anyone else doing that job for me.

Meanwhile, I leave you with The Man himself, George Carlin, the greatest linguistic comic who ever did walk this Earth. I miss George.

As part of its excellent “Room for Debate” series, the New York Times has an interesting new online symposium up now asking, “Will Networks Go Wild, With No Decency Rules?”  It was in response to last week’s Second Circuit decision, which again slapped down an effort by the Federal Communications Commission to defend the agency’s indecency enforcement regime.  I was honored to be asked to contribute a short essay on the subject. Here are the other contributors and their essays.  Take the time to check them out:

• “The F.C.C.’s Policy Was a Mistake” – Michael K. Powell, a former chairman of the Federal Communications Commission
• “Where Is the Line?” – Christopher Rosen, television writer
• “Help Kids and Families” – Liz Perle, editor in chief at Common Sense Media
• “A Bad Idea From the Start” – Robert Thompson, Syracuse University
• “Put Parents in Control” – Adam Thierer, president, The Progress & Freedom Foundation
• “It’s the Violence!” – Kevin W. Saunders, professor of law, Michigan State University

I was particularly interested in former FCC’s Chairman Michael Powell’s admission that “The [FCC’s] fleeting expletive policy was a mistake,” and that “the real problem is the now-flawed constitutional foundation on which the law is built.” Powell goes on to argue that, “We cannot have one First Amendment for broadcasting and another one for every other medium. This vestige of a bygone era provides fertile ground for mischief — culture wars, political agenda and moral mandates. It’s high time for the high court to bring our laws into the 21st century.”

I wholeheartedly agree, and I wrote a lengthy law review article on just that topic back in 2007 entitled,“ Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” If you find it too boring, just watch this video I made summarizing the key points, which I called “America’s First Amendment Twilight Zone.”

The Second Circuit just threw out the FCC’s broadcast indecency rules—which had led to heavy fines for “fleeting expletives”—as “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” What’s ultimately most important about this decision is not what the court did, but what it said: The Constitutional framework that has allowed broadcast censorship has been rendered obsolete by the rise of the Internet and parental empowerment tools for new and old media.

In short, the court utterly rejected the Supreme Court’s 1978 Pacifica decision —which gave the FCC great discretion in regulating indecency on broadcast radio and television in order to protect children who might be in the audience during daytime and early evening hours, citing the unique “pervasiveness” and “invasiveness” of broadcasting into the home.  The court fully embraced what we’ve been saying for years—neither rationale holds true anymore:

we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in thelives of all Americans.” The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast….  The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs…. Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. (15-16)

Thus, the Second Circuit all but begged the Supreme Court to throw out Pacifica completely, but quickly noted that it is “bound by Supreme Court precedent, regardless of whether it reflects today’s realities” (17). Fortunately, the court was able to reach the same result on vagueness grounds. It’s worth reading this key passage to see what a consistent approach to the First Amendment would look like:

Every television, 13 inches or larger, sold in the UnitedStates since January 2000 contains a V-chip, which allows parents to block programs based on a standardized rating system. 47 U.S.C. § 303(x). Moreover, since June 11, 2009, when theUnited States made the transition to digital television, anyone using a digital converter box alsohas access to a V-chip. CSVA Report, 24 F.C.C. Rcd. 11413, at ¶ 11. In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. Infact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television andbroadcast media drawn by the Supreme Court in [its 2000 decision striking down cable filtering mandates, U.S. v. Playboy]. The Court explained:

The option to block reduces the likelihood, so concerning to the Court in Pacifica,that traditional First Amendment scrutiny would deprive the Government of allauthority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affectingthe First Amendment interests of speakers and willing listeners – listeners forwhom, if the speech is unpopular or indecent, the privacy of their own homes maybe the optimal place of receipt.

Playboy, 529 U.S. at 815 (internal citation omitted). We can think of no reason why thisrationale for applying strict scrutiny in the case of cable television would not apply with equalforce to broadcast television in light of the V-chip technology that is now available. (16-17).

Amen!

It’s pretty remarkable for a court to come out so strong against a longstanding precedent when they can resolve a case without doing so. Indeed, courts generally follow a strict canon of interpretation that says they should skip right to simpler issues that can resolve a case—vagueness, in this case. The fact that the Second Circuit felt it necessary to spend nearly three pages debunking Pacifica is the clearest statement yet that it’s time for us to apply the First Amendment consistently across all media.

I only hope the FCC is brash enough to appeal (knowing it might well lose the farm, to to speak), and that the Supreme Court is brave and principled enough to say what the Second Circuit has said so beautifully: There’s no justification for treating broadcasters as second class speakers. The First Amendment should apply equally across media!

Glen Robinson, my favorite professor back at Virginia Law, will be giving a lecture about “Regulating Communications: Stories from the First Hundred Years” at George Mason Law School this Thursday (2/18) at 4 pm. You simply couldn’t find a better person to give that talk. Robinson isn’t quite old enough to first-hand stories all the way back to the birth of the Federal Radio Commission in 1926 and the FCC in 1934, but he started practicing communications law back in 1961, was an FCC Commissioner 1974-76, and has taught at UVA since 1976 (until finally retiring in 2008).

Reading about his long career is a bit like watching the British comedy series Black Adder: Somehow, like Rowan Atkinson’s character Black Adder, Robinson keeps popping up again and again at pivotal moments in communications law history—most notably, he worked to draft early anti-cable rules in the 1960s and voted for the FCC’s indecency prosecution against George Carlin’s “Filthy Words” monologue. But unlike Black Adder, who always happens to be at the right place at the right time, make the wrong decisions and foolishly learns nothing, Robinson sometimes made the wrong decision, but demonstrated that rare ability to rethink his approach and admit he was wrong—an intellectual honesty most famously exemplified by FA Hayek. Robinson grew to become among the most trenchant, and certainly the most sage, critic of the FCC’s constant evolution towards censorship and curtailing competition in the communications industry. His general skepticism about administrative regulation is perhaps the most thoughtful and refined you’ll find in academe—and not just in communications law. 

I was extraordinarily lucky to have had both Robinson and Tim Wu (as well as first amendment expert Dan Ortiz) for Internet Law back in 2002. Wu has since achieved a special “rock star” status comparable in cyberlaw only to Larry Lessig and Jonathan Zittrain, but Robinson stands as their equal in every measure—and without peer in his gentility and eagerness to engage with students. I could gush all day about the man who, along with Wu, set me down the path to running PFF’s Center for Internet Freedom and dedicating my life to technology policy, but instead, I’ll just encourage you to come enjoy sitting at the feet of the Master—and one of the best-loved. best-respected and most prolific professors at UVa. As the UVa Dean once put it when introducing Robinson, “You are who we want to be when we grow up.” Me, too!

The lecture is February 18, 2010, 4 p.m., Room 120, George Mason University School of Law, 3301 Fairfax Drive, Arlington, Va. Don’t forget to RSVP (iep.gmu@gmail.com)! He’ll be discussing:

three stories to illustrate salient features of FCC regulation: (1) a story about the construction of regulatory paradigms, specifically the natural monopoly model, (2) a story of regulatory parthenogenesis, or the FCC’s self-defining qualities, and (3) a story about the symbols that drive or distort regulation, particularly in spectrum allocation policy.

There’s a reception afterwards. You can join me in line afterwards to get “The Big Dog” (Robinson’s occasional nickname, referring to the more popular basketball player of the same name) to autograph copies of the amicus briefs he wrote back in 2006 in the CBS and Fox Television cases arguing that the Appeals Court should recognize that the Pacifica precedent behind indecency enforcement violated the First Amendment. (Think I’m kidding about the autograph?)

You’ll find this event and other upcoming technology policy events in our new TLF Google Calendar. Click on the event to add it to your own calendar (in Outlook or Google) or just add the calendar to your Google Calendars so you can display it as an overlay on your calendars when you want to.

Oh my.  So today, as part of its ongoing effort to look like the hip new regulatory agency on the block, the Federal Communications Commission decided to launch a MySpace page.    Really. Big. Mistake.

I mean, shouldn’t someone over there have known it would take about 2 milliseconds for various cranks to launch into profanity-laced rants that would make George Carlin blush? Sure enough, the page is already littered with some of the most colorful language you’ll ever lay your eyes on, mixed in with some 9/11 conspiracy theories, a plug for the Marijuana Policy Posse, and something about the FCC “build[ing] a cone of terror in [our] homes.”

Go check it out, but avert the children’s eyes first. It ain’t pretty. Which begs the question: Will the FCC apply its  Pacifica indecency standard to its own MySpace page?  Seems like their site is pretty “pervasive” to me, and there could be “children in the viewing audience.”  Time to censor these “fleeting expletives” on the FCC’s MySpace page!

Over at Ars Technica, Matt Lasar does a nice job pointing out how the FCC’s quarterly indecency complaint totals have again been inflated by one group: the Parents Television Council. This is something Lasar has written about before and he’s one of the few journalists who continues to ask sharp questions about the ongoing manipulation of these statistics by PTC. As Lasar notes in his latest piece:

for the first quarter of this year, show the viewers relatively calm at 578 complaints in January, then 505 in February, followed by 179,997 in March? 179,997? Um, did we miss something? Did television really get that much more indecent in March? No worries. In these situations, we know what to do. We go over and check out the Parents Television Council‘s website. And sure enough, there’s a plausible instigator—a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV’s Family Guy.

