This week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution. The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:
We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York
, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.
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Matt Lasar of Ars
tells us not to worry about the Fairness Doctrine being revived, only to go on and cite several lawmakers who have said they’d like to revive it. Meanwhile, over at the American Spectator, somebody called “The Prowler” seems to have all sorts of unnamed sources on the Hill telling him the Fairness Doctrine will be revived any day now.
Who knows what to believe. But let’s keep our eye on the real issue here. The danger is not that the Fairness Doctrine gets back on the books in the same form; it’s that versions of it sneak in through the back door via other regulatory initiatives. As Cord Blomquist pointed out here last April, “localism is the new Fairness Doctrine.” There are a lot of people are running around Washington today insisting that government must intervene in the marketplace to “save media localism” and “strengthen the public interest obligations” of local TV and radio broadcasters. There’s been an FCC proceeding open on this issue for some time, and everything about it reeks of the Fairness Doctrine in drag.
This effort is being spearheaded by the media reformistas whose short-term goal is to reinvigorate the amorphous “public interest standard” such that the FCC has open-ended powers to regulate everything under the sun going forward. That’s why a key part of the “localism” battle is their effort to breathe new life into “ascertainment rules,” which used to be more formal and required broadcasters to strictly report everything they aired and did in their communities. There’s lots of talk of ensuring more “accountability” from broadcasters regarding how they serve their local communities, and there’s even rumblings of “local community boards” who will sit as mini-free speech Star Chambers and pass judgment on whether local media outlets are doing their job. Again, it’s all just the Fairness Doctrine by another name. Continue reading →
The 3rd meeting of the United Nation’s Internet Governance Forum (IGF) met this week in Hyderabad, India. One of the concerning takeaways is the increased posturing by governments to assert greater control over the Internet.
For the uninitiated, the IGF is an outgrowth of the World Summit on the Information Society (WSIS), and is meant to be a multi-stakeholder “talk shop” on public policy issues related to the development and governance of the Internet. It’s the forum for governments and social policy agendas, whereas ICANN is meant to be a technical body for coordinating the Internet’s naming system.
The U.S. had advocated for a minimal role for the United Nations and IGF, while many governments want to assert more control then they possess at ICANN. A compromise was struck at the final WSIS meeting in Tunis – “Enhanced Cooperation” – in order to defer choosing between existing or new mechanisms.
As my colleague Steve DelBianco describes it, it’s sort of like the way he handled his teenage son when he nagged him about getting a new car to drive: work on ‘Enhanced Transportation’ instead.
Steve and NetChoice work to avoid a new mechanism for Internet Governance that’s designed by, and for, governments. Instead, preferring on Enhanced Cooperation within existing mechanisms.
Yet there’s danger on the horizon. My colleague Mark Blafkin reports in this blog post that at the Hyderabad meeting, politicians were spouting populist rhetoric about returning control of the Internet to “the people.”
Everton Lucero, the Brazilian representative to ICANN’s Government Advisory Council (GAC) delivered a beautiful speech filled with inspiring rhetoric about returning Internet Governance back to the concept of “We the People” and taking the power out of the hands of the “nobles and landlords.” Unfortunately, that is all it was: a beautiful speech that ignored reality in an attempt to grab the power to control the Internet and censor content. Brazil’s government has shown an increasing distaste for Freedom of Speech, especially on the Internet. The government had a recent documentary exposing some of the most egregious efforts at political censorship of the press pulled from local television.
National Freedom of Speech Week is here again. As I point out each time it comes around, it’s good opportunity for those of us in America to remember how lucky we are to live in a country that respects freedom of the press, speech, and assembly. In my essay commemorating the first Freedom of Speech Week, I explained why I felt this way:
what speech critics consistently fail to appreciate is that in a free society different people will have different values and tolerance levels when it comes to speech and media content. It would be a grave mistake, therefore, for government to impose the will of some on all. To protect the First Amendment and our heritage of freedom of speech and expression from government encroachment, editorial discretion over content should always remain housed in private, not public, hands.
However, there will always be those who respond by arguing that speech regulation is important because “it’s for the children.” […] 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, 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.
I would hope that the critics of the First Amendment would do the same instead of seeking to undercut our nation’s rich history of freedom of speech and expression. It is one of our Founders’ enduring gifts to future generations and a precious freedom worth fighting for.
Happy Freedom of Speech Week everyone.
This week, I have been up at Harvard University participating in another meeting of the Internet Safety Technical Task Force (ISTTF), of which I am a member. The ISTTF was organized earlier this year pursuant to an agreement between 49 state attorneys general (AGs) and social networking giant MySpace.com. A group of experts from academia, non-profit organizations, and industry were appointed to the Task Force, which is charged with evaluating the market for online child safety tools and methods and issuing a report on the matter to the AGs at the end of this year. ISTTF members have been meeting privately and publicly in both Cambridge, MA and Washington, D.C. The Task Force has been very ably chaired by John Palfrey, co-director of Harvard’s Berkman Center for Internet & Society.
Although the ISTTF is looking at a wide variety of tools and methods associated with online child protection (ex: filters, monitoring tools, educational campaigns, etc.), many of the AGs who crafted the agreement with MySpace that led to the Task Force’s formation have made it clear that they are
most interested in having the ISTTF evaluate age verification / online verification technologies. In fact, at the start of this week’s session at Harvard Law School, AGs Martha Coakely of Massachusetts and Richard Blumenthal of Connecticut both spoke and made it abundantly clear they expect the Task Force to develop age and identify-verification tools for social networking sites (SNS). AG Blumenthal said we need to deal with “the dangers of anonymity” and repeated his standard line about online age verification: “If we can put a man on the moon, we can make the Internet safe.” [Of course, putting a man on the moon took hundreds of billions of dollars and a decade to accomplish, but never mind that fact! Moreover, one could also argue that if we can put a man on the moon we can cure hunger, AIDS, and the common cold, but some things are obviously easier said than done. Finally, putting a man on the moon didn’t require all Americans or their kids to give up their anonymity or privacy rights in order to accomplish the feat!]
