America’s First Amendment
Twilight Zone (and What to Do About It)
Spring 2009
Adam [email protected]
Senior Fellow Progress & Freedom Foundation
www.PFF.org
Purpose:
Illustrate the problems with how lawmakers and the courts currently read the First Amendment
Show how illogical it is to determine First Amendment protections by medium or mode of transmission
Make the case for a consistent First Amendment for the Information Age
Adam Thierer – ―America’s First Amendment Twilight Zone‖2
Adam Thierer – ―America’s First Amendment Twilight Zone‖
Presentation based on…
“Why Regulate Broadcasting: Toward a
Consistent First Amendment Standard
for the Information Age,” by Adam
Thierer, Catholic University Law School
CommLaw Conspectus, Vol. 15, July 2007.
“FCC v. Fox and the Future of the First
Amendment in the Information Age,” by
Adam Thierer, Engage, February 2009.
“Joint Amicus Brief of Center for
Democracy & Technology and Progress
& Freedom Foundation, U.S. Supreme
Court in the matter of FCC v. Fox
Television Stations” by Adam Thierer,
John B. Morris, Jr., and Sophia Cope,
August 8, 2008
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www.PFF.org
The First Amendment:
It’s really pretty clear!
Congress shall
make no law …
abridging the
freedom of speech
4 Adam Thierer – ―America’s First Amendment Twilight Zone‖
The Problem:
A Jurisprudential Twilight Zone
Even though the Constitution is clear, modern jurisprudence is not.
Congress & the Courts have made a mess of it.
The First Amendment — at least as Congress and the courts read it today — is a house divided.
We are stuck in a veritable jurisprudential Twilight Zone in which identical words and images are being regulated in completely different ways depending on the mode of transmission.
Adam Thierer – ―America’s First Amendment Twilight Zone‖5
Did you hear the one about
“So, a regulator walks into a bar…” ?
Bob’s Scenario:
Imagine a regulator walks into a room where
the same program is being shown on five or
six different screens.
* See: Robert Corn-Revere, ―New Technology and the First Amendment: Breaking the Cycle of Repression,‖ Hastings Communications and
Entertainment Law Journal, Fall 1994.
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A thought experiment courtesy of First
Amendment expert Robert Corn-Revere*
of Davis Wright Tremaine
So, imagine 6 screens playing a
George Carlin monologue…
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Adam Thierer – ―America’s First Amendment Twilight Zone‖8
On Which of These Screens Can George
Speak Freely?
Which Screen Gets Full First Amendment Protection?
The Current Problem:The regulator looking at these screens
would not be able to determine the regulatory treatment of each until he determined how the signal had been
transmitted to each one.
“Each [medium] is a law unto itself.”– Justice Robert Jackson in Kovacs v. Cooper (1949)
Adam Thierer – ―America’s First Amendment Twilight Zone‖9
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Mobile Phone
Internet
iPod & MP3
Cable, Satellite, DVD
Video Game System
Broadcast TV (or Radio)
NO!Adam Thierer – ―America’s First Amendment Twilight Zone‖
Adam Thierer – ―America’s First Amendment Twilight Zone‖11
Welcome to The Twilight Zone
Medium / Platform
Nature of Court
Scrutiny
Types of Regulation
Broadcasting
Relaxed
• Indecency Regulations•Political Airtime / Access Rules
•Educational TV Mandates
•Fairness Doctrine
Cable & Satellite
Intermediate (for econ)
Strict(for speech)
•Must carry•―PEG‖ Access
•Some Educ. TV Rules
Print, Internet &
Video Games
Strict
Largely free
Key Questions:
Can such a schizophrenic speech regime survive in an age of information abundance and platform convergence?
And, to the extent technological convergence leads to policy convergence, in which direction should that convergence occur?
Should broadcasting be treated more like the Internet and print, or vice-versa?
Why not apply the old paradigm to everything?
Adam Thierer – ―America’s First Amendment Twilight Zone‖12
Problem with the Old Paradigm:
The World Has Changed
…Radically!
