Federal District Judge Robert Lasnik of the Western District of Washington held, on summary judgement, that Washington's video game law was unconstitutional on free speech grounds. The law, which had been blocked by a preliminary injunction, "would have imposed a $500 fine on anyone, such as a store clerk, who sold a video game depicting violence against 'law enforcement officers'" to minors under age 17," according to Reuters (Judge Strikes Down Washington Video Game Sales Law). The Seattle Post-Intelligencer also has a report (Ban on violent videos struck down). Read the 15-page decision and order: Video Software Dealers Assoc. v. Maleng [PDF].
The case overall is a big win for free speech. However, the court also makes clear that this controversy will not be leaving us soon (See, for example: Opposition to Violent Videogames Continues).
Read on for some quotations and a summary of the case ....
A Broad Definition of Standing
The state of Washington claimed that the plaintiffs only had standing to challenge the statute on overbreadth grounds. The judge held that:
[P]laintiffs have asserted their own First Amendment rights and, in the context of the preliminary injunction motion, identified various injuries that they as game creators, distributors, and retailers would suffer if the Act became effective. Those potential injuries have not changed and the plaintiffs have standing to challenge the constitutionality of the Act insofar as it directly affects the content and distribution of their speech. In addition, plaintiffs have standing to assert the First Amendment rights of their consumers, the minors who would have been deprived of access under the Act. [citation omitted]
Videogames Are Protected Speech
A huge win here.
The early generations of video games may have lacked the requisite expressive element, being little more than electronic board games or computerized races. The games at issue in this litigation, however, frequently involve intricate, if obnoxious, story lines, detailed artwork, original scores, and a complex narrative which evolves as the player makes choices and gains experience. All of the games provided to the Court for review are expressive and qualify as speech for purposes of the First Amendment. In fact, it is the nature and effect of the message being communicated by these video games which prompted the state to act in this sphere.The court also cites the famous videogame decision from the Eighth Circuit: Interactive Digital Software Assoc. v. St. Louis County [PDF].
Violence is not Legally Obscene
Another huge win here. Washington had argued that graphic depictions are legally obscene, which would mean they have no First Amendment protection. This is not only important in this case, but in other contexts as well. For example, the FCC will be conducting a study on the pernicious effects of violence. See, Attacking Violence on Television. From the decision:
Graphic depictions of depraved acts of violence, suc as the murder, decapitation, and robbery of women in Grand Theft Auto: Vice City, fall well within the more general definition of obscenity. Nevertheless, the Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" means material that deals with sex. Only "works which depict or describe sexual conduct" are considered obscene and therefore unprotected. State statutes designed to regulate obscene material must be drafted narrowly to cover only "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."Translation: What are you on? Drugs? Of course, the court puts it in milder terms, "The Court declines defendants' invitation to expand the narrowly-defined obscenity exception to include graphic depictions of violence."Defendants acknowledge that the Act does not regulate works that depict sexual conduct. Undaunted by the clear pronouncements of the Supreme Court regarding the limited scope of materials that are subject to regulation as obscene, defendants argue that the Court should expand the definition of obscenity to include graphic portrayals of violence. No court has accepted such an argument, probably because existing case law does not support it. In addition to the fact that the Supreme Court has expressly limited "obscenity" to include only sexually-explicit materials, the historical justifications for the obscenity exception simply do not apply to depictions of violence. Sexually-explicit materials were originally excluded from the protections of the First Amendment because the prevention and punishment of lewd speech has very little, if any, impact on the free expression of ideas and government regulation of the sexually obscene has never been though to raise constitutional problems. The same cannot be said for depictions of violence: such depictions have been used in literature, art, and the media to convey important messages throughout our history, and there is no indication that such expressions have ever been excluded from the protections of the First Amendment or subject to government regulation.[citations omitted]
Is Violence Harmful to Minors and, thus, Can be Restricted?
Even if the violent videogames aren't obscene, Washington argued that the state could still restrict their sale to minors, as you can restrict the sale of pornographic material to minors. Wrong again says the Court. First, the Court notes that the cases in which material has been limited to minors is a branch of obscenity law and thus the cases they cite regarding restriction on sale of pornography to minors are inapplicable. Second the Court declares:
Defendants have not identified, and the Court has not found, any case in which a category of otherwise protected expression is kept from children because it might do them harm. Defendants' cannot prohibit the dissemination of otherwise protected speech simply because the audience consists of minors.
Strict Scrutiny Analysis: Compelling State Interest
This law is content-based regulation, and accordingly, must be reviewed under strict scrutiny analysis. The analysis consists of two parts, whether the law serves a compelling state interest and whether it is narrowly tailored to meet that interest. The claimed interest in this case is that "[t]he Legislature was motivated to curb hostile and antisocial behavior of youths, including violence and aggression toward law enforcement officers." Claiming a "compelling interest" is pretty easy to do. Showing that your regulation is actually related to that compelling interest is much harder. The court finds, under the generous summary judgement standard (where you construe things most favorably to the non-moving party), that
defendants have presented research and expert opinions from which one could reasonably infer that depictions of violence with which we are constantly bombarded in movies, television, computer games, interactive video ames, etc., have some immediate and measurable effect on the level of aggression experienced by some viewers and that the unique characteristics of video games, such as their interactive qualities, the first-person identification aspect, and the repetitive nature of the action, makes video games potentially more harmful to the psychological well-being of minors than other forms of media.....Nevertheless, the Court finds that the current state of the research cannot support the legislative determinations that underlie the Act because there has been no showing that exposure to video games that "trivialize violence against law enforcement officers" is likely to lead to actual violence against such officers. Most of the studies on which defendants rely have nothing to do with video games, and none of them is designed to test the effects of such games on the player's attitudes or behavior toward law enforcement officers.And, ya gotta love this line:
Assuming, for the sake of argument, that the frustrations inherent in learning a new game or console system are not responsible for any measurable increase in hostility, neither causation nor an increase in real-life aggression is proven by these studies. [footnote omitted]The Court does go on to say that many of the games are objectionable and hopes that more research is done in this area.
Strict Scrutiny Analysis: Narrowly Tailored
Even if the state has a compelling interest here, the Court found that the regulation is not narrowly tailored. The Court notes that the regulation is both over-broad and under-inclusive because it would stop games about struggles against corrupt regimes and would do nothing about games in which violence is targeted at non-law enforcement officers.
Guidance for Future Regulation
The Court does provide some pointers for a new law:
Given the nationwide, on-going dispute in this area, it is reasonable to ask whether a state may ever impose a ban on the disseminations of video games to children under 18. The answer is "probably yes" if the games contain sexually explicit images, and "maybe" if the games contain violent images, such as torture or bondages, that appeal to the prurient interest to minors. [citations omitted]The Court also provides some specific questions legislators should ask in designing a bill.
Vagueness
This may be one of the funniest aspects of the decision. First Amendment regulations that are too vague create too great a chilling effect on protected speech because no one can be sure what is legal and what isn't. Thus, the laws must be thrown out. The Court asks a number of rhetorical questions demonstrating how vague the Act actually is:
Would a game built around The Simpsons or the Looney Tunes characters be "realistic" enough to trigger the Act? Is the level of conflict represented in spoofs like the Dukes of Hazard sufficiently "aggressive?" Do the Roman centurions of Age of Empires, the enemy officers depicted in Splinter Cell, or the conquering forces of Freedom Fighters qualify as "public law enforcement officers?" When pressed at oral argument, defense counsel was unable to determine whether firefighters were "public law enforcement officers," suggesting that such issues should be determined by the state courts.Conclusion: Goodbye law, legislature try again if you want. Of course, this is a district court decision, so expect an appeal, though there is no word yet whether there will be one or not.
The Parents Television Council (motto: "Because our children are watching") is the main organization leading the way in sending indecency complaints to the FCC. They are one of the most significant reasons that television indecency complaints have increased from 111 in 2000 to 545,000 in the first quarter of 2004. Just last week, they launched a new website (Cleanup.TV) to facilitate even more FCC indecency complaints (PTC Launches New Website to Facilitate Filing and Tracking FCC Indecency Complaints).
Thus, you would think that Hollywood movie studios (many of which are heavily involved in broadcast as well) would be more than reluctant to increase the visibility and power of the PTC. You'd be wrong.
According to a report in the Hollywood Reporter on Monday, movie studios are accepting the PTC Seal of Approval for their movies and using it in their advertising (PTC tries softer approach in film foray):
"When marketing a family film, it is always helpful to have the support of an organization such as the Parents Television Council," said a spokeswoman for New Line Cinema, which used the PTC seal in advertisements for 2003's "Secondhand Lions." "The seal of approval helps audiences identify family-friendly product and also lends credibility to a film targeted to that audience."Why is this a bad idea?A Miramax spokeswoman said the PTC seal of approval helped the studio position its recent feature "Ella Enchanted" as a "film that offers quality entertainment for the entire family." Warner Bros. Pictures used the seal in print ads for its Mary-Kate and Ashley Olsen movie "New York Minute," and Universal Pictures is employing it for "Two Brothers."
Indeed, the push to apply the PTC seal of approval to films could be seen as a marketing initiative for the PTC itself. Having the logo prominently featured in newspaper ads may in time raise the group's profile beyond the narrow world of media watchdog organizations. Screening events could also provide an incentive for new members to join the PTC, but Mahaney denied that the PTC's outreach to filmdom had anything to do with burnishing the PTC's own image.Look, I don't have a problem with independent rating organizations. I think it is fine that groups will make the effort to rate content for their audiences. It doesn't bother me that they might promote some content and denigrate other content. That is their call. This is a free country. However, the PTC goes well beyond that. They use their organizational skills to encourage the government to censor content. They send tens of thousands of complaints to the FCC (which the FCC foolishly take as representative of the country). They are driving a truck through the First Amendment loophole the Supreme Court created in Pacifica.
That's bad enough. Now, in order to sell a few more tickets, movie studios are more than willing to sell out their broadcast brethren. Smart, Hollywood, real smart.
Bonus: Check out this PTC editorial cartoon that depicts the "public" and "government" pulling a rope wrapped around the throat of "Hollywood" (Weekly Editorial Media Cartoon: Feb. 10, 2004). Why does the image of Hollywood selling the rope to the PTC come to mind? Why does the phrase "useful idiots" seem appropriate?
Denise Howell, of Bag and Baggage fame, is at the Always On Conference in Stanford and blogging reports, including a panel chat with FCC Chairman Michael Powell (Chat With Michael Powell). C|Net News also has a report (Powell calls for legislative rethink). The chat covered a wide variety of topics, but I'm going to concentrate on the one I've been following most closely recently: the FCC's indecency crackdown.
Once again, in defending the FCC's indecency regulation, Powell retreated into his coverup position that he is only enforcing a law Congress passed and the Supreme Court has said was constitutional. This is a non-response to what the FCC has been up to recently in the indecency arena.
Item number one is why did the FCC revive the profane language doctrine (FCC Revives Notion of the Profane)? The FCC had never enforced the profane langugage doctrine before this year. Why, suddenly, did the FCC decide to revive a "profane language" test from a single federal circuit decision written in 1972? That's not regrettable enforcement. That's an aggressive attack on freedom of expression. Since then, the FCC has inconsistently cited the profane language doctrine, meaning it will remain as vague and dangerous to free speech as ever (Where's the Profanity? and FCC to Require Broadcasters to Retain Copies of Broadcasts for 60-90 Days).
Item number two is Powell's continued mantra that "The notion that the first amendment changes when you change channels is odd. And I'm troubled that it's more than odd, it's dangerous." Well, yes, it is an odd and dangerous notion. But note what Powell does not do. Powell does not say which side he comes down on. Should broadcast be free of indecency regulation as cable is, or should cable be subject to the same indecency regulation that broadcast is? In the context of defending indecency regulation of broadcast, Powell is implicitly calling for indecency regulation of cable. That is what the true danger is.
Item number three is Powell's claim that indecency regulation is subjective and the views are different between Manhattan, NY and Butte, Montana. Unfortunately, the FCC has decided upon a national standard for indecency. They could have adopted a local standard for indecency, but they chose to go with a national standard. Perhaps, someone could have asked Powell if he preferred a lowest common denominator or highest common denominator standard for free speech? Should we have the indecency regulations preferred by New York or Utah?
Item number four is Powell's arguments that indecency regulation is determined by the number of complaints the FCC receives. Isn't Powell just a little concerned about this process? Should prosecutors decide what crimes to prosecute based on public complaints, or should the DA's office use their own discretion to decide? Yes, there have been an increasing number of complaints, but is that because the content of television has changed overnight (complaints skyrocketing in a single year) or because of an organized campaign by groups like the Parents Television Council? Doesn't Powell think we should be just a little skeptical when complaints have jumped from 111 in all of 2000 to 545,000 in the first quarter of 2004?
When will Powell have to answer any of the tough questions?
A couple of weeks ago I discussed some news regarding an ex-prosecutor who was now testifying as an expert witness on behalf of those accussed of possessing child pornography (Prosecutors Threaten Child Porn Legal Defender). Federal prosecutors were very upset that this lawyer was disrupting their prosecutions. Under existing law, however, the defense the lawyer was providing (that the photos might be photoshopped and not actually of children at all) is perfectly legal and makes a lot of sense.
Later, Prof. Eugene Volokh wondered if the difficulties in prosecuting such cases would cause the Supreme Court to overturn the ruling that protects speech that may appear to be of children, but isn't (Child porn cases thrown out).
My argument has always been that the prosecutors just have to do a better job. As I noted before, they can create databases of authenticated child porn. You only need a handful of images for a successful prosecution, and if the target of the prosecution has a handful of images out of the authenticated database ... game over.
Additionally, the feds have to be a little more sophisticated about authenticating images. After all, digital manipulation of photos isn't limited to pornography alone. Luckily, it appears that other government departments have been taking some proactive steps.
Prof. Hany Farid, a researcher at Dartmouth College is developing algorithms that will help distinguish images that have been manipulated from images that have not (Investigating digital images):
Farid and his students have built a statistical model that captures the mathematical regularities inherent in natural images. Because these statistics fundamentally change when images are altered, the model can be used to detect digital tampering.For child pornography prosecutors, this technique could easily be used to show that child porn photos haven't been digitally manipulated. Prosecutors have to work smarter, not simply protest that the Constitution keeps them from doing their job.
via Boing Boing
UPDATE
Bonus: Farid also works on "the digital reconstruction of Ancient Egyptian tombs."
The American Museum of the Moving Image in Astoria, New York is an incredible museum and resource. It "is the only institution in the United States dedicated exclusively to the study of film, television, and digital media, and to examining their impact on American culture and society." In addition to the permanent collection of over 100,000 moving image artifacts, it has some fantastic temporary exhibits currently, such as a collection of Tim Burton's drawings from 12 of his movies. There is also an ongoing exhibit on videogames. In fact, admission to the museum provides you three tokens to play classic games including: Asteroids (1979), Frogger (1981), Ms. Pac-Man (1982), Space Invaders (1979), and Tron (1982). Additionally, the online exhibit Computer Space lets you download an emulator and the actual ROM for many of the games so that you can play them on your PC at home. You can download the original games! How cool is that?
Answer: very. Unfortunately, downloading the content from AMMI's latest exhibit is prohibited. Which is really a shame, because while the exhibit is excellent (really, really excellent), making the content freely downloadable could be very useful for our democracy. It's that important. Read on...
The Living Room Candidate: Presidential Campaign Commercials 1952-2004 is
an innovative online exhibition presenting more than 250 television commercials from every presidential campaign year since 1952. Visitors to the Museum’s Website can watch nearly four hours of TV commercials. The site includes a searchable database and features commentary, historical background, election results, and navigation organized by both year and theme.This exhibit is really well-organized. Every commercial has a transcript. Brief commentary sets the commercials into context. You can look at commercials by type (Backfire, Biographical, Children, Commander in Chief, Documentary, Fear, and Real People) or by issue (Civil Rights, Corruption, Cost of Living, Taxes, War, and Welfare). There is also a section on campaigning via the Internet.
Great stuff. But, as I watched some of the commercials (Real and Windows Media) I couldn't help but think of the possibilities of being able to remix and annotate them. I imagined what many of the amateur commercial creators who participated in MoveOn.org's Bush in 30 Seconds contest could do with the material. Shouldn't the people be permitted to use these materials to make their own campaign commercials?
So, I tried to download the commercials, but couldn't do it without violating the DMCA. So I contacted AMMI and asked them about this and they were kind enough to answer.
David Schwartz, the Museum’s Chief Curator of Film and co-curator of the exhibit had this to say,
Some of the permission obtained to exhibit this material was contingent on the Museum's assurance that the material would not be downloadable, and would not be edited.What are the permission-granters afraid of? Why don't they want the people to have this material? Apparently is is tolerable to present these works in the safe, reserved arms of a museum exhibit, but heaven forbid that these works actually become part of the living, breathing fabric of democracy.
Unbelievable sums of money have been and will be spent on television campaign commercials. They are the heart and soul of the modern campaign. They are the main reason campaign contributions play such an important role in our democracy. Until now, the ability to create campaign commercials has been the preserve of highly paid election consultants and strictly controlled by the candidates and parties themselves. However, the internet and computing revolutions are changing this. As the MoveOn contest proved, amateurs are perfectly capable of creating compelling campaign advertising. Why shouldn't they have the chance? Why shouldn't these materials be free to quote from? Isn't this what democracy and free speech is about? Of course, it may be that the parties and candidates don't really believe in free speech.
