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.

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!

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.

I’ve been commenting on yesterday’s Supreme Court decision in FCC v. Fox, and criticizing the logic of the majority’s decision the case, which was driven solely by procedural / admin law considerations. [See Part 3.]  I also discussed Justice Thomas’s very interesting concurring opinion, which took a serious look at the constitutional issues in play here and signaled his willingness to potentially overturn Red Lion and Pacifica. [See Part 4.]  In this fifth installment, I will briefly outline some of the dissenting arguments.

Justice Stephen Breyer penned a lengthy dissent and was joined by Justices Stevens, Souter and Ginsburg.  Like the Scalia majority decision, the Breyer dissent also focused on the procedural / APA-related issues at stake in the case.  Breyer, however, was not buying the FCC’s assertion that it had adequately justified its significant expansion of indecency enforcement in recent years.  Whereas the majority deferred to the agency and found “no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review,” the four dissenting justices saw things quite differently.  Breyer noted that while the “law grants those in charge of independent administrative agencies broad authority to determine relevant policy,” it “does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.”  He goes on to appropriately note that:

Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “‘the exercise of political oversight.’” [citations omitted] That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from ballot-box control makes it all the more important that courts review its decision making to assure compliance with applicable provisions of the law — including law requiring that major policy decisions be based upon articulable reasons.

Breyer goes on to restate much of what is already clear from the APA and all that surrounds it. “[A]n agency must act consistently. The agency must follow its own rules,” he notes.  Moreover: 

“The law has also recognized that it is not so much a particular set of substantive commands but rather it is a process, a process of learning through reasoned argument, that is the antithesis of the “arbitrary.” This means agencies must follow a “logical and rational” decisionmaking “process.”

Finally, while admitting that agencies have generally been granted “generous leeway” to establish new policies, “this leeway is not absolute,” Breyer notes.  Breyer then finds that the FCC did not measure up to these standards when crafting and announcing changes to its indecency enforcement policies.  I will spare you all the details which you can read for yourself, but I think Breyer makes a very solid case that that the agency over-stepped its bounds and acted in a way that was “arbitrary, capricious, [and] an abuse of discretion.”  Alas, Breyer could not find one more vote to make that the majority holding in this case.

Incidentally, in separate dissents, Justices Ginsburg and Stevens had some feisty things to say about the FCC’s actions and the majority decision.  Justice Ginsburg appropriately noted that “there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today’s decision does nothing to diminish that shadow.”  On the question of the continuing wisdom of the Pacifica decision, which Justice Thomas hinted he was ready to revisit and potentially overturn, Justice Ginsburg had this to say:

The Pacifica decision, however it might fare on reassessment, was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775.  That comment, fitting in the 1970’s, is even more potent today.  If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).

What a strange world we live in when Justices Ginsburg and Thomas are jointly leading a First Amendment revolution!

Finally, in his separate dissent, Justice Stevens argued that, “The FCC’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape. It therefore makes eminent sense to require the Commission to justify why its prior policy is no longer sound before allowing it to change course.”  He goes on to discuss semantic issues and the dangers of allowing the government to regulate speech and determine the context in which it is appropriate and when it is not.  It makes for some very entertaining reading that you just don’t see every day in a Supreme Court decision.  He states:

There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use of such a word for an entirely different purpose, such as to express an emotion. One rests at the core of indecency; the other stands miles apart. As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency.

Having spent many frustrating hours on the links attempting to master the (inappropriately-named) “gentleman’s game,” I can vouch for the level of vulgarity uttered during seemingly all moments of play, and I certainly can’t remember anyone thinking that sexual or excretory functions where the subject of discussion.  Anyway, Justice Stevens goes on to conclude that:

Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin. These words may not be polite, but that does not mean they are necessarily “indecent” under §1464.  By improperly equating the two, the Commission has adopted an interpretation of “indecency” that bears no resemblance to what Pacifica contemplated. Most distressingly, the Commission appears to be entirely unaware of this fact, see Remand Order, 21 FCC Rcd., at 13308 (erroneously referencing Pacifica in support of its new policy), and today’s majority seems untroubled by this significant oversight. Because the FCC has failed to demonstrate an awareness that it has ventured far beyond Pacifica’s reading of §1464, its policy choice must be declared arbitrary and set aside as unlawful.

Again, regrettably, this logic did not carry the day.

With today’s historic Supreme Court decision in FCC v. Fox, I have been commenting on the logic and implications of the decision. Part 3 dealt with the majority’s decision in the case, which was driven solely by procedural / admin law considerations.  This installment will discuss the very interesting concurring opinion penned by Justice Thomas, which is the only one that takes a serious look at the constitutional foundations of the FCC’s current regulatory regime.  While I was sad to see Justice Thomas join the majority’s decision upholding the FCC’s radical expansion of speech regulation in recent years, he joined that majority only on straightforward procedural grounds.   On the underlying constitutional issues at stake here, it is clear from his concurring statement that he is ready for the Court to hear a challenge to the previous court precedents and traditional regulatory doctrines that have long supported FCC speech and media controls.

“I write separately,” Justice Thomas says “to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”  Specifically, he addresses the two key cases upon which almost all FCC speech regulation rests: Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) and FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Thomas continues: “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

BOOM!  With those words, Justice Thomas has dropped the hammer and taken what will hopefully be the first swing at toppling the house of cards that is modern FCC speech regulation.  Justice Thomas goes on to itemize the many problems with what I have referred to as “America’s Jurisprudential Twilight Zone” when it comes to how we apply the First Amendment to media platforms in this country.  He states:

This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. […]  First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the ‘scarcity of radio frequencies’… to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity…  Second, even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. […]

Moreover, traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. Broadcast and other video programming is also widely available over the Internet. And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices.

Indeed, along with my friends as the Center for Democracy & Technology, I documented these trends in an amicus brief to the Supreme Court in this case and pointed out that, at some point, these facts must impact the constitutional equation when it comes to the way the FCC continues to regulate broadcast programming uniquely.  Justice Thomas appears to agree:

The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today. […] These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis. […] For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.