On many occasions here before, I have outlined various questions and reservations about proposals to mandate online age verification. Last year, I also published a lengthy white paper on the issue and hosted a lively debate on Capitol Hill [transcript here] about this. I also have discussed age verification in my book on parental controls and online child safety. [Braden Cox also talked about his experiences up at Harvard this week here, and CNet’s Chris Soghoian had a brutal assessment of this week’s proposals on his “Surveillance State” blog.]
In this essay, I will discuss the new fault lines in the debate over online age verification and outline where I think we are heading next on this front. I will argue:
- There is now widespread understanding that it is extraordinarily difficult to verify the ages and identities of minors online using the methods we typically use to verify adults. Because of this, age verification proponents are increasingly proposing two alternative models of verifying kids before they go online or visit SNS…
- First, for those who continue to believe that we must do whatever we can to verify kids themselves, schools and school records are increasingly being viewed as the primary mechanism to facilitate that. This raises two serious questions: Do we want schools to serve as DMVs for our children? And, do we want more school records or information about our kids being accessed or put online?
- Second, for those who are uncomfortable with the idea of verifying kids or using schools, or school records, to accomplish that task, parental permission-based forms of authentication are becoming the preferred regulatory approach. Under this scheme, which might build upon the regulatory model found in the Children’s Online Privacy Protection Act of 1998 (COPPA), parents or guardians would be verified somehow and then would vouch for their children before they were allowed on a SNS, however defined. But how do we establish a clear link between parents and kids? And will parents be willing to surrender a great deal more information (about themselves and their kids) before their kids can go online? And, is it sensible to use a law that was meant to protect the privacy and personal information of children to potentially gather a great deal more information about them, and their parents?
- It remains very unclear how either of those two verification methods would make children safer online. Indeed, that could actually make kids less safe by compromising their personal information and creating a false sense of security online for them and their parents.
- It is highly unlikely the Internet Safety Technical Task Force will be able to reach consensus on this complicated, controversial issue. A small camp will likely flock to the sort of proposals mentioned above. Another, larger camp (including me) will flock to education-based approaches to child safety as well increased reliance on other parental empowerment tools and strategies, industry self-regulatory efforts, social norms, and better intervention strategies for troubled youth. But the age verification debate will go on and, as was the case over the past two years, the legal battleground will be state capitals across America, with AGs likely pushing for age verification mandates regardless of what the Task Force concludes.
Continue reading if you are interested in the details.
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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.
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The USA Today editorial board published a nasty piece today belittling MySpace.com’s recent efforts to implement more safeguards for its users. Despite the fact that MySpace made over 70 promises to the Attorneys General as part of the agreement–the entire agreement is summarized here–that’s still not good enough for the USA Today’s editorial board, which wants full-blown identity verification before anyone is allowed on a social networking site:
“Even in the absence of a perfect software solution, interim steps are possible. How about using databases of drivers’ licenses to cross-check ages? In more than 20 states, they are public records. The point is, more effective safeguards are needed now, …. MySpace [should be] moving faster to set up age and ID verifications, not just study them.”
Well, where do I begin? I get so frustrated when I see comments like this because it is abundantly clear to me that people don’t think things through when it comes to age verification. As I pointed out in my lengthy PFF report, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,” age verification is extremely complicated, and it would be even more complicated in this case because public officials are demanding the age verification of minors as well as adults, which presents a wide array of special challenges and concerns.
What Age Verification Really Is: The Death of Online Anonymity
We need to begin by understanding what age verification really is. By definition, mandatory age verification represents an effort to make online anonymity a crime. In simple terms, citizens would be forced to “show their papers” at the door of every website or else run the risk of being denied access–simply because they do not want to surrender their name or age.
Think about what that means. It’s easy to take the benefits of online anonymity for granted. There are millions of people who comment anonymously on blogs like this one every day, or write anonymous book or product reviews on Amazon.com or eBay, or who just chat with others about various topics under the cloak of anonymity. It is a wonderful thing.
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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.
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This morning in New York City, social networking website operator MySpace.com announced a major joint effort with 49 state Attorneys General aimed at better protecting children online. (Coverage at CNet, NYT and Forbes). At a joint press conference, MySpace and the AGs unveiled a “Joint Statement on Key Principles of Social Networking Safety” involving expanded online safety tools, improved education efforts, and law enforcement cooperation. They also agreed to create an industry-wide Internet Safety Technical Task Force to study online safety tools, including a review of online identity authentication technology.
Generally speaking, the agreement is step forward for online safety. Indeed, many of the principles in the agreement could form a potential model “code of conduct” that other social networking sites could adopt. In a report I authored for the Progress & Freedom Foundation in August 2006, I argued that it was vital for companies and trade associations to take steps such as this to avoid the specter of government regulation or censorship:
All companies doing business online… must show policymakers and the general public that they are serious about addressing [online safety] concerns. If companies and trade associations do not step up to the plate and meet this challenge soon—and in a collective fashion—calls will only grow louder for increased government regulation of online speech and activities. What is needed is a voluntary code of conduct for companies doing business online. This code of conduct, or set of industry “best practices,” would be based on a straight-forward set of principles and policies that could be universally adopted by [a] wide variety of operators…
In particular, this code of conduct proposal called for companies to make specific pledges regarding improved online safety tools, expanded education / media literacy efforts, and ongoing assistance to law enforcement regarding investigations of online crimes.
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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 Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.