But what about the copyright issues? David Schwartz again,
Most of the commercials were obtained from various presidential libraries, and are in the public domain. In some cases, the ads were provided by ad agencies and by campaign offices (including the DNC and RNC), and these entities retain the copyright. Ronald Reagan is the only president included in the exhibition who obtained copyright ownership of his ads. We obtained permission from his office for use of the ads.For the works in the public domain there is clearly no problem. In fact, I'm not sure why any of these commercials are copyrighted anyway. After all, I seem to recall that tax dollars paid for at least a portion of many of those ads. And even if there is copyright, the holders of those copyrights should be asked why they won't permit licensing under one of the Creative Commons licenses.
This is a great exhibit. It should be greater.
One might not think it, but comic books have not only become a major cultural force through movies, but have led to some extremely interesting intellectual property and free expression cases. Anymore cases and comics will soon have to have their own chapter in the lawschool textbooks right next to the chapter on Scientology.
In the last few years, there have been a number of obscenity charges against comic books (see, Comic Book Legal Defense Fund: Casefiles). There have also been some extremely interesting intellectual property cases. For example, there was the Winter Brothers case, in which the famous blues musicians sued a comic book publisher and its artists for their portrayal in a comic book as half-worm/half-man creatures (citing right of publicity issues among others) (California Supreme Court Rules Jonah Hex Comic Entitled to First Amendment Protection).
Comic book artist turned cultural entrepreneur Todd McFarlane is most famous for his creation of the multimedia character Spawn. He is also famous for his additions to the comic book lawsuit canon. Earlier this year an important decision regarding the ownership of comic book characters was decided against him. Interesting issues include the statute of limitations for copyright and copyright for a joint creation. Scrivener's Error has a good summary (Character Defects).
The second case of interest is hockey player Tony Twist's lawsuit against McFarlane for using Twist's name for a comic book mafia boss. The case was thrown out twice, by a Missouri district court and the state appeals court, but was reinstated by Missouri's Supreme Court. An appeal to the US Supreme Court was denied.
The case raises important First Amendment issues regarding the use of the names of public figures in works of art, so it is unfortunate that the St. Louis Post-Dispatch reports the second jury trial goes against McFarlane (Tony Twist wins $15 million verdict). The AP also has wirestory regarding the decision (Tony Twist wins battle over name). Of course, the case isn't over yet, as McFarlane intends to continue to appeal.
via How Appealing
UPDATE Prof. Eugene Volokh, who wrote an amicus in the case, has some informative comments (Naming a character after a famous person costs writer $15 million).
The excellent Broadcasting and Cable reports on a recent talk by David Solomon, Chief of the FCC's Enforcement Bureau, regarding the FCC's indecency enforcement, natch (F-Word Not Banned, Says FCC). Last March, the FCC notoriously reversed position and declared that Bono's use of the word "fucking" as in, "fucking brilliant" was not only indecent but also profane (FCC Revives Notion of the Profane). So what does the chief enforcer have to say about this?
He insisted to a Media Institute crowd Wednesday that the Bono decision did not mean the f-word was, per se, off limits, and said the bureau and commission still are taking context into account, pointing to the precedent of the news exemption for f-words in mafioso John Gotti tapes on NPR.Of course it isn't per se off limits. If it were the Supreme Court would laugh the already silly FCC out of the courthouse, since the Supreme Court clearly requires "context" to be part of the indecent decision making process. So, when would it be permissible? The Gotti decision was over a decade ago, and the Bono decision basically said that all broadcasters could no longer rely on prior decisions.
He did not concede the point, but did recognize the criticism that the punishment of the fleeting, live, non-sexual adjectival f-word by Bono left little room for a non-actionable use of the word, at least in the entertainment realm.So, if you play that Gotti tape a little too often, or maybe joke about it a little, you'll get fined. News should be serious and unentertaining, apparently. In any case, Gotti used the word "fuck" or its variations ten times in seven sentences. You know any broadcasters who would play the tape today? 'Cuz I sure don't.But news is not a shield, either, he pointed out, citing the KRON-TV puppetry of the penis case, in which a morning news show was fined for an errant puppet. Solomon said that fine was because the on-air newspeople appeared to be encouraging the "flash."
Solomon, whose earlier decision that the Bono f-word was not indecent was reversed by the full commission, told a Media Institute crowd in Washington that broadcasters must start doing more to self-regulate, and not hide behind "the mantra of the First Amendment."Translation: Self-censorship is so much easier for us. How dare you exercise your full free speech rights.
Solomon also seemed to look forward to the court challenges, which would provide welcome guidance. Wait a minute, the FCC has said that the broadcasters have all the guidance they need. If the FCC would welcome more guidance, how can it be that the broadcasters have enough guidance? Either you need more guidance or you don't. If you don't need more guidance than additional guidance is unnecessary and a waste. Seems to be a significant inconsistency here.
Finally, because of the fine boost, Solomon doesn't expect to fine the maximum routinely anymore. Yeah, right. The Congress provided new maximums so that they wouldn't be used, sure.
No mention of profane language in this article. I would really love to sit down with some people from the FCC and have them explain their reasoning about "profane" language to me.
Today, the Federal Censorship Communications Commission (FCC) announced (through a notice of proposed rulemaking) that it will likely be requiring all broadcasters to retain copies of their broadcasts for 60 - 90 days in order to better combat indecent broadcasts (In the Matter of: Retention by Broadcasters of Program Recordings [PDF]):
In this Notice of Proposed Rulemaking (“NPRM”), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days) in order to increase the effectiveness of the Commission’s process for enforcing restrictions on obscene, indecent, and profane broadcast programming. [italics in original]Decency Nazgul and Commissioner Michael Copps was enthusiastic about the new requirements (Statement of Commissioner Michael J. Copps, Re: Retention by Broadcasters of Program Recordings, Notice of Proposed Rulemaking [PDF]):
The process by which the FCC has enforced the indecency laws has for too long placed inordinate responsibility upon the complaining citizen. When someone sends in a complaint, he or she is usually told to supply a recording of the program or a transcript of the offending statement, or the complaint will be dismissed. This policy ignores that it is the Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s responsibility to prove the violations. [emphasis in original]This rulemaking is very troubling for a number of reasons. Many have claimed that the FCC's indecency crackdown is nothing more than election year posturing. This NPRM indicates that it is not. Once this rule is put in place, it is unlikely to go away. Read on...
Profane Language is Back
Another important aspect of this NPRM is that the FCC is making it clear that they are not backing away from their vague new doctrine of punishing "profane" broadcasts, which may include blasphemy, hate speech and depictions of violence. For more on the profanity issue, see, FCC Revives Notion of the Profane, Howard Stern Should Ask FCC: What is Profane?, and Where's the Profanity?. This time, the FCC hasn't ignored their profane doctrine:
As for profanity, the Commission recently stated that it “will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation, but, depending on the context, will also consider under the definition of ‘profanity’ the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. and 10 p.m.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, 19 FCC Rcd 4975 (“Golden Globe”). The Commission also held that its definition of profanity includes material that “denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Id. at 4981. [italics in original]However, see paragraph 3 of the rulemaking in which the FCC notes the court cases upholding its power to regulate obscene and indecent language, but doesn't mention the court cases upholding the FCC's ability to regulate profane language (mostly because there aren't any).
The Ostensible Purpose
What does this NPRM want? "We seek comment on steps the Commission could take to improve our complaint process and better enforce our existing standards by requiring broadcasters to retain recordings of their broadcastfor a limited period of time." The claim is that without recordings, the FCC might not have enough evidence to determine whether a violation occurred. As an example, the NPRM notes that during the years 2000-2002 a whole 169 complaints were dismissed for lack of evidence out of 14,379 total complaints. My calculator says that means about 1.17% of complaints were dismissed for lack of evidence. 1.17%. Yeah, this is a major problem, riiight.
I also note that the FCC doesn't include the year 2003 or 2004 so far. For example, consider what evidence the FCC now considers enough to get a fine in the year 2004 (FCC's Latest Mancow Decision: Discrimination Due to Lack of Evidence):
In this regard, [Emmis] maintains that the March 20 Complaint, which included only the descriptive phrase “graphic detail,” and the May 15 Complaint, which included only the descriptive phrases “both euphemistic and direct conversation about oral sex” and “pornographic sound effects (women moaning),” could not support the staff’s determination regarding the explicitness or graphic nature of each broadcast....How much evidence does the FCC require? Virtually none. Complain about "both euphemistic and direct conversation about oral sex" and that is enough evidence. What sort of complaints is the FCC dismissing for lack of evidence? "I heard naughty words"?We reject Emmis’s contention that the staff’s decisions unfairly or improperly “shifted the burden of proof” or otherwise violated the Administrative Procedure Act. Before the staff issued the NAL, it sent copies of the allegations contained in the complaints to Emmis and asked Emmis to state whether it had aired the material as alleged. Significantly, in its LOI Response, Emmis did not deny broadcasting the material, but merely stated that it had no tape or transcript of the broadcasts in question and that its inquiries of pertinent personnel did not allow it to determine whether it had aired the material as alleged. Thus, Emmis neither disputed the accuracy of the complainant’s allegations nor supplied any countervailing evidence, such as a denial from the air personalities, program’s producers or Station management that the material was broadcast as had been alleged. Following the staff’s issuance of the NAL, the Forfeiture Order and the MO&O, Emmis never contended, much less offered any evidence to establish, that the complainant’s allegations were inaccurate in any way, although it had every opportunity to do so. Consequently, the complainant’s allegations stand unchallenged, and the only issue for us to decide at this point is whether those allegations, standing alone, are sufficient to support indecency determinations. As discussed above, we find that they are. In response to Emmis’s generalized claim, we also find no First Amendment defect in relying on this level of proof. [footnotes omitted]
Oh, and by the way, if you think that this rulemaking will mean that if complaints are late the lack of recordings will protect you, you're wrong:
We have held that in cases in which a licensee can neither confirm nor deny the allegations of indecent broadcasts in a complaint, we have held that the broadcasts occurred. Under such circumstances, broadcasters may find it in their interest to retain recordings for a longer period than the proposals above suggest. We also note that a broadcast station may currently retain recordings on a voluntary basis in the absence of a mandate from the Commission. [citation omitted]In other words, tails we win, heads you lose. And it gets worse, now people will be able to initiate a complaint with almost no evidence at all:
Currently, we generally require a complainant to submit a tape, transcript, or significant excerpt before we will consider a complaint so that we have some sense of whether the material broadcast may have violated the law before we commence an inquiry. We ask whether we should change this policy if we were to require records to be retained. For example, a complaint containing a general description of the relevant broadcast programming may be adequate to trigger Commission action because we could obtain the actual recording from the station.Basically, you will pretty much be able to say, "I was offended by [callsign] at [time]," and the FCC will jump into action.
This also isn't simply about indecency, either:
We also seek comment on whether the proposed record retention requirements should be crafted so that they can be useful to enforcement of other types of complaints based on program content. For example, the proposed record retention requirements may aid us in enforcing our children’s television commercial limits and sponsorship identification requirements. We seek comment on whether there have been problems in enforcing those requirements that justify imposition of a retention requirement, as well as whether the benefits of this additional enforcement tool justify requiring broadcasters to record their programming 24 hours a day, rather than only 6:00 a.m. to 10:00 p.m., the hours when indecent programming is prohibited. [footnotes omitted]Yeah, it is definitely useful for all sorts of content-based regulation.
Finally, we have this nice paragraph:
We are mindful that we must be cautious in our enforcement of Section 1464 with respect to indecency and profanity because free speech rights are involved. We therefore seek comment on whether our proposals raise any First Amendment issues.Oh, well, alrighty then. I'm so relieved. (The FCC is concerned about the possible copyright issues as well).
Comments are due July 30th. Reply Comments are due August 30th.
A Possible Alternative Purpose
Basically, this makes the work of anti-indecency groups, like the Parents Television Council, easier. The average viewer or listener can't easily make a recording for use in a complaint. To a certain extent, organizations like PTC record many broadcasts for use in FCC complaints (they are the major source of such complaints as they encourage their members to flood the FCC with them). However, the resources to record so many broadcasts is expensive and they often miss things they wish to complain about.
Now, organizations like the PTC can flood the FCC with even more complaints and not have to invest in recording equipment.
Prof. Michael Froomkin ran into some troublesome web filters while traveling overseas (Annoying Filter Update). Popular blogs such as Atrios and the Volokh Conspiracy were blocked because of naughty words. Censorware expert Seth Finkelstein points out how commentators could take advantage of this to get blogs they don't like blocked by filters (Censorware usable for blog Denial-Of-Service Attack?). Given that libraries and schools must use filters or be denied federal funding, this may not be that minor of a point.
One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today:
“The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”via LISNews“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”
“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”
“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”
“The final (election) tally: 466 against the library, 982 for the library.”
WIRED publishes an AP wirestory on the opposition to violence in videogames (Violent Video Games Under Attack). Why violence? Perhaps it is because not too many games feature sex. I expect this to change over the next couple of years. In any case, this article is yet more evidence that the fight for free expression for this media form is not even close to over.
Of course, the good AP editors must still be on holiday:
There is also the inescapable fact that the military uses video games to train its soldiers. A 2003 University of Rochester study found that young adults who played a lot of fast-paced video games showed better visual skills than those who did not.It is also an inescapable fact that the military uses movies, pictures and print media to train its soldiers. Why is this relevant? Is the military using the games to teach aggression? Perhaps they are using them to train for better visual skills, at least that is what the second sentence of the paragraph seems to imply, or maybe it isn't related to the first sentence at all. Who knows?
Author Evan Wright ponders the effects of video games on U.S. soldiers in the current Iraq war in his new book Generation Kill. In an endorsement that Grand Theft Auto creator Rockstar Games would probably rather not get, he quotes one U.S. soldier as saying an ambush felt just like playing the game.A truly touching anecdote. Go back to the first Gulf War and you will undoubtedly find references to the resemblance or non-resemblance of war to the movies' depiction of war. A reader-submitted review of the book on Amazon claims that the book includes a similar anecdote about another media form as well, "someone recites gangsta rap lyrics as he ecstatically sprays machine gun fire on the enemy (A very admirable piece of wartime journalism). Read the book and I'm sure you'll find other shocking examples of our culture being invoked by our soldiers in Iraq. Imagine that, our soldiers evoking our culture to describe war."It felt like I was living it when I seen the flames coming out of windows, the blown-up car in the street, guys crawling around shooting at us," the soldier says.
Still, the notion that games should be restricted is accepted elsewhere. New Zealand, Brazil, Germany and several other nations have outlawed some games.They are also restricted in countries like China, too. However, the article doesn't note some other censorship characteristics. Germany outlaws all media (including games) that depict Nazism in particular ways, something our First Amendment wouldn't allow. New Zealand's Office of Film and Literature Classification has outlawed some movies as well.
I'm not a fan of Michael Moore. I have no plans to pay money to see his new film, Fahrenheit 9/11. I have even written that he is a "free expression hypocrite." However, I think it sad that the MPAA has banned the film from being advertised with a quote from film critic Richard Roeper (Theaters hike security for Moore's documentary):
The R-rating for "Fahrenheit" continues to draw attention to the controversial movie. Prior to its release, the film's distributors, Lions Gate Films and IFC Entertainment, unsuccessfully fought the MPAA's decision to give "Fahrenheit" an R-rating and Moore publicly blasted the decision saying that teenagers are among the people who should be allowed to see the film in order to see what war is really like.This is asinine. Of course, the MPAA may feel pressured to enforce their "voluntary" rating system in order to keep Washington's decency Nazgul off their back. Herewith, some other potential blurbs for the film that will satisfy the idiots who fear the terrible consequences if teenagers go see this movie unaccompanied:Then this week, the MPAA banned a quote by film critic Richard Roeper from the movie's advertising materials in which he stated that: "Everyone in the country should see this film!" According to the MPAA, calling for "everyone" to see the film is in violation of the movie's R-rating.
Reuters is reporting that the FCC is going to fine Viacom $550,000 for Janet's nipple flash on the SuperBowl (Jackson Breast Flash May Get $550,000 Fine-Source). Jeff Jarvis notes that this would mean Janet completely topless would rate a million (The Daily Stern: The million-buck boobs). Ba-dump-bump. But, seriously folks, the decision isn't final and the Commissioners still have to vote on it. What intrigues me, however, is that the fine lawyers at the FCC apparently have argued that the 20 stations owned by Viacom should pay the maximum fine allowable, but the stations that aired the incident but were not owned by Viacom pay nothing. I have a feeling that at least one of the commissioners will complain about that, but let's think about possible reasons for that distinction:
Today, the Supreme Court, with a 5-4 decision, upheld a preliminary injunction preventing enforcement of the Child Online Protection Act ("COPA"), codified at 47 USC 231. Basically the law requires websites that sell material that is "harmful to minors" to implement some sort of age verification, like a credit card check on pain of criminal and civil penalties. The history of the case is slightly convoluted with two apellate decisions and this second visit to the Supreme Court. Suffice to say that, simply, the case will now return to the district court to be decided on the merits. My First Amendment guru, Yale Professor Jack Balkin has a very nice short summary (COPA sent back for retrial). Or, you can read the 41-page decision for yourself, here: Ashcroft v. ACLU [PDF].
