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.
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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.
http://documents.scribd.com/ScribdViewer.swf?document_id=2887320&access_key=key-um5xjvf98bfnuu8811v&page=&version=1&auto_size=true
Over at the popular gaming site 1up.com, a gentleman who worked briefly for the Entertainment Software Rating Board (ESRB) has posted a provocative article entitled, “How to Fix the Game Ratings System: An insider’s take on what’s wrong with the ESRB.” In the piece, Jerry Bonner, who worked at the ESRB for 6 months according to GamePolitics.com, argues that “Something desperately needs to happen [to reform the ESRB] because the alternative — a government mandated and controlled rating scheme — is a downright frightening concept.” He continues:
“let’s fix [the ESRB ratings process] before things really get out of hand and a new government-appointed ‘Secretary of Interactive Entertainment’ is making the decisions as to what we can and can’t play. I know I don’t want that. I know you don’t want that. And I know that the people at the ESRB don’t want that. Let’s all make damn sure it doesn’t happen, shall we?”
Well, I can certainly agree with Mr. Bonner that a “Secretary of Interactive Entertainment,” or any sort of extensive government regulation of video games, is a very frightening prospect. The problem is, the “solutions” he outlines in his essay could actual put us on that path.
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GamePolitics.com reports on a murder trial in Alabama in which the attorney for a disturbed teenager is blaming video games for his barbaric behavior:
The lawyer for a man being tried for murder is trying to convince an Alabama jury that the defendant believed he was acting out a video game when he murdered an 80-year-old man on Halloween, 2005.
As reported by the Decatur Daily, Andrew Reid Lackey, 24, does not dispute that he stabbed, shot and gouged out the eye of his victim, Charlie Newman. However, Lackey’s attorney, Randy Gladden, is pointing the finger at video games. From the newspaper report:
Actions that led to a deadly confrontation between a defendant and an 80-year-old widower resembled a video game to the accused… [Attorney] Gladden described Lackey… as a computer geek who had immersed himself in video games and lived in “a different world than you and I.”
Tapes of a 911 call made by the victim during the fatal confrontation, however, indicate that old-school greed may have been the motive. Lackey is heard to demand of the victim, ”Where’s the vault?” seven different times. Charlie Newman’s grandson had previously told Lackey that the victim kept a large sum of money in a vault under the stairs. However, no such vault existed.
It’s just disgraceful–but perhaps not all that surprising–that this desperate defense attorney would employ tactics like this. Video games have become the universal excuse
du jour for violent behavior. It’s absurd for all the reasons I have pointed out here before. It’s abundantly clear that old fashion greed and a disturbed mind motivated this particular crime, and if you think that sort of thing didn’t happen before video games came along, then you just haven’t read any history. Of course, they instead just blamed movies, comics, and books for the crimes back then! There’s always someone else or something else to blame. It’s the never-ending search for a universal scapegoat for irrational or criminal behavior. The twisted logic = Don’t blame the individual, blame the media.
Pathetic.
Anthony Prestia of Laws of Play, a blog dedicated to covering legal developments in the gaming industry, somehow got some face time with Supreme Court Justice Scalia and was able to ask for his feelings concerning the constitutionality of recent state video game legislation. “In particular,” Prestia says, “I asked him whether as an originalist he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment.” Here’s Prestia’s summary and analysis of Scalia’s answer:
In his most succinct reply of the day, Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not–-he instantly drew the parallel to regulation of pornography sales. However, Justice Scalia emphasized that unprotected speech, such as obscenity–which he was unwilling to define for reasons that are immediately evident to any constitutional scholar–-can be prohibited from sale regardless of the purchaser’s age. I think the important thing to note here is that Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment despite his strict originalist beliefs.
That’s an interesting response in that Scalia’s latter comments imply that even older, more conservative judges are coming around to understanding how video games are a form of artistic expression deserving the protection of the First Amendment. But Scalia’s earlier suggestion that state laws banning sales of certain video games to minors maybe constitutional deserves a response.
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Everybody loves to blame the media for the woes of the world. Is your candidate losing? Blame the media. Is the war in Iraq not going the way you want? Blame the media. Is the economy slowing down and heading into recession? Blame the media.
Indeed, one of the entertaining things about being a media policy analyst is that you get to hear various media critics say the most outlandish things about the role of media in our society. And that’s not just the case for news; it’s even truer for culture and entertainment, of course. There’s never been a shortage of self-appointed culture cops in our society who want to tell us that they–or at least some benevolent ruling class acting on their behalf–are in the best position to dictate standards of decency and quality entertainment. And sometimes the antics of such critics are as entertaining as they are outrageous.
Take this recent press released by Concerned Women for America entitled, “Oh, Be Careful Little Eyes What You See: The Influx of Broadcast Indecency.” So desperate are they to expand the scope of government regulation over media that they’ve now resorted to equating broadcasters to murderers and thieves: “If we allow the networks to set the standards of public decency, isn’t that like allowing the criminal to decide what’s illegal?”
Seems a bit over-the-top to me, but let’s try to answer that question by answering another question CWA sets forth in their press release: “Who decides the standards by which we protect our children and ourselves from indecent broadcasts over the public airwaves?”
That is an excellent question, and one that I have devoted much of my life’s work to answering. What CWA is implying in that question is that if the government does not set “standards” to protect society from “indecent broadcasts,” then society will essentially descend into a nihilistic moral abyss. Only by empowering regulators to police “the public airwaves” can we restore and defend moral order.
This assertion is incorrect on multiple counts. I could focus on the constitutional challenges associated with defining “indecent” and “moral” content in a pluralistic society such as ours. Or I could focus on the practical considerations of regulating broadcasters uniquely in our multi-media, multi-platform world. But I would rather focus on that “Who Decides?” question set forth by CWA in their essay, because that’s what is really at the center of all these debates. And here’s the way I counter that logic in my book on “Parental Controls & Online Child Protection”:
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In case you didn’t catch it the debate last night, Sen. Obama had some very encouraging things to say when asked about the role of government when it comes to media content. “[T]he primary responsibility is for parents,” Obama said. “And I reject the notion of censorship as an approach to dealing with this problem.” He then stressed the importance of making sure that parents have the tools to make these determinations for their families (something I’ve spent a lot of time stressing in my work):
“[I]t is important for us to make sure that we are giving parents the tools that they need in order to monitor what their children are watching. And, obviously, the problem we have now is not just what’s coming over the airwaves, but what’s coming over the Internet. And so for us to develop technologies and tools and invest in those technologies and tools, to make sure that we are, in fact, giving parents power — empowering parents I think is important.”
Good for him. That’s the exactly the right position, and one that his opponent Mrs. Clinton would be wise to adopt. After all, she’s had some rather misguided views on these issues through the years.
Here’s the transcript if you care to read more.
One of the things I find most interesting about calls to regulate “excessively violent” content on television, in movies, or in video games is the way critics make massive leaps of logic and draw outrageous conclusions based on myopic, anecdotal reasoning. I was reminded of that again today when reading through an interview with Sen. Jay Rockefeller (D-W.Va), one of the most vociferous critics of all sorts of media content and a long-time proponent of regulation to censor such violent content in particular (however it is defined). (I have written about his past regulatory proposals here and here).
Here’s what he recently told the editorial board of The Register-Herald of West Virginia:
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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
The video game industry’s string of unbroken First Amendment court victories continued this week with a win in the case of Video Software Dealers Association v. Schwarzenegger. [Decision here.] In this case, the VSDA and the Entertainment Software Association brought a suit seeking a permanent injunction against a California law passed in October 2005 (A.B.1179), which would have blocked the sale of violent video games to those under 18. Offending retailers could have been fined for failure to comply with the law.
The court’s decision overturning the law was written by Judge Ronald Whyte and it echoed what every previous decision on this front has held, namely:
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