This “complaint box stuffing” is something I wrote quite a bit about in the past, especially in my 2005 paper, “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process.” As I pointed out there, “The PTC’s increasingly effective use of computer-generated campaigns against specific TV programs is a leading factor in explaining the large jump in indecency complaints in recent years.” Specifically, as I noted in that paper (as well as a Supreme Court filing with my friends at CDT), the FCC quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints in 2003 & 2004 that PTC  requested:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC’s redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 — the time when the Super Bowl incident with Janet Jackson occurred — the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter’s FCC Quarterly Report. The footnote acknowledged that “[t]he reported counts may also include duplicate complaints or contacts…”

As I have made clear before, I have absolutely no problem with the PTC, or any other advocacy group exercising their First Amendment rights to petition their government and make their views known. What I do have a problem with — a very big problem, in fact — is when one group so disproportionately influences the process, especially by changing the way complaints are counted. And I’m even willing to ignore the “robo-complaint” nature of their automated complaint-generation machine. After all, countless other groups use similar tactics today to flood government offices and agencies with thousands or even millions of digital form letters. But when you change the rules of the game to favor you and your preferred outcome, well, that’s just shameful.

What’s even more troubling about the way the FCC changed it complaint counting process to make the PTC happy is that the agency failed to provide the public official notice of these changes outside of some limited and quite confusing fine print in the footnotes of quarterly reports. Look as hard as you want at the FCC website and you will not find any press releases or summaries of these changes during that period. And there does not appear to be any mention of these changes in any speeches by FCC Commissioners or bureau chiefs then or since.  More shockingly, as far as I can tell, the FCC only made these methodological changes for indecency complaints, not for any other category of complaints that the agency receives!  Finally, and probably worst of all, these bogus numbers were then used by FCC officials and congressional lawmakers as supporting evidence for the supposed public outcry for more regulation of television and radio.

It’s an outrage, especially when you realize that the programs that the PTC wants censored are among the most popular on television, as I thoroughly documented in my paper.  In other words, they don’t speak for most of us when it comes to what we want to watch or listen to.  I hope the new FCC understands these bogus indecency complaint numbers do not reflect the wishes of most consumers.  Finally, those in the PTC or elsewhere who are offended by “The Family Guy” or other shows on television have plenty of tools and methods at their disposal to make sure those programs are not seen in their homes.  Please don’t try to impose your will on the rest of us when you have the tools at your disposal to do this job for you and your family.  Let’s not make Uncle Sam our National Nanny.

The latest edition (Version 4.0) of my PFF special report on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now up.  For those not familiar with the report, it explores the market for parental control tools, rating schemes, education and media literacy efforts, and various other tools, methods, and initiatives aimed at promoting online child safety.  After evaluating that state of this market, I conclude: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”  Moreover, I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation.

Version 4.0 of the report is now over 250 pages long (up from 200 pages in Version 3.0) and it contains almost 70 exhibits (up from 50), 725 references (up from roughly 500), and numerous updates in all five sections of the book. Major updates have been made to the Internet, social networking, and mobile media sections, reflecting the growing importance of those sectors and issues. Other new sections or appendices have also been added to the report, including:

• a new section examining how many households really need parental control tools;
• a new appendix on the downsides of mandatory parental controls and restrictive default settings;
• a new section on the dangers of “deputizing the online middleman” solution as an approach to solving child safety concerns;
• a new appendix reviewing the findings of 5 past online safety task forces;
• … and much more.

I issue major updates once a year and 1 or 2 minor tweaks during the course of the year to reflect the evolution of the parental control and online child safety marketplace and debate. The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past couple of years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

The Senate Commerce Committee held a hearing yesterday where a number of Senators as well as Julius Genachowski, the new Chairman of the Federal Communications Commission, did a lot of fretting about the state of the modern children’s television programming marketplace.  According to the Wall Street Journal, Senate Commerce Committee Chairman Jay Rockefeller (D-WV):

suggested that a “little red button” be required on TVs so that a child could push the button to find out how a show is rated. Democratic Sen. Mark Pryor of Arkansas agreed that a red button might help since parents often have difficulties figuring out which shows are appropriate for their children to watch.

Well, I have some good news for the Senators: There are already quite a few little buttons on every remote control made today, and at least one of those buttons can pull up an on-screen guide to get more program info! (Another of them can turn the TV off!) Moreover, the ratings for just about every program already appear at the beginning of each show, and sometimes in between. And you can find out plenty more online about every TV show under the sun if you care to look.  So, I’m not sure what that fuss is all about, and we certainly don’t need to mandate “little red buttons” on every TV set when program information can be found in so many other ways.

What is more troubling about all the hand-wringing taking place at the hearing, as well as the talk of reopening the Children’s Television Act of 1990 to potentially impose more content mandates on video programmers and distributors, is that: (1) there doesn’t seem to be much appreciation for just how much wonderful children’s programming is out there today compared to the past, and (2) there doesn’t seem to be much recognition of the serious First Amendment issues at stake when government gets involved in the messy business of regulating video programming.

On that first point, let me just reiterate what I have found after conducting an exhaustive survey of the market for children’s programming in my ongoing PFF special report, Parental Controls & Online Child Protection: A Survey of Tools & Methods.  I found that the overall market for family and children’s programming options continues to expand quite rapidly. Thirty years ago, families had a limited number of children’s television programming options at their disposal on broadcast TV.  Today, by contrast, there exists a broad and growing diversity of children’s television options from which families can choose. The list below highlights just some of the more popular family- or child-oriented networks available on cable, telco, and satellite television today. And this list continues to grow rapidly.

• ABC Family Channel (http://abcfamily.go.com)
• Animal Planet (http://animal.discovery.com)
• Anime Network (www.theanimenetwork.com)
• Black Family Channel (www.blackfamilychannel.com)
• Boomerang (www.cartoonnetwork.com/tv_shows/boomerang)
• Cartoon Network (www.cartoonnetwork.com)
• Discovery Channel (www.discovery.com)
• Discovery Kids (http://kids.discovery.com)
• Disney Channel (www.disney.go.com/disneychannel)
• Encore WAM!
• Familyland Television Network (www.familyland.org/content/Content.aspx?CategoryID=51)
• FUNimation (www.funimation.com)
• Hallmark Channel (www.hallmarkchannel.com)
• Hallmark Movie Channel (www.hallmarkmoviechannel.com)
• HBO Family (www.hbofamily.com)
• History Channel (www.history.com)
• KTV – Kids & Teens Television (www.ktvzone.com)
• Learning Channel (http://tlc.discovery.com)
• National Geographic Channel (http://channel.nationalgeographic.com/channel)
• Nickelodeon (www.nick.com)
• Nick 2
• Nick Toons (http://nicktoonsnetwork.nick.com/home.html)
• Noggin (www.noggin.com)
• N Channel (www.the-n.com)
• PBS (www.pbs.org)
• PBS Kids (http://pbskids.org/go)
• Science Channel (http://science.discovery.com)
• Showtime Family Zone
• Sprout (www.sproutonline.com)
• Starz! Kids and Family (http://www.starz.com/appmanager/seg/s?_nfpb=true&_pageLabel=starz_kids_family)
• Toon Disney (http://psc.disney.go.com/abcnetworks/toondisney)
• Varsity World (www.varsityworld.com)

Importantly, this list does not include the growing universe of religious / spiritual television networks. Nor does it include the many family or educational programs that traditional TV broadcasters offer. Finally, the list does not include the massive market for interactive computer software or websites for children.  All of this begs the obvious question: What more is it that policymakers want?

More offerings are always welcome, of course.  But, on a personal note, as the parents of two young kids (ages 5 and 7), my wife and I regularly struggle to sort through all the wonderful video programming options at our disposal.  We often find ourselves swimming through an ocean of choices available from our local broadcasters and multichannel video provider. Moreover, our kids are spending an increasing amount of time watching snippets of video via kid-oriented online search portals like KidZui and Glubble. Such online walled gardens offer a safe place for parents to find terrific online content for their kids.

I have to admit, all the choices my kids have today have left me a bit jealous!  I grew up in small central Illinois town with a couple of crummy (Iowa-based!) broadcast stations that were barely visible on our TV (and usually only when my Dad made me hold the antenna and stick my arms up in the air to get reception!) There was also one local cinema in town that usually showed old movies from the ‘50s and ‘60s that few kids cared to see.  And that was generally the extent of video choices for kids in our town.  Sure, the 1970s brought us Sesame Street as well as Mister Rogers (if that was your cup of tea).  Today, however, we still have those shows and much, much more.  Our kids now enjoy an unprecedented cornucopia of media alternatives and, contrary to what some policymakers would have us believe, many of them are extremely high-quality in nature.  My parents would have likely given anything to just have even one network as incredibly enriching as Noggin at their disposal in the ‘60s and ‘70s.  Instead, on the occasions that the TV had to become a babysitter and nothing worthwhile was on the tube, I usually ended up watching trashy soap operas.  (Don’t even get me started on “Days of Our Lives.” I could write a short history of the show’s 1975-1982 seasons!)

Speaking of trashy shows, there was a lot of talk at yesterday’s hearing about the “need to protect our children from harmful content,” as Sen. Rockefeller began the hearing by arguing.  But as I have shown in my parental controls report, not only are there more and better quality options to steer your kids toward today, but it is easier than ever before to steer them right to those preferred options and lock down everything else in sight.  As I concluded in that report:

there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. […] parents now have [many tools and techniques] at their disposal to better control media content and raise their children as they see fit. That is not to say that media and communications technologies don’t continue to play a major role in our society and culture. But… parents have been empowered with tools, controls, strategies, and information, that can help them devise and then enforce a media plan for their families that is in line with their own values.