This is the third time that an internet censorship case has come before the Supreme Court (not counting the library filtering case) and there are still a number of very interesting aspects to be dealt with. SCOTUSBlog looks at one issue with a posting under the prurient title: Sex, the Internet and congressional frustration. The frustration of Congress, and of Breyer's dissent, is that Congress wrote COPA specifically in response to the Court's decision in the first internet censorship case, and the Court is saying it still isn't good enough Reno. SCOTUSBlog believes that the majority's decision is a "broad hint ... that the lawmakers may be doomed to frustration if they try again."
UCLA Law Professor Eugene Volokh considers one particular aspect of Breyer's views (in the dissent) on the definition of obscenity ("Prurient interest"). Volokh notes that Breyer's definition of "prurient interest" is much broader than previous definitions, "it simply seeks a sexual response."
See Professor Larry Solum for a good roundup of media and commentary (Legal Theory Blog: Ashcroft v. ACLU).
More on Breyer's understanding of obscenity below, including why Breyer makes the case for a novel "least restrictive means." Read on ...
The Majority's Opinion (Kennedy authors, Stevens, Souter, Thomas, and Ginsburg join)
Since the law is content-based restriction, it must meet a very high level of judicial scrutiny. The law is presumed invalid and the government bears the burden of proving that the law is narrowly tailored to meet a compelling government interest. Protecting kiddies is clearly such an interest, as anyone who watches the Simpsons knows. So, we must see if the law is narrowly tailored and one means of doing this is to determine if there are "less restrictive means" available to accomplish the government's interest.
The majority concludes that, yes, there are plausible reasons to believe there are less restrictive alternatives to COPA, though they do not conclusively claim this but, instead, send the case back for more factfinding.
In Praise of Filters
The least restrictive means in this case are filters. Yea filters! Go filters! The opinion reads like a censorware author's dream marketing campaign.
The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial. Ibid.Of course, filtering isn't perfect the majority concede, but the burden is still on the government to show why filtering is a less restrictive alternative: "Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in COPA."Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify them-selves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.
Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornog-raphy, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id., at 484. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives. In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. See id., at 484, 496–497. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web.
That filtering software may well be more effective than COPA is confirmed by the findings of the Commission on Child Online Protection, a blue-ribbon commission created by Congress in COPA itself. Congress directed the Commission to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet. Note following 47 U. S. C. §231. It unambiguously found that filters are more effective than age-verification requirements. See Commission on Child Online Protection (COPA), Report to Congress, at 19–21, 23–25, 27 (Oct. 20, 2000) (assigning a score for “Effectiveness” of 7.4 for server-based filters and 6.5 for client-based filters, as compared to 5.9 for independent adult-id verification, and 5.5 for credit card verification). Thus, not only has the Government failed to carry its burden of showing the District Court that the proposed alternative is less effective, but also a Government Commission appointed to consider the question has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its discretion in enjoining the statute.
Parents Must Take Responsibility
One aspect of this case that I really liked was the majority's response to the argument that Congress cannot mandate the use of filters by parents. The opinion responds that courts should assume parents will act responsibly and thus, the government cannot argue it needs to step in to supersede parental decisions.
The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group, 529 U. S., at 824. (“A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act”). In enacting COPA, Congress said its goal was to prevent the “wide-spread availability of the Internet” from providing “oppor-tunities for minors to access materials through the World Wide Web in a manner that can frustrate parental super-vision or control.” Congressional Findings, note following 47 U. S. C. §231 (quoting Pub. L. 105–277, Tit. XIV, §1402(1), 112 Stat. 2681–736). COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.This is one of the clearest descriptions of the nanny state I've read.
Rapid Technological Change
This portion of the decision will definitely get a lot of attention. The majority lays out its reasoning to send the case back to the district court for more factfinding, especially to consider the many changes that have occurred with regard to the internet in the past few years. It'll be interesting to see those opposing the law cite the ready availability of pornography on P2P networks ala Hatch, as well as other changes.
Third, and on a related point, the factual record does not reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed. Compare, e.g., 31 F. Supp. 2d, at 481 (36.7 million Internet hosts as of July 1998) with Internet Systems Consortium, Internet Domain Survey, Jan. 2004, http://www.isc.org/index.pl?/ops/ds (as visited June 22, 2004, and available in the Clerk of Court’s case file) (233.1 million hosts as of Jan. 2004). It is reasonable to assume that other technological developments important to the First Amendment analysis have also occurred during that time. More and better filtering alternatives may exist than when the District Court entered its findings. Indeed, we know that after the District Court entered its factfindings, a congressionally appointed commission issued a report that found that filters are more effective than verification screens. See supra, at 8.However, this aspect of the case is somewhat limited and distinguishable from other cases:
We do not mean, therefore, to set up an insuperable obstacle to fair review. Here, however, the usual gap has doubled because the case has been through the Court of Appeals twice. The additional two years might make a difference. By affirming the preliminary injunction and remanding for trial, we allow the parties to update and supplement the factual record to reflect current techno-logical realities.For more information on this issue, see Volokh Conspirator Stuart Benjamin's law review article, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, which the Court cites.
Hoist on Their Own Censorious Petard
Of course, Congress has also been busy passing other censorious laws "for the children." The Supreme Court points out that these other laws might also be "less restrictive alternatives."
Remand will also permit the District Court to take account of a changed legal landscape. Since the District Court made its factfindings, Congress has passed at least two further statutes that might qualify as less restrictive alternatives to COPA—a prohibition on misleading domain names, and a statute creating a minors-safe “Dot Kids” domain.Another law that might bear mentioning is the no-spam act, which specifically targets sexually specific spam for special handling. Of course, it will be fun watching the government argue that these other alternatives aren't really effective.
Stevens/Ginsburg Concurrence
This section isn't terribly interesting. Both Justices reiterate their opposition to community standards for the internet, which they call a "fatal flaw." They're right, actually, but it will take the rest of the Court sometime to come to that realization.
The concurrence also repeats Stevens' refrain that criminal penalites are not appropriate for obscenity law. Once again, he's correct, but little good it does him right now.
Scalia's Dissent
Another uninteresting excursion into Scalia's belief that commercial pornography enjoys no First Amendment protection. As Balkin says, "The premise, it seems to me, is absurd." What is it with Scalia's obsession with the deadly sin of lust? Commercial speakers can appeal and promote all the other deadly sins (Pride, Avarice/Greed, Envy, Wrath/Anger, Gluttony, and Sloth), but try to exploit lust and Scalia will condemn you to hell criminal and civil sanctions.
Breyer's Dissent (with the Chief Justice and O'Connor joining)
This is far more interesting. Basically, they don't believe the law creates a major burden (for several reasons).
It's Only Obscenity
I'm not a fan of obscenity law. I think it is mess that should simply be gotten rid of. For this reason, Breyer's dissent fascinates me. One of the main reasons the law isn't burdensome, according to Breyer, is because it mostly applies to content that doesn't receive protection from the First Amendment anyway, obscenity:
The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more.Indeed, the language does track the "Miller" test for obscenity (no relation), but with a slight difference: it applies "with respect to minors." You would think that would mean something, but you would be mostly wrong, according to this dissent:
The only significant difference between the present statute and Miller’s definition consists of the addition of the words “with respect to minors,” §231(e)(6)(A), and “for minors,” §231(e)(6)(C). But the addition of these words to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly. That is because the material in question (while potentially harmful to young children) must, first, appeal to the “prurient interest” of, i.e., seek a sexual response from, some group of adolescents or postadolescents (since young children normally do not so respond). And material that appeals to the “prurient interest[s]” of some group of adolescents or postadolescents will almost inevitably appeal to the “prurient interest[s]” of some group of adults as well.Breyer is actually making a pretty good and logical point here. Yet, I think that most people would see the statute as extending to far more than what is obscene for adults. And remember, Breyer is also promoting a very expansive definition of "prurient interest." How many types of media seek a sexual response, after all?The “lack of serious value” requirement narrows the statute yet further—despite the presence of the qualification “for minors.” That is because one cannot easily imagine material that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value for any significant group of minors. Thus, the statute, read literally, insofar as it extends beyond the legally obscene, could reach only borderline cases.
One wonders, if only borderline cases are at issue, why didn't Congress simply require that websites providing obscene materials (obscene as to all) have age identification? Indeed, wouldn't such a law be a "less restrictive means" given Breyer's definition? It doesn't affect any First Amendment rights, because it only applies to speech that is unprotected already, and it captures everything except some borderline cases. Seems like a classic example of a "less restrictive means" to me.
Of course, Breyer's narrow understanding of what the statute means seems belied by his own words and the Congressional history he cites in favor of his position:
And to take the words of the statute literally is consistent with Congress’ avowed objective in enacting this law; namely, putting material produced by professional pornographers behind screens that will verify the age of the viewer. See S. Rep. No. 105–225, p. 3 (1998) (hereinafter S. Rep.) (“The bill seeks to restrict access to commercial pornography on the Web by requiring those engaged in the business of the commercial distribution of material that is harmful to minors to take certain prescribed steps to restrict access to such material by minors . . .”); H. R. Rep. No. 105–775, pp. 5, 14 (1998) (hereinafter H. R. Rep.) (explaining that the bill is aimed at the sale of pornographic materials and provides a de-fense for the “commercial purveyors of pornography” that the bill seeks to regulate)....In sum, the Act’s definitions limit the statute’s scope to commercial pornography. It affects unprotected obscene material.Since when has "commercial pornography" been equivalent to "obscene"? Answer: Not since the 1970's excepting Scalia's point of view.
The dissent then goes on to consider whether age verification is much of a burden. There will be a lot of interesting factfinding on this when the case goes back to the district court. For example, many credit card companies are wary of associating with pornography, becoming the focus of government obscenity enforcement (stop the flow of money), as well as the inevitable chargebacks and other issues it raises. It is not at all clear to me that the burden is as light as the dissent makes it seem.
Least Restrictive Means
There is quite a battle here between the dissent and the majority. The dissent characterizes the test as:
relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify “[a]ny restriction on speech,” as the Court claims, ante, at 8, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)I'm not sure the dissent is compelling here. Of course, a court has to compare existing legislation to other potential legislation including merely promoting elements of the status quo. I don't get why that isn't to be considered.
As for filtering. the Court cites Stevens' dissent in the library filtering case for the proposition that filtering doesn't work. Strange. Additionally, the court makes the claim that American parents need a nanny state:
Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American fami-lies, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.Well, glad we have a government to pick up the slack for latch-key kids.
Another, less than compelling rational of the dissent is that putting 60% of the pornography websites behind age-verification barriers is effective enough. Unfortunately, that is the wrong way to look at it. The question shouldn't be whether you can inhibit some of the suppliers, but whether you can inhibit the supply. Inhibiting 60% of the suppliers may or may not have any effect on the supply. Of course, the 60% argument is also based on the extremely narrow definition of what the law covers, according to Breyer.
The dissent then disposes of the idea that the government could promote filters as a "magical" solution and castigates the majority for harshing on Congress' attempts to stay within the boundaries of Reno.
One final point on obscenity
Obscenity is unprotected by the First Amendment and there are already laws on the books punishing its distribution. Strangely, Breyer argues that this is another reason to uphold the statute, as the requirements of using age-verification for obscenity is less burdensome on free speech than prosecuting obscenity:
The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another “alternative”), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option—a “middle way”—the Act avoids the need for potentially speech-suppressing prosecutions.Well, this points out one of the main problems with obscenity law. However, it also points out that the government has a third option. The government could require that obscene material (obscene as to adults and minors) be provided behind an age-verification scheme. Why isn't that a possibility? It is clearly constitutional.That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority’s opinion.
The Cleveland Plain Dealer (reg. req.) reports a disturbing story regarding a lawyer who serves as a defense expert in child porn cases (Ex-prosecutor now toppling porn cases). The defense expert, a former prosecutor,
has developed a computerized courtroom exhibit that he uses to demonstrate how, with a $650 PhotoShop software program, adults can be digitally morphed into appearing as if they are children, and vice versa.The reason this is relevant is because the Ohio law requires that:
a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child.This is becoming a bigger and bigger issue, as I've noted (Volokh on the Future of Virtual Pr0n). The leading case on the issue is Ashcroft v. Free Speech Coalition, which threw out a Federal law that criminalized pornography that only looks like child porn, but was made with adults or virtual actors.
What's upsetting about this story is that Federal and state prosecutors are threatening this defense expert:
"People from the prosecutor's office have called to warn me: 'Dean, watch your back. They don't like what you're doing with digital imaging,' " Boland said. "I'm telling the truth and they don't like it. They want me to shut up. I've been in hypersensitive siege mode ever since I got threatened with arrest in Oklahoma."Threatened with arrest?!? Indeed,
A judge is expected to rule on Tuesday in Oklahoma, where federal prosecutors considered arresting Boland in April after an explicit courtroom demonstration. Some of the images involved what appeared to be children engaged in sexual acts, which angered prosecutors.Well, that's the freakin' point isn't it? That is, people can make images that appear to be children engaged in sexual acts, but aren't children. How can you conclusively demonstrate the point in court without showing some of those images and how they may be made? These threats are, as Lewis Katz, a professor at Case Western Reserve University's School of Law, calls them, a "travesty."
This doesn't mean there has to be a huge child porn loophole and all future prosecutions are futile. There is a lot of actual child porn out there. Among other things, prosecutors ought to be developing a database of authenticated child porn and prosecuting those who possess such authenticated child porn.
via Peter D. Junger's Samsara's Blog
While I've been writing about DRM, Jeff Jarvis has continued to keep track of the FCC/Indecency mess, especially the Senate's passage of a bill that would increase the maximum fines permissible by ten times (The Daily Stern: June 22, 2004). Jarvis is absolutely right, the media (among others) has been remarkably complacent and/or cowardly in fighting this free speech outrage (The Daily Stern: Taps for the First Amendment).
I'll be getting back to the FCC myself, soon.
Michael Moore, who is ever quick to decry "censorship" targeted at himself, is threatening those who criticize him by putting together a libel and defamation "war room," according to this nice piece in Slate (Libel Suit 9/11).
UCLA law professor Eugene Volokh poses an interesting hypothetical this afternoon regarding the future of pornography (Guess who'll be in porn movies in a decade or two?):
Within about ten years, there will probably be software that can merge people's photographs and voices with movies that depict someone else. ... But, practically, the most common use of this would probably be for pornography. Consumers would buy the program; get ordinary, nonpornographic photographs of celebrities or of acquaintances; merge the photograph with a pornographic movie; and then be able to watch pornography that "stars" whomever it is they lust after. ... if I were the sort of person whom either acquaintances or strangers would like to merge into a porn movie -- even one they'd only watch by themselves -- I wouldn't be at all pleased by this technology. Even if they watch the movie in the privacy of their own homes, there'd still be something mighty icky about them watching pictures that show me having sex.
I've actually written something along the same lines back in 2002 on LawMeme (The Future of Virtual Kiddie Pr0n and Other Notes on Ashcroft v. Free Speech). I think my example of virtual child pornography is even more disturbing and icky than celebrity porn.
However, I have to disagree with Prof. Volokh. As someone who is (peripherally) involved in the Machinima community, I believe that although pornography will be quite prevalent so will many other legitimate uses. The tools available to the pornographer will be the tools available to the budding film student. I think we are going to see many more non-pornographic uses than not. Yes, people will make pornography, but they will also download comedic scripts and the images of their favorite comedians.
Heck, it may become a significant art form with those who make the script suggesting several actors (or synthespians) for a particular role, but leaving the final "casting" decisions up to the consumer. Why pay for actors if you can direct the script and have the consumers add in the actors that they want later?
In any case, there better be significant legitimate uses, otherwise you are going to have a lot of explaining to do when your spouse/significant other stumbles across the program on your converged media center.
According to Ubercyberlawprof Larry Lessig, Microsoft is threatening Sergio Amadeu, President of the National Institute of Information Technology (ITI) of Brazil, with a defamation lawsuit for comments he has made about Microsoft's business practices (the local ordinance we call the first amendment). According to a translation of the complaint (Microsoft Complaint [PDF]) Amadeu is apparently guilty of:
With purposes still to be clarified, the Defendant, at the condition of President of ITI, gave an intervitew to the magazine Carta Capital, in which he makes reference and imputations of offensive nature to the Plaintiff, using phrases and expressions from which defamation is inferred, under the terms of the article 21 of Statute 5.250/67, as follows:In defending free software, Mr. Amadeu does not abstain from criticizing Microsoft, accusing the company of a "drug-dealer practice" for offering the operational system Windows to some governments and city administration for digital inclusion programs. "This is a trojan horse, a form of securing critical mass to continue constraining the country".
To Amadeu, this will be a decisive year to win the "strategy of fear, uncertainty and doubt", as he classifies the business model of Microsoft."
Apparently, in Brazil:
The offensive expressions launched by the Defendant at the interview violate the rule of Article 12 of the Press Law, which leads to the application of the aforementioned especial statute whenever there is an excess in freedom of speech and freedom of thought, by means of the dissemination of information.