Unfortunately, this case apparently was not “the proper case” for Justice Thomas and so he joined the majority’s APA-driven decision and left the thorny constitutional issues for another day.  Eventually, however, the Court is going to have to come to grips with the issues that Justice Thomas has put front and center in his concurring opinion today.

Finally, in his otherwise outstanding statement, I was disappointed that Justice Thomas made no mention of the Court’s recent Internet jurisprudence, which has all gone squarely in favor of robust First Amendment protection for the Net and online speakers.  In particular, the “least restrictive means” test that has developed in those cases (i.e., deferring to user self-help tools before allowing state regulation) is equally applicable to programming television programming.  Just as parents have been empowered to take control of the online content that comes into their homes using filters and other tools, so too have parents been empowered to restrict or tailor television program to their tastes and values. How, then, is it the case that the Court upholds this logic in cases like Reno (the CDA case), Ashcroft (the COPA case), & Playboy (the cable TV signal scrambling case), but not in the case of broadcast TV programming, which is easier to control than ever before?  It makes zero sense.

Regardless, I hope other judges are listening to what Justice Thomas had to say today and taking these arguments seriously.

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.

The presentation is based upon several other essays, court filings, and law review articles I have written on the topic, including:

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, 7/10/07.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,” by Adam Thierer, 1/20/09.
• Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008

My new article on “FCC v. Fox and the Future of the First Amendment” has just been published in the February 2009 edition of Engage, the journal of the Federalist Society. Here’s how it begins:

On November 4th, 2008, the Supreme Court heard oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. This case, which originated in the Second Circuit Court of Appeals, deals with the FCC’s new policy for “fleeting expletives” on broadcast television. The FCC lost and appealed to the Supreme Court. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — was heard in the Third Circuit Court of Appeals. The FCC also lost that case and has also petitioned the Supreme Court to review the lower court’s ruling. These two cases reflect an old and odd tension in American media policy and First Amendment jurisprudence. Words and images presented over one medium-in this case broadcast television-are regulated differently than when transmitted through any other media platform (such as newspapers, cable TV, DVDs, or the Internet). Various rationales have been put forward in support of this asymmetrical regulatory standard. Those rationales have always been weak, however. Worse yet, they have opened the door to an array of other regulatory shenanigans, such as the so-called Fairness Doctrine, and many other media marketplace restrictions. Whatever sense this arrangement made in the past, technological and marketplace developments are now calling into question the wisdom and efficacy of the traditional broadcast industry regulatory paradigm. This article will explore both the old and new rationales for differential First Amendment treatment of broadcast television and radio operators and conclude that those rationales: (1) have never been justified, and (2) cannot, and should not, survive in our new era of media abundance and technological convergence.

I go on in the piece to make the case against the those rationales and the call for the Supreme Court to use the Fox and CBS cases to end this historical First Amendment anomaly of differential treatment of broadcast platforms relative to all other media providers.

This article can be downloaded as a PDF here, or viewed down below the fold in the Scribd reader.

FCC v Fox and Future of First Amendment (Thierer-PFF) http://d.scribd.com/ScribdViewer.swf?document_id=12683998&access_key=key-epitk15wtp38l34jow7&page=1&version=1&viewMode=list

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…

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.

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 fifth in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which turns 30 this week. Here are parts 1, 2, 3, and 4. This installment is a joint editorial I released today with my friend John Morris, general counsel for the Center for Democracy & Technology].

[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.

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.

Back in 2005, I threw away a book I was writing. Well, I didn’t exactly toss it in a garbage can or take a match to the manuscript; I just abandoned the project to work on other things, including a different book and a big law review article. I’m still mad at myself for never finishing it up because I think it put forward a provocative thesis: Censorship is dead. Specifically, as I argued in the first lines of the book, “A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming.” Accordingly, the running title for the book was: “The End of Censorship?: The Future of Content Controls in a World of Media Convergence.”

Anyway, I recently unearthed an old draft of this discarded manuscript and thought I might as well at least throw the introduction online. In it, I outline my thesis and the “5 Reasons Content Controls Will Break Down.” I also highlight how governments will fight back and discuss what alternatives are out there to address concerns about objectionable content. Someone out there might be interested in all this even though much of what I say here is now widely accepted or been said better by others. I’ve stripped out all the footnotes and cut out significant sections to make what follows more readable. So, here it goes…

“The End of Censorship? The Future of Content Controls in a World of Media Convergence.”

Content regulation–at least as it has been traditionally defined and enforced in the United States–is doomed. A confluence of social, legal and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of speech or media programming. Specifically, it is the distribution channel-based system of content regulation employed in the U.S. and many other nations that is breaking down. That is, the ability of governments to regulate speech and expression by regulating its distribution channel or provider (such as broadcasting), represents in increasingly ineffective and illogical method of policing content flows.

The demise of traditional content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.

For example, we know the old regulatory regime is in trouble when consumers can use a device such as the Sony PlayStation Portable not just to play games and watch movies, but also to surf the Internet, e-mail or instant message friends, download music and videos, and even watch live TV. Similarly, Apple’s wildly popular iPod, which can be used to enjoy music and video anywhere consumers wish, has spawned a whole new world of mobile media opportunities and imitators. And in late 2005, TiVo announced it would be making its popular video “space-shifting” services available through both iPods and PlayStation Portables, meaning that almost any piece of televised video content will also be accessible over those (and other) devices in the future.

And technologies like the PlayStation Portable, the iPod and TiVo are just the tip of the iceberg. Just as wireless technologies have revolutionized the telecommunications sector, in a few years, most consumers will own some sort of mobile media gadget (probably several) that enables “anywhere, anytime” media consumption. This book will document countless other technologies and services that are currently undermining traditional content control regimes.

Importantly, content controls can be broadly defined to not only include the regulation of “objectionable” content (whatever that might include), but also the promotion of so-called “public interest” content or other media quality objectives. Examples would include children’s television programming mandates, free airtime for politicians, “must-carry” mandates, and “PEG” (public, educational, and governmental) access requirements. Such content controls are also doomed. Whether government is regulating with the intention of repressing or promoting specific viewpoints or content it makes little difference; both types of controls are being rapidly undermined by new marketplace developments and realities.