So, again, it must be asked: What is the problem here?

Finally, it should be noted that any effort by Congress or the FCC to tinker with video programming marketplace will eventually run up against serious First Amendment concerns and eventual court challenges.  In a previous session of Congress, before he became Chairman of the Senate Commerce Committee, Sen. Rockefeller aggressively pushed for expanded content controls, not just for broadcast television, but for cable and satellite platforms as well.  In a 2005 PFF report on Sen. Rockefeller’s “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005,” First Amendment attorney Robert Corn-Revere of the law firm Davis Wright Tremaine argued that efforts to expand the horizons of FCC regulation to cover more content and platforms “would be almost certain to fail a constitutional challenge.”  Likewise, in a 2007 PFF white paper, constitutional law expert Laurence H. Tribe of the Harvard Law School, noted that the old “it’s-for-the-children” rationale for such content regulation is exactly backwards:

the malleability of children—how easy it is to mold their minds and to influence them—counts against and not in favor of centralized governmental controls. One of the arguments that you will often find is, yes, it’s all very well to believe in free speech between consenting adults but we’re talking about kids here and their minds are like plastic and they are being molded and shaped and, therefore, we have greater power to protect them. Therefore, you should keep your hands off them because they are so easy to shape. No, no, no. The argument is not that kids are malleable and therefore, Big Brother should be empowered. The argument is that kids are malleable and, therefore, families should be empowered. Parental authority should be at the center of decision making.

Indeed. And, as already noted, parents have more tools and strategies to exercise that authority than ever before, as well as more programming options to choose from. Policymakers should be celebrating these modern media marketplace developments, not bemoaning them.  We are blessed to be living in the Golden Age of children’s video programming.

Ben Edelman of the Harvard Business School has just released an interesting new study in the Journal of Economic Perspectives entitled, “Red Light States: Who Buys Online Adult Entertainment?”  Using data he obtained from a top-10 seller of adult entertainment, Edelman examined adult website subscriptions on the zip code level and found that conservatives seem to be every bit as interested in pornography as liberals. In fact, “Subscriptions [to adult entertainment sites] are slightly more prevalent in states that have enacted conservative legislation on sexuality” and “subscriptions are also more prevalent in states where surveys indicate conservative positions on religion, gender roles, and sexuality.”  He also finds that:

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions to this service.  Subscriptions are also more prevalent in states where more people agree that “I have old-fashioned values about family and marriage” and “AIDS might be God’s punishment for immoral sexual behavior.”

On the whole, these adult entertainment subscription patterns show a remarkable consistency: all but eleven states have between two and three subscribers to this service per thousand broadband households, and all but four have between 1.5 and 3.5. With interest in online adult entertainment relatively constant across regions, there’s little sign of a major divide.

But it’s not just Internet porn where we see this trend at work.  As I noted in my law review article, “Why Regulate Broadcasting?” we’ve seen a similar trend at work with television. When you look at some of the TV shows that conservatives and religious groups gripe most about, you might be surprised to know that it is conservatives who make those shows as popular as they are!

As Bill Carter of the New York Times reported in a 2004 article, “Many Who Voted for ‘Values’ Still Like Their Television Sin,” Nielsen ratings data shows that in many Republican-leaning “red state” markets, such programs garner higher ratings than in many Democratic-leaning “blue states.” For example, in the counties that constitute the greater Atlanta television market, ABC’s dramatic comedy “Desperate Housewives” was the top-rated show even though nearly 58 percent of voters in those counties voted for President Bush.  Similarly, in the traditionally conservative Salt Lake City market, where President Bush captured over 72 percent of the vote, the top four shows were “C.S.I.,” “C.S.I. Miami,” “E.R.,” and “Desperate Housewives.”

Likewise, in a 2004 column about “The Great Indecency Hoax,”  NY Times columnist Frank Rich noted that the same trend holds in conservative Oklahoma City, where “Desperate Housewives” is more popular than it is in Los Angeles, as well as Kansas City where the show is bigger than it is in New York City.  Rich quoted sociologist Herbert Gans who explained the phenomenon as follows: “For some people it’s a case of ‘I am moral therefore I can watch the most immoral show.'”

Such findings call into question the logic of traditional “community standards”-based regulatory efforts. Indeed, it is unclear how lawmakers can determine the relevant “community standard” for purposes of speech and content regulation when some of the most conservative communities in America are downloading as much porn as Edelman’s study finds, or when conservatives are watching smutty TV in greater numbers than liberals do.

The better approach, as I’ve argued here before, is to replace “community standards” with “household standards.”  That is, it would be optimal if public policy decisions regarding content took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable programming to them.  That’s especially the case in light of the fact that less than 32% of U.S. households have any children in them, and those homes that do have children have plenty of tools and methods at their disposal to control objectionable content. Let’s empower parents to make decisions for themselves and their families so that Uncle Sam doesn’t need to play the role of national nanny for all of us.

• Edelman’s mention of porn consumption in Utah reminded me of this passage from Jeff Rosen’s 2004 essay on “The End of Obscenity” (which I discussed in greater detail here):

  three years ago, when a local video retailer in Utah was prosecuted for peddling hard-core pornography, he successfully argued that his products were consistent with what his neighbors were watching on pay-per-view: in an age of nationally distributed hotel pornography, there was little difference between the consumption habits of hotel guests in Salt Lake City or Las Vegas. Pornography is everywhere, suggesting that there is no national consensus against it and no vast disparity from one locale to another.

  Seems that those Utah residents are a horny bunch!  Maybe their new motto should be, “What happens in Utah, stays in Utah.”

Over at Ars, Matt Lasar has a piece about the need for better FCC indecency complaint statistics. He has been monitoring the wild fluctuations in indecency complaint tallies in recent years and wonders:

whether the agency’s indecency/obscenity statistics reflect spontaneous viewer response to the level of erotic/linguistic friskiness on TV or solely on the power of coordinated campaigns launched by groups like the Parents Television Council.

Indeed, PTC is the primary culprit. As I noted in my big 2005 PFF report “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process”, “The PTC’s increasingly effective use of computer-generated campaigns against specific TV programs is a leading factor in explaining the large jump in indecency complaints in recent years.” The PTC has even taken credit for it themselves, as I noted in the paper.

How did the FCC’s indecency process get so screwy, and how did the PTC come to influence it so greatly? As I noted in that paper (as well as a Supreme Court filing with my friends at CDT), in recent years the FCC has quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints, both changes urged upon the FCC by a single advocacy group — the PTC — targeting broadcast indecency:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC’s redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 — the time when the Super Bowl incident with Janet Jackson occurred — the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter’s FCC Quarterly Report. The footnote acknowledged that “[t]he reported counts may also include duplicate complaints or contacts…”

For many years, the PTC has pressured the FCC to change their methodology to give greater weight to their computer-generated e-mail complaint campaigns. It appears their efforts paid off and now the PTC and other groups are essentially able to “stuff the ballot box” in terms of inflating indecency complaints at the FCC and potentially spurring increased regulatory activism as a result. In turn, these bogus numbers are cited in the press and in political statements by lawmakers when they are seeking to expand fines or regulations.

Unfortunately, even if Congress forced the FCC to fix these problems with the indecency complaint process, so long as the agency and that process exists there will be groups like PTC trying to use it to influence public policy and impose speech controls in this country. The millions of Americans who are perfectly happy with what they see on TV or hear on radio are never going to send a letter to the FCC saying as much. It’s only the hecklers that bombard the FCC with complaints and get them heard and acted upon, even if they only represent a minority viewpoint about video and audio programming.

Of course, these hecklers could just turn off those devices or use parental control tools and stratgies to deal with what their kids see and hear. Instead, those folks want to impose their will on ALL of us. Worse yet, they now are expanding their mission to include the Internet. Thankfully, we don’t have a Federal Computer Commission fielding bogus complaints about the Net.  At least not yet.

Chairman Mao–er… Martin–has canceled (WSJ) the FCC’s December 18 meeting, when the Commission was set to vote on Martin’s proposal to rig an auction to give away a valuable piece of spectrum (“AWS-3”) to M2Z networks.  In exchange for a sweetheart deal on the spectrum, the company would have been required to use a quarter of it to provide a free (but very slow) wireless broadband service.  Martin had initially proposed to require that the service be made porn-free, but eventually suggested that users over 18 would be able to opt-out of network-level filtering.

Two weeks ago, when it became clear that Martin would attempt to ram this proposal through while he still could, I asked how the ascendant Left would respond:

Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue?  Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the “public airways” onto the Net (where the underlying rationale of traditional broadcast regulation–that parents are powerless–does not apply)?

I’m glad to see that the deathblow to this unconstitutional proposal did indeed come from the political Left–specifically, from Sen. John Rockefeller, (D-W.Va.) and Rep. Henry Waxman, (D-Calif.), who will be responsible for overseeing the FCC in the new Congress.  (The Bush administration had already opposed the proposal, as with so many of Martin’s abuses, had failed to stop it.)

With President-elect Obama having declared that, “Here in the country that invented the Internet, every child should have the chance to get online,” it seems almost certain that the Administration will press ahead with some kind of universal broadband proposal of its own.  But what would such a proposal look like?  If it’s another public broadband utility, would it include network-level filtration like Martin’s proposal?  If so, will the Democratic opponents of government censorship stick by their principles and fight that, too?