Read the offending article here: The Penguin Advances [PDF].
As Lessig notes, perhaps this is defamation in Brazil, but this would not be considered defamation in the United States, thanks to First Amendment jurisprudence. I guess Microsoft only believes in the First Amendment when it has to.
Well, I wasn't planning on writing anymore about the Preamble vs. the Pledge (True Patriots Recite the Preamble - I'll get back to the regularly scheduled technology, law and policy postings soon), but something in this morning's WSJ's Opinion Journal sort of stuck in my craw (Why the Pledge Matters: "Under God" is the firm link to U.S. security). Ostensibly, this article is in support of the keeping God in government and the Pledge, but it sure seems as if it is a subtle dig at the patriotism and loyalty of the religious. Read on...
The long historical truth is that God, whether He exists or not, is good for summoning national pride, communal bonds and the martial spirit--the qualities most necessary to ensuring the survival of the United States at its current level of pre-eminence. (If the U.S.'s current level of pre-eminence is what galls you most, stop reading.)Note, that using God's name is useful "whether he exists or not." How insulting to the truly religious that must be. That very sentence reduces God to the self-help section of the bookstore. Furthermore, the religious can't truly be riled up to support their constitution and institutions unless you invoke their God. What sad and pathetic patriots they must be.
When in reciting the Pledge of Allegiance schoolchildren stand and say together that their one, indivisible, just and liberty-loving nation exists under God, they are admitting an organizing force in life other than their cute, little selves.Well, when it comes to this country, we generally recognize only one organizing force - that of We the People. Apparently, such a broad statement of collective action is not enough to get our tykes to escape narcissism. I agree, the Pledge is really a statement of conformity, that doesn't really refer to anything outside itself, which is why I support reciting the Preamble instead.
Arguably, the role of God or religion in the nation's life wouldn't matter very much if the relations among all nations resembled the Garden of Eden. Since that famous, unfortunate Fall, however, men and women have been called upon to die defending their country. That is asking a lot. The willingness to fight for one's nation has been a function of the patriotic impulse, and we summon that impulse, in part, with appeals to a higher purpose.This is argument? This is rhetoric? If we were in paradise God wouldn't matter much - brilliant illumination of something to contrast reality with. Of course, it isn't the role of God that matters, but the idea of God, because God is important "whether he exists or not." Plenty of atheists have died for this country and its principles. By definition, atheists weren't inspired by God. Unfortunately, it seems, the religious need that extra boost of God mentioning to make the same sacrifice atheists do without God. Hmmm, who is more patriotic in such a case?
Wholly secularizing America's public life, as the Pledge banners wish, is dangerous.Well, they may wish it, but they aren't going to get it. You can't shut George Bush up about religion. He is constantly seeking God's blessing and praying and publically citing God's name. No one who is serious is claiming that Bush's constant reference to his Diety is unconstitutional. There are plenty of politician's on both side of the aisle who are overtly religious. As "under God" foe Newdow noted in his oral argument before the Supreme Court, we are highly unlikely to elect a president who is not overtly religious anytime soon. So, all the parade of horribles the author presents are unlikely to occur, as we aren't going to have a wholly secular public life even if, God forbid, school children recite the God-free Preamble instead of the "voluntary" God-fearing loyalty oath known as the Pledge.
This innocuous little Pledge and its two words, "under God," has become for school children the last link joining national purpose to God--a union that is this country's best, proven hope for ensuring national strength. When that link is finally broken, the U.S. will start to become, well, France--smart, sophisticated, agnostic and save for nuclear bombs, inexorably weak. That is one test case I'd as soon not try.Apparently, without "under God" in the Pledge, President Bush, Senator Leiberman and all the other overtly religious politicians will suddenly shut up about their religious views where school children might hear them and all those religious types will turn into cheese-eating surrender monkeys. That is, unless, we toss them an officially meaningless ceremonial deism bone. Man, how weak must the beliefs of the religious be?
Yesterday, the Supreme Court dodged a political bullet by refusing to rule on whether the phrase "under God" should remain in the Pledge of Allegiance as led and recited by public school teachers and instead declared that the challenger had no standing (Thank God It's Standing). Today, a Washington Post (reg. req.) editorial declares, Never Mind the Pledge.
But should we ignore the Pledge?
I think not. Though many see the pledge as an expression of patriotism (not to mention a national religiosity), I believe it instills a very poor idea of what this nation is all about in schoolchildren. Not only is the phrase "under God" either meaningless "ceremonial deism" or an affront to our freedom from the establishment of religion, but the whole pledge celebrates values anathema to a democratic people. It seems clear to me that the best solution, the solution true patriots ought to support, is that children recite the Preamble to the Constitution of the United States of America.
Let us compare the two texts:
| Preamble | Pledge |
| We the people of the United States, | I |
| This is an inclusive statement that unites the speakers and reminds them that they are part of a greater community. As this would be recited in a classroom, it serves to pull together the class and teacher. And isn't true patriotism about uniting for a common purpose? It is also a statement of where power comes from - "We the people" - not common racial or geographic origins. In the very first words, this is a profoundly democratic statement. | Though, on the surface, this recalls the American belief in individuality, it is a false individuality when recited daily, en masse. It is a statement of conformity, not unity. |
| in order | pledge allegiance |
| This is a statement of common purpose. It will be followed by the goals towards which, we, the people of the United States strive. Again, this unites, though we may disagree about the means we can at least agree as to the purpose. And, even if we don't individually agree as to the purpose, this is a statement of communal purpose, not individual purpose. This language is invitational, not a command. | A "pledge," of course, is a solemn, binding promise. It is an affirmative statement of action. Question whether it makes sense to have children who cannot legally sign contracts "pledge" something (even if you agree with the purpose). It is also a point that divides; as the Supreme Court has held, children cannot be made to pledge allegiance. Indeed, loyalty oaths for adults are right out too. Why, then, should we promote this "voluntary" loyalty oath? Is not a recitation of our common purpose good enough? Is our system of government flawed in a such a way that people must be bound to it by oath rather than conviction? |
| to form a more perfect union, | to the Flag of the United States of America, |
| This sentence is aspirational and inclusive. We are not a perfect union today, but we seek to become one. What better goal of our citizenship to be reminded of daily? | These two passages hardly bear any comparison whatsoever. Pledge Allegiance to an emblem? What the heck is that? It is not even logically coherent. Of course, some will say, you're pledging to that which the emblem represents. However, the following phrase puts a lie to that notion. You wouldn't need it if the flag was merely a symbol of that which loyalty was desired. Furthermore, what, exactly does the flag represent other than the Republic? Either the symbolism of the flag is redundant with the following phrase, or it is representing something else in addition to the Republic. What might that be? Why should anyone pledge allegiance to that? |
| establish justice, | and to the Republic for which it stands, |
| Again, an aspirational statement. Justice does not exist, but must be established. Every morning, there is a reminder of the great task that unites us. | This is the finest part of the Pledge. Though one might ask why pledge allegiance to an emblem first? Or why this Republic? Are all Republics equally virtuous and worth of loyalty? |
| insure domestic tranquility, provide for the common defense, promote the general welfare, | one Nation under God, |
| Once again the preamble provides aspirational goals that seek to unite a disparate people. Especially in time of war, isn't this a better reminder that we are in the fight together? | The Pledge speaks of unity but immediately follows it with a divisive statement. Oh, that's right, "under God" is a meaningless, superfluous bit of "ceremonial deism." If children are meant to recite something every morning, shouldn't it be something that is more than excess verbiage and has meaning? And even though the pledge commands loyalty, it provides no purpose for the loyalty but only an object. Contrast the Preamble, which provides purpose before object. |
| and secure the blessings of liberty to ourselves and our posterity, | indivisible, |
| Once again, the Preamble provides an aspirational goal that we, as citizens of the United States, must ever seek. Moreover, which we do well to note in time of war, liberty is something that must be secured, it isn't just given or guaranteed. Furthermore, these goals are meant to unite us. We secure liberty not for ourself but ourselves. And unlike the Pledge, the Preamble has us look at the big picture. We aspire to these goals not just for present but the future. We are tied into something bigger than just present concerns. | It is not so much that we are indivisible (we aren't), but that we seek unity. |
| do ordain and establish this Constitution for the United States of America. | with liberty and justice for all. |
| The Pledge asks for loyalty (to what is unclear) and what that loyalty requires is never mentioned. It is very nearly an empty promise. Here, however, the Preamble, after giving us the purpose of our common project, tells us how we are to go about it: the Constitution. The Preamble provides the noble goals and then points us to the means of achieving those goals. It engages the speaker with the democratic project. It invites those who recite it to engage with our fundamental laws by which the whole of our society is organized. The Preamble points both to the future (posterity) and our common past, the Constitution. The Preamble is isolated from history. | These words weren't true 100 years ago when the Pledge was written. They weren't true fifty years ago when the Pledge was altered courtesy of Congress and the Knights of Columbus. They are not true today. They will never be true. Where the Preamble has us aspire to mutually seek these goals, the Pledge presumes that we have achieved them. There is no reminder that we must ever work towards them. How easy it is to pledge allegiance to something that already provides justice and liberty. How much more difficult and inspiring, however, to seek those goals in an imperfect world. Some people speak of hard and soft America. Well, the Pledge is soft America and the Preamble hard America. The Pledge is mere agreement with, the Preamble responsibility for. |
As I noted earlier today, there is an odd absence in the compliance plan the FCC agreed to with Clear Channel (Where's the Profanity?). Strangely, while the compliance plan requires Clear Channel to do many things in the event they broadcast obscene or indecent language, there is no corresponding requirements for action in the event Clear Channel broadcasts profane language, which is one of the categories of language the FCC regulates.
I found this odd, so I called the FCC to ask why the apparent oversight. The response I got was thus:
If issues were to arise about the consent decree then the FCC would review them at that time.
Not a "no comment" but it didn't really answer my question as to why the term "profane" was not included in the first place. Nor does the statement really mean anything. Of course if issues arise you should review them. But review doesn't necessarily lead to action. I can review things all day long and not accomplish a thing, except for the "reviewing."
Even if the review determines that the FCC should have insisted that Clear Channel include "profane" language as triggering disciplinary action on Clear Channel's part, there is nothing the FCC can do about it now. The reason is that such a modification would most likely be seen as modifying the agreement to Clear Channel's prejudice, which would mean the admission of Clear Channel's guilt goes away.
Of course, Clear Channel is free to modify its compliance plan, presumably at will, as long as the FCC is notified 30 days in advance. There is no requirement for public notice either:
Clear Channel reserves the right to revise the plan from time to time, provided that the Commission shall be given not less than thirty (30) days advance written notice of any revisions to the plan.
As is widely reported, the FCC has settled all existing and ongoing investigations related to the possible broadcasting of obscene, profane or indecent language by radio oligopolist Clear Channel. Read Reuters' report (Clear Channel to Settle Indecency Cases) or the Washington Post (reg. req.) (Deal Erases Pending Charges Against Clear Channel). I've written on one aspect of the settlement (the lack of any mention of profane language in the compliance plan) here: Where's the Profanity?.
Rather than go through the actual order in this post, I'm going to look at what FCC Chairman Michael K. Powell has to say about it in his statement. You can read the order and consent decree yourself here: In the Matter of Clear Channel Communications, Inc. NAL/Acct. No. 200432080140 [PDF]. Or you can skip right to Powell's statement here: Statement of Chairman Michael K. Powell, Re: Clear Channel Communications, Inc. [PDF].
Read on for a line-by-line dissection...
Today’s consent decree marks a significant victory for the Commission and the American public.
A little bit celebratory, don't you think? I don't know about you, but I think Powell would do well to remember that the language that is being punished here is language that is protected by the First Amendment. So, isn't this "victory" a little bit mixed? Shouldn't there be some recognition that while we have successfully regulated the airwaves, we've also restricted speech to a certain extent? That this victory doesn't come without costs?
Through the consent decree, we have secured the highest enforcement concessions by a broadcaster in Commission history. Clear Channel has agreed to make the highest enforcement-related payment to the Treasury by a broadcaster in Commission history--$1.75 million.
Whoohoo! This "voluntary contribution to the United States Treasury," as the consent agreement puts it, is only $50,000 more than a fine issued in 1995. Gee, do you think they just came up with that number out of a hat? "Record fine" sure looks nice in the headlines though, don't it?
In addition, Clear Channel has now formally admitted that it violated the law and has made binding commitments to clean up its act, including preventive measures such as training for on-air personalities and employees that participate in programming decisions and the use of time delays in its broadcasts.
It's a funny admission, really. Clear Channel copped a plea that some of its broadcasts were indecent. We never find out which specific broadcasts though. "Mistakes were made, although we aren't quite sure exactly what." This is actually one of the scariest sentences in Powell's statement. These are the sort of government settlements one expects in dictatorships. The government gets people or organizations to admit some vague guilt, but how, exactly, they violated the law is never clearly demonstrated.
In a way, this is very similar to the secret trials of the Star Chamber. What else do you call it when the defendant steps into the judgement chamber accused of a multitude of crimes and then is found guilty of one or more of those crimes, which crimes not specified. Such a procedure has all the earmarks of a secret trial.
Whether the quislings at Clear Channel accept these effectively secret proceedings is besides the point. Public proceedings are not merely a safeguard for the defendant, but a safeguard for the public. Without knowing upon what basis guilt has been determined, the public can have no confidence in the decisions of the adminstrator. There is also a strong educational aspect as well. Without a public determination of guilt, the public remains in the dark as to what is illicit trespass upon children's gentle ears.
Such secrecy is especially abhorrent in cases involving freedom of expression itself - and precisely how the Star Chamber's secret trials were used to inhibit free discourse. Those dragged before the infamous magistrates would be found guilty of sedition, though which of their words were seditious was not revealed. Kept the public in better check that way.
A minor note. Those delays Powell mentions? They're five-minutes long. Think about that the next time you consider calling in to a radio show.
In addition, those accused of violating the Commission’s rules will be suspended and if ultimately found to violate our rules, will be terminated.
That's great. Accusations lead to suspension. And, one foul-up and you're fired. How many people could handle a situation where one accidental word that is commonly used could get you suspended and/or fired? That's something to be proud of. Too bad we can't get FCC Commissioners suspended and fired for truthfully accussing them of stupidity. Oh, yeah, and there is a loophole he doesn't mention See, Where's the Profanity?.
Notwithstanding these accomplishments, the government’s involvement in content regulation can be a dangerous game. Even where well intended, in our desire, for instance, to protect children from indecent broadcasts, encroachments on content can have adverse affects on the public interest. By its very nature, government action, or even mere threats, to quell protected speech can have the unintended consequence of depriving the public of a speaker’s artistic, literary, scientific or political viewpoint.
Nice words, but that is all they are - words. The Soviet Union's Constitution had nice words about freedom of expression, too:
In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.
You would think if Powell was all that concerned about chilling effects he would try harder to clear up what, exactly, Clear Channel is guilty of. Powell can talk the talk, but he doesn't walk the walk.
Grounded in the First Amendment is our forefathers’ concern that the policymaker could be tempted to misuse power for their own self-interest. They knew that the sword that wields the power to intentionally abridge speech and information is the most potent instrument of all. As the Commission is tasked with walking the delicate balance of protecting the interests of the First Amendment with the need to protect our children, it is incumbent upon us to make best efforts to avoid the realization of our forefathers’ concerns.
Yes, the founding father's were concerned with politicians silencing opposition. However, they were also concerned with the government silencing people for any reason whatsoever. Powell is trying to make it seem that the censorship in this case is to "protect our children" not to misuse power for his own self-interest. Yeah, right. Formerly free speech loving Powell realized that his job might be on the line, so he started to crackdown on broadcast indecency to keep the employment checks a-flowin'. Nope, no self-interest there.
Notice also that Powell never uses the word censorship. Seems a bit odd, doesn't it? Here's why: When is Indecency Regulation "Censorship"?.
This task is made easier when our licensees wrestle the difficult decisions away from the government and take the responsibility for what they broadcast over our nation’s airwaves.
This is the second scariest sentence of the statement. Apparently, self-censorship forced upon us by government is better than direct censorship. You see, when you've scared people enough that they modify and censor their own speech, that is preferable to a world in which the government has to actively stifle speech. Self-censorship is much more efficient from the government's point of view.
Of course, the only way to wrestle the difficult decisions away from government is by ensuring that you never get close to the difficult line where decisions have to be made. Civil libertarians and Supreme Court Justices call this a "chilling effect." You remember those nice things that nice Mr. Powell said about freedom of expression just a few paragraphs above? Words, just words.
In the case of Clear Channel Communications, they have done just that through the substantial commitments agreed to in this consent decree.
Good boy! Nice quisling.
Oddly enough, these actions are not sufficient for some on the Commission. In their zealousness, they would prefer to expend valuable Commission resources to fully investigate each complaint against Clear Channel only to inflict more punishment.
It never occurs to Powell that maybe the public might want an investigation ... that whole pesky secret trial thing. Moreover, neither of the dissenting statements of the other commissioners insist on inflicting more punishment: Dissenting Statement of Commissioner Michael J. Copps, Re: Clear Channel Communications, Inc. [PDF] and Statement of Commissioner Jonathan S. Adelstein, Approving in Part and Dissenting in Part, Re: Clear Channel Communications, Inc. [PDF]. Both statements believe that more investigation and determination is necessary in order to properly judge the extent of liability. What if few of the remaining complaints were found to be valid? Would that mean an increase or decrease in the fine?
