That’s basically what FTC Chairman Jon Leibowitz told the Association of National Advertisers when he spoke to their “Advertising Law & Public Policy” conference last Thursday. As I noted last week, there’s intense pressure in Congress to pass a financial regulatory overhaul and, unfortunately, the version passed by the House in December—Rep. Barney Frank’s “Wall Street Reform and Consumer Protection Act of 2009” (H.R. 4173)—would also grant the Federal Trade Commission vast new powers for all its regulations, not just those relating to the non-bank financial institutions it currently regulates. In particular, HR 4173 would:

• Make it far easier (and not just faster) for the FTC to issue all kinds of new regulations on its own, without a specific Congressional mandate to do so and instead of relying on case-by-case enforcement to punish “unfair” or “deceptive” acts and practices;
• Reduce public input into those regulations;
• Impose heavy civil penalties on companies before notifying them that a practice might be “unfair” or “deceptive”;
• Prosecute those who merely provided “substantial assistance” to someone engaged in “unfair” or “deceptive” acts or practices; and
• Sue on its own authority, instead of through DOJ (as now).

I summarized my concerns about this bill in this short interview with PFF’s new communications director, Mike Wendy, last week: [display_podcast]

Leibowitz has lobbied hard to have his agency put on steroids (as former FTC Chairman Jim Miller put it), asking for all these things, as well as more funding, at the first Senate hearing on Hr 4173 back in February. (Conveniently, he was the only witness!) He repeated his calls for these powers on Thursday but tried to allay fears about how they’d be used. As Communications Daily reports:

The FTC would use expanded authority only where consumers suffer “significant harm,” bad behavior is common in the industry, standards would improve practices and the expected burdens are “reasonable,” Leibowitz said. “We’d be really stupid if we try to solve every problem in American society with a rule,” he said, so the commission will use any new authority “very judiciously….”  Where business practices and consumer expectations are “evolving,” self-regulation is working and First Amendment issues are involved, the FTC would hold back, he said… [including] behavioral advertising and marketing to children. It would show “enormously bad judgment to pursue those matters, Leibowitz said. “We do believe in self-regulation.”

I’m glad to hear Commission Leibowitz say all this but… well, I fear these soothing promises of regulatory restraint will ultimately prove hollow, if not under this FTC Chairman, then under his successors (just as I am not comforted by FCC Chairman Julius Genachowski’s similar promises not to regulate the Internet, no matter how sincere he may be). Strangely, Leibowitz promises the FTC will regulate only when “bad behavior is common in the industry”—and yet HR 4173 would eliminate the requirement of the FTC’s current Magnuson-Moss rulemaking procedures that a regulated practice must be “prevalent.” (The Direct Marketing Association’s Linda Wooley discussed this critical issue in detail in her testimony.) This illustrates a broader point: the whole point of restraining our regulatory agencies by statute is that we all know better than to trust a regulator when he says, “Oh, don’t worry, we’re not really going to use all that power—and if we do, we’ll be sure to use it carefully!”

The FTC May Need New Focused Mandates, But Not More Broad Powers

Leibowitz singled out “negative-option marketing (where marketers presume consumers want a certain product and charge them for it unless they opt-out) as an example of the kinds of scams the FTC would use its new powers to punish. Perhaps he’s right that the FTC may not be able to adequately address such unfair and deceptive practices today. But it does not follow that this requires increasing the FTC’s powers across the board. Sen. Kay Bailey Hutchison hit the nail on the head in her remarks at last week’s Senate Commerce Committee hearing on HR 4173:

In evaluating whether, and how, to change the scope and extent of FTC regulatory authority, I believe we must first ask whether there is a particular exigency, or area of consumer harm, that is so pervasive that the FTC’s existing enforcement capabilities and rulemaking processes are not sufficient to address the issue.  Second, if there is such an exigency, is the proposed legislative change broadly applied, resulting in greater regulatory burdens across a wide range of industries, or is it appropriately narrow to provide the FTC greater ability to develop rules and carry out enforcement actions directly relevant to that exigency.  Third, we need to consider whether the FTC has sufficient personnel in key areas of its responsibility to carry out its enforcement and consumer protection mandates.

In written testimony, FTC Commissioner William Kovacic supported retaining Moss-Magnuson’s additional procedural safeguards because:

While many other agencies do have the authority to issue rules following notice and comment procedures [under the Administrative Procedure Act (APA)], the Commission’s rulemaking is unique due to the range of subject matter (unfair or deceptive acts or practices) and sectors (reaching broadly across the economy, except for specific carve-outs). Except where Congress has given the FTC a more focused mandate to address particular problems, beyond the FTC Act’s broad prohibition of unfair or deceptive acts or practices, I believe that it is prudent to retain procedures beyond those encompassed in the APA.