These developments are the inevitable outgrowth of the relentless pace of technological and social change and that society will need to adapt to these changes very quickly because there is no reversing these trends. For millions of parents like me, this will mean we will need to find methods of countering the problems that technology has created in terms of offering us abundant and ubiquitous media options. Parents will need to harness other technologies and services to control their children’s access to objectionable programming or lead them to the sort of programming they want them to consume. While that sounds like a formidable challenge, the good news is that there is more enriching and educational fare available today than ever before, and more ways for parents to filter access to the objectionable content they do not want their children to see or hear. Admittedly, however, the challenge of controlling access to unwanted content will be great, and parents will have to be more vigilant than ever.

Many policymakers and pro-regulatory special interest groups will dwell on the types of content that they find distasteful and continue to advocate a generous role for government as protector of morality, taste and “quality” programming. But this is fool’s errand. In our modern world of media abundance, rapid proliferation of distribution outlets, the digitization of all information, and relentless technological change and convergence, there is simply no way that government can effectively control information and content flows absent extreme measures.

From Information Poverty to Information Abundance To understand why traditional content controls are doomed, it’s necessary to step back and take stock of just how far we’ve come in recent decades in terms of media and information diffusion.

[Note: At this point in the narrative, I spent a few pages illustrating exactly how much better off society is today than ever before in terms of the abundance of information and entertainment at our collective disposal. But then I pointed out that…]

Alas, life in the “Information Age” has its detractors. The funny thing about information and media is that the more you have, the more people find to complain about. Nowhere is this more clearly evident than in the debate over the regulation of “indecent” content on television, radio, cable or the Internet. This is not a new debate, of course. The impulse to control content is as old as the press or even writing itself. The first day someone put pen (or quill) to paper was likely also the first day someone proposed censoring the message that writer sought to convey.

In the wake of a handful of high-profile incidents on broadcast television and radio over the past few years, a significant new regulatory push has been underway in Congress and at the Federal Communications Commission (FCC). Critics aim to crack down on indecency on broadcast radio and TV. The regulation of “excessive violence” is also a commonly stated goal of these regulatory advocates. Such efforts to regulate violence in media are based on many of the same theories or arguments as indecency regulation.

Importantly, many of the latest regulatory proposals would expand media regulation in significant new ways, not only for over-the-air broadcast licensees, but also for subscription-based outlets such as cable and satellite networks. This would be the case even though recent First Amendment judicial decisions dealing with new media outlets, namely the Internet and video games, are pushing in the opposite direction. The courts have held that attempts to regulate content on the Internet, or violence in video games, are unconstitutional burdens on freedom of speech and expression.

The 5 Reasons Traditional Content Controls Will Break Down Thus, America’s media policy is now stuck in a jurisprudential Twilight Zone. Speakers using the Internet or print outlets (i.e., newspapers and magazines) are guaranteed the gold standard of First Amendment protection, while those using broadcast radio and television to speak are only accorded the equivalent of second-class free speech rights. Meanwhile, cable and satellite speakers are caught somewhere in the middle with the courts generally granting them more freedom than broadcasters, but not as much as speakers using the Internet or newspapers. And it remains to be seen how emerging media technologies and outlets will be classified.

As the authors of one popular communications law book note: “The central problem is that communications law has always been based on different rules for different media—different regulations, different jurisdictions, even… different levels of First Amendment protection. Unfortunately, this no longer reflects technological reality.” (Carter, Dee, and Zuckman, Mass Communications Law, 2000) Indeed, this current distribution channel-based legal arrangement is unjust, indefensible, and ultimately unsustainable for five reasons:

(1) Convergence: A jurisprudence so radically divided cannot stand in an age of rapid technological convergence. Media content and outlets are blurring together today thanks to the rise of myriad new technologies and competitors. These new media technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. In other words, convergence means that media content is increasingly being “unbundled” from its traditional distribution platforms and finding many paths to the consumers. As a result of these developments, it is now possible to consume to the same piece of content via a broadcast TV or radio station, a cable channel, a satellite system, on a DVD player, on a cell phone or mobile media device, on a portable gaming system, or over the Internet. In this “multiplatform” environment, consumers can increasingly dictate when, where and how they consume media content. “For us, multiplatform is more than the buzzword of the day,” says MTV President Christina Norman. “It is the way this audience lives.” Thus, contrary to the famous assertion of media analyst Marshall McLuhan that “the medium is the message,” today the medium is just another medium or distribution path; it is the message (or content in general) that is now truly king.

Thus, convergence will make it increasingly complicated and intrusive for lawmakers to apply old media standards and regulations to newer technologies and outlets. “The phenomenon of convergence has… rendered obsolete a regime in which differential content regulation is applied based on the technology used to deliver content,” argued Jeff Eisenach and Randolph May of the Progress & Freedom Foundation in 2000.

The following examples illustrate how convergence renders the old regime obsolete as Eisenach and May suggest. In March 2006, following an FCC decision to impose steep new indecency fines on certain broadcast television shows, the WB Network decided to self-censor several scenes from a new drama that was about to air on its broadcast television affiliates. The network was concerned that it might be subjected to fines for airing the new show without certain edits. But before they aired the edited pilot episode on their WB broadcast television outlets, the network decided to air the unedited version on their Internet website. According to the New York Times, “It [was] the first time a network has offered on another outlet an uncut version of a program it has been forced to censor.”

But this won’t be the last time this happens in a world of proliferating media platforms and delivery options. Indeed, just a few months after WB took this step, CBS television network affiliates came under pressure from certain regulatory activist groups to self-censor or not air an award-winning documentary about the “9/11” terrorist attacks because it contained profanities uttered by firefighters or citizen under great duress. Several local CBS affiliates bowed to the pressure and decided not to air the documentary. But CBS Corp. responded by airing the entire unedited version of the documentary on its website so that consumers in areas where it had been blacked out could see it.

Opportunities for such cross-platform marketing are exploding. … [I then provided dozens of additional examples.]

In sum, because convergence is shattering the distribution-based business and regulatory distinctions of the past, it means that media regulation in general, and speech controls in particular, will be severely strained.