I suspect we may find that what’s constitutional is politically impossible (unfiltered free Internet) and what’s politically possible (filtered free Internet) is unconstitutional.

As a constitutional matter, the courts have rejected network-level filtering mandates because user-installed filtering tools are a “‘less restrictive” alternative.   In comments filed on this proposal in July, a broad coalition of free speech groups (including my PFF colleague Adam Thierer) explained why Martin’s proposal violated the First Amendment–and why even allowing users to opt-out of the required filtering would not make the proposal constitutional:

First, … [the] filtering mandate is so sweeping in its scope that it would violate the rights of older minors to receive content to which they have a constitutional right to access (but which arguably might be “harmful” to a five-year old).  Second, the stigma of having to sign up for a central, nationwide list of – effectively – “people who want access to adult content” would be a chilling and unconstitutional burden on adults’ right to access lawful content.  Under the First Amendment, the government cannot force people to “sign up” in order to receive lawful speech…  This is especially true because of the broad sweep of content blocked by [the proposal] and the availability of highly effective and less restrictive alternatives in the form of client-side filtering tools. Third and finally, wholly apart from the constitutional rights of those accessing the Internet through the AWS-3 network, the proposed filtering mandate would also violate the constitutional rights of speakers and content providers on the Internet who want to speak to the broadest audience possible.  It would be flatly unconstitutional for the government to select and anoint one, or even a limited number of, filtering “blacklists” of content that must be blocked – even if a private party (the AWS-3 licensee) does the selection under an FCC mandate.  Unless the filtering “blacklist” only contained sites that had been adjudicated to be illegal for minors (on a nationwide basis, presumably), the filtering mandate would be precisely the sort of unconstitutional prior restraint squarely rejected by the Supreme Court in Bantam Books, Inc. v. Sullivan.

But as a political matter, it may turn out that this kind of free broadband proposal just won’t fly without network-level filtering requirements (and an opt-out)–however unconstitutional that might be.  While the courts and any reasonable person might recognize that client-side filtering (installed by users) offers  parents highly effective controls over what their children can access, the truly Puritanical element in America probably won’t care–at least on the level of political rhetoric.  One can easily imagine the opposition from “social conservatives” to the idea of using the public airwaves to make “smut” available to minors.  Coming from the Obama Administration, such a proposal could easily be lampooned as a “Porn Bailout.”   Republicans–who so often seem to prefer fighting the “culture wars” over trying to promote something as arcane as, say, constitutionally limited government–might try to cast any public broadband utility without network-level filtering as a “liberal” plot to corrupt America’s children (think Jocelyn Elders’ endorsement of masturbation as Surgeon General).  After all, why should I have to pay for your porn–let alone your kid’s porn?

Even if Obama and Congressional Democrats have the votes to override such opposition, would they have the political nerve (or think it worth the political capital) to ram through a free broadband scheme that relies on parents to do their own filtering–and that could thus be attacked (however unfairly) as making porn available to kids?  Or would they conclude (probably correctly) that existing broadband subsidies could be significantly expanded without facing such a strong political push to impose filtering mandates as a condition of public support–and choose this “safer” course?  The problem, of course, is that unless broadband is completely free, some people still wouldn’t pay for it and even if it were free, others still wouldn’t use it.

Or perhaps Kevin Martin could continue his crusade to free the world from content he (and the traditionalist Republican base he’s been cultivating) finds objectionable by insisting that subsidies should only go to broadband providers that offer censored Internet packages (essentially opt-in for filtering).  This is, of course, essentially what he has done throughout his time as Chairman in his relentless “war on cable”–looking for every opportunity to coerce cable providers into “voluntary” agreements to provide cable programming on an a la carte basis.  What better way for Martin to revive his political career?  Though Martin’s native North Carolina is trending Democratic, its socially “conservative” voters might hail well Martin’s ostentatious commitment to “protecting the children.”

Four-and-a-half years ago, I wrote this piece about how a converging media undermines the FCC’s rationalle for indecency enforcement. The piece, “TV Has Grown Up. Shouldn’t FCC Rules?” first appeared in the Washington Post Outlook section on Sunday, May 16, 2004, and it remains more relevant today than ever: the Supreme Court is today considering Federal Communications Commission v. Fox Television Station, a case about whether the FCC acted properly in sanctioning Fox over the use of the words “fuck” and “shit” on broadcast television.

Just FYI, the latest update of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now live. The new version, Version 3.1, provides minor updates to all sections of the book and a new appendix of relevant research in the field. I issue major updates early each year and 1 or 2 tweaks during the course of the year to reflect the evolution of the parental control and online child safety market and debate.

For those not familiar with the report, it explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past two years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

Lately I’ve been writing about potentially historic upcoming First Amendment case of FCC v. Fox Television Stations. The Supreme Court will hear the case on Tuesday, November 4th. All the briefs in the case are in and can be found on the ABA website here. But I’ve pasted the links for all of them below as well. In coming days and weeks I might be highlighting some of the comments from the briefs. [The docket number for the case is 07-582]. The amicus brief I filed with my friends at CDT can be found here, and I wrote about it last week here on the TLF.

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. 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. Anyway, here are all the briefs in the case, starting with the merit briefs by the lead parties:

Merit briefs

• Brief for Petitioner Federal Communications Commission, et al.
• Brief for Respondent Fox Television Stations, Inc., et al.
• Brief for Respondent Center for Creative Voices in Media, Inc.
• Brief for Respondent NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting, Inc., and ABC, Inc.

Amicus briefs

• Brief for National Religious Broadcasters in Support of Petitioner
• Brief for Morality in Media, Inc., in Support of Petitioner
• Brief for Alliance Defense Fund and Family Research Council in Support of Petitioner
• Brief for the Center for Constitutional Jurisprudence in Support of Petitioner
• Brief for the Parents Television Council in Support of Petitioner
• Motion for Leave to File Amicus Curiae Brief and Brief for the Decency Enforcement Center for Television in Support of Petitioner
• Brief for the American Center for Law and Justice and United States Representatives Charles Pickering, Roscoe Bartlett, Kevin Brady, Paul Broun, Danny Davis, John Doolittle, Mary Fallin, Trent Franks, Wally Herger, Jim Jordan, Doug Lamborn, Kenny Marchant, Jeff Miller, Marilyn Musgrave, Joe Pitts, Mark Souder, Tim Walberg and Dave Weldon in Support of Petitioner
• Brief for American Civil Liberties Union, the New York Civil Liberties Union, American Booksellers Foundation for Free Expression, the American Federation of Television and Radio Artists, Directors Guild of America, First Amendment Project, Minnesota Public Radio/American Public Media, the National Alliance for Media Arts and Culture, the National Coalition Against Censorship, the National Federation of Community Broadcasters, Pen American Center, and Washington Area Lawyers for the Arts in Support of Respondent
• Brief for Time Warner, Inc., in Support of Respondent
• Brief for the ABC Television Affiliates in Support of Respondent
• Brief for Public Broadasters in Support of Respondent
• Brief for the National Association of Broadcasters and Radio-Television News Directors Association in Support of Respondent
• Brief for the Center for Democracy & Technology and Adam Thierer, Senior Fellow with the Progress & Freedom Foundation (PFF) and the Director of PFF’s Center for Digital Media Freedom in Support of Respondent
• Brief for Former FCC Commissioners and Officials in Support of Respondent
• Brief for the Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in Support of Respondent
• Brief for the American Academy of Pediatrics, Benton Foundation, Children Now, National Institute On Media and the Family, Parent Teacher Association, and United Church of Christ, Office of Communications, Inc., in Support of Neither Party
• Brief for Free Press, Consumer Federation of America, Consumers Union, New America Foundation, Participatory Culture Foundation, Cuwin Foundation, Ethos Group, ACORN Active Media Foundation, Freenetworks.Org, Monroe Price, Susan Crawford in Support of Neither Party

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.”

I was on NPR’s “On the Media” program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC’s fines in the “Janet Jackson case.” As I noted in this lengthy analysis of the decision, the court said that the agency’s recent efforts to expand the parameters of “indecency” enforcement for broadcast programming went too far, too fast. “[T]he FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy,” the Court held.

“On the Media” host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below…

Another chapter in the seemingly never-ending saga of the Child Online Protection Act (COPA) of 1998 was written this week when the Third Circuit Court of Appeals upheld a lower court ruling striking down COPA, which would require Web operators to restrict access to large amounts of online speech and expression. [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].

The DOJ will likely appeal the decision, yet again, to the Supreme Court. I can’t be certain, but I know of no other free speech-related law that has made THREE trips to the Supreme Court for review. (If readers know of any laws that can match that record, please let me know). It really is quite amazing, and even a little outrageous, when you think about it. After all, just think of all the time, energy and money that has gone into this 10-year legal fiasco. I know it is the DOJ’s job to defend congressional enactments before the courts, but how might we have spent that time and money if all this litigating wasn’t going on?? Regulation always has opportunity costs and in this case those costs have been 10 years of wrangling among lawyers. Those resources could have been used to educate parents and kids about online safety; to create and disseminate more and better private screening tools; and so on. Alas, we instead have mounds of paper piling up in the courts and millions being spent with nothing to show for it. Anyway, Declan has an excellent summary of the 3rd Circuit’s ruling here, and my friends at CDT have a statement here. But Susan Crawford has the best analysis of the decision in her essay on “Understanding COPA’s Journey.” She begins by summarizing the key findings:

The Third Circuit yesterday announced a host of reasons why COPA is insufficiently narrowly tailored, many based on the terms of the statute. The coverage of the HTM [“harm to minors”] definition is vague, the court felt, and so publishers won’t be able to tell in advance whether their operations are all subject to the COPA constraint (what if only a tiny portion of a web site has arguably HTM material on it?) or what fits within the HTM definition (are you supposed to be protecting 3 year-olds as well as 16 year-olds?). The court also found that having to implement credit card, debit account etc. shields would burden the providers of free web sites whose operations are nonetheless “commercial” and so covered by COPA. This was another instance of insufficient tailoring. But the key element here is that the Third Circuit held that the government had to carry the burden of showing that filters were less effective than COPA, and it failed to do that. In fact, it appears that filters are both less restrictive and more effective than the operation of the statute, based on extensive findings of fact by the district court below.