Enforcement of our regulations is not, however, simply a matter of punishment for past behavior. More importantly, our enforcement regime is designed to deter future illegal behavior.
Indeed. And secret trials accomplish this, how? Through in terrorem populi?
Where, as here, the licensee has taken significant steps to guard against future violations, the benefits of entering into a consent decree for the government and the public are obvious.
Not to any rational observer, they're not. Sure, Clear Channel might be deterred from future violations (at the expense of chilling effects) but despite Powell's best efforts, Clear Channel is not yet a monopolist, and others must be deterred as well. Again, part of the benefits of a public system of justice is that you educate the public.
Not only will a substantial amount of money be submitted to the Treasury by the company, but we achieve significant commitments from the company that the fines are intended to produce.
Substantial? Snigger. From the Reuters article, "analysts who track Clear Channel shrugged off the settlement, saying it represented less than one cent per share in earnings." Yeah, and how far does $1.75 Million go in Iraq?
In addition, the government, and therefore the public, will save time and resources, which can be redeployed to focus on more egregious violators that are less willing to take preventive steps.
So, the FCC wasn't going after the most egregious violators in the first place? Don't they have their priorities straight? Anyway, doesn't look like we'll be saving any Treasury funds after all. There is a budget for indecency enforcement and it will be spent. Of course, I'm not sure what time and resources will be saved as the public has to spend more to figure out what the FCC is ruling on.
Finally, the government gains an admission of responsibility from the licensee without going to the laborious and expensive process of prosecuting these actions in court.
An admission of what, exactly? Could you clarify this for me? By the way, if, for some reason, the FCC terminates or breeches the agreement, the admission goes away like smoke in a breeze. Some admission. If it ever does end up in court it isn't an admission after all.
And what about those courts, huh? First off, the FCC can issue final orders and they are only contested if Clear Channel insists on contesting them. If the case is solid, it shouldn't take up too many resources to prosecute. In any case, given the potential size of the fines, court could actually be a profit center for the FCC. If the case is not solid, then the FCC can simply drop it (no harm, no foul).
It is, of course, in the Bush administration a terrible waste of resources anytime anybody tries to defend their rights against the government.
For one to toss aside these public benefits and demand another pound of flesh suggests that nothing short of economic ruin or license revocation will truly satisfy.
Um, no, that is not what the other commissioners were asking for. They were merely asking to figure out what the heck Clear Channel was actually guilty of before determining what the punishment should be.
I believe such stances are excessively chilling of protected speech in this country and fail to be respectful of the limits imposed upon us by the First Amendment.
Words, words, words. Imagine that, actually forcing a court to determine the justice of the indecency complaints is not respectful of the First Amendment. Now where have I heard that logic before? Hmmm...oh, yes, here:
'No, no!' said the Queen. 'Sentence first--verdict afterwards.'
The FCC just entered a major consent decree with Clear Channel resolving (by terminating) all existing and ongoing investigations into whether Clear Channel broadcast obscene, profane or indecent language. Basically, Clear Channel now has a clean slate for anything that happened before today. In return, Clear Channel is paying a $1.75 Million fine, admitting to broadcasting indecent (but not profane) language, and implementing a compliance plan. Interestingly, however, the compliance plan doesn't mention anything about profane language, although Clear Channel has been absolved of violating restrictions on broadcasting profane language. Why doesn't the compliance plan include anything about profane language? I believe the FCC has some pretty devious reasons.
UPDATE 0910 PT
I called the FCC to ask about this issue and got their answer.
Read about it here: FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree.
Background
On March 18, 2004, the FCC went out of its regulatory way to declare that broadcasting the use of the word "fucking" as an adjective, as in "fucking brilliant," was not only indecent but also profane - a designation unused for many decades (FCC Revives Notion of the Profane). The definition of profane speech provided by the FCC is not terribly clear (Enforcement Bureau - Obscene, Profane & Indecent Broadcasts):
The FCC has defined profanity as “including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.”[link and emphasis in original]
But what does this brand spanking new doctrine of profane speech mean, exactly? My first post speculated a bit, and I followed up with some other posts exploring the concept of the "profane" (Howard Stern Should Ask FCC: What is Profane? and Violence is the New Profanity?). Profane speech could possibly incorporate things like blasphemy, hate speech and violence, I believe.
After announcing this new profane speech doctrine, the FCC has had a single opportunity to clarify this doctrine when it issued a massive NAL against a Howard Stern broadcast, but no analysis of profane speech was part of the decision (Howard Stern: Indecent But Not Profane). This is exceedingly strange as the definition of profane speech overlaps a great deal, if not entirely, with the definition of indecent speech. Certainly anything that is indecent is also plausibly profane and one would expect the FCC to make the distinction, being that they were so proud of reviving the doctrine of profane speech just a short, few months ago. Read on...
Latest Decision
"Today, the FCC entered into a $1.75 million Consent Decree with Clear Channel Communications, Inc., and its subsidiaries (Clear Channel) to resolve investigations into whether Clear Channel stations had broadcast obscene, indecent, or profane material in violation of the Communications Act and Commission rules." Read the rest of the press release: FCC and Clear Channel Communications, Inc., Enter Into $1.75 Million Consent Decree Concerning Indecency Restrictions [PDF]. Read the order and consent decree: In the Matter of Clear Channel Communications, Inc. NAL/Acct. No. 200432080140 [PDF]. Strangely, given the importance and emphasis the new doctrine received when first adopted, the doctrine of profane speech doesn't really make an appearance in the consent decree.
For example, in admitting violation of the laws, Clear Channel only admits violation of the prohibition on indecent speech; there is no admission at all with regard to profane speech:
Clear Channel admits, solely for the purpose of this Consent Decree and for FCC civil enforcement purposes, and in express reliance on the provisions of Paragraph 8 hereof, that the broadcast material at issue in the NALs and certain of the broadcast material at issue in the Inquiries is indecent in violation of 47 C.F.R. § 73.3999, assuming construction of this term as it is construed by the Commission as of the date hereof.
Now, 47 C.F.R. § 73.3999, is only one part of what the FCC calls the "indecency laws." The other part is 18 U.S.C. 1464.
Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.
47 C.F.R. § 73.3999:
Sec. 73.3999 Enforcement of 18 U.S.C. 1464 (restrictions on the transmission of obscene and indecent material).(a) No licensee of a radio or television broadcast station shall broadcast any material which is obscene.
(b) No licensee of a radio or television broadcast station shall broadcast on any day between 6 a.m. and 10 p.m. any material which is indecent.
Profane Language Not Covered by Clear Channel's Compliance Plan
Even though Clear Channel made no admission regarding profane language, the consent decree absolves Clear Channel of any charges of broadcasting profane language. Man, what a deal! But it gets better. Clear Channel does have to pay a $1.75 Million fine. In addition to the fine, however, Clear Channel also had to promise:
that it has adopted, and is currently in the process of implementing, a company-wide compliance plan for the purpose of preventing the broadcast of material violative of the Indecency Laws. A summary of that plan is set forth in the Attachment.
Well, I've gone through the summary of the plan, and surprisingly, there is nothing about profane speech in the plan. I mean, the FCC is all down with keeping profane language off the air, but Clear Channel isn't required to do anything to comply with the FCC's profane lanugage doctrine. Not only do they get absolved of violating the profane language doctrine, they don't even have to take any steps going forward to ensure they don't violate it again in the future. What a deal for Clear Channel! And the Chairman of the FCC himself, Michael K. Powell signed off on this. Boy, he must feel foolish for forgetting the doctrine he so proudly revived.
Let's look closely at the compliance plan (it starts on page 7), here [PDF]:
Clear Channel will conduct training on obscenity and indecency for all on-air talent and employees who materially participate in programming decisions, which will include tutorials regarding material that the FCC does not permit broadcasters to air.
How hard would it have been for Clear Channel to conduct training on obscenity, indecency and profanity for all on-air talents? Too difficult apparently. And that last bit about materials the FCC doesn't permit broadcasters to air doesn't cover it either. The only thing the FCC doesn't permit broadcasters to air is obscenity. Profane and indecent language aren't prohibited, they are only required to be broadcast during certain hours.
If a Clear Channel station receives a Notice of Apparent Liability or other proposed action for a broadcast occurring after the adoption of this Initiative that the Commission believes to be obscene or indecent, the following steps will be taken:
I guess none of those steps have to be taken if the FCC believes a broadcast was profane. It seems that profane speech just doesn't get the respect the FCC gave it just a few months ago.
One of the steps required is:
The employees accused of airing, or materially participating in the decision to air, obscene or indecent content will be suspended and an investigation will immediately be undertaken;
Well, since the steps don't apply if the FCC thinks the language is merely profane, but not indecent, I guess it doesn't make sense to suspend anyone. Another step also ignores the profane language doctrine:
Such employees will be required to undergo remedial training on the FCC’s obscenity and indecency regulations and policies and satisfy station management that they understand where the line between acceptable and unacceptable programming falls before resuming their duties;
The above two requirements only apply if the FCC believes a broadcast was indecent or obscene. If the FCC finds that a broadcast was actually indecent or obscene the following applies:
If a Notice of Apparent Liability or other proposed action issued by the FCC is finally adjudicated and Clear Channel is finally found to have aired or decided to air an obscene or indecent program that results in enforcement action by the Commission, the offending employees will be terminated without delay. This will ensure those employees who break the law by broadcasting, or by materially participating in a decision to broadcast, obscene or indecent material will not work for Clear Channel.
Where's the love for profane speech? Sure, broadcast indecent speech and you'll be fired. Broadcast profane speech and ... what, exactly?
Finally, we have some forward looking language - Clear Channel promising to get ahead of the program:
Clear Channel will fully participate with representatives of the broadcast, cable and satellite industries in any efforts that may emerge to develop a voluntary industry-wide response to indecency and violence.
Indecency and violence?!?! Violence!?! What about profane language? Shouldn't Clear Channel be concerned about profane language too? Apparently violence gets more respect than profanity. And, frankly, I'm having a hard time picturing an overly violent radio broadcast.
And with that, we come to the end of the profanity-free compliance plan.
Why the Mysterious Absence of the Profane Language Doctrine
If I didn't know any better I would think that the FCC was slowly stepping away from its profane language doctrine, but I know better.
So, why was the profane language doctrine ignored? I doubt it was because of oversight. Poke an FCC Enforcement Bureau lawyer with a stick and they spout "obscene, profane and indecent." One of them must have noticed the glaring absence of "profane" in Clear Channel's compliance plan. Heck, I noticed it on my first, quick read through.
The other thing I noticed though, was that the compliance plan was pretty harsh. It is a one strike and you're fired rule. One foul-up and you're gone.
Imagine if Clear Channel has an extremely popular radio personality and one day, completely by accident, an indecent word slips through the cracks (mistakes are bound to happen, especially given the vagueness of the standard) and a complaint is generated. This would not be good for Clear Channel, having to fire a popular personality for one mistake. But Clear Channel only has to fire the DJ if the language was "indecent." There is no requirement to fire the DJ if the language is only "profane." Imagine that.
Imagine also if the DJ who accidentally violated the indecent language restrictions was favored by the political powers that be. Could it be that, for example, Howard Stern saying something would be considered indecent and thus require Clear Channel to fire him, but that someone like Rush Limbaugh might only be guilty of using profane language and Clear Channel could keep him on? The FCC would never manipulate their standards for political reasons, would they?
Heh. I guess the profane language doctrine is important after all, as a loophole. Gotta love the way the devious minds of censors work.
Prof. Michael Froomkin had a neat little post last week about the use of highly-partisan movies to skirt campaign finance laws (Movies as a Campaign Finance Law End-Run). The basic idea is to make a partisan movie, such as Michael Moore's virulently anti-Bush film Farenheit 9/11, and then advertise the heck out of it prior to an election. The 30-sec trailers for the movie could be as effective as campaign commercials as anything the candidates and the campaigns "officially" run. As Froomkin notes, this will be a "loophole it will be next to impossible to close."
It is funny, you know. The advent of campaign finance laws have tracked closely with the advent of traditional broadcast mass media. The money is raised for massive television ad buys, not print ad buys or billboards or a whole bunch of other things. I don't think the Democrats lose sleep over the fact that the Republicans can out spend them with regard to Washington Times page buys. But what is the common solution to the television ad problem? All sorts of arcane, loophole-ridden, cynicism-increasing, lack of respect for law fomenting, First Amendment-threatening regulation of how money is to be raised and spent (basically for television advertisements).
I look at this and I'm baffled. If the problem is the need to raise lots of money to run an expensive television-ad based election campaign, maybe the problem isn't campaign finance but the durn fool way we've regulated our broadcast medium. Rather than see the problem as one of campaign finance, why don't we see the problem as one of television regulation? If the major networks weren't bottlenecks and gatekeepers for the most popular medium of all, I don't think we'd have 1/10 the problem with campaign ad buys (and the money raised) that we have now. Read on...
In a system of broadcatching, campaigns could release commercials and video playlists would incorporate the commercials based on desire, rather than exchange of money. If I saw a campaign commercial it would be because my trusted social network recommended it to me, not because somebody paid them to distribute it. Sure, politicians would pay to have their commercials associated with particular programming, but it would be a snap for someone else to add a playlist that included the countercommercial as well. In such a case it would be difficult to outspend the opposition. For every commercial they pay to place, the opposition can match with unpaid commercial placements. It would be a battle of the playlists, not a battle of buying network time.
If there were no longer channels or networks to speak of, if we watched the television smorgasboard we wanted from an essentially unlimited variety of sources, then each individual program would have more say over its editorial position with regard to commercials. No one can force the New York Times to run a political ad, let alone run a political ad at favorable rates, unlike television networks, which are required to run campaign advertising at favorable rates. The justification for such video regulation doesn't exist in a broadcatching world.
I imagine that we would have relatively politically neutral video playlists from groups like the League of Women Voters that would feature ads from both parties. Lots of organizations, some partisan, others not, would also promote their video playlists. The landscape would be much different and I don't think that massive television advertising budgets would give near the same advantage to well-financed politicians that they do now.
Reform television regulation, not campaign finance!
Last week, I wrote about John Kerry's position on cable indecency (Opponents of Cable Indecency Regulation). I thought his position was a less than ringing endorsement of free speech for cable, merely noting a distinction (however, minor) between broadcast and cable and not definitively opposing censorship of cable.
Well, others might have gotten a bit confused and thought Kerry was actually opposed to regulating cable indecency, so his campaign has issued a clarification as reported by Broadcasting & Cable (Kerry 'Clarifies' Indecency Position):
[Kerry spokesperson] Davis suggested that Kerry was not seeking either a crackdown or a free pass for cable and satellite, but a middle ground.
Broadcasting & Cable reports that presumptive Democrat presidential candidate John Kerry has come out, sort of, against indecency regulations for cable television (Kerry Opposes Cable Indecency Crackdown):
"I think there is a distinction between public broadcast and the notions we’ve had historically about family time, family hour -- and what you buy privately and personally," Kerry told C-SPAN in an interview to be broadcast Sunday.
"I am not in favor of government interference and censorship and restriction of what an individual privately can decide to do in their home, in their own space, so to speak," he said, but he did seem to be OK with indecency regulation "where you have children involved, where you have a broader crossection of the public, where there is sort of a sense of family time or hour."
Unsurprisingly, the libertarian CATO Institute's Adam Thierer isn't afraid to come out strongly against cable censorship in the National Review (A PG Tony Soprano). UCLA Law Professor Stephen Bainbridge completely agrees (I Want my Sopranos Uncensored).
The cover story for this week's Broadcasting & Cable is about the FCC's coming crackdown on violence in broadcast and possibly cable (Congress and FCC Take Aim):
Under orders from leaders of the House Commerce Committee, FCC Chairman Michael Powell by the end of the year will start investigating whether the commission should restrict onscreen violence. Cable can't count on immunity either. Growing ranks of lawmakers say cable must do more to make sure that children aren't exposed to potentially traumatizing content.
At the FCC, the TV-violence inquiry will focus on whether the government can limit violent programs without violating free-speech rights. If those constitutional issues can be resolved, then the FCC must decide how tough the limits should be.
It may be that the one of the only major problems with regulating violence is the unclear impact it has on children. Not to worry, though, Sen. Lieberman will fix that:
Because so much of the data is inconclusive and sometimes contradictory, Lieberman calls it a "patchwork" of data. "We can do better than that," he says.
According to Xinhuanet, the Chinese government has banned a computer game for "distorting history and damaging China's sovereignty and territorial integrity" (Swedish computer game banned for harming China's sovereignty):
Moreover, "Manchuria", "West Xinjiang", and "Tibet" appeared as independent sovereign countries in the maps of the game. In addition, it even included China's Taiwan province as the territory of Japan at the beginning of the game.
via Techdirt
A new edition of the Collected Poems of Philip Larkin, one of Britain's most celebrated modern poets, is issued and Slate discusses the controversial new book; controversial, that is, for the editorial decisions made (The Poet of Dirty Words). Rather than start with the editorial controversy, however, we live in an America where the review must start with a note that one of the English language's most famous modern poems and much of the work of a great modern poet cannot be recited during the day on radio or television thanks to the FCC.