(2) Scale: Because technological and media convergence is now upon us, in the future, a regulatory attack on one type of media outlet or technology could be tantamount to an attack on all media. This is especially the case given the increasingly global scale of the Internet and modern media networks and digital communications technologies.

In the past, the reach of media was limited by geographic, technological, and cultural / language considerations. Today, by contrast, media can now flow across the globe at the click of a button because of the dramatic expansion of Internet access and broadband connectivity. While important cultural / language barriers remain, many traditional geographic and technological limitations are fading away. As New York Times columnist Thomas Friedman argues, the world is becoming more “flat” or interconnected.

Thus, the scale of modern digital media content and operations will greatly complicate government efforts to impose “community standards” on one type of content or distribution outlet given the borderless nature of most modern media. Nonetheless, lawmakers–local, national, and global–will almost certainly attempt to expand regulations (including content controls) to cover emerging media technologies and outlets as they become more popular. Lawmakers in the United States are already debating how to expand indecency controls to cable and satellite networks, for example. And policymakers in Europe, Canada and Australia are also grappling with this and proposing the expansion of traditional regulatory regimes to new technologies or providers.

(3) Volume: But as policymakers continue to push out the confines of traditional media / content regulation, the sheer volume of media activity that exists today will greatly complicate the task before them. In simple terms, there is just too much stuff for regulators to police today relative to the past. As a blue ribbon panel assembled by the National Research Council reported in 2002: “The volume of information on the Internet is so large–and changes so rapidly–that it is simply impractical for human beings to evaluate every discrete piece of information for inappropriateness.”

While it may have been possible to oversee a handful of TV and radio stations in each community or nation in the past, today’s electronic media universe is so diverse and enormous—and evolving so quickly—that content controls will gradually break down in light of the enforcement burden at hand. A few numbers regarding Internet growth and usage, in particular, can help put this “problem” into perspective:

[A half dozen factoids then followed documenting the growth of online activity.]

(4) User-Generated Content: Considering the relative youth of this new communications / entertainment medium, these are astonishing growth numbers. This explosive growth is a direct result of the seismic shifts underway in our new world of organic, bottom-up media creation—what Wired editor Chris Anderson refers to as “the Age of Peer Production”:

“The tools of production, from blogging to video-sharing, are fully democratized, and the engine for growth is the spare cycles, talent, and capacity of regular folks, who are, in the aggregate, creating a distributed labor force of unprecedented scale.”

In this new world in which every man, woman and child can be a one-person publishing house or self-broadcaster, restrictions on viewing, listening or downloading will be become increasingly difficult to devise and enforce. …

[Still more examples followed that illustrated how this trend was also undermining content control efforts.]

(5) The First Amendment: Given the problems of convergence, scale, volume, and the rise of user-generated content, regulators might react by simply sticking to the regulation of licensed electronic media providers, namely, television and radio broadcasters. After all, lawmakers already have a great deal of leverage over those media outlets and they might hope that by regulating them alone, a message will be sent to other media providers regarding what is acceptable content.

But that is a false hope. Traditional “free, over-the-air” broadcasting represents a steadily shrinking portion of our modern media universe. In recent years, the hegemony of the “big 3” television networks and the powerful local radio broadcast stations has been greatly eroded. Indeed, broadcasters are now struggling to adapt and survive in a world of media abundance and intense competition. Consequently, if regulators simply continue to regulate licensed broadcasters alone, it will simply accelerate the decline of broadcasting relative to its many new competitors. Asymmetrical regulation will be the death warrant for free, over-the-air broadcasting.

Eventually, the very existence of this asymmetry will force a major Supreme Court showdown testing the legitimacy of the bedrock cases upon which America’s broadcast content control regime rests: Red Lion Broadcasting Co. v. FCC (1969) and FCC v. Pacifica Foundation (1978). Red Lion held that broadcast television and radio could be regulated differently than traditional print outlets (newspapers and magazines) because broadcast outlets were more “scarce” than other media outlets and, therefore, required government licenses to operate. Consequently, speech controls were viewed as a natural outgrowth of government licensing and oversight responsibilities in the name of protecting “the public interest.” Pacifica held that broadcasters shouldn’t receive the same First Amendment protections as other media because broadcasting was more “pervasive” throughout society and also more “uniquely accessible” to children. To reiterate, these standards were only applied to broadcast radio and television, not print media and generally not cable or satellite.

There have always been serious intellectual deficiencies associated with the “scarcity” and “pervasiveness” rationales for America’s schizophrenic media policy. What is increasingly obvious to most observers, however, is that the Red Lion and Pacifica rationales for asymmetrical regulation will simply no longer work in the modern media environment. Red Lion’s “scarcity” rationale is now an absurd basis for regulation in light of the sheer volume of media at our disposal. And the problem with Pacifica’s “pervasiveness” standard as a regulatory rationale is that it proves too much; it could cover anything public officials deem to be widely available or “uniquely accessible” to children. (In terms of what children see or hear, is broadcasting really more pervasive than cable, cell phones, video games or the Internet today?) Moreover, although some lawmakers would like to make it so, the new regulatory calculus cannot magically become “popularity equals pervasiveness.” Merely because a given media outlet or technology gains more widespread use throughout society, it does not mean its First Amendment status should change. The courts will likely reject any effort by government to say that 51% market penetration results in diminished speech protection for a given media outlet or provider.

But one powerful rationale for the expansion of content controls remains: the “level playing field” argument. Many lawmakers, and potentially even some traditional broadcasters, will use “level playing field” arguments to justify the extension of the old regulatory regime to new media technologies–cable, satellite, cell phones, and the Internet–in the name of fairness. But, again, as these and other new technologies and outlets come to dominate America’s media landscape, lawmakers should reject the urge to impose old rules on new technologies and services. Already, the courts have firmly rejected the Communications Decency Act (CDA) of 1996 and subsequent efforts–both federal and state-based–to impose speech controls on the Net. As a result, the Internet now receives the same level of strict First Amendment scrutiny and protection as print outlets. In choosing how to level the regulatory playing field between print, the Net, cable, satellite, broadcasting and all other media, it should be done in the direction of greater freedom for all speakers, not less. Ironically, it was the FCC that most succinctly captured this principle when it decided to abandoned the so-called Fairness Doctrine in 1987:

[T]he role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. … First Amendment protections against content regulation should apply equally to the electronic and the printed press.