So, what will the Supreme Court say about that argument when COPA makes its unprecedented 3rd appearance before the judges? Susan says:

This approach may be difficult for the current Supreme Court to agree with. It was difficult enough the last time. The analytical framework adopted by the Third Circuit follows what Justice Kennedy said then – that it is the Court’s job to consider what alternatives are out there in the world to help parents, and to decide whether they’re more effective/less restrictive than COPA. The point, Justice Kennedy said, is to is ‘‘to ensure that speech is restricted no further than necessary,’’ not to consider ‘‘whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes.’’ So the court’s job is not to ask whether COPA would provide government with another tool to address harmful speech in the name of protecting kids. That standard would justify any restriction on speech. Instead, the inquiry should be ‘‘whether the challenged regulation is the least restrictive means among available, effective alternatives.’’ Right now, filters are more effective and less restrictive than COPA (or, at least, the government didn’t prove that they weren’t), and so the government loses. Never mind that filters are voluntary and that a lot of parents choose not to use them – that’s the parents’ choice. Filters are available. The government’s argument to the Third Circuit, and probably to the Supreme Court, will be that this is a maddeningly flawed analytical approach. The government would like to see a more protective, quasi-parental approach (on the assumption that parents are busy shoring up the failing economy and can’t be counted on to be watching their kids or caring what they see). Justice Breyer was very sympathetic to that view the last time around. His point is that filtering doesn’t count as an alternative to COPA. (‘‘The presence of filtering software is not an alternative legislative approach to the problem of protecting children.”) Doing nothing, legislatively, will always be less restrictive than doing something. He also thinks COPA isn’t much stronger than the Miller obscenity test and would only modestly burden adult access to legal adult speech. Veteran SCT-watchers will count noses, in this case as in Fox v. FCC, and try to figure out what will happen next. Last time around, Justice Kennedy’s majority opinion was joined by Stevens, Souter, Thomas, and Ginsburg, all of whom are still there. Justice Stevens wrote a concurring opinion, which was joined by Justice Ginsburg. Justice Scalia filed a dissent, as did Justice Breyer, who was joined by Chief Justice Rehnquist (now Roberts) and Justice O’Connor (now Alito). So maybe the 5-4 will stay in place. But if Thomas goes over to the dissenting side, and Justice Breyer’s analytic approach (”what do you mean, filtering is an alternative?”) gathers steam, COPA could survive its third trip to the SCT and be upheld.

So, it remains to be seen whether the third time is the charm for the DOJ and they are able to finally convince the Supreme Court to enforce COPA. And Susan is right in noting that all eyes will be on the decision in Fox v. FCC since that will be the next major free speech case before the Court.

As Susan rightly concludes: “This case is a big deal because it turns on the question whether private, edge-based solutions to speech issues should be taken seriously. I think they can, and I don’t want to see a lot of government tinkering with the sources of speech…. Let’s hope the government drops the COPA effort, which has now stretched on for almost ten years.”

Indeed.

The Federal Communications Commission (FCC) lost another major First Amendment-related case today involving its recent efforts to expand the parameters of “indecency” enforcement for broadcast programming. The case involves the now infamous “wardrobe malfunction” that occurred during an unscripted 2004 Super Bowl halftime performance involving singers Justin Timberlake and Janet Jackson. When Ms. Jackson’s breast was exposed on camera for nine-sixteenths of one second, the FCC immediately launched an investigation into the incident and fines were eventually levied on the grounds that the fleeting exposure of Ms. Jackson’s breast was a violation of broadcast decency standards. CBS challenged the FCC’s decision, leading to a legal showdown in the U.S. Court of Appeals for the Third Circuit.

In today’s decision, CBS Corp. v. FCC, the three-judge panel of the 3rd Circuit ruled that the Federal Communications Commission “acted arbitrarily and capriciously” when it imposed a $550,000 fine on CBS for the incident. The court’s 102-page decision, which can be found here, was decided squarely on procedural grounds. That is, it didn’t touch the more substantive speech-related issues or precedents such as the Pacifica or Red Lion decisions that constitute the foundations of all modern FCC broadcast regulation.

The case is important because it now joins the June 2007 decision handed down by the Second Circuit Court of Appeals in the case of Fox Television Stations v. FCC. That was the indecency case involving the FCC’s new policy for “fleeting expletives.” In that 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” As a result, the FCC’s order was vacated and remanded to the agency. [And the FCC is now challenging the decision in the Supreme Court.]

This is very similar to what the 3rd Circuit said today in the CBS case. Specifically, the court held that:

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS. (p. 14)

The court reached that finding by noting that the agency’s previously “restrained” enforcement policy had changed quite suddenly and dramatically, and without much justification. “[A]n an agency must be afforded great latitude to change its policies, but it must justify its actions by articulating a reasoned analysis behind the change,” the court argued. (pp. 30-31) “The agency’s obligation to supply a reasoned analysis for a policy departure requires an affirmative showing on record.” (p. 32). But the FCC failed in that regard, the court said:

The Commission’s conclusion on the nature and scope of its indecency regime – including its fleeting material policy – is at odds with the history of its actions in regulating indecent broadcasts. In the nearly three decades between the Supreme Court’s ruling in Pacifica and CBS’s broadcast of the Halftime Show, the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. (pp. 36-37)

The FCC was basically arguing that its actions in the Fox and CBS cases were nothing new and that the agency should be allowed to impose significant new penalties for fleeting words or images. But neither the 2nd or 3rd Circuits bought that argument. In today’s decision the 3rd Circuit, for example, the judges held:

In sum, the balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion. Accordingly, we find the FCC’s conclusion on this issue, even as an interpretation of its own policies and precedent, “counter to the evidence before the agency” and “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. Because the Commission fails to acknowledge that it has changed its policy on fleeting material, it is unable to comply with the requirement under State Farm that an agency supply a reasoned explanation for its departure from prior policy. (pp. 47-48)

As you might have guessed from the context of that passage, the State Farm case referenced by the court dealt with how an agency must reach a decision by examining relevant data and articulating a reasonable explanation for the rational connection between that data and the decision made by the agency. Again, the court today held that the FCC did not pass that test nor the requirements of the Administrative Procedure Act: “Consequentially, the FCC’s new policy of including fleeting images within the scope of actionable indecency is arbitrary and capricious under StateFarm and the Administrative Procedure Act, and therefore invalid as applied to CBS.” (p. 49)

The court also rejected the FCC’s assertion that CBS should be held liable on the common law doctrine of respondeat superior, which allows liability to be imposed on employers for the actions of employees. The question is: Where Timberlake and Jackson CBS employees? The court said no:

it is undisputed that CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. Similarly, as the FCC notes, CBS personnel reviewed the performers’ selections of set items and wardrobes, but the performers retained discretion to make those choices in the first instance and provided some of their own materials.

Instead, the court held that Timberlake and Jackson were “independent contractors” for CBS and that the FCC was trying to breathe far too much life into the doctrine:

Under the FCC’s rationale, band members contracted to play a one-song set on a talk show or a “one-show-only” televised concert special presumably would be employees of the broadcaster. These performers – who frequently promote their work through brief contractual relationships with media outlets – would be “employees” of dozens of employers every year.

So, what happens next? It’s likely that the FCC will appeal, just as it has in the 2nd Circuit Fox case. One wonders why the agency doesn’t just throw in the towel. As my boss Ken Ferree, President of PFF, noted in response to today’s decision: “Perhaps it is time to read the handwriting on the wall: the guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny. A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society. We allow government to meddle in that marketplace at our peril.”

You will not be surprised to hear that I agree with Ken! And I summarized some additional concerns about the FCC’s expanded activism on this front in a joint amicus brief with the Center for Democracy & Technology to the 3rd Circuit before this case was heard. You can find that filing here.

Jeff Eisenach, Chairman of Criterion Economics, and I have just released a new article about the perils of a la carte regulation in the Federalist Society’s journal Engage. In “A La Carte Regulation of Pay TV: Good Intentions vs. Good Economics,” we argue that: “From a policy perspective, a la carte regulation is worse than a solution in search of a problem; it is a problem waiting to happen.” We show that the pay TV marketplace is functioning quite efficiently and that consumers have more choices and content diversity at their disposal than ever. A la carte mandates, we argue, would destroy that diversity and likely put pressure on prices to go up, contrary to the goals of the backers of a la carte.

We also discuss how a la carte is being proposed a tool of social regulation / speech control, with backers labeling it a way of “cleaning up cable.” We explain why that is not going to work and why, even if it did, it would be a betrayal of the First Amendment.

This new article can be found online here.

Early in 2007, I started penning—but somehow failed to continue—a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:

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.

This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.

Amicus briefs are starting to be filed in the matter, and you won’t be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC’s authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left—namely the Supreme Court’s 1969 Red Lion decision and FCC’s ambiguous “public interest” authority to comprehensively regulate media markets. Consider this filing submitted by several liberal activist groups like Free Press, New America Foundation, Consumer Federation of America, Consumers Union, Participatory Culture Foundation, Acorn Media Foundation, as well as a couple of academics, like Susan Crawford and Monroe Price. These are some of the leading lights of the Left on communications and media policy.

With the Fox case, we have, quite possibly, the one major chance in a generation to make profound statement about the role of the FCC in policing speech in society. And what do these leading intellectual lights of the Left do in their 42-page brief to the court? They relegate the First Amendment to the equivalent of a footnote in the matter. The First Amendment is barely even mentioned in this filing; it is an afterthought.

Instead, they make everything subservient to saving Red Lion and maintaining the FCC’s authority to comprehensively regulate media markets. Red Lion, you will recall, is the Supreme Court’s historic 1969 decision legitimizing the hideously misnamed “Fairness Doctrine.” Of course, it also serves as the foundation for just about every other sort of media regulation that the FCC enforces: i.e., ownership restrictions, educational TV mandates, advertising restrictions, political advertising mandates, must-carry rights, and so on. The lynchpin of the Red Lion decision is the scarcity doctrine. In essence, the court held that the supposed scarcity of media outlets (or at least broadcast spectrum licenses) somehow justified comprehensive regulation of the media marketplace.

Liberals have long been in love with Red Lion and continue to rely on the case in one filing after another before the FCC and the courts in support of their efforts to justify existing or proposed media regulations. Of course, in light of the explosion of media options and competition, Red Lion and the “scarcity doctrine” have become utterly intellectually bankrupt rationales for regulation. But that hasn’t stopped the Left from pinning all their regulatory hopes on the doctrine and attempting to breathe new life into it at every turn.

Even more troubling is the fact that their filing argues that the Internet is some how touched by Red Lion. “[Q]uestioning Red Lion,” they say in their brief, “could throw media, spectrum, and Internet policy into chaos.” (p. 15) Excuse me? The Internet will be thrown into chaos if Red Lion is altered or abandoned by the court in the Fox case? I wasn’t aware that Red Lion had suddenly empowered the FCC to regulate this abundant medium known as the Net!

I won’t belabor this point about the scarcity rationale being dead and Red Lion being bad law, instead I’ll just refer you to the last major thing that the FCC said on the matter. Three years ago, the FCC published a staff report by John Beresford, an attorney with the FCC’s Media Bureau, entitled, “The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed.” That title pretty much says it all, but Beresford went on to say: “[T]he Scarcity Rationale for regulating traditional broadcasting is no longer valid” and from there laid out a devastating case against Red Lion and the scarcity rationale. Calling the scarcity rationale “outmoded” and “based on fundamental misunderstandings of physics and economics,” Beresford went on to show why just about everything the FCC every justified on this basis was misguided and unjust. He points out what countless economists have concluded through the years, namely that:

(1) the scarcity the government complained of was “largely the result of decisions by government, not an unavoidable fact of nature.” In other words, the government’s licensing process created artificial scarcity.

(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.

(3) even if there ever was anything to the scarcity doctrine, there certainly isn’t today in our world of information abundance.

Anyway, you get the point. Even people working at the FCC don’t take Red Lion or the scarcity rationale seriously anymore! Why then do these liberal academics who filed in the Fox case? They would be better served by shifting their regulatory rationales away from the hopelessly ambiguous and intellectually bankrupt “scarcity rationale” and toward an antitrust-based form of analysis based on market power considerations. But it is precisely because Red Lion provides them so much more regulatory wiggle room that they remain wedded to such a discredited theory. One wonders how long that farce will continue.

Regardless—and getting back to my main point here—it is absolutely shameless that these liberals would use this rare occasion to file a brief before the highest court in the land and not bother defending the First Amendment and free speech rights. We know we can’t trust the Right to defend the First Amendment, but the fact that the Left is abandoning it too is really troubling.

This is the sixth and final installment in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary today. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. Part 4 showed how that logic is even more misguided in light of modern developments. And part 5 was a recent joint editorial on the issue I co-authored with John Morris of Center for Democracy & Technology.

In this final installment, I thought I would just offer up a some further reading on the issue for those who might be interested in doing further research on the topic. Although it is certainly not an exhaustive list of all the relevant books and law review articles out there, below you find a bibliography of some of the very best material on the issue of the Pacifica case, the “pervasiveness doctrine,” and modern First Amendment jurisprudence. I’ve also embedded a Scribd version of a law review article I penned on these issues last year that ties together all my thinking on this front. It is called, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”

• Marjorie Heins, Not in Front of the Children: “Indecency,” Censorship, and the Innocence of Youth (New York: Hill and Wang, 2001).

• Jonathan Emord, Freedom, Technology and the First Amendment (San Francisco: Pacific Research Institute, 1991).

• Thomas G. Krattenmaker and Lucas A. Powe, “Converging First Amendment Principles for Converging Communications Media,” Yale Law Journal, May 1995.

• Thomas G. Krattenmaker and Lucas A. Powe, Jr., Regulating Broadcast Programming (Cambridge, Massachusetts: The MIT Press, 1994).

• Robert Corn-Revere, “New Technology and the First Amendment: Breaking the Cycle of Repression,” Hastings Communications and Entertainment Law Journal, Fall 1994.

• Robert Corn-Revere, “Can You Say That on TV?: An Examination of the FCC’s Enforcement with Respect to Broadcast Indecency,” Testimony Before the House Commerce Committee Subcommittee on Telecommunications and the Internet of the Committee on Energy and Commerce, January 28, 2004.

• Robert Corn-Revere, “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?” Progress & Freedom Foundation, Progress on Point 12.8, May 2005

• Jonathan D. Wallace, “The Specter of Pervasiveness: Pacifica, New Media, and Freedom of Speech,” Cato Institute Briefing Paper, no. 35, February 12, 1998.

• Ithiel de Sola Pool, Technologies of Freedom (Cambridge, Mass: Harvard University Press, 1983).

• Christopher S. Yoo, “The Rise and Demise of the Technology-Specific Approach to the First Amendment,” The Georgetown Law Journal, vol. 91, 2003.

• Lawrence H. Winer, “Children Are Not a Constitutional Blank Check,” in Robert Corn-Revere, ed., Rationales and Rationalizations (Washington, D.C.: The Media Institute, 1997).

• John Crigler and William J. Byrnes, “The Curious History of the New FCC Broadcast Indecency Policy,” Catholic University Law Review, Vol. 38, Winter 1989.

• Bruce Fein, “First Class First Amendment Rights for Broadcasters,” Harvard Journal of Law and Public Policy, vol. 10, no. 1, Winter 1997.

• Matthew L. Spitzer, “The Constitutionality of Licensing Broadcasters,” New York University Law Review, vol. 64, November 1989.

• Timothy B. Dyk, “Full First Amendment Freedom for Broadcasters; The Industry as Eliza on the Ice and Congress as the Friendly Overseer,” Yale Journal on Regulation, vol. 5.

• Margaret A. Blanchard, “The American Urge to Censor: Freedom of Expression Versus the Desire to Sanitize Society—From Anthony Comstock to 2 Live Crew,” William and Mary Law Review, Vol. 33, Spring 1992.

• Laurence H. Tribe, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism“, Progress & Freedom Foundation, Progress on Point 14.19, September 2007

• Adam Thierer, “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation” Progress & Freedom Foundation, Progress on Point 14.20, October 2007.

• Adam Thierer, “Who Killed TV’s ‘Family Hour’?“, City Journal, Fall 2007.

• Adam Thierer, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School CommLaw Conspectus, Vol. 15, pp. 431-482, July 10, 2007.

• Adam Thierer, “Images Kids See on the Screen,” Testimony before the Subcommittee on Telecommunications and the Internet, House Committee on Energy and Commerce, June 22, 2007.

• Adam Thierer, “Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process,” Progress & Freedom Foundation Progress on Point no. 12.22, November 2005,

• Adam Thierer, “Parental Controls and Online Child Protection: A Survey of Tools & Methods,” Progress & Freedom Foundation, Version 3.0, 2008.

[Note: This is the fourth in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. This installment will examine why that logic is even more misguided in light of modern developments.]

Whatever legitimacy Pacifica’s “pervasiveness rationale” might have once had, it has been largely eroded by modern media developments.

First, the pervasiveness rationale for media regulation fails today because new content tailoring technologies make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an “intruder” in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.

When Justice Stevens argued in Pacifica that broadcast signals represented an “intruder” in the home, he supported that claim by noting that: “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to “tune in and out” at will, and they have abundant “prior warnings” about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences. Second, there is no basis in fact for claiming that one type of media platform (namely, broadcasting) is “pervasive” in light of the abundant video options available to consumers. Moreover, newer video platforms are actually becoming more pervasive in the lives of children. As NBC noted in a filing before the U.S. Court of Appeals Second Circuit in late 2006:

The nearly 30 years since Pacifica have similarly eviscerated the notion that broadcast content is “uniquely accessible to children” when compared to other media. The availability of alternative media sources is even more pronounced with respect to younger generations than with adults… Like all media content, broadcast programming is accessible by children to some degree, but certainly it is no longer uniquely available when compared to the countless other avenues through which children up to age 18 receive information. These technological developments have doctrinal significance. Now that Pacifica’s underpinnings have been undermined, there is no reasoned basis for treating content-based restrictions on the speech of broadcasters differently than content-based restrictions on other speakers.

In other words, in a world of media abundance, technological convergence, and cross-platform media flows, nothing is pervasive in a relative sense. There are countless media outlets and technologies vying for our increasingly scarce attention spans. Consequently, it is illogical to claim that any one media platform or provider should have a unique regulatory status relative to the many other competing media outlets and technologies in the marketplace.

And even if it remains the case that broadcast stations and programs continue to fetch a large number of viewers and listeners, this cannot be the standard by which lawmakers determine a medium’s First Amendment treatment. The danger with such a “popularity equals pervasiveness” doctrine is that it contains no limiting principles. If Congress can censor speech on a given media platform whenever 51 percent of the public bring it into their homes, then the First Amendment will become an empty vessel. Indeed, it would mean that all cable television channels and all Internet websites could be regulated today since more than 50 percent of U.S. households have access to them. As First Amendment expert Robert Corn-Revere has argued, “To suggest that the banality or popularity of some television shows somehow justifies greater government regulation is much like arguing that freedom of the press should be suspended because more people read romance novels than the classics.”

The logic of Pacifica, therefore, is now moot. The “pervasiveness” rationale for government regulation of video content is an aging relic of bygone media and regulatory era. It would be a mistake to accord lesser First Amendment protection to any type of speech or media provider based on that rationale now that parents have been fully empowered to control the media content that enters their homes.

Additional reading:

• “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation” by Adam Thierer, Progress on Point 14.20, October 2007.

• “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism” by Laurence H. Tribe, Progress on Point 14.19, September 2007

• “Who Killed TV’s ‘Family Hour’?” by Adam Thierer, City Journal, Fall 2007.

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, Catholic University Law School CommLaw Conspectus, Vol. 15, pp. 431-482, July 10, 2007.

• “Images Kids See on the Screen,” Testimony by Adam Thierer, before the Subcommittee on Telecommunications and the Internet, House Committee on Energy and Commerce, June 22, 2007.

• “Parental Controls and Online Child Protection: A Survey of Tools & Methods,” by Adam Thierer, June 20, 2007.

*”The Complexities of Regulating TV Violence,” by Adam Thierer, PFF Progress on Point 14.12, June 15, 2007.

[Note: This is the third in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. This installment will examine the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. Part 4 will then examine why that logic is even more misguided in light of modern developments.]

For the past three decades, regulation of television programming has been premised on the “pervasiveness rationale” as articulated in the landmark Supreme Court case FCC v. Pacifica Foundation. In Pacifica, in a 5-4 plurality decision, the Court held:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.

In one portion of the decision, Justice John Paul Stevens, who authored the majority opinion, even referred to broadcast signals as an “intruder” into the home.

There were always serious problems with the “media-as-invader” logic of Pacifica.

First, and most obviously, no one ever forced parents to bring television sets or radios into their homes! These devices don’t have legs; they didn’t just walk into our homes uninvited. We put them there. Far from being intruders, they are more akin to invited guests. Consequently, we should exercise some responsibility over them. “At its root,” therefore, Jonathan Wallace has argued that, “the pervasiveness doctrine relies on a stunted view of individual responsibility.”

Unfortunately, however, the Pacifica Court focused exclusively on the signals that were being beamed to those devices, implying that just becuase those electromagnetic waves could pass through the walls of our homes that meant we were powerless to stop them. It was completely poppycock. Again, no one forced us to have those devices in the home, and we were always free to turn them off or at least turn the channel to something we found appropriate for ourselves or our children. As Jonathan W. Emord argued in his brilliant book, Freedom, Technology, and the First Amendment, “The fallacy in [the intruder-in-the-home] argument is its presumption that the viewer or listener is a captive audience rather than a willing recipient of information.”

Second, broadcast media were really not any more “pervasive” or “uniquely accessible” to children than other forms of media or speech in 1978. Newspapers, for example, were extremely pervasive at the time. Most papers were very cheap (some free) and were delivered right to the front door for junior to pick up and see murder and mayhem on pg A1 and bra ads on pg A2. And yet papers continued to be accorded the gold standard of first Amendment protection while radio and TV broadcasters were treated like second-class citizens in the eyes of the Court. It was completely illogical and total betrayal of the First Amendment’s clear prohibition against such regulation of speech.

Third, Pacifica represented an open-ended grant of government power to the majority to impose its will on minority viewpoints. Our entire culture and all forms of human communications would need to be severely restricted if government really wanted to completely protect children from all objectionable material. In doing so, a great deal of material demanded by adults would necessarily need to be denied to them in an effort to adequately protect children. But as Justice Felix Frankfurter noted in Butler v. Michigan (1957), if the First Amendment is to retain its power, government must avoid enactments which “reduce the adult population… to reading only what is fit for children.” This principle was reaffirmed by the Court in its unanimous 1997 decision in Reno v. ACLU when the court noted that the government’s interest in protecting children, “does not justify an unnecessarily broad suppression of speech addressed to adults.” This is especially the case since, according to U.S. Census Bureau statistics, 68 percent of homes do not have any children under 18 years of age in them. It is very unfair to reduce the level of content received by those homes to what is only fit for a child.

Pacifica was a betrayal of that principle. It represented an open-ended grant of government power that allowed those in power (or those who had access to them) to impose their tastes or will on the rest of us. As Justice William Brennan argued in his dissent to Pacifica: “The Court’s balance… fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a receptive, unoffended minority.”

In the next installment, I will make it clear that whatever legitimacy Pacifica’s pervasiveness rationale might have once had, it has been largely eroded by modern media developments.

[Note: This is the second in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, a general overview of the issue, is here.]

This morning I attended an excellent Freedom Forum conference on “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.” At the event, Lili Levi of the University of Miami School of Law delivered a terrific address entitled “A Short History of the Indecency & Media Violence Wars.” (Incidentally, she is also the author of a highly recommended paper on the topic that is available on SSRN: “The FCC’s Regulation of Indecency.”

Prof. Levi sketched out what she called the “5 Eras of FCC Indecency Enforcement.” Below I will summarize the major developments / trends from each era that she outlined for us today: Era #1 (1930s to 1960s)

• no serious effort by agency to define “indecency”
• an era of moralistic rhetoric, but little direct action by the FCC…
• but that’s because there was a lot of industry self-censorship
• FCC used “regulation by raised eyebrow” (i.e. bully pulpit) to encourage industry to self-censor
• ex: Mae West driven off radio for her “suggestive tone”

Era #2 (1960s to 1973)

• FCC still avoiding defining indecency
• but more fines begin to be levied anyway
• licenses threatened; some are revoked
• but all enforcement was administrative; no judicial review of these decisions
• so constitutional questions remained unclear

Era #3 (1973 to 1987)

• FCC finally adopts a formal definition of indecency in response to George Carlin’s monologue
• Supreme Court hands down Pacifica decision in 1978 giving blessing to FCC actions
• enforcement focus almost entirely on Carlin’s “seven dirty words” = brighter lines of enforcement
• the “seven dirty words” provided a somewhat better indication of how FCC might rule…
• but ambiguity remained about some of the specific cases and contexts

Era #4 (1987 to 2001)

• FCC reverses course and abandons bright line
• reversal largely due to Howard Stern and radio shock jocks
• radio shock jocks creatively used sexual innuendo and double entendre to avoid “7 dirty words”
• Congress starts pressuring agency for stepped-up enforcement
• agency adopts more “generic” approach to indecency enforcement; abandons strict adherence to “7 dirty words” enforcement
• but not a lot of fines issued during this period
• and most of focus was on radio, not TV
• FCC says “context” of broadcasts mean everything, but doesn’t really help nail down what runs afoul of law

Era #5 (2001 to present)

• “an era of stringent indecency enforcement”
• FCC says context counts by uses it more as a sword than shield
• focus shifts more toward television programming
• stepped-up interest in Congress and at FCC in enforcement
• changes in enforcement process make it easier for advocacy groups to flood Enforcement Bureau with complaints
• rise of “automated complaints”
• activist groups (ex: Parents Television Council) effectively use process to raise congressional ire & prompt new activism
• Congress passed law increasing maximum fines 10-fold (from $32,500 to $325,000)
• FCC issues historic fines
• renewed interest in policing “blasphemy”
• documentaries, live programs, and news no longer exempt from FCC attention / fines
• major court cases are filed; still pending
• new interest in expanding regulatory scope to include cable & satellite programming and “excessively violent” programming, even though it is likely unconstitutional for FCC to regulate

And that’s where things stand circa 2008.

In the next essay, I’ll take a closer look at twisted logic behind the Court’s Pacifica decision.

Next Thursday, July 3rd will mark the 30th anniversary of the Supreme Court’s landmark First Amendment decision, FCC v. Pacifica Foundation. Sadly, but somewhat ironically, the anniversary of this decision comes just a few days after we lost America’s greatest modern social satirist George Carlin, whose infamous “seven dirty words” monologue prompted the Supreme Court’s Pacifica decision. After a Pacifica Foundation radio station aired Carlin’s monologue and the FCC took action against that station, a court battle ensued regarding whether the agency had the authority to censor “indecent” content on broadcast radio and television stations.

Unfortunately, when the Supreme Court handed down its Pacifica decision 30 years ago, the First Amendment lost. By a narrow 5-4 vote, the court held that the FCC could impose fines on broadcasters who aired indecent content during daytime and early evening hours. The Court used some rather tortured reasoning to defend the proposition that broadcast platforms deserved lesser First Amendment treatment than all other media platforms. The lynchpin of the decision was the so-called “pervasiveness theory,” which held that broadcast speech was “uniquely pervasive” and an “intruder” in the home, and therefore demanded special, artificial content restrictions.

Over the course of the next week, I plan on posting some thoughts about that twisted logic and the legacy of the Pacifica decision in general. In part 2, I’ll sketch out the broad outlines of FCC indecency enforcement over the past 70 years. In part 3, I’ll be highlighting some of the original deficiencies of the “pervasiveness doctrine.” Part 4 will highlight the irrelevancy of Pacifica and the pervasiveness doctrine in light of recent technological developments. These (and potentially other) installments will highlight why Pacifica was always bad law and is even more misguided and unjust in light of recent marketplace developments.

Berin Szoka and I just released a short article on the FCC’s proposed follow-up to the failed 700 mhz D Block auction:  a free, nationwide wireless service that would serve public safety users as well as consumers.  It’s attached down below or the PDF can be found here.

What’s Worse Than Rigged Auctions & Internet Censorship? How About Both in One Package!

a PFF Progress Snapshot Release 4.12 June 2008

by Adam Thierer and Berin Szoka

The big spectrum policy debate in town these days continues to be the fight about how to redo the botched D block auction. As we all know, FCC Chairman Kevin Martin’s previous effort to micro-manage that auction failed miserably. Sadly, the follow-up plan isn’t much better, as the Wall Street Journal notes in an editorial today:

You’d think Chairman Martin would have learned from this experience. It’s not the role of regulators to pick winners and losers to achieve their preferred social outcomes. Private competition and the price mechanism can most fairly and efficiently find the best use for scarce spectrum. The FCC’s clumsy attempt at social engineering resulted in a failed auction that has prevented otherwise desirable spectrum from being put to commercial use. Alas, Mr. Martin has now proposed another wireless auction for a separate piece of spectrum. And this time he wants to require the winner to offer free Internet access that filters out pornography–conditions that obviously would decrease the value of the license and turn off potential bidders. It just so happens that Mr. Martin’s proposed auction seems tailor-made for the business plan put forward by M2Z, another politically connected Silicon Valley start-up looking to enter the wireless broadband telecom market.

The declared goal of the new plan is to provide “free” broadband to the masses while also satisfying public safety spectrum needs (though little is understood about how the propose service will support public safety). Supporting legislation introduced by Rep. Anna Eshoo (D-CA), H.R. 5846, the “Wireless Internet Nationwide for Families Act of 2008,” would require the winning bidder to:

offer, at a minimum, always-on wireless broadband services within 2 years from the date of receipt of the license, and complete the construction of such wireless network with a signal covering at least 95 percent of the population of the United States and its territories within 10 years from the initial operation of the network; [and] a data service that is faster than 200 kilobits per second one way for free to consumers and authorized public safety users without subscription, airtime, usage, or other charges.

Good luck getting anyone to bid much on that plan! It’s not really clear why anyone would think that a 200 kbps public utility service–even at zero cost–will have all that much appeal to the masses. Today, through server-side data compression, any of us can already squeeze 300 kbps out of our old dial-up lines–a service now free from companies like NetZero and generally costing less than $10/month. Even most existing wireless data plans today provide greater bandwidth. How many people are really going to want to use a “free” wireless network that pumps out far less? After all, you’re not going to be able to download many videos or big files or do anything very data-intensive on the proposed network. While a certain segment of basic smart phone users might be satisfied with such sluggish speeds for rudimentary web uses such as email, blog-reading, calendars and basic locational searches, existing equipment would not be able to connect to the proposed network because of the bands used. So, while such PDA users might seize the opportunity to use slow-but-free municipal wi-fi networks, they could not use the proposed network: an entirely new generation of wireless technologies would have to be equipped to support yet another wireless standard.

So why would any company pony up serious money at an auction to win the right to provide such a lackluster service to a minimum of 95% of the nation, including costly-to-serve low density areas, within two years? You don’t need to be a Harvard Business School grad to see why that plan doesn’t make much sense for most investors. (Never mind the fact that the auction of this much valuable spectrum with so many regulatory encumbrances will yield far less at auction to the U.S. Treasury.)

Of course, the winning bidder will likely have the right to “up-sell” customers to a higher-speed paid service. But we have no idea how well that plan will work out and, even if it did, it would call into question the logic of rigging this auction in the first place: Is the purpose truly to provide free universal broadband access, or just to hand someone a chunk of somewhat cheaper spectrum to let them up-sell customers to higher-speed, paid plans? If it’s the latter, the plan seems a little unfair to the private carriers who are already aggressively competing in the market today, having paid top-dollar for their spectrum and invested heavily in wireless data networks.

Or will the lucky auction winner be expected to rely in part on advertising revenues to pay for the up-front costs of winning the auction, building out the network and providing service–much as M2Z originally planned to do? If so, the provider would doubtless prefer to offer more profitable behaviorally targeted advertising customized for each user. The Federal Trade Commission has wisely chosen not to regulate such advertising, given its complexities and ongoing evolution, and to rely instead on enforcement of existing unfair and deceptive trade laws, while issuing voluntary guidelines for industry. But of course, the FCC would have jurisdiction over the proposed service and would likely face enormous political pressure to include its own regulatory regime for online behavioral advertising while drafting service rules. The controversy over such rules could delay the deployment of the proposed service, while any FCC regulations would inject the FCC into the ongoing debate over how to govern a practice that provides the revenue stream necessary to support a variety of content and services.

But this new spectrum-rigging plan is troubling for an entirely different reason: It demands Internet censorship. The original M2Z plan included a promise to sanitize this little patch of spectrum to make sure it was “kid-friendly.” What better way to win a spot in the heart of legislators and regulators than to promise network-wide Net filtering! After all, many lawmakers have long considered this the Holy Grail of Internet policy. Eshoo’s bill would mandate such filtering by requiring that the licensee “offer such free data service with a technology protection measure or measures that protect underage users from accessing obscene or indecent material through such service.”

It’s surprising that so few people are discussing the dangers of this portion of the proposal. After all, what we are talking about here is a blueprint for widespread, government-mandated censorship of the Internet. Many folks, including the Wall Street Journal in today’s editorial, seem to be under the impression that the mandate is strictly directed at “pornography”–and nothing more. But Rep. Eshoo’s bill clearly requires filtering of “obscene or indecent material.” Defining obscenity is difficult enough. But including “indecent” content will open up a Pandora’s Box of regulatory shenanigans. One need do nothing more than read a few pages of broadcast regulatory history to appreciate the practical challenge that awaits both providers and regulators as they attempt to monitor the network to ensure that everything is “decent” for the masses. (Moreover, is that really what the Internet that the masses want?)

Regardless, the important question is not what will be censored, but how it will be censored–a critical detail that neither Chairman Martin nor Rep. Eshoo have spelled out. But, in all likelihood, we’re talking about something more that just downloadable filters for consumers to install themselves if they so chose–leaving the decision to individuals and parents, where it belongs in a free society. Instead, it seems clear that we are talking about server-side, network-wide filtering that will essentially be forced on all users of the network. Such a technological solution will greatly slow down the already primitive network being proposed under this plan. But, more importantly, we have to wonder what sort of precedent is being established here for other broadband networks and the rest of the Net.

Of course, policymakers will respond by saying that the plan is simply another regulatory quid pro quo: We rig the auctions to drive down the cost, and you, the winning carrier, clean up the Net for us. That’s all easier said than done, and it raises a host of constitutional issues in the process. There are many better ways to protect kids, and there are certainly better ways to run a spectrum auction.

PFF has just releasing an updated edition of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods.” The new version, Version 3.0, includes two new appendixes and updates to each section to reflect new parental control tools and programs developed in the last nine months.

The updated report is timely as it comes on the heels of the recently-announced Internet Safety Technical Task Force, which is being chaired by the Berkman Center for Internet & Society at Harvard Law School. I am privileged to serve as a member of the Task Force, which is evaluating various online safety technologies and strategies and then reporting back to state attorneys general with our findings.

Those issues and much more are covered in the latest edition of my report. The report explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

Version 3.0 of the special report, now over 200 pages, contains over fifty exhibits and numerous updates in all five sections of the book. Major updates have been made to the Internet, social networking, and mobile media sections, reflecting the growing importance of those sectors and issues. A greatly expanded section on video empowerment technologies has also been included. Finally, two appendices have also been added: a comprehensive legislative index cataloging over thirty bills introduced in Congress on these issues (complied with John Morris of Center for Democracy & Technology), and a glossary of 35 relevant terms and cases.

The report is available free-of-charge on the PFF website, as are the previous editions. And I am happy to provide hard copies to those who are interested.

PFF has just released my latest paper entitled “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation.” In the report, I focus on the extent to which new video technologies, such as digital video recorders (DVRs) and video on demand (VOD) services, are changing the way households consume media and are helping parents better tailor viewing experiences to their tastes and values. I provide evidence showing the rapid spread of these technologies and discuss how parents are using these tools in their homes. Finally, I argue that these developments will have profound implications for debates over the regulation of video programming. As parents are given the ability to more effectively manage their family’s viewing habits and experiences, it will lessen—if not completely undercut—the need for government intervention on their behalf.

This 16-page report can be found at: http://www.pff.org/issues-pubs/pops/pop14.20DVRboomcontentreg.pdf