Congress has already enacted several such statutes, such as COPPA, telemarketing, the CAN-SPAM Act and mortgages, and if the FTC could identify particular problems that require a new mandate to issue rules under the APA. Yet, as Linda Wooley noted in her testimony, when Commissioner Leibowitz was asked at last month’s hearing to enumerate areas in which APA rulemaking authority would be helpful, he could only respond that, “…we’d really want to […] think for a while if we got this authority about what we wanted to do and what we wouldn’t want to do…”

William Allen Rogers's 1904 cartoon recreates an episode in Gulliver's Travels, with T.R. as Gulliver

In other words, Leibowitz wants Congress to write his agency a blank check to do whatever it deems necessary in the future. Specifically, the FTC would get to decide which issues were appropriate for preemptive regulation, as well as achieving much the same effect of aggressive regulation through litigation designed to intimidate—imitating Teddy Roosevelt’s approach to foreign policy: “Speak softly and carry a big stick!“

We’ve been down this road before. In the 1970s, the FTC so thoroughly abused its uniquely vast jurisdiction by issuing rules to, among other things, ban advertising to children, that it was dubbed the “National Nanny” by the Washington Post—hardly a Thatcherite bastion. This experience led Congress in 1980 to impose the procedural safeguards that would be repealed by HR 4173. Congress was so angry it actually briefly shut down the agency to make it clear that it had not dubbed the agency a regulatory knight errant, free to tilt its steely lance at imagined windmills of “unfairness” or “deception.”

The Dodd Bill: A Welcome Alternative to HR 4173

HR 4173 was sent to the Senate in December, and in January, the bill was referred to the Senate Banking Committee, chaired by Sen. Chris Dodd. The Senate Commerce Committee, which held the two hearings discussed above, has jurisdiction only over the bill’s implications for non-financial regulation. So the two committees will have to work out some kind of compromise before the Senate can pass a bill—which will probably have to be reconciled with what the House passed. That procedural posture is important because it means the Senate has the opportunity to do what the House did not: Pause and consider whether financial overhaul really requires reinventing the FTC as the “National Nanny” it was well on its way to becoming back in the 1970s—and, in particular, what such a radical change to the FTC’s powers would mean for the Internet and other media regulated by the agency.

The good news is that Sen. Dodd’s draft 1336-page legislation seems to do precisely what Sen. Hutchinson and others have suggested: Change the FTC’s authority only with regards to a particular problem—in this case, financial regulation. (Dodd’s bill differs in a number of other respects from HR 4173). In a nutshell, Dodd’s bill would transfer the FTC’s consumer financial protection functions to the newly created Bureau of Consumer Protection at the Federal Reserve, but the FTC could also punish violations of the bill’s financial protections on its own under Section 5 of the FTC act.  Further, the Fed’s BCP would have to consult with the Federal Trade Commission before imposing any regulations. The FTC could impose civil penalties, but only for “knowing violations” of the CFPA Act—i.e., only for financial offenses. In an important recognition of the dangers of unbridled agency discretion, the Dodd bill also imports the FTC’s existing definition of “unfairness” as requiring that an act or practice be “likely to cause substantial injury to consumers, which is not reasonably avoidable by consumers” and which is “not outweighed by countervailing benefits to consumers or to competition.”

The bad news is that Dodd’s bill is unlikely to be the final word on the FTC’s authority, as Sen. Rockefeller’s Commerce Committee may insist on some or all of the provisions of HR 4173 that expand the FTC’s powers across the board among a flurry of other amendments. Still, whatever its other shortcomings or advantages, Dodd’s bill offers a path forward for financial overhaul that does not require remaking the FTC—and thus transforming regulation of the Internet, other media, advertising, cyber-security and privacy—among many other things. And for that, the Dodd bill deserves careful consideration as an alternative to just giving the FTC all the power it could ever want, and then just hoping the agency doesn’t abuse it—which is essentially what Chairman Leibowitz, much like the FCC’s Chairman Genachowski, is suggesting we do.