They fuck you up, your mum and dad,
They may not mean to but they do
They fill you with the faults they had
And add some extra just for you.But they were fucked up in their turn
By fools in old style hats and coats
Who half the time were soppy-stern
And half at one another's throats.Man hands on misery to man.
It deepens like a coastal shelf.
Get out as early as you can
And don't have any kids yourself.
Asia Media reports that the Chinese government will be subsidizing digital cable set top boxes (CHINA: Subsidies to boost digital TV in mainland). There are a number of reasons to do this, which the article notes, but one that goes unremarked: the increased ability of the government to control the home media center. In the US it is the content/cable/software companies that seek to control, in China it will be the government in addition to those.
via UPREZ
The Rochester Democrat & Chronicle reports that the University of Rochester's college radio station, WRUR, will be suspending all live broadcasts this summer due to the FCC's indecency crackdown (No more live-local content for WRUR):
”The primary focus is the summer, when we don’t have a lot of people here” to monitor and supervise the radio station, said Dean of the College William Scott Green. “It’s basically a response to the heightened sensitivities and the broadcast climates. This is a way to make sure … we’re careful.”
No more call-in local discussion shows, I guess. No more live coverage of political rallys. More pre-recorded DJs ... just what broadcast radio needs.
Thanks, Matt!
UPDATE The Lansing City Pulse has a similar article (Local broadcasters treading lightly during FCC crackdown:
At MSU student radio station WDBM (88.9 FM), it has always been appropriate to play music that might be controversial during “safe harbor hours” between midnight and 6.
That recently changed.
“Safe harbor hours are no longer considered safe,” student station manager Ed Glazer says when asked how The Impact, as the station is known, has been affected by a recent crackdown on broadcast indecency by the Federal Communications Commission.
This news item from Broadcasting & Cable is nearly a week old, but it shows that the FCC wants to extend its control over free speech beyond sex (FCC Will Look at Violence). Interestingly, the study will focus on "the impact of TV violence on children." Note, the study won't be about the impact of broadcast TV violence, but TV violence alone, which leaves a lot of leeway for taking a look at a bunch of things like cable and etc.
via Lost Remote
Jeff Jarvis reports two fairly depressing news items today about major cultural forces supporting increased regulation of free speech (The Daily Stern: 24 May 2004).
Multichannel News has truly disturbing information about Disney - they are supporting the application of indecency regulation to cable (Disney’s In Indecency Mix). Along with Jeff (and FCC Chairman Michael Powell before the pod people got him), I agree that it is a constitutional travesty that broadcast has fewer First Amendment protections than other media. Still, the loophole that allows regulation of broadcast wouldn't seem to apply to cable and satellite, but who knows?
As a copyfighter I sometimes joke about how Disney is evil. This time it isn't a joke. The Disney corporation is acting evilly in supporting further government regulation of media indecency.
The other cultural force supporting media regulation is the Pope, according to this report in the Scotsman (Pope Calls for Regulation of Media):
“It’s a task that likewise involves public institutions, called upon to enact regulatory procedures aimed at ensuring that the means of social communication are always respectful of the truth and of the common good,” the pontiff said.
John Fund, in his weekly Opinion Journal column, has a fairly balanced piece on the broadcast indecency debate (Don't Touch That Dial?). I'm not sure if it is intentional, but many of the arguments in favor of indecency regulation are fairly absurd. For example, he quotes conservative film critic Michael Medved:
Michael Medved, a nationally syndicated host based in Seattle, responded that his fellow conference goers were "crying wolf" and pointed out that "there isn't a person in this room who doesn't favor some standard for broadcasting, whether it be against kiddy porn or animal snuff films."
Fund does call for some restraint by broadcasters:
The parishioners of New York's St. Patrick's Cathedral, whose church was used as a staging ground for a live sex act broadcast on radio, shouldn't have been subjected to that frontal assault on their values.
Posted in accordance with US Food, Drug and Memetics Administration Labeling Requirements
Warning: This blog posting may be dangerously persuasive to pregnant women, those with weak backs and/or heart conditions.
Ok, so the science here isn't particularly compelling, but the Deseret News reports that an anti-pornography group is seeking scientific proof of pornography addiction through magnetic resonance imaging (Group trying to snuff out porn). The group, the Lighted Candle Society, has a poorly titled press release: Major Anti-Pornography Program Scheduled for 12 May in Salt Lake City.
It isn't entirely clear what the MRI brain scans will prove, exactly, but the purpose is clear. Should the researchers prove that pornography is addictive, the Lighted Candle Society will then take that proof into court to sue the pornography industry into submission much as smokers (or their beneficiaries) brought a litigation campaign against Big Tobacco.
Frankly, I don't think that MRI scans can prove what the LCS intends to prove. But what if similar scans could? Is it entirely outside the realm of possibility that science might someday allow us to gauge, at least to a limited extent, the physical response engendered by particular memes? What impact would this have on First Amendment law? Would it be permissible, despite the First Amendment, to censor particular memes that were shown to have scientifically proven adverse effects, much as we outlaw particular drugs? What levels of proof of harm would be needed? I suspect we may eventually have to answer these questions.
Of course, the LCS should be careful what it asks for ... religion itself seems to be a particularly pernicious meme.
Last Friday, the FCC affirmed a fine against a broadcaster for violating the FCC's indecency regulations. Read the press release: Commission Affirms Forgeitture Against Entercom for Violations of Indecency Rule [PDF]. Read the decision: In the Matter of Entercom Seattle License, LLC, Licensee of Station KNDD(FM), Seattle, Washington [PDF].
The interesting thing about this decision is that it stands for the proposition that mentioning "sexual organs" can get you in trouble, even if the discussion regards non-sexual matters - "the Bureau specifically ruled that the indecency definition encompasses references to sexual organs, separate and apart from sexual activities, where those references are patently offensive." In this case, the verboten language included "material concerning whether and how a penis could be used to lift or pull objects."
The decision also emphasizes the FCC's claimed ability to view a work not as a whole, but as isolated elements:
Although Entercom argues that the complained-of material includes “numerous traffic reports, celebrity new items, concert updates and other news related breaks[…that] ultimately diluted the segments’ overall focus on the pulling capacity of the penis,” the fact that the broadcasts repeatedly returned to the topic demonstrates a persistent focus on the male sexual organ and removes any doubt that this material was patently offensive. [footnote omitted]
Of course, this decision isn't enough for some of the Commissioners...
True Believer and Commissioner Michael Copps dissented against what he considered too small a fine, Statement of Commissioner Michael J. Copps, Dissenting, Re: Entercom Seattle License, LLC, Licensee of Station KNDD(FM),Seattle, Washington,
Memorandum Opinion and Order [PDF]:
I dissent from today’s decision upholding an Enforcement Bureau decision that I believe is inadequate. In response to complaints about two separate broadcasts on KNDD, the Enforcement Bureau proposed a forfeiture of $7000 for each incident of airing indecent material. In a subsequent order, the Bureau reduced the fine for each broadcast by $1000. I am concerned that this fine for what the majority concludes is a violation of the indecency statute will be easily absorbed as a “cost of doing business.” I am further troubled that the Bureau, rather than the Commissioners, made the initial determination. Our enforcement actions should send a message that licensees cannot ignore their public interest responsibilities. The Commission’s action today fails to do so.
"Sword of Righteousness" Commissioner Kevin Martin doesn't dissent, but expresses his displeasure with the decision in a statement, Statement of Commissioner Kevin J. Martin, Re: Entercom Seattle License, LLC, Licensee of Station KNDD(FM), Seattle, WA, Memorandum Opinion and Order [PDF]:
Consistent with my past statements, I believe we should be fining broadcasters on a “per utterance” basis.
You can read Martin's previous statement here: Separate Statement, Commissioner Kevin J. Martin, Concurring, Re: Infinity Broadcasting Operations, Inc., Licensee of Station WKRK-FM, Detroit, Michigan, Forfeiture Order [PDF]:
I am disappointed with today’s decision.
I agree that Infinity Broadcasting Operations, Inc. violated our indecency rule during the broadcast of the “Deminski and Doyle Show” on January 9, 2002. As I noted when we issued the Notice of Apparent Liability, however, I believe the fine of $27,500 is inadequate, and therefore I concur in this Order.
As the attached Order explains, the indecent broadcast included conversations with nine callers over a 30-minute period. I believe each of these 9 calls could be separate “utterances” or “material” for purposes of the statute and our rules.1 Because of the extremely graphic, lewd and offensive nature of this broadcast, I would have applied the statutory maximum fine for each call,
for a total of $247,500.
You can read the decision he refers to here: In the Matter of Infinity Broadcasting Operations, Inc., Licensee of Station WKRK-FM, Detroit, Michigan, Forfeiture Order [PDF].
I'll simply finish this piece with a reference to a recent article in the Washington Post (reg. req.) (TV Has Grown Up. Shouldn't FCC Rules?).
Last Friday, the Duluth News Tribune ran an AP wirestory about a man cited for carrying an "F U G W" sign when President Bush's motorcade passed through his town (Man fights citation for carrying anti-Bush sign). Professor Eugene Volokh rightly dissects the illegality of the police citation and their excuse for it (Public profanity (or apparent profanity)). Volokh believes that the police have not been properly trained in the law, "If the department taught the officers that the law bans public profanity on signs, then it taught them wrong. Thirty years after Cohen, there's no excuse for police departments to have their officers arrest people for carrying allegedly profane signs in public."
Volokh is right, but one might be a little easier on the police. After all, the quite public crackdown on radio and television indecency might be just a little confusing. I can see your average police officer befuddled by the fact that it is legal to hold profane signs in public where children might see them, but heaven forbid you should use profanity on television. Perhaps the police were trying to keep the sign from being accidentally broadcast on television.
The main justification for the broadcast flag is that without some form of protection broadcasters won't provide high value content on HDTV. See, In the Matter of: Digital Broadcast Content Protection [PDF]:
Content owners and broadcasters uniformly assert that DTV broadcast content must be protected and that, in the absence of some protection mechanism, high value content will be withheld from broadcast television and migrate to pay services.
Okay, let's skip for the moment the fact that this assertion doesn't make a lot of business sense for the broadcasters, that the broadcast flag won't stop HDTV distribution on the internet anyway, that the content producers haven't withheld content from other distribution channels (DVDs) that allow for massive internet redistribution, there is no definition of what is "high value content" (Average Joe Millionaire's Apprentice Big Brother Marries an Extreme Makeover Survivor on Temptation Island?), that the broadcasters make no promises to provide such content even if there is a broadcast flag, and simply note that the FCC has rather gullibly accepted this assertion. If the broadcasters said it, it must be true.
Now, some CBS News stations are claiming that they will stop covering live news outside the so-called safe harbor for indecency Some CBS Affils Could Drop Live News:
CBS affiliates are telling the Federal Communications Commission that unless it changes its ruling about profanities on-air, many will have to stop doing news outside of the 10 p.m.-6 a.m. safe harbor for indecent speech.
If you don't want it on TV, write the work "FUCK" on your head, see, and that won't get on TV, right?
- Abbie Hoffman, Yippie Workshop Speech, 1968
The LA Times (annoying reg. req.), among others, reports that CBS News stations are claiming that they may have to eliminate live local news coverage if the FCC doesn't relax its jihad against indecent and profane broadcasts (Profanity Rules Bother News Shows):
The CBS affiliates said in their filing with the FCC on Tuesday that if Congress passed a law to revoke the licenses of repeat offenders of indecency rules, as some lawmakers have proposed, stations might be unwilling to take the risk of airing any live news between 6 a.m. and 10 p.m., when the FCC says children are likely to be watching.
The original concept of the "heckler's veto" is that if a heckler threatened violence against a speaker or in general it would be legal for the government to prevent the speech in order to prevent the threatened violence. A heckler, therefore, would be able to control what can or cannot be said by selectively threatening violence. In other words, a heckler would have an effective veto over otherwise free speech. Luckily, legislative schemes that permit a "heckler's veto" are unconstitutional. Read on...
The concept of the heckler's veto doesn't simply apply to the possibility of violence. In Reno v. ACLU, the Communications Decency Act case, the Supreme Court held that a law that made it illegal to knowingly disseminate indecent material to persons under 18 in chat rooms, newsgroups and the web, would be unconstitutional (among other reasons), because:
It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would be discoursers that his 17 year old child--a "specific person . . . under 18 years of age," --would be present. [citation omitted]
It seems to me that the CBS news stations are pointing out the FCC's version of a heckler's veto. Sure, news stations can bleep things out and use pixelation to obscure images, but that costs money. Furthermore, you certainly can't do it live.
Imagine a protestor yelling "fuck" over someone else's public speech. Both speeches might be audible, but the news station would have to bleep both, making the original speech inaudible. Furthermore, viewers might be left with the impression that the speaker was the one using "profane" language.
Imagine a group that supports George Bush (or Kerry, whatever). What if they go to an anti-war (or pro-Bush, whatever) march with placards that say "Fuck Bush" (or "Fuck Liberals", whatever). If you bring enough placards with the words "fuck" on them to a protest march, you'll be able to keep the cameras turned off.
Bonus: Will painting "FUCK" on the roof of your home keep the news copters away from your neighborhood?
Ain't censorship great?
Reuters is carrying a wirestory in which FCC Chairman Michael Powell claims that the FCC's indecency regulations are not censorship (Oxygen Cable TV Boss Decries FCC's 'Censorship'):
"I don't think we should use the word indecency; we should call it what it is: censorship," [Oxygen Media Inc. CEO and founder Geraldine] Laybourne said Tuesday during one of the show's panel discussions....
"I don't agree with that," Powell told reporters after his dialogue. "For 70 years, the country has had limits on broadcast television. To me censorship is prior restraint, and I don't think anybody has been involved in that limitation on content."
But Powell can't be making sense, can he? For example, Jeff Jarvis agrees with Laybourne as would most people when confronted with Powell's dissembling distinction (The Daily Stern: May 05, 2004). Read on for my answer ...
However, technically, Mr. Powell is right. You see, what the FCC is doing can't be censorship, because the FCC is legally prohibited from censoring radio. See, 47 USC § 326:
Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.
In FCC v. Pacifica, the Supreme Court held that punishing stations after the fact for broadcasting indecent material was not censorship under § 326. If the FCC were to require broadcasters to submit their broadcasts for approval before broadcasting them, that would be a prior restraint and would count as censorship. Punishment after the fact (which is not a prior restraint) is therefore not censorship.
Simple really. (Unless you try to understand how the FCC can consider past indecent speech as an indicator of future indecent speech and deny a license to those it thinks may use excessive indecent speech in the future, which seems to be a prior restraint to me.)
Anywho, this distinction between censorship as prior restraint and censorship as subsequent punishment goes back a long way in our legal history. The dissent in Alexander v. US has a good discussion:
Early in our legal tradition, the source of the distinction was the English common law, in particular the oft-cited passage from William Blackstone's 18th-century Commentaries on the Laws of England. He observed as follows:"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity."
The English law which Blackstone was compiling had come to distrust prior restraints, but with little accompanying condemnation of subsequent punishments. Part of the explanation for this lies in the circumstance that, in the centuries before Blackstone wrote, prior censorship, including licensing, was the means by which the Crown and the Parliament controlled speech and press. As those methods were the principal means used by government to control speech and press, it follows that an unyielding populace would devote its first efforts to avoiding or repealing restrictions in that form. [citations omitted]
Well, of course, prior restraints are something that the First Amendment should be greatly concerned about. Prior restraint is the paradigmatic violation of free speech by the censor. But what of the case where you can say what you want but the state will subsequently bankrupt you and throw you in jail? Wouldn't that be a regime of censorship as well? Any fool can see that subsequent punishment can lead to the same harms as prior restraint. Indeed, fools have been noticing this for a very long time. Take, for example, James Madison (James Madison, Report on the Virginia Resolutions):
The freedom of the press under the common law is, in the defences of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications by persons authorized to inspect and prohibit them. It appears to the committee that this idea of the freedom of the press can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made. [italics in original, bold added]
So, while Chairman Powell might be technically and legally correct under our current law, I doubt his logic would impress the founding fathers.
Howard Stern has been the FCC's indecency whipping boy for some time. After the latest series of fines, however, he asked his listeners to complain to the FCC about an episode of Oprah's talk show that included rather graphic descriptions of sex acts. The Smoking Gun has received copies of more than 1600 complaints about that episode thanks to a FOIA request (FCC Swamped With Oprah Indecency Complaints). It is impossible to know which complaints are real, but many of them are downright hilarious:
I had just returned with my 3-year-old twins from Bible day camp when I turned on the show ... Tell me, Mr. Powell and Mr. Copps: How would you explain the concept of a "tossed salad" to your kids?
The Oprah show ... was so offensive that my child's head literally exploded. Please ban free speech so this never happens again.
I just wanted to say how much I appreciate all your hard work trying to take down such evils as Howard Stern.... next, please, oh please, go after that Mother of Harlots, Oprah....I will send a list of books next that I think you should look into.