The FCC was right; the standard that governs print media should apply to all electronic / digital media as well. The fact that the Internet has already won significant judicial protection from legislative efforts to regulate online content indicates that the courts have already moved to adopt this position. It is increasingly unlikely that the courts will accept the extension of broadcast-era content regulations to new media outlets and technologies. The courts appear ready to apply stricter scrutiny to all speech controls in the future, especially since judges are not blind to the convergence and scale / volume problems outlined above. This is the “higher First Amendment standard” problem which all new content-related legislative and regulatory enactments will now face in America.

The Empire Strikes Back Governments won’t give up, of course. As legal, technological and cultural changes continue to erode the effectiveness of the distribution-based regulatory methods of the past, governments will search for new ways to continue to exert control over content flows. But, as previously mentioned, it will likely take extreme measures by government to accomplish this task in the future. Two approaches deserve close consideration, and they are outlined succinctly in a new book by Jack Goldsmith and Tim Wu entitled Who Controls the Internet: Illusions of a Borderless World.

Goldsmith and Wu are proponents of what David Post has referred to as the “unexceptionalist” school of thinking about Internet governance and media regulation. Unexceptionalists believe that the problems created by the rise of the Internet and new digital media outlets and technologies are really not all that different than the problems lawmakers had to deal with before when the telegraph, telephone and television first appeared. “Exceptionalists,” by contrast, believe that the Internet and the many other new media technologies and developments really are quite different than previous technologies and pose a more formidable challenge to traditional legal arrangements.

While unexceptionists like Goldsmith and Wu often concede that the Internet and new media technologies present unique challenges, they argue that domestic and international legal systems can adapt to accommodate local preferences and respect territorial regulations, including content controls. At root, their argument is that we should never underestimate the power of state coercion to essentially beat people, companies and technologies into submission. Using various coercive powers, the state can contain speech flows even in our new multimedia, multiplatform world, they say.

But the two primary approaches they identify to accomplish this task are riddled with problems:

The “Great Wall” Approach: One obvious approach to controlling content flows is for government to control the underlying “means of production” and information dissemination. In today’s Internet world, that means government would seek to control of the routers, servers, and other computing or networking devices that constitute the heart of modern information infrastructure. This is the approach that more repressive regimes like Saudi Arabia, China, North Korea and Iran have adopted to control “undesirable” information flows. Indeed, China’s highly restrictive system has been dubbed the “great firewall of China.”

But “great wall” regulatory solutions are almost completely untenable in more advanced economies since the information genie is already well out the bottle. In the United States and most European nations, for example, private ownership of means of information production is so diffuse and decentralized that it would be impossible for governments to gain control over the system and control information flows. Moreover, governments in democratic nations have a greater respect for the rule of law, property rights and various free speech values in more advance economies where the Internet has already taken root.

Thus, this solution is really only tenable in less developed economies that are just witnessing the sort of digital media renaissance we have seen in the U.S., Europe and Asia. Even in those countries that have adopted this approach, it is unlikely it is a workable solution well into the future. Networks expand. Technologies evolve. The “Net-izenry” (online population) grows. The scale and volume numbers cited above, while remarkable, only represent a trickle before the flood. Again, only 15 percent of the world’s population has found its way online so far. What happens when that number hits 25 percent, and then 50 and then 75+? And what happens as wireless and satellite-based technologies become even more advanced and every laptop and mobile media device on the planet offers wirelessly accessible Internet access? A recent story in The Washington Post noted how despite strict communications and media laws in Saudi Arabia—the country once sought to ban cell phone cameras—the youth of that country are finding ways around the restrictions:

“Cellphone technology is changing the way young people meet and date in the Kingdom of Saudi Arabia, one of the most insular, conservative and religiously strict societies in the world. Calls and texting—and more recently, Bluetooth—are breaking down age-old barriers and giving young men and women discreet new ways around the sentries of romance.”

The Washington Post now includes a section on its website called “Digital Revolution” that highlights stories “about high technology’s impact on politics, culture and society throughout the world.” And other tools of evasion are coming… [ I went on to describe some of them]

The “Deputize the Middleman” (Secondary Liability) Approach: A more realistic solution discussed by Goldsmith and Wu that could be tapped by governments (including those in advanced economies) would involve stringent liability schemes for major communications / Internet intermediaries.

[I never finished this section up, and that’s too bad because this is exactly where the debate over content controls stands today. But, I had outlined that…]

There are serious dangers with this approach as well:

• over-reaching self-censorship
• significant costs for intermediaries
• creates incentive to move offshore or operate surreptitiously outside the confines of law using encryption, anonymizers, and host of other tools

[Note: My TLF colleague Jim Harper wrote an important essay on these issues: “Against ISP Liability,” Regulation, Spring 2005, pp. 30-33.]

The Challenge Ahead If the thesis set forth here is valid and the days of traditional content controls are truly numbered, what happens next? Specifically, if government restrictions become largely ineffective or constitutionally impermissible, will parents or others be left powerless to stop what some believe is an onslaught of objectionable material?

This is reasonable concern. Like most parents, there are some types of content that I do not want my children to see or hear, especially at a very young age. And access to such materials is growing increasingly easy as children begin using communications technologies at earlier ages. Meanwhile, children continue to grow increasing technology-savvy. Since the rise of the personal computing in the 1980s and the Internet in the 1990s, there has been a running joke about how kids have to teach their parents and even teachers how to use these new digital tools.

No doubt, there is a great deal of truth in that notion. But does that mean children will be left on their own and expected to raise themselves in cyberspace? Are we facing a sort of “Lord of the Flies” scenario in which there are no constraints on what our children can do and they are left to enact rules of the road for themselves?

This seems to be the fear many parents and policymakers have today when they express frustration about what their children can see and hear in our media-saturated culture. To some, information abundance is a curse instead of a blessing; a problem to be dealt with, possibly even through extreme government measures such as “great wall” solutions or harsh liability sanctions like Goldsmith and Wu suggest.