On Friday, the Federal Communications Commission (FCC) released a new Notice of Inquiry entitled, “Empowering Parents and Protecting Children in an Evolving Media Landscape” (MB Docket No. 09-194).  The purpose of this investigation is to:

seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks. (p. 2)… Our goal with this NOI is to gather data and recommend-ations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully. (p. 3)

This Notice builds on the FCC’s August 31st Report to Congress (“Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming”) that was required pursuant to the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of that bill and the FCC’s proceeding (MB Docket No. 09-26) was to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” [I filed 150+ pages worth of comments in that proceeding, and here’s my analysis of why the bill and the FCC’s proceedings are worth monitoring. In previous posts here, I also listed all the major filings and reply comments that were submitted to the FCC in the matter.]

While the FCC’s new Notice outlines several positive impacts that media use may have for children, it then goes on to itemize a variety of concerns about media exposure:

While we recognize that electronic media technologies offer these potential benefits to children, we also explore the risks of harm that media use presents. As discussed below, these risks include (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek comment on these risks, whether parents, teachers, and children are aware of them, and what can be done to protect children from them.

It’s not really clear to me where the FCC finds the jurisdictional authority to investigate some of these things (hate speech? bullying?), but let’s not worry about that here. The question a lot of folks — especially those with strong First Amendment leanings — will be asking is: Where is the FCC heading with this in terms of new speech controls or content regulation?

In my earlier work on the “Child Safe Viewing Act,” I worried that the bill and resulting FCC investigation might be the beginning of “convergence-era content regulation.” I was pleasantly surprised, however, with the FCC’s final Report to Congress about the Child Safe Viewing Act, which did a very nice job highlighting the amazing diversity of parental control tools and methods on the market today.  That being said, the proceeding noted that “no single parental control technology available today works across all media platforms” and might have left the impression in minds of some critics that it was somehow possible to create a “universal” parental control or rating mechanism to deal with content across platforms.

Not only is it highly unlikely that such a silver-bullet solution is possible, but it’s unclear that it is even desirable.  I spent some time addressing this issue in my big filing to the FCC earlier this year.  If you jump to pg. 98 of my filing, you will find a section on “The Perils of Mandatory Controls, Restrictive Defaults or ‘Universal’ Ratings.” In it I argue:

the search for technological silver?bullet solutions and “universal” ratings or controls represents a quixotic, Holy Grail?like quest. Simply stated, if it sounds too good to be true, it probably is. There are no simple solutions or quick fixes to concerns about objectionable media content or online child safety. Only a “layered” approach—involving many tools, methods, and strategies—can get the job done right. And technological blocking controls are probably the least important part of that mix. Education and mentoring are far more important. Moreover…  any move to force “universal,” top?down solutions could destroy future innovation in this space. [There are] unforeseen downsides to mandating controls and defaults as well as efforts to create universal rating or labeling schemes.

Again, to be clear, the FCC’s final report to Congress did not recommend any such thing, and the agency is to be commended for that.  But, at the end of the Child Safe Viewing Act report to Congress, the agency also noted that another Notice of Inquiry would dig a little deeper into possible solutions, and now here it is.  But it still remains unclear where the FCC might take this in terms of concrete steps. I was pleased to see a strong focus on the importance of education and media literacy in the agency’s latest notice, so that’s very good news. But there’s also plenty of hand-wringing about the supposed negative impacts of media throughout the report, which leads one to believe that the agency isn’t going to just settle for education-based solutions.

Importantly, there’s also a lot of talk about the supposed dangers of advertising to children in the new Notice:

Exposure to excessive and exploitative advertisements is a significant risk children face from electronic media. Advertisements of particular concern for children include: (i) those that promote products specifically to children; (ii) those that promote unhealthy food, thereby contributing to childhood obesity, and (iii) those that contain inappropriate content, such as offensive language, sexual content, and

This is actually one area where the FCC does have a little jurisdictional authority under the Children’s Television Act of 1990. But I don’t see how the agency can read that statute, which was intended for broadcast television, too broadly.  Regardless, if I had to bet on one thing we are certain to see come out of this proceeding, I’d say some expanded advertising restrictions are in the works.  But, again, the agency’s limited jurisdiction makes it hard for me to understand where they plan to go with this or how it would pass muster in the courts once challenged.

Anyway, stay tuned. Comments in the matter are due to the FCC by late December.  Meanwhile, one wonders how long it will be before Sen. Rockefeller and others up on Capitol Hill start to engage more on content-related issues.  They’ve been fairly silent so far this year.  In light of Sen. Rockefeller’s past efforts on this front, it seems likely he’ll eventually engage in this debate — and likely in a very pro-regulatory fashion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.