I am writing to you as a very concerned elementary school teacher ... While watching this program, all I could think about were my 3rd grade students home from school, viewing these vulgar conversations about sex: at 4:30 p.m.! .... In teaching government to my students, I'm finding it very difficult to be honest. How do I teach the notion of "Freedom of Speech"???
Recently on the Oprah Winfrey Talk show ... acts of sexual nature were described in detail without the presence of a medical doctor ... Thank you for your time, ... Registered Republican
Jeff Jarvis continues his unstopple FCC indecency coverage here: The Daily Stern: 04/30/2004. Of note today is his cover story on the FCC's apparent vendetta against Howard Stern in The Nation (F*cked by the F*CC). Yours truly is quoted.
So, I've been doing a lot of thinking about the FCC's indecency enforcement lately, and it just struck me how the broadcast flag will inhibit enforcement of the prohibition on obscene, indecent, or profane depictions on broadcast.
According to the FCC's page for indecency complaints (Obscene, Profane & Indecent Broadcasts), complainants are asked to provide the following:
Information regarding the details of what was actually said (or depicted) during the allegedly indecent, profane or obscene broadcast. There is flexibility on how a complainant may provide this information. The complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial recording (e.g., tape) or transcript of the material.
In whatever form the complainant decides to provide the information, it must be sufficiently detailed so the FCC can determine the words and language actually used during the broadcast and the context of those words or language. Subject matter alone is not a determining factor of whether material is obscene, profane, or indecent. For example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the FCC must know the context when analyzing whether specific, isolated words are indecent or profane. The FCC does not require complainants to provide recordings or transcripts in support of their complaints. Consequently, failure to provide a recording or transcript of a broadcast, in and of itself, will not lead to automatic dismissal or denial of a complaint. [emphasis in original]
Although a recording is not strictly required, obviously it would be very useful to have one when making a complaint. "Did I just hear/see what I thought I heard/saw? Let's go to the tape (or more likely, the hard drive)." However, if copying the broadcast is prohibited (as enforced by the FCC itself), it will be very difficult for average citizens to make recordings to make transcripts and to bolster their complaints about indecency.
I can imagine broadcasters inhibiting copying of "racy" shows in order to reduce the possibility of being fined for indecency violations. Heck, I can imagine broadcasters having "do not record buttons" in place of "bleeping." That way, when someone displays something on broadcast the FCC might think they shouldn't, the broadcaster can ensure that no copy is made by the average citizen.
Of course, who expects the FCC to be consistent and have coherent policies?
On April 20th, the Oakland Tribune published a story regarding Diebold's alleged use of uncertified voting software in violation of California state law (Diebold knew of legal risks). The article cited and focused on internal legal memos from the Jones Day law firm showing that Diebold's own lawyers had warned of some of the possible illegalities. Online, the Oakland Tribune posted the documents in addition to the article. That afternoon, the Trib's parent company and the reporter were sued by Jones Day to have the documents returned. The judge ordered the documents returned, except for those already published on the internet (Judge: Tribune must turn over legal memos):
Jones Day's lawsuit claimed the documents were protected under California law as attorney-client communications and attorney work product, and that the defendants "improperly, and possibly illegally, secured, maintained possession of and refused to return" the documents despite the firm's demands.
Read on...
UPDATE More memos here: The inside story on California Diebold decertification -- Next: Ohio?
And what sort of relief was Jones Day asking for?
"They asked for an order directing the defendants to return all copies of what they're calling protected documents in whatever form they exist, and all notes, summaries, digests and other recordings of the documents," said Jean-Paul Jassy, the attorney representing MediaNews Group and Hoffman.
"They were also asking for a restraining order preventing any further use of the documents for any purpose ... but about halfway through the hearing they said they were no longer asking for that second point."
That last point, which Jones Day apparently dropped, is known as a prior restraint and is severely frowned upon by the First Amendment - something the judge apparently understood. However, the paper was required to turn over everything they possessed:
In a three-hour hearing Tuesday evening, [Los Angeles Superior Court Judge Dzintra] Janavs said she wouldn't prevent future stories from being written about the documents. In a one-page, handwritten order, she directed the defendants to turn over to her "all copies of Jones Day documents marked 'attorney work product, privileged and confidential' whether on Jones Day letterhead or not, forthwith."
The order to turn over the documents is being appealed and I certainly hope they succeed. Unless there has been criminal action by the reporter to obtain the documents (and even then one should only sue on the illegal action), newspapers must be free to report on such documents when they come to light. If a newspaper can publish the Pentagon Papers, I don't see why a newspaper can't publish some legal memos regarding our voting system.
However, there was a major exception to the order:
"This order does not apply to replicas of such documents already published on defendants' website," the judge concluded.
Bravo judge! The cat's out of the bag ... why should Jones Day get to stuff it back in when the Pentagon couldn't?
Of course, one might note that bloggers would have been much more likely to publish a story based on the memos and publish all the memos simultaneously. There would be nothing left to return to Jones Day under the judge's order; it all would have been published on the internet. By trying to maintain an exclusive, the newspaper has created the possibility that the documents will be suppressed.
The documents that were published on the internet are:
ACTION AND BUDGET ESTIMATES: TWO MONTH PLAN [PDF]
Comprehensive Position Paper: This would be a synthesis of the above analysis plus additional factual and legal development. This would be the basis for white papers, responding to subsequent developments, persuading prosecuting authorities not to bring criminal charges, defending the False Claim Case, reports to board, press releases, governmental and media inquiries and filings. This is recommended given the exposure but is a decision for the client. [emphasis added]
Summary for Two Month Estimate: $535,000 -$925,000
My summary: Money on lawyers is apparently money better spent then money spent on fixing the actual problems.
DIEBOLD ELECTION SYSTEMS Re: Alameda County Agreement [PDF]
This is a great 10-page document:
This memorandum briefly discusses the applicable California law regarding certification of voting systems and identifies provisions of the Agreement that Alameda County might contend were breached if it was provided with an uncertified voting system. This memorandum does not analyze potential defenses or counter arguments that can be made by Diebold ( e.g., the Secretary of State's failure to establish or enforce specific regulations requiring certification of new versions, etc.). Instead, the memorandum focuses on the potential arguments that might be made by Alameda County.
Here is a sample:
A. Issue: Whether the use of an uncertified voting system is illegal? Short Answer: Yes. All voting systems must be approved by the Secretary of State before use in any election. See Cal. Elec. Code § 19201.
B. Issue: Whether Diebold breached the Agreement if it provided Alameda County with an uncertified voting system? Short Answer: Most likely. If Diebold provided Alameda County with an uncertified voting system that was used in an election, then Diebold most likely breached provisions of the Agreement requiring Diebold to comply with all applicable laws. [emphasis in original]
DIEBOLD ELECTION SYSTEMS, INC. Re: Issues Regarding California Secretary of State Investigation [PDF]
This document has a more detailed analysis of issues specific to the California Secretary of State:
A. Issue: Whether the California Secretary of State can issue a conditional certification of a voting system ( or, of a modified version of a voting system that was previously certified)? Short Answer: Probably not. The Secretary of State Procedures for certifying voting systems ("SSP") permit conditional certification, but if the SSP are invalid and without legal effect, the Secretary of State must rely on the California Elections Code, which does not contain any provision allowing for conditional certification. The California Elections Code contains explicit procedures for examining and certifying voting systems. The Secretary of State must examine every voting system submitted by vendors without undue delay and issue a report within 30 days after the examination stating whether the voting system is accurate and efficient and can safely be used in elections. See Cal. Elec. Code §§ 19202 & 19207. If the Secretary of State's "report states that the voting system can be used, it shall be deemed approved by the Secretary of State and machines or devices of its kind may be adopted for use at elections." Cal. Elec. Code § 19208. [emphasis in original, footnotes omitted]
More good stuff:
A. Issue: Whether a California State approved voting system may be modified for experimental use without the Secretary of State's approval? Short Answer: Probably not. The California Elections Code provision allowing for experimental use of a voting system in an election without Secretary of State certification most likely only applies to new and uncertified voting systems. See Cal. Elec. Code § 19211. Once a voting system has been approved by the Secretary of State, any change or modification to the system must be approved by the Secretary of State before it may be used in an election. See § 19213.3 [footnotes omitted, emphasis in original]
This time the discussion includes some of Diebold's potential counter arguments:
DESI may, however, argue that it did not need to obtain approval from the Secretary of State for its changed or modified voting system if the system is considered a new voting system. DESI's argument would be that the change was not a modification of an approved system, but instead was a completely new system. A "system" includes any combination of any mechanical, electromechanical, or electronic system and its software. See § 363. Under this broad definition, even a change to part of voting system may constitute a new system under certain circumstances. Still, DESI would probably need the local governing board to affirm that its use of DESI's new or changed system was for experimental use. [footnotes omitted, emphasis in original]
Recent discussions concerning the FCC and indecency have focused on the record fines levied against Clear Channel for broadcasting the Howard Stern show. I've written a bit about this (Howard Stern: Indecent But Not Profane), but follow Jeff Jarvis for the full coverage. April 8th's The Daily Stern: Bulletin is a good place to start.
However, another indecency fine was affirmed the same day Stern was hit. The decision regards two shows by another popular target of the FCC's censorship, Mancow, who broadcasts a morning show. The decision is here: In the Matter of Emmis Radio License Corp., File No. EB-00-IH-0401 [PDF]. It has some interesting twists.
Read on...
Evidence? Evidence? We Don't Need No Stinkin' Evidence
Unlike many of the other complaints the FCC deals with, the two complaints leading to this fine did not include a tape of the broadcast nor did they include a full transcript. Instead, the complainant wrote two letters with brief descriptions of the offensive segments of two shows aired two months apart.
Interestingly, the complainant is David Edward Smith, President of Citizens for Community Values of Illinois and a senior policy analyst for the Illinois Family Institute, who is being sued by Mancow for "business interference and harassment by filing 'spurious and unfounded' complaints with the FCC," according to the Chicago Sun-Times (Mancow's indecency foe 'rolling up his sleeves'). Smith has filed sixty-six complaints against Mancow of which six have resulted in fines. Therefore, Smith's record for spotting indecency doesn't seem too good. One might also wonder why, if Smith is such a regular listener and complainer, he didn't manage to tape or transcribe the shows in question. Blessedly naive types might also wonder why, if Smith is so darn offended, he continues listening to Mancow's show, but that is not the way it works.
What exactly, was in the complainant's letters?
In this regard, [Emmis] maintains that the March 20 Complaint, which included only the descriptive phrase “graphic detail,” and the May 15 Complaint, which included only the descriptive phrases “both euphemistic and direct conversation about oral sex” and “pornographic sound effects (women moaning),” could not support the staff’s determination regarding the explicitness or graphic nature of each broadcast.
Wow. There is no dispute that the March 20th broadcast discussed "fisting," but a determination of indecency must take into account the full context of the discussion. Call me crazy, but the fact that a discussion includes "graphic detail" doesn't seem like enough context to me. Sex education discussions often include lots of "graphic detail," that doesn't make them indecent. Moreover, it seems to me that "graphic detail" means something different to David Edward Smith than it does to the average American. Once again I am forced to wonder why avid-listener/complainant Smith didn't tape or transcribe this particular show.
But, you know, context is critically important to a determination of whether something is indecent. In FCC v. Pacifica, the Court stated that, "It is appropriate, in conclusion, to emphasize the narrowness of our holding. ... The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables." If context is all-important, this might lead one to think that one should have more evidence of alleged indecent speech other than that it included "graphic detail." Of course, the FCC isn't about to give a broadcaster the benefit of the doubt:
We reject Emmis’s contention that the staff’s decisions unfairly or improperly “shifted the burden of proof” or otherwise violated the Administrative Procedure Act. Before the staff issued the NAL, it sent copies of the allegations contained in the complaints to Emmis and asked Emmis to state whether it had aired the material as alleged. Significantly, in its LOI Response, Emmis did not deny broadcasting the material, but merely stated that it had no tape or transcript of the broadcasts in question and that its inquiries of pertinent personnel did not allow it to determine whether it had aired the material as alleged. Thus, Emmis neither disputed the accuracy of the complainant’s allegations nor supplied any countervailing evidence, such as a denial from the air personalities, program’s producers or Station management that the material was broadcast as had been alleged. Following the staff’s issuance of the NAL, the Forfeiture Order and the MO&O, Emmis never contended, much less offered any evidence to establish, that the complainant’s allegations were inaccurate in any way, although it had every opportunity to do so. Consequently, the complainant’s allegations stand unchallenged, and the only issue for us to decide at this point is whether those allegations, standing alone, are sufficient to support indecency determinations. As discussed above, we find that they are. In response to Emmis’s generalized claim, we also find no First Amendment defect in relying on this level of proof. [footnotes omitted]
How about that? Imagine someone not feeling the need to justify their speech in the face of vague allegations of indecency due to "graphic detail." Why, if you don't deny or respond to allegations you must be guilty. It couldn't possibly be that, after broadcasting several hours worth of show five days a week, one's memory is a little fuzzy about what was or wasn't said months prior.
Thus, we now have a standard of proof where extremely vague complaints from a habitual complainer are enough evidence for the FCC to dismiss any free speech concerns.
Certain Professions Have Less Free Speech Rights Than Other Professions
There are two more things about the context of the speech. The first is that the discussion involved "fisting" - "described as a procedure for the sexual gratification of a female involving the insertion of an entire hand into her sexual organ" (pssst ... FCC ... it turns out that anuses, both male and female, can also be fisted).
Hey, fisting isn't for everyone, but apparently lots of people do engage in and are gratified by the activity (perhaps the FCC is actually upset about the gratification part - the language isn't entirely clear). Maybe I'm just weird, but if you are going to discuss human sexuality at all, it sort of makes sense to sometimes talk about the types of sex people are actually having and not just the very limited subset of sex acts that people like David Edward Smith are comfortable with. Therefore, I would kind of like to know why the FCC considers a discussion of "fisting" more offensive than other sex acts. A rating system would be handy. Perhaps the FCC could go through the Kama Sutra and rate the various positions and acts on a 1-10 scale of offensiveness.
The second thing about the context that the FCC considered important is the fact that the discussion took place between a "shock jock" and a "porn star." I guess I must have missed the part of my First Amendment class where certain professions are presumed to have less free speech rights than other professions. You know, because porn stars can't really be considered regular citizens, they always talk like sluts and never discuss sexual health or safety issues:
In addition, in light of the complaint’s description of what was discussed (sexual gratification of a female through insertion of a fist into her genitalia) and the identities of the participants (a “shock jock” and a porn star), we conclude that the material was sufficiently explicit, shocking and pandering to be patently offensive as measured by contemporary community standards for the broadcast medium.
Whether you like them or not, porn stars and shock jocks are citizens and deserve the same rights as other citizen until it is shown that they have violated the law. The government shouldn't simply presume that members of certain professions will violate the law until proven otherwise. Would it be permissible to discriminate against porn stars and shock jocks in other First Amendment contexts? What professions will the FCC discriminate against next?
Conclusion
Not only is the FCC maximizing fines against broadcasters, they are lowering the evidence bar and effectively shifting burdens of proof. Additionally, they now consider it appropriate to discriminate against and presumptively find guilty members of certain professions.
Ain't censorship grand?
Didn't the lawyers in the FCC's Enforcement Bureau get the memo? Didn't they notice that three weeks ago the FCC announced a shiny new policy of enforcing prohibitions on broadcasting the profane? Apparently not, because their most recent decision on indecent broadcasts since that announcement doesn't consider whether the broadcasts were also profane. Come on FCC ... am I the only one who takes your newly announced policy on profane broadcasts seriously?
Well, you can't blame the FCC lawyers entirely since the Commissioners, who were so pumped by enforcing the prohibition on profane broadcasts against the Golden Globes, haven't done anything about it either. While the Commissioners applaud the size of recent fines and other new policies (such as fining every separate utterance), they seem to have forgotten about enforcing their prohibition on the profane. You would think that the FCC would want to promulgate and apply the new standards as soon as possible, but that doesn't seem to be the case.
As an advocate of free speech, I'm certainly interested in learning what the new standards for censorship are as soon as possible.
UPDATE When asked for the reason that the new policy on profane broadcasts was not addressed in the decision, an FCC representative replied, "I can only say that the NAL was based on the FCC's indecency standard." No further comment was forthcoming.
Read on....
Why is this important? Well, not only is it about censorship (as is the prohibition on indecent broadcasts) but, as I've written previously, the decision by the FCC to start enforcing prohibitions on profane broadcasts is especially troubling as the profane typically referred to blasphemy (FCC Revives Notion of the Profane). Even if the FCC chooses not to enforce a prohibition on blasphemy, there is very little guidance as to what is actually profane (Howard Stern Should Ask FCC: What is Profane?). Does it include hate speech? Does it include depictions of violence? There is an official definition, but it is vague as all heck. The only thing we know for sure is that the word "fuck" is both indecent and profane and that definitions of profane and indecent have an awful lot of overlap.
The FCC analyzed Bono's use of the word "fuck" during the Golden Globes and found it to be both indecent and profane. The FCC analyzes Stern's broadcasts and finds that they are only indecent. There is no analysis whatsoever as to whether Stern's words are also profane. The Golden Globe decision is here: In the Matter of: Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program [PDF]. The Stern decision is here: In the Matter of Clear Channel Broadcasting Licenses, Inc., File No. EB-03-IH-0159 [PDF].
This is especially strange, as the FCC's own definitions of profane and indecent broadcasts are extremely similar. Consequently, one can only conclude that the FCC is being arbitrary and capricious in their enforcement of the prohibition on profane broadcasts. This is a very bad thing.
Let's Look at the Definitions
The FCC defines indecent broadcasts thus (Obscene, Profane & Indecent Broadcasts):
The Commission has defined broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.
Compare and contrast to the definition of profane broadcasts from the same webpage:
The FCC has defined profanity as “including language that denot[es] ... language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”
Hmmm ... It would seem to me that if something meets the standards of being indecent, it also meets the standard for being profane.
Take, for example, patently offensive vs. grossly offensive. I'm not sure there is a legally cognizable difference there. If language is "patently offensive" isn't it also "grossly offensive"? If not, can the FCC explain why?
With regard to indecent broadcasts, the FCC has some guidance as to determining whether something is "patently offensive." The standard doctrine, as stated in the Stern decision, is:
In our assessment of whether [indecent] broadcast material is patently offensive, “the full context in which the material appeared is critically important.” Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate or shock. In examining these three factors, we must weigh and balance them to determine whether the broadcast material is patently offensive because “[e]ach indecency case presents its own particular mix of these, and possibly, other factors.” [footnotes omitted]
Hmmm ... not really sure how one would use these standards to determine whether something is profane, as the profane covers more than sex and excretion references (which makes the definition of what is "profane" much broader than what is "indecent"). It would be nice if the FCC were to enlighten us with regard to how one is to judge whether something is "grossly offensive".
The nuisance thing for profane broadcasts isn't really a distinction, since the indecency prohibition is also based on a nuisance rationale (though it isn't part of the definition).
There could be a distinction in "contemporary community standards for the broadcast medium" vs. "members of the public who actually hear it", but it would seem that, if anything, the definition of profane broadcasts is broader (possibly unconstitutionally broader) here as well.
From a regulatory standpoint it seems odd that, in the case of the Howard Stern broadcasts, the FCC is stretching for the narrower definition of "indecent," rather than going for the easier case of "profane." Indeed, the FCC doesn't even mention that "indecent" broadcasts are also presumptively "profane" according to the FCC's definition.
My guess as to why the concept is ignored? I think that the lawyers who drafted this decision are so used to the old way of doing business (cut-n-paste) that they entirely forgot the new policy that the FCC announced to great fanfare. But that is okay, because apparently the commissioners, even Darth Commissioner Copps didn't bother to say anything about it.
What the Commissioners Had to Say
Well, actually, they don't say anything about Howard Stern's broadcasts being profane one way or the other.
Here is Copps praising the use of the profanity doctrine in his press release regarding the "Golden Globes" decision (Statement of Commissioner Michael J. Copps, Approving in Part, Dissenting in Part, Re: Complaints Regarding Airing of the "Golden Globe Awards" [PDF]).
While I am pleased that the majority recognizes that profanity is not limited to blasphemy, I disagree that we need to give notice before we apply the law of the land.
Here is Copps completely ignoring application of "the law of the land" in his press release on the Stern decision (Statement of Commissioner Michael J. Copps, Re: Clear Channel Broadcasting Licenses, Inc., et. al. [PDF]):
I have long advocated that the Commission use all of the tools it has to tackle indecency on the public’s airwaves [but the FCC didn't use all the tools at its disposal, it ignored prohibitions on profane broadcasts]. Today’s decision is a step forward towards imposing meaningful fines. For the first time, the Commission assesses a fine against more than a single utterance, rather than counting an entire program as one utterance [but the FCC didn't fine the utterances as both profane and indecent]. In addition, the Commission makes clear that its indecency enforcement [but not its enforcement of profane broadcasts] will address not only the station that is the subject of a complaint, but also any other station that aired the same programming. I therefore vote to approve this decision.
Additionally, Grand Moff Commissioner Adelstein apparently has misplaced his enthusiasm for censoring profane broadcasts. See, Adelstein on the "Golden Globes" decision (Statement of Commissioner Jonathan S. Adelstein, Re Complaints Regarding Airing of the "Golden Globe Awards" [PDF]):
The same statute also proscribes broadcast profanity, and I am pleased that we apply a profanity definition endorsed by the courts to give meaning to our statutory directive. While we have historically interpreted “profane” to mean blasphemy, I support our application of the statute to the F-word, a highly offensive and commonly understood “profanity.” [footnote omitted]
Compare and contrast to Adelstein on the most recent Howard Stern decision (Statement of Commissioner Jonathan S. Adelstein, Re: Clear Channel Broadcasting Licenses, Inc., et. al. [PDF]):
I support this Notice of Apparent Liability for the broadcast of indecent material at a time when children may be in the audience. By issuing this NAL, we step up to our responsibility to enforce statutory and regulatory provisions restricting broadcast indecency [but not, apparently, statutory and regulatory provisions restricting broadcast of the profane]. For the first time, we impose fines based upon separate utterances [but not for utterances that are both profane and indecent]. While this is not the most egregious case that I have seen, the material broadcast is indecent under our standards [but who knows if it is profane, as that wasn't addressed] and the fines appropriately account for the violation of our rules [unless those rules are about profane broadcasts, as that wasn't addressed].
Since I arrived at the Commission, we have greatly stepped up our enforcement against indecent broadcasts [and I thought they were also stepping up enforcement against profane broadcasts, but I must have been mistaken]. I expect that stepped-up actions like those we take today will convince broadcasters that they cannot ignore their responsibility to serve the public interest and to avoid the broadcast of indecent material over the public airwaves [but who will convince broadcasters not to broadcast profane material in accordance with the law?].
Conclusion
I'm opposed to broadcast censorship, whether of the indecent or the profane. Consequently, I want to know what the heck the FCC meant when they declared they would be enforcing prohibitions on profane broadcasts. There are few things worse for freedom of speech than vague, quasi-secret definitions of what is permissibly censored. This is what the FCC is giving us.
If the FCC Commissioners are so darn proud of the censorious powers, why don't they more readily declare them?
Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].
This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.
Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.
Read on for a look at this monstrosity...
Background
EFF's Consensus at Lawyerpoint, an anti-broadcast flag blog, reported on the origins of this treaty back in August 2002 (Europeans push WIPO Broadcast Treaty to create "fixation rights"). Last October James Love, director of the Consumer Project on Technology, wrote (with comments and suggestions from EFF's Cory Doctorow) an excellent analysis of an earlier draft of the treaty ([DMCA-Activists] On the Proposed WIPO XCasting Treaty). CPTech maintains a website tracking the treaty (The proposed WIPO Treaty for the Protection of the Rights of Broadcasting, Cablecasting and Webcasting Organizations).
Sui Generis Copyright-like Protection for Broadcasts
The treaty would give (among others) the following rights to broadcasters, cablecasters and, if the US has its way, webcasters: fixation, reproduction and distribution. Of course, there is no limit on what is covered by the treaty, as long as it is "broadcast" and consists of "sounds or of images or of images and sounds" (although why they couldn't just say "images and/or sounds" is beyond me). In other words, broadcast of public domain works like Dawn of the Dead would be covered along with works for which the broadcaster owns the copyright. Heck, you could start a radio station that exclusively broadcast Creative Commons-licensed freely distributable works and keep anyone from recording your broadcast.
Why bother with copyright? Simply "broadcast," or in the US's version, "webcast" all your material. Instead of connecting to an FTP server to get video or music you would connect to an ongoing "webcast" of the media, so that way, the broadcaster can keep control of the media even if it isn't copyrightable.
Article 8
Right of Fixation
Broadcasting organizations shall enjoy the exclusive right of authorizing the fixation of their broadcasts.
No more VCR, DVD-R or TiVo for you. So much for time shifting. Goodbye Sony v. Universal, it was nice knowing you.
This is the mandated broadcast flag. If the broadcaster doesn't want you recording it, you don't have a right to.
Article 9
Right of Reproduction
Alternative N
Broadcasting organizations shall enjoy the exclusive right of authorizing the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts.
Alternative O
(1) Broadcasting organizations shall have the right to prohibit the reproduction of fixations of their broadcasts.
(2) Broadcasting organizations shall enjoy the exclusive right of authorizing the reproduction of their broadcasts from fixations made pursuant to Article 14 when such reproduction would not be permitted by that Article or otherwise made without their authorization.
More broadcast flag goodness. Even if you are allowed to record it, the broadcaster can control how you can reproduce it. That way, if you want to shift the latest Sopranos from the TiVo in the living room to your laptop to watch on the plane, the broadcaster can stop you.
The US and, for some reason, Egypt support alternative "O", which protects broadcasters from reproductions of unauthorized fixations.
Article 10
Right of Distribution
Alternative P
(1) Broadcasting organizations shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of fixations of their broadcasts, through sale or other transfer of ownership.
(2) Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph (1) applies after the first sale or other transfer of ownership of the original or a copy of the fixation of the broadcast with the authorization of the broadcasting organization.
Alternative Q
Broadcasting organizations shall have the right to prohibit the distribution to the public and importation of reproductions of unauthorized fixations of their broadcasts.
In other words, no filesharing of broadcasts. Don't you dare make the fixation you made of ABC's broadcast of the President's State of the Union address (SotU) available on KaZaA.
Article 11
Right of Transmission following Fixation
Broadcasting organizations shall have the exclusive right of authorizing the transmission of their broadcasts following fixation of such broadcasts.
Don't webcast what you've saved previously. Not only can't you put your fixation of the SotU on KaZaA, you won't be able to webcast it either.
Now, governments can make the same exceptions to these broadcasting rights as they "provide for, in their national legislation, in connection with the protection of copyright in literary and artistic works." But they don't have to. Nor is it clear to me, under recent copyright decisions, that the Constitution requires the US to do so.
Term of Protection and Formalities
Article 15
Term of Protection
The term of protection to be granted to broadcasting organizations under this Treaty shall last, at least, until the end of a period of 50 years computed from the end of the year in which thebroadcasting took place.
Great. Copyright isn't long enough we have to provide protection for the broadcasts for fifty years in addition? So, forty years from now, when your grandchildren want to use a clip from television today to illustrate a report on the popular culture of their grandparent's era, they'll have to clear permissions with the television station that broadcast the clip (assuming we still have television stations then).
The previous treaty had a length of twenty years and, as we all know, broadcasters in countries that signed the treaty have suffered greatly from this length.
Article 18
Formalities
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.
No pesky registration requirements or anything. That way it is very difficult for people to know who owns the rights to what decades from now.
DMCA for Broadcast Flag
Article 16
Obligations concerning Technological Measures
(1) Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by broadcasting organizations in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their broadcasts, that are not authorized or are prohibited by the broadcasting organizations concerned or permitted by law.
Alternative V
(2) In particular, effective legal remedies shall be provided against those who:
(i) decrypt an encrypted program-carrying signal;
of the broadcasting organization that emitted it;(ii) receive and distribute or communicate to the public an encrypted program-carrying signal that has been decrypted without the express authorization
(iii) participate in the manufacture, importation, sale or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.
Alternative W
(2) [No such provision]
This is the equivalent of the passage in the WIPO Performances and Phonograms Treaty (WPPT) that the US used as one of the justifications for the passage of the DMCA. So, not only does this treaty require a broadcast flag, it will be illegal to circumvent it.
Article 17
Obligations concerning Rights Management Information
(1) Contracting Parties shall provide adequate and effective legal remedies against any person knowingly performing any of the following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement of any right covered by this Treaty:
(i) to remove or alter any electronic rights management information without authority;
(ii) to distribute or import for distribution fixations of broadcasts, to retransmit or communicate to the public broadcasts, or to transmit or make available to the public fixed broadcasts, without authority, knowing that electronic rights management information has been without authority removed from or altered in the broadcast or the signal prior to broadcast.
(2) As used in this Article, “rights management information” means information which identifies the broadcasting organization, the broadcast, the owner of any right in the broadcast, or information about the terms and conditions of use of the broadcast, and any numbers or codes that represent such information, when any of these items of information is attached to or associated with 1) the broadcast or the signal prior to broadcast, 2) the retransmission, 3) transmission following fixation of the broadcast, 4) the making available of a fixed broadcast, or 5) a copy of a fixed broadcast being distributed to the public.
And don't try to make your copy of the broadcast of the State of the Union look like a legal, unbroadcast version.
Article 21
Provisions on Enforcement of Rights
(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.
(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights or violation of any prohibition covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.
Many people argued that the WPPT didn't require the US to pass the DMCA, as Congress concluded, because the US already adequately protected the rights of copyright owners. As the US doesn't protect any "broadcast" rights (other than some "theft of service" stuff), this provision would pretty much require a US Broadcast Flag DMCA law to be passed.
Conclusion
This is bad, bad, bad. What more can I really say?
Similar to the FCC's broadcast rules for the obscene, profance and indecent, soccer also penalizes those who use indecent language. Depending on the severity of the language used, players may be issued warnings, Yellow Cards or Red Cards. Of course, offensive language depends heavily on context, so how do you determine whether calling the ref a "pratt" is worthy of a warning or Yellow Card? Luckily there is a webpage that has handy Venn diagrams of various uses of language to help guide the budding referee (Bad Language Mapping and Tolerance Levels). Perhaps the FCC would be so kind as to provide similar guidance?
via BoingBoing
Jeff Jarvis is doing an excellent job following the FCC's attack on free speech for broadcast. His latest "Daily Stern" report points out the inconsistencies between FCC Chairman Michael Powell's previous statements on broadcast speech regulation and his current stance (The Daily Stern: Sayings of Chairman Powell).
More interestingly, however, Jeff is ripping apart the old, voluntary US Code of Practices for Television Broadcasters (The Daily Stern: The Code). The "Code" was the set of ethical guidelines established in the early days of television for United States television broadcasters, but was abolished in the 1980s. The reason Jeff brings it up again is because the FCC is now pushing broadcasters (and if Commissioner Michael Copps has his way, cable and satellite channels) to adopt a brand new set of "voluntary" guidelines. Many aspects of the old code seem laughable now, but which will broadcasters readopt if pushed hard enough by political pressure? Fifty years from now, which aspects of a new code will look laughably quaint? Some examples of the old code with Jeff's comments:
Attacks on religion and religous faiths are not allowed. Reverence is to mark any mention of the name of God, His attributes and powers.... [Clergy] portrayed in their callings are vested with the dignity of their office and under no circumstances are to be held up to ridicule.
So The Code is explicitly trying to proselytize the nation. And it won't allow us to make fun of, oh, Jerry Falwell, Jimmy Swaggart, Jim Bakker, or hundreds of kiddie-diddling priests.
Exhibitions of fortune-telling, astrology, phrenology, palm-reading, and numerology are acceptable only when required by a plot...
So much for Crossing Over with John Edward.
Law enforcement shall be upheld, and the officers of the law are to be portrayed with respect and dignity.
Unless they rob, steal, or beat up people for no reason. OK, destroy the Rodney King tape.
It is the responsibility of a television broadcaster to make available to the community as part of a well-balanced program schedule adequate opportunity for religious presentations....A charge for television time to churches and religous bodies is not recommended.
'Nuff said.
See Jeff's post for many more gems, but here are a few more that Jeff didn't have time to go through:
Sex crimes and abnormalities are generally unacceptable as program material.
Goodbye, Law & Order: SVU. Adios, Guinness Book of World Records television series.
The use of gambling devices or scenes necessary to the development of plot or as appropriate background is acceptable only when presented with discretion and in moderation, and in a manner which would not excite interest in, or foster, betting nor be instructional in nature
Well, the World Series of Poker is right out. I'm not so sure about Las Vegas, either.
I wonder if the new guidelines will take as much care with commercials as the old ones do:
Advertising messages should be presented with courtesy and good taste; disturbing or annoying material should be avoided...
Heh.
The advertising of beer and wines is acceptable only when presented in the best of good taste and discretion, and is acceptable subject to federal and local laws.
How many beer commercials are in good taste? How many of the funniest, best remembered beer commercials are in good taste?
The advertising of fortune-telling, occultism, spiritualism, astrology, phrenology, palm-reading, numerology, mind-reading or character-reading is not acceptable.
Miss Cleo, this means you.
The advertising of tip sheets, race track publications, or organizations seeking to advertise for the purpose of giving odds or promoting betting or lotteries is unacceptable.
*cough*CaliforniaLottery*cough*
Last week, I wrote an annotated version of two recent speeches, one by FCC Chairman Michael Powell and the other by Commissioner Michael Copps, in which they addressed (behind closed doors) the National Association of Broadcasters regarding indecency regulation (FCC Commissioners - No Free Speech Please, We're Americans). Frequent commentator Cypherpunk thinks that I was overly harsh with regard to Michael Powell, who formerly was a strong defender of freedom of speech in broadcasting (Too Rough on Powell).
Rather than simply rebut Cypherpunk, I've adapted Powell's speech to give my version of what he should have said at the NAB meeting.
The original speech is here:
Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF].
Read on for my revised version.
Good Afternoon. Thank you Eddie for that kind introduction. I applaud you and your members for holding this summit and candidly exploring these issues that have lit up Washington - - - and indