As faithful readers no doubt know, I’m a big fan of Section 230 and believe it has been the foundation of a great many of the online freedoms we enjoy (dare I say, take for granted?) today. That’s why I’m increasingly concerned about some of the emerging thinking and case law I am seeing on this front, which takes a decidedly anti-230 tone.
Consider, for example, how some might weaken Sec. 230 in the name of “child safety.” You will recall the friendly debate about the future of Sec. 230 that I engaged in with Harvard’s John Palfrey. Prof. Palfrey has argued that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.” Similarly, Andrew LaVallee of The Wall Street Journal reported from a conference this week that Sec. 230 became everyone’s favorite whipping boy, with several participants suggesting that the law needs to be re-opened and altered to somehow solve online “cyber-bullying” problems.
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Ted Dziuba has penned a humorous and sharp-tongued piece for The Register about last week’s Adblock vs. NoScript fiasco. For those of you who aren’t Firefox junkies, a nasty public spat broke out between the makers of these two very popular Firefox Browser extensions (they are the #1 and #3 most popular downloads respectively). To make a long and complicated story much shorter, basically, NoScript didn’t like Adblock placing them on their list of blacklisted sites and so they fought back by tinkering with the NoScript code to evade the prohibition. Adblock responded by further tinkering with their code to circumvent the circumvention! And then, as they say, words were exchanged.
Thus, a war of words and code took place. In the end, however, it had a (generally) happy ending with NoScript backing down and apologizing. Regardless, Mr. Dzuiba doesn’t like the way things played out:
The real cause of this dispute is something I like to call Nerd Law. Nerd Law is some policy that can only be enforced by a piece of code, a public standard, or terms of service. For example, under no circumstances will a police officer throw you to the ground and introduce you to his friend the Tazer if you crawl a website and disrespect the robots.txt file.
The only way to adjudicate Nerd Law is to write about a transgression on your blog and hope that it gets to the front page of Digg. Nerd Law is the result of the pathological introversion software engineers carry around with them, being too afraid of confrontation after that one time in high school when you stood up to a jock and ended up getting your ass kicked.
Dziuba goes on to suggest that “If you actually talk to people, network, and make agreements, you’ll find that most are reasonable” and, therefore, this confrontation and resulting public fight could have been avoided. They “could have come to a mutually-agreeable solution,” he says.
But no. Sadly, software engineers will do what they were raised to do. And while it may be a really big hullabaloo to a very small subset of people who Twitter and blog their every thought as if anybody cared, to the rest of us, it just reaffirms our knowledge that it’s easy to exploit your average introvert. After all, what’s he gonna do? Blog about it?
OK, so maybe the developers could have come to some sort of an agreement if they had opened direct channels of communications or, better yet, if someone at the Mozilla Foundation could have intervened early on and mediated the dispute. At the end of the day, however, that did not happen and a public “Nerd War” ensued. But I’d like to say a word in defense of Nerd Law and public fights about “a piece of code, a public standard, or terms of service.”
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Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak. And our own Tim Lee is currently studying there as well. I wish I was smart enough to get into that program!
The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.
http://www.youtube.com/v/xJo3tVMScyI&hl=en&fs=1
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This week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution. The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:
We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York
, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.
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Gamepolitics.com reports on a new South Carolina bill that proposes to outlaw public profanity. The measure, S. 56, stipulates that:
It is unlawful for a person in a public forum or place of public accommodation wilfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature. A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both.
Let’s ignore the free speech issues in play here — although they are numerous — and ask the 3 questions I increasingly put front and center in everything I write about modern censorship efforts: (1) How do they plan to enforce it? (2) Is there really any chance of such a law being even remotely successful? (3) How onerous or intrusive will it be to attempt to do so?
We can imagine a few examples of where such a law could create serious challenges. For example, how would law enforcement officials deal with public swearing at ball games and other sporting events? And not just in the crowd but from the players. Have you ever heard Tiger Woods after he misses a close putt? Wow. He might want to avoid the next tournament in South Carolina! But how about profanities uttered in other public places, like hospitals during painful procedures? Man, you should have heard the profanities my wife was letting loose when our two kids were arriving in this world. Would have made George Carlin blush! And how about the halls of Congress? Oh my, now there is an education in sailor talk, although perhaps less so with VP Cheney departing. I’m sure that more than a few choice profanities have been tossed about down in the South Carolina statehouse at times. And there are lots of other cases where enforcement would be challenging: bars, concerts, comedy shows, political protests, etc.
Bottom line: We are talking about a lot of fines and jail time down in the Palmetto State!
Look, I’m as uncomfortable with excessive public profanity as anyone else when my kids are around. But I talk to them about it because I know it will never go away.When we are surrounded by foul-mouthed hooligans at ballgames, I frequently remind my kids that it’s not appropriate to say such things and that only “stupid people use stupid words.” Of course, Dad has been known to use his share of “stupid words” at home at times, too. My daughter recently threatened to “tell Mommy” on me when I hit my thumb with a hammer and let a choice word fly. Hey, it happens. It’s not the end of the world. We can try to change our habits and teach our kids better manners. But I doubt laws like the one South Carolina is considering will really make much of a difference.
Ken Ferree and I just filed an amicus brief with the D.C. Circuit in what could be among the most important First Amendment cases involving economic regulation in years: Comcast’s challenge to the FCC’s cap on the maximum size of a cable operator’s nationwide subscriber-audience. While few may feel righteous indignation at limitations targeted at large corporations such as Comcast or Time Warner, the larger principle at stake here is deeply important: Will the First Amendment provide a meaningful check on what USC law professor Chris Yoo has called “architectural censorship” (i.e., so-called “structural” regulations that “have the unintended consequence of reducing the quantity, quality, and diversity of media content”).
In a nutshell, we argue that that:
- The provisions of the 1992 Cable Act authorizing the FCC to impose a “cable cap” are outdated in world of media abundance and vibrant platform competition.
- Because cable is no longer the unique “bottleneck” or “gatekeeper” that it was in 1992, these statutory provisions (not just the FCC’s 30% rule) must be subject to strict scrutiny under the First Amendment as a limitation on free speech.
- Because there are “less restrictive means” of ensuring cable operators do not impede the flow of video programming to consumers, the court should strike down these provisions.
- Even if the court upholds the statute, it should nonetheless strike down the cap issued by the FCC in December 2007 (30% of all Multichannel Video Programming (MVPD) subscribers as based on an outdated model of the video marketplace.
I encourage you to read our brief (below). I’ve provided a summary below, along with some additional commentary we just couldn’t cover under our 3500 word limit.
Strict Scrutiny. Yoo’s article Architectural Censorship and the FCC is essential reading for anyone who believes that government regulations on the size and shape of the “soapbox” can have huge effects on speech itself. Yoo argues that the First Amendment should check this kind of regulation–however “content-neutral” it might seem–under “strict scrutiny”, which requires that the government show that a regulation is the “least restrictive means” available for advancing a “compelling government interest.” But Yoo ultimately concludes (pp. 713-718, PDF pp. 45-50) that, under existing precedent, most “architectural censorship will be effectively insulated from meaningful judicial review.” Continue reading →