For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today’s entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades–the regulation of “excessive violence” on television.

Last week, L.A. Times technology and media reporter Jim Puzzanghera wrote a detailed piece about how “Washington May Take Up TV Violence” in coming months. In his article he noted that:

With a fresh Congress sworn in and a major (FCC) report expected soon on TV gore, pressure is likely to mount to more aggressively stem graphic and gratuitous scenes in shows. One proposal would give regulators powers similar to those they have now to punish indecency and coarse language over the airwaves. In addition, TV violence is shaping up as a 2008 presidential campaign issue with some of the leading potential candidates already at the forefront of the issue. Sen. Hillary Rodham Clinton (D-N.Y.) has long talked about the effect of gory TV shows and video games on children. Sen. John McCain (R-Ariz.) favors allowing families to buy cable channels separately so they can spurn objectionable shows. Sens. Barack Obama (D-Ill.) and Sam Brownback (R-Kan.) also have bemoaned TV violence.

Puzzanghera notes that, beyond Democratic presidential front-runners Clinton and Obama, other congressional Democrats and regulators at the FCC have jumped on the regulatory bandwagon. At the FCC, Democratic Commissioner Michael J. Copps, recently argued that, “In the absence of action from the industry [to address violence on television], I think we need to be looking at all our options.” He means regulatory options, of course. And, over in Congress, Puzzanghera reminds us that in 2004, Rep. John Dingell (D-MI), the new head of the House Energy and Commerce Committee, was one of 39 House members signing a letter to the FCC asking the agency to study violence on television and how it might be restricted. With Dingell now running the committee in which most communications / media legislation originates, this could mean that regulation is on the way.

Puzzanghera also highlighted one particularly important legislative proposal that I have written quite a bit about in recent years–Senator John D. Rockefeller’s (D-W.Va) “Indecent and Gratuitous and Excessively Violent Programming Control Act.” (S. 616 in the last Congress).

As I noted in my detailed analysis of the bill in April of 2005: “If passed, S. 616 would represent the most significant congressional effort to regulate speech since the Communications Decency Act (CDA) of 1996.” That’s because the measure would significantly expand the penalties that traditional broadcast outlets face for indecency violations, and then apply those penalties to cable and satellite. More importantly, in the process, the measure also proposes to let FCC regulators embark on a grand new experiment in regulating “excessively violent” video programming, not just on broadcast television, but also on subscription-based cable and satellite TV.

Puzzanghera notes that Rockefeller plans on reintroducing the measure this session and “With his own party now in the majority, Rockefeller may get hearings and a vote, further propelling the issue.” Sen. Rockefeller tells Puzzanghera that “Obviously, the preference would be to have the industry police itself when it comes to excessive violence. However, if they can’t or won’t do it, then Congress must step in and address this growing societal problem,” Rockefeller said. “One of the most basic steps we can take is to give the FCC authority to regulate violence, and if necessary, the courts will then work out the constitutional issues on a case-by-case basis… Just sitting on our hands and doing nothing to protect children is not an option.”

But before Rockefeller and other Democrats embark on a new “it’s-all-for-the-children” crusade to rid the world of media violence, hopefully they will be willing to consider the mixed “scientific” record on this front as well as the First Amendment complexities associated with defining and regulating “excessive violence” on television.

Academic Evidence, or Lack Thereof

The academic literature on the effects of media violence is not nearly as unified as you might think. In fact, as Dr. Edward Fink of the Department of Radio-TV-Film at California State University-Fullerton, notes, you can find endless reports to support just about any thesis you want to believe in:

Do you want to believe that TV violence is bad? Plenty of research there. One example comes from Dr. L. Rowell Huesmann and associates in the American Psychological Association journal Developmental Psychology, March 2003. They found that a high level of TV violence in childhood is a predictor of more-aggressive behavior in adulthood. Do you want to believe that TV violence is not necessarily bad? There’s plenty of stuff! One example comes from Dr. Ron Warren in the Broadcast Education Association’s Journal of Broadcasting and Electronic Media, September 2003. He found that parental mediation of children’s TV viewing can both inhibit negative effects and enhance positive effects. Do you want to believe both? Once again, a bounty of data! One example is the comprehensive National Television Violence Study, published by the University of California, Santa Barbara. It concludes, “Television can be a powerful influence on social mores concerning violence and aggression, for good or for ill.” Do you want summaries of research? One example comes from the Kaiser Family Foundation’s fact sheet, Key Facts: TV Violence, Spring 2003, which outlines studies that present opposing viewpoints. If you prefer your summary from the government, have a look at Section II, “Violent Programming on Television,” of the 108th Congress’s Broadcast Decency Enforcement Act of 2004. All reasonable people, and yes, that includes most broadcasters and academicians, are sensitive to the potential–though not always the actual–harm of TV violence. This argument is not for TV violence; it is against the government’s exercising a right of censorship it does not have, not even in an election year.

Others have confirmed this academic schizophrenia and pointed out that, if anything, the “scientific” literature on this subject is ambiguous at best and perhaps even leans against the “causal hypothesis” that media violence leads to aggressive behavior. Psychologist Jonathan L. Freedman conducted the most comprehensive review of all the major literature on this subject for his book Media Violence and Its Effect on Aggression: Assessing the Scientific Evidence. He concluded that “the results do not support the view that exposure to media violence causes children or anyone else to become aggressive or to commit crimes; nor does it support the idea that it causes people to be less sensitive to real violence.” Freedman collected and reviewed all the laboratory experiments, field experiments, longitudinal studies, and other studies employing mixed methodologies. He concluded that “not one type of research provided the kind of supportive evidence that is ordinarily required to support a hypothesis. Not one found 90 percent supportive or 80 percent supportive or 70 percent supportive or even 50 percent. In fact, regardless of the method used, fewer than half the studies found results that supported the [causal] hypothesis–sometimes considerably fewer than half.”

Finally, when we step outside the laboratory setting and examine real world trends in a search for a supposed casual link, we don’t find one there either. Consider, for example, the reversal of various social indicators over the past decade. According to FBI reports, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Overall, aggregate violent crime by juveniles fell 43 percent from 1995-2004. And ongoing University of Michigan surveys have revealed that there are fewer murders at school today and fewer students report carrying weapons to school or anywhere else than at any point in the past decade. Meanwhile, the Center for Disease Control reports that although teenage suicide rates rose steadily until the mid-1990s but then began a dramatic decline which continues today. Again, while all these social trends were improving, media exposure–including exposure to violent fare–was increasing.

These results do not conclusively rule out a link between exposure to violence media content and violent acts in the real world. But they should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation who all too often make casual inferences about the relationship between media exposure and various social indicators.

First Amendment Concerns

In light of what the data tells us, one would hope that policy makers would proceed cautiously when it comes to regulating “excessively violent” media content since serious First Amendment / artistic freedom issues are at stake here. And one would especially hope that Democrats would express some skepticism about the folly of such a regulatory pursuit.

After all, why should we let five unelected bureaucrats down at the FCC determine what constitutes “excessive violence.” Are the bloody and occasionally gruesome scenes in TV shows like CSI and ER excessive, or is that a reasonable depiction of forensic and medical science? Hockey games on prime-time TV feature lots of fights, blood, and lost teeth. Should they only be shown on tape delay after kids are in bed? For decades, cartoons have offered a buffet of violent acts, and slapstick comedy of The Three Stooges variety features a lot of unforgivingly violent moments presented as humor. How about gruesome war scenes from actual combat that any child can see on the nightly news? How about Saving Private Ryan or other war movies? What about the stabbing, poisoning, and other heinous acts of violence found in Shakespeare’s tragedies? And, for God’s sake (excuse the pun), what about all the violence in the Bible or Mel Gibson’s The Passion of the Christ? Can any of it be shown on television or cable?

I could go on and on, but you get the point. This all comes down to a question of who calls the shots–parents or government–regarding what we are allowed to see and hear in a free society. This is not to say society must celebrate or even defend violence in the media; there are plenty of movies, shows and games that do contain what many parents would regard as a troubling amount of violent content for young children to witness. Parents need to act responsibly and exercise their private right–indeed, responsibility–to self-censor their children’s eyes and ears from certain things. It’s become increasingly evident, however, that a lot of parents have just gotten lazy about carrying out this difficult job. As the father of two young children, I can appreciate the hassle of constantly trying to monitor a child’s viewing and listening habits. But that’s no excuse for throwing in the towel and calling in the government to censor what the rest of the world has access to. That’s especially the case in light of the fact that, according to the Census Bureau, just one-third of U.S. households have children in them. For the two-thirds of adult-only homes, such a regulatory regime is blatantly unfair.

Again, I can cite plenty of Republicans, such as Sen. Brownback and others, who support calling in Uncle Sam to play the role of surrogate parent and police “excessively violent” media content. But the fact that so many Democrats are joining this crusade is frightening since, again, it makes you wonder if there are any free speech champions left in Washington.

(Up next in this series, I plan on talking about how Democrats are now employing similar tactics and rhetoric in their continuing effort to regulate “violent video games.” But that might get preempted by another piece on how Democrats are leading a variety new efforts to regulate Internet content. Unfortunately, there’s a lot to cover on this front these days.)

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.

Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”

Nat Hentoff, a famous civil libertarian and one of our nation’s most tireless defenders of freedom of speech, penned an editorial for today’s Washington Times about congressional efforts to reinstitute the so-called Fairness Doctrine, which was in effect from 1949 until 1987 when the Reagan Administration FCC abolished it.

This effort, he notes, is being led by four Democrats–Sen. Bernie Sanders of Vermont and Reps. Dennis Kucinich of Ohio and Maurice Hinchey and Louise Slaughter, both of New York. Hentoff argues that these Democrats are under the illusion that by reinstituting the Fairness Doctrine they will be ensuring a greater diversity of views in the modern media marketplace. The reality, he argues, will be quite different. Hentoff was a radio broadcaster himself in the old days when the Fairness Doctrine was in effect and he notes that the threat of regulation had a severe chilling effect on free speech:

If a station failed to adhere to the FCC’s interpretation of this “fairness” doctrine, the broadcaster could lose his or her license. Accordingly, the government would be in charge of policing the First Amendment–precisely the opposite of what the founders clearly intended… During the 1940s and early 1950s, I was a full-time announcer and reporter on radio station WMEX in Boston. When official Fairness Doctrine letters came to the station’s owner from the FCC, the front office panicked. Lawyers had to be summoned; tapes of the accused broadcasts had to be examined with extreme, apprehensive care; voluminous responses to the bureaucrats at the FCC had to be prepared and sent. After a number of these indictments from Washington arrived at WMEX, the boss summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station. In newscasts, we could report controversies, but none of our opinions on public issues could be aired under the station’s auspices. For any other controversial statements by nonstaff members, opposing views had to be given equal time to reply. This happened at other stations as well.

The chilling effect associated with the Fairness Doctrine has been thoroughly documented by many media analysts and backs up what Hentoff experienced. Economists Thomas Hazlett and David Sosa provided the definitive economic treatment of the issue in their seminal 1997 study, “Was the Fairness Doctrine a ‘Chilling Effect’? Evidence from the Post-Deregulation Radio Market.” Hazlett and Sosa even created an economic model and crunched some numbers to illustrate the Doctrine’s negative impact. And the definitive legal critique of the Fairness Doctrine can be found in Chapter 9 of Thomas G. Krattenmaker and Lucas A. Powe, Jr.’s excellent treatise on Regulating Broadcast Programming. They document the many doctrinal inconsistencies associated with the Doctrine and highlight how the rule was used as a tool of political extortion by presidents from both political parties who wanted to stiffle dissent about their administrations.

But you don’t need to sweat the numbers or read lengthy legal tomes to realize just how much better off we are without the Fairness Doctrine on the books. Just look around at the amazingly vibrant and diverse media marketplace that exists today. The cornucopia of media choices is overflowing and there’s now something for every conceivable human interest under the sun.

But Hentoff notes that the Fairness Doctrine could be even more destructive to the vibrant exchange of viewpoints today because policy makers might try to impose it on these new media outlets as well:

Should this enemy of free expression become law again in coming years, it would very likely also extend to FCC bureaucrats’ taking charge of freedom of speech on cable television and the Internet and continuing new forms of expression–under the mandate of the FCC’s definers of “diversity of views.” There are liberals who preach the need for “diversity of views” in calling for the return of the Fairness Doctrine because they bridle at the high ratings of Rush Limbaugh, Bill O’Reilly, Sean Hannity and other conservative broadcasters who currently have more public favor than the comparatively fewer liberal commentators. But these liberals ignore why we have the First Amendment. As Oliver Wendell Holmes emphasized: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not the thought that we hate.”

In closing, I should note there have been some Republicans in favor of reinstituting the Fairness Doctrine as well. But there are fewer today than in the past. Of course, that might have something to do with the fact that conservative viewpoints are getting a lot more play on the airwaves these days. Thus, some of the former pro-regulatory conservatives probably no longer favor the Fairness Doctrine, feeling that it might chill their voices instead of their opponents.

(Next up in the series: How Democrats are leading the charge to regulate “excessive violence” on television).