America’s First Amendment

Twilight Zone (and What to Do About It)

Spring 2009

Adam Thiererathierer@pff.org

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

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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

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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.

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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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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)

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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‖

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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?

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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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Old Reality

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New Reality

Adam Thierer – ―America’s First Amendment Twilight Zone‖

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

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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!

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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

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How Do We Stop This?

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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

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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

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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.

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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.

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