But, again, any effort to deal with the “problem” of information abundance must begin with a realization that there is no putting the genie back in the bottle. As China and other repressive regimes are finding out today, once a sophisticated information infrastructure is in place, it is extremely difficult to stifle political dissent or even less threatening types of unfavored speech and expression. For more liberal regimes with fewer restrictions on human expression, there will still be social standards or cultural norms that are challenged by this modern multimedia universe. Some regimes or cultures will decry hate speech online. Others will lament sacrilegious cartoons. And for many others it will be various forms of pornography that spark official condemnation. In each case, these modes of speech or expression—offensive as they may be at times—will be impossible to eradicate from our new digital Information Society. Absent extreme measures, aimed at hobbling the sophisticated communications infrastructure that undergirds it, there will simply be no way of suppressing the flow of bits in our new digital, borderless, multimedia, multiplatform world.

The challenge that lies ahead, then, is for media companies, private organizations, family groups, educators and others to work together to devise reasonably workable solutions to the problem of underage access to objectionable content.

[Actually, it was at this point that I abandoned this manuscript entirely and set off to write the booklet that would answer those questions and concerns. It resulted in “Parental Controls and Online Child Protection: A Survey of Tools and Methods,” which I have discussed here many times before. In that report, I begin with the working assumption that content controls are in serious trouble and that parents and policy makers need to find constructive alternatives to traditional legal and regulatory tools. My book provides an exhaustive list of options and highlights the many tools and information that media companies and other organizations are providing parents to help them make media decisions for their families. However, I concluded my discarded manuscript by noting that…]

The traditional “mass media” era is coming to a close, however. An age of organic, bottom-up, collaborative, “we-dia” (We-Media) is now dawning. Who will play the “gatekeeper” role in this world of endless, instantaneous media creation? For example, in an online environment, parents have traditionally been concerned about what their children can download. Increasingly, however, it is what children can upload that is becoming a bigger problem. With the cost of computers, camcorders, digital cameras, cell phones, and Internet access all plummeting, the tools of information creation and dissemination are now within the reach of almost all citizens, including the youngest.

Clearly, this is not a problem that can be easily solved–if it can be solved at all–by public policy. In the end, for those parents who realize that information flows will be increasingly difficult to control, there is simply no substitute for talking to children in an open, loving and understanding fashion about the realities of this world, including the more distasteful bits.

[I had then planned to conclude the introductory chapter with a discussion of the importance of educational strategies, media literacy efforts, and parental empowerment tools and strategies that could help us address concerns about access to objectionable content as censorship efforts became increasingly less effective and largely faded away. Again, that’s when I diverted all my attention to detailing those things in my book on parental controls and online child protection. And so ends my story about the book I threw away!]

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

A few weeks ago, I outlined the amazing keynote address that Harvard University law professor Laurence H. Tribe delivered at PFF’s annual Aspen Summit. Now you can read it for yourself. PFF has just published the transcript of his speech, which was entitled, “Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism.”

Professor Tribe provides a 14-part indictment of new government proposals to regulate “excessively violent” content. But he also speaks more broadly about the importance of defending the First Amendment from attacks on many different platforms, and for many different types of content. Here’s one of my favorite passages from the concluding section of his remarks:

The broad lesson of this discussion of television violence is the centrality of the First Amendment’s opposition to having government as big brother regulate who may provide what information content to whom, whether or not for a price. The large problem that this exposes is that especially in a post-9/11 world, where grownups understandably fear for themselves and for their children and worry about the brave new world of online cyber reality that their kids can navigate more fluently than they can, it is enormously tempting to forget or to subordinate the vital principles of constitutional liberty. Even if, after years of litigation and expenditure, the First Amendment prevails, it can be worn down dramatically by having to wage that fight over and over and over.

Amen to that. And that, in a nutshell, describes what much of my research agenda at PFF has been focused on. It is a pleasure to add Prof. Tribe’s address to our growing body of research on the sanctity of freedom of speech and centrality of the First Amendment to our democratic republic as we continue “to wage that fight over and over and over.”

The Parents Television Council has a new report out this week about the supposed decline of the TV “Family Hour.” The City Journal has just posted my response to that PTC report here. It begins as follows…

Who Killed TV’s “Family Hour”? It’s not who you think. by Adam D. Thierer 7 September 2007 The nonprofit Parents Television Council (PTC) released a report this week lamenting the supposed death of broadcast television’s “family hour.” Though neither the Federal Communications Commission nor Congress ever mandated it, 8 to 9 PM Monday through Saturday (Eastern time), and 7 to 9 PM on Sunday, have traditionally been devoted to family-friendly programming. But the PTC’s new report claims that these blocks of time are now “no place for children,” because “corporate interests have hijacked the family hour” and “have pushed more and more adult-oriented programming to the early hours of the evening.” One might respond to this claim by questioning the PTC’s methodology, particularly its definitions of foul language. Simon Vozick-Levinson of Entertainment Weekly’s “PopWatch Blog” takes this approach, accusing the PTC of “cooking the numbers” to suit its cultural agenda. But I don’t want to engage in methodological nit-picking, since it quickly devolves into a subjective squabble about acceptable language and appropriate programming. Instead, I want to point out the fundamental flaw in the report’s premise. The family hour may well be dead—but parents, not broadcasters, were the ones who killed it.

… read the rest at the City Journal’s website.

I’ve written much about the potential “chilling effect” associated with over-zealous FCC regulation of speech. Some people doubt that the FCC’s regulatory wrath is really so severe that media operators will censor important programs for fear of being fined afterward. But we know that that is exactly what happened with a 9/11 documentary last year when CBS decided to censor the remarks of firefighters under duress. Imagine that, firefighters were swearing as the disaster unfolded! But apparently we need to have history whitewashed for our benefit. Absurd.

And now it’s happening again.

PBS just announced that Ken Burns’s upcoming documentary about WWII (“The War”) will now be censored during certain broadcasts. According to this article by Paul Fahri in today’s Washington Post:

[public television] stations are concerned that four words of profanity in the 14 1/2 -hour documentary could subject them to hefty indecency fines from the Federal Communications Commission. Their worries have prompted Arlington-based PBS to take the unprecedented step of distributing two versions of “The War” for broadcast next month: Burns’s original film and an FCC-friendly version from which the profanity has been removed.

The comments of these two PBS officials are particularly telling:

“It’s the world we live in right now,” said Joe Bruns, WETA’s chief operating officer. “My own view is that with the landscape of a 14-hour film about World War II, and given the overall obscenity of war, four words are not particularly shocking — especially given the fact that these are words used routinely at that time. But [nowadays], we have to exercise an abundance of caution.”

and

“The core problem is, we don’t really know what the FCC will do with a complaint because the guidelines aren’t clear,” PBS’s chief content officer, John Boland, said yesterday.

That’s because the FCC reserves the right to fine stations $325,000 if they broadcast something “indecent” between 6 a.m. and 10 p.m. But the FCC refuses to tell anyone beforehand whether a particular use of a particular profanity is “indecent” or not. If you think that reeks of arbitrary, unaccountable government, you are right. And yet this is the law of the land.

And what is particularly absurd about this case is that this documentary will also contain gritty war footage and plenty of carnage. That’s what happens in war, after all. But what our government seeks to protect us (or our children) from is a few dirty words that actual soldiers utter about the grim realities of war. Absolutely absurd.

Many lawmakers and regulators are currently proposing the expansion of broadcast industry regulation. For example, fines have been greatly increased for “indecent” programming on broadcast television and radio, and efforts are underway to extend indecency regulations to cover cable and satellite television. Meanwhile, some policymakers are advocating government regulation of “excessively violent” programming on both broadcast and pay TV. In my latest law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” I hope to show why these efforts are seriously misguided, likely unworkable, and almost certainly completely unconstitutional.

This 52-page article appears in the latest volume of the Catholic University Law School’s CommLaw Conspectus. The article can be found online here.

In this essay, I make the case that the radically unfair system of modern broadcast industry regulation must be completely abolished. “If America is to have a consistent First Amendment in the Information Age,” I argue, “efforts to extend the broadcast regulatory regime must be halted and that regime must be relegated to the ash heap of history.” I go on to make the case against all the traditional broadcast industry regulatory rationales and conclude that: “the traditional rationales for asymmetrical regulation of broadcasting — scarcity, pervasiveness, and the public interest — either no longer make sense or are increasingly impractical to enforce in an age of technological convergence and media abundance. Instead of resisting the inexorable movement toward media parity and a consistent First Amendment standard for the Information Age, policymakers should embrace these changes and focus on responding to the problem of objectionable content through education and empowerment-based strategies that enable families to craft their own household media standards.”

Well, I know I’m starting to sound like a broken record on this point, but it never ceases to amaze me how some policymakers get away with speaking so poorly of parents during policy debates about media content. First, you will recall that, in late April, the Federal Communications Commission released a report calling for the regulation of violent video content on the grounds that parental control tools and efforts were ineffective. (For details, see my essay: “FCC Violence Report Concludes that Parenting Doesn’t Work.”) Then, just last week, at a House Commerce hearing on “The Images Kids See on the Screen,” Rep. Ed Markey and several other members of the committee argued that parents just couldn’t cope with modern media and that government needed to step in on their behalf. But nothing could top the performance of Sen. John Rockefeller at today’s Senate Commerce Committee hearing on “The Impact of Media Violence on Children.”

Sen. Rockefeller opened the hearing with a verbal tirade “repeatedly bashing TV and its executives as though they were Dan Aykroyd’s Irwin Mainway SNL character out to sell bags-o-glass to unsuspecting kids,” as John Eggerton of Broadcasting & Cable noted. Sen. Rockefeller, who is planning to soon introduce legislation to regulate “excessively violent” television programming, said that the industry is being “cowardly” and “debasing our culture” in a “never-ending race to the bottom.”

Rockefeller went on to say that the industry was “blaming parents” for not dealing with the problem of objectionable content with private controls and methods instead of censoring content themselves before it ever got on air. “Parents do not want more tools,” he argued, “they want the content off the air.” Of course, that point is debatable as I’ll discuss more below.

But what Rockefeller said next was really telling. After claiming that Americans don’t want more tools to handle this on their own, Rockefeller launched into full-blown attack mode against parents and the act of parenting: “There are many parents who cannot make these things work, or they are just not there [in the home]… Americans don’t know technology well,” he said. And, most shockingly, Rockefeller concluded that, “Unless you can show that parental responsibility works, I think we have to try something else.”

I don’t know about you, but there’s something deeply insulting and troubling about that statement. As I mentioned above, Sen. Rockefeller suggested that industry is “blaming parents,” but it sounds to me like he’s the one blaming them and actually going further by accusing them of not being able to do their jobs.

Regardless, what are we to make of Rockefeller’s other contention that “Parents do not want more tools,” he argued, “they want the content off the air.” There are three problems with this argument.

First, as I discussed in great detail in this essay just yesterday, many recent polls confirm what we already know to be true: Parents are parenting. They are learning to cope with new media realities and adapt to them to make sure they can monitor and control their children’s media experiences. For example, the TV Watch poll released just this week revealed that 73 percent of parents monitor what their children watch, including 87 percent of parents whose children are ages 0-10. Also, 86 percent of parents believe that more parental involvement is the best way to keep kids from seeing what they shouldn’t see on television. Those results seem to strongly contradict Sen. Rockefeller’s contention that parental responsibility doesn’t work.

Second, we know that it cannot possibly be the case, as the Senator suggests, that all parents “just want the content off the air.” After all, I’m a parent of two young kids and some of the things that Sen. Rockefeller wants censored are my favorite shows and they are among the most popular shows on television today. (ex: CSI, The Shield, Rescue Me). Tens of millions of American parents like my wife and me tune into these shows each week and enjoy them. Are they fit for kids? Of course not, and like most other parents, my wife and I take steps to ensure our kids cannot watch them. But I think the millions of American parents who enjoy those programs would be deeply insulted by Senator Rockefeller’s suggestion that we all “just want the content off the air.” That’s a decision for us to make for ourselves, Senator.

Finally, not every home in America has kids in residence but the Senator wants to impose regulations that would treat everyone as if they were children. The majority of U.S. households, in fact, are made up entirely of adults. According to the Census Bureau, only one-third of U.S. households include children under the age of 18. Under Sen. Rockefeller’s logic, however, we should be treating all homes as if children were present and regulating television so that it is only fit for a child. I don’t know about the rest of you parents out there, but I can’t live on just Sesame Street and Mr. Rogers alone!

Sen. Rockefeller is certainly free to get on his moral high-horse and preach to us about his vision for television: highly sanitized and apparently full of only documentaries and nature programs (just make sure none of them are about war or animals fighting each other to the death!) But it is quite another thing to mandate that vision from above using the heavy hand of government regulation as the Senator is threatening.

If the Senator wants to take a more constructive (and constitutional) approach, he might want to consider doing more to help educate parents about the many excellent parental control tools at their disposal. (Hey Senator.. send them my book! It has over 100 pages of parental control tools, tips and methods to help them.) Heck, if he doesn’t think that’s enough, then he can propose government subsidies for TiVos, personal video recorders, DVD players and VCRs so that parents can perfectly tailor TV programming to their own values!

But Senator, don’t you dare suggest that all America parents are incompetent or that we all want media censored to be in line with your values. That is deeply insulting and blatantly un-American.

I am testifying today at 10:00 in the House Energy & Commerce Committee (Telecom & Internet subcommittee) at a hearing on “The Images Kids See on the Screen.” The purpose of the hearing is to examine the negative things that children may be exposed to on various screens (TV violence, product placement, fatty foods, smoking, etc.) and what should be done about it. My prepared remarks are attached below.

Testimony of Adam D. Thierer Senior Fellow and Director of the Center for Digital Media Freedom The Progress & Freedom Foundation June 22, 2007

Mr. Chairman and members of the Committee, thank you for inviting me here today and giving me the opportunity to testify. My name is Adam Thierer and I am a senior fellow with the Progress & Freedom Foundation (PFF) where I serve as director of PFF’s Center for Digital Media Freedom.

This hearing is particularly timely for me because this week PFF released a new special report that I spent the last two years compiling entitled, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” The booklet provides a broad survey of everything on the market today that can help parents better manage media content, whether it be broadcast television, cable or satellite TV, music devices, mobile phones, video game consoles, the Internet, or social networking websites. (Incidentally, this booklet can be downloaded free-of-charge at www.pff.org/parentalcontrols, and I plan on making frequent updates to the report and re-posting the document online as new information comes to my attention).

As I note in my book, we live in an “always-on,” interactive, multimedia world. Parents need to be prepared to deal with media on multiple platforms, screens, and devices. While this can be a formidable challenge, luckily, there has never been a time when parents have had more tools and methods at their disposal to help them determine and enforce what is acceptable in their homes and in the lives of their children. And that conclusion is equally applicable to all major media platforms, or all the screens our children might view.

In the past, the OFF button was the only technical control at a parent’s disposal. Today, by contrast, parents like me have myriad tools and methods to restrict or tailor media content to their own household tastes and values. I could spend all my time here today merely discussing the restrictive tools on the market that parents can and do use to block or curtail media. Those restrictive tools include: the V-Chip and TV ratings; cable and satellite set-top box screening tools; DVD blocking controls; cell phone blocking tools; video game console controls; Internet filtering and monitoring tools, instant messaging monitoring tools; operating system controls; web browser controls; search engine “safe search” tools; media time management devices, and so on. You will find an exhaustive discussion of all these tools and many others in my book.

But while those restrictive tools are important, they are only part of the parental control story. Enabling or tailoring tools are what makes today’s parental control market so exciting. By enabling or tailoring tools I mean any tool or method that a parent might use to enable their families to see, hear, or consume content they would regard as more appropriate, ethical, or enriching.

For example, for televised media, VCRs, DVD players, and personal video recorders have emerged as important parental control devices. These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when and where it will be viewed. Pay-per-view options also help parents better tailor viewing choices for their kids. And don’t forget about the huge and growing market for educational DVDs, video tapes and computer software.

Speaking of computers and the Internet, parents can now tailor their children’s online activities in similar ways. In my new book, I document dozens of kid-friendly search engines and Internet portals that are essentially online “walled gardens” filled with pre-screened content and safe chat areas.

And even in the world of mobile media, new wireless handsets and services offer parents the ability to not only monitor the content their child might try to access, but to also establish pre-approved calling lists and tailor the communications experience to make it safe enough for even very young kids.

Also, it is vital that we not overlook the importance of informal household media rules in this discussion. Oftentimes, debates about inappropriate content get so caught up with disputes about technical controls, ratings or even regulation that we forget that parents often view all these things merely as backup plans. In my book, I identify four categories of household media rules that surveys show almost all parents use some combination of to control their children’s media consumption. These household media rules include:

(1) “where” rules (assigning a place for media consumption); (2) “when and how much” rules (creating a media allowance); (3) “under what conditions” rules (carrot-and-stick incentives); and, (4) “what” rules (specifying the programming kids can and cannot watch).

I don’t have the time here to run through all the possible examples, but certainly most of us are familiar with widely used household media rules like, “No watching TV or playing games until your homework is done,” or “You can’t watch that movie until you complete your chores.” Such household media rules can actually be more effective in controlling children’s media habits than technical controls. But debates about parental controls and media policy treat these household media rules almost as an afterthought, if they are mentioned at all. It’s time we start talking about them.

Finally, let’s not forget about the ultimate parental control tool: the “power of the purse.” In most cases, when kids want to consume a certain type of media—or even consume something they see advertised in the media—they need money to do so. Televisions, movies, video games, cell phones, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to us and ask. And, although at times it may be difficult, we all have the power to say “No.” That is the ultimate way to control the images our kids see on the screen.

Thank you again for inviting me today.

Attachments:

• “The Right Way to Regulate Violent TV,” May 14, 2007, by Adam Thierer

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

• “The Complexities of Regulating TV Violence,” [a PFF event transcript]

• “Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?,” May 2005, by Robert Corn-Revere.

• “Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill,” April 2005, by Adam D. Thierer.