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Why Regulate Broadcasting?The Old Rationales Are No Longer Valid
1. Scarcity (Red Lion) is dead Never really valid; certainly no longer is
2. ―Pervasiveness‖ (Pacifica) Never really sensible
Regardless, now true of everything
3. Licensing less relevant
New Reality = Abundance & Convergence
Everything is coming together in one big bucket of bits
Nicholas Negroponte: ―Bits are bits.‖
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Something’s Gotta Give!
But what?
Again, the Big Question:
>> Will technological convergence lead to regulatory convergence ???
The Danger:
The Internet, video games, mobile content, social networks, etc., could
end up getting regulated like broadcast TV and radio
Adam Thierer – ―America’s First Amendment Twilight Zone‖17
Policy Convergence Case Study #1:
“The Child Safe Viewing Act of 2007” Signed by President Bush in Dec ’08
Requires the FCC to examine the availability of ―advanced content blocking controls‖ that ―may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.‖
The FCC’s NOI mentions: video games, virtual worlds, online video distribution networks, video hosting sites, mobile web content, MP3 players & iPods, P2P networks, VCRs & DVD players, PVRs & TiVo, Internet filters, safe search tools, laptops, and more.
Welcome to Convergence Era content regulation!
Adam Thierer – ―America’s First Amendment Twilight Zone‖18
Policy Convergence Case Study #2:
“Indecent & Gratuitous and Excessively
Violent Programming Control Act of 2005”
Not passed, but considered in 109th Congress
Would expand broadcast indecency fines and penalties to cable & satellite television
Proposed expanding indecency regime to also cover ―excessively violent‖ video programming, and also apply that to cable & satellite
Again = Convergence Era content regulation
Adam Thierer – ―America’s First Amendment Twilight Zone‖19
Option #1: The Principled Option
First Amendment equality regardless of platform
Bits are bits & speech is speech. Period.
Mode of transmission is irrelevant
All speech and platforms get the gold standard of First Amendment protection
Problems: Unlikely that Congress & FCC are willing to let go
Lots of opposition from other groups on both Left & Right who want to preserve & extend old regime
Thus, only hope is likely to be the Courts
Adam Thierer – ―America’s First Amendment Twilight Zone‖21
Option #2: The Practical Option
Firewall off broadcasting to contain the damage
In other words, throw the broadcasters under the bus!
Preserve the legal Twilight Zone to protect the Net and new media
Problem:
Not fair to broadcasters
Especially when they are fighting for survival
Moreover, will it work?
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Who will protect the children!?
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Obvious objection to both plans:
Answer: Empower & Educate Good news: There is an
unprecedented abundance of
parental control tools & methods
Uncle Sam need not play
national nanny when parents
have been empowered
Let’s work together to:
1. give parents more & better
tools, and
2. educate kids about proper
media use
Adam Thierer – ―America’s First Amendment Twilight Zone‖24
Read my book!
Important to understand that in an age of
information abundance, neither parental controls
nor government regulation could ever be perfect
or bottle up all objectionable content
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Closing Thought…
At the end of the day, there is simply no
substitute for talking to our children in an open,
loving, and understanding fashion about the
realities of this world, including the more
distasteful “bits”
Talk to Your Kids!
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About PFF
www.PFF.org
Market-oriented think tank and educational non-profit with 501(c)(3) tax-exempt status
We study the digital revolution and its implications for public policy
Founded in 1993
Based in Washington, D.C.
Adam Thierer – ―America’s First Amendment Twilight Zone‖
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Further Reading from PFF
Parental Controls and Online Child Protection: A Survey of Tools and Methods, by Adam Thierer, Fall 2008.
FCC v. Fox and the Future of the First Amendment in the Information Age, by Adam Thierer, 1/20/09.
Don't Scapegoat Media, by Adam Thierer, 12/9/08.
Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008
Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, by Adam Thierer, 2/6/08.
Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age, by Adam Thierer, 7/10/07.
Images Kids See on the Screen, Testimony by Adam Thierer, 6/22/07.
Adam Thierer – ―America’s First Amendment Twilight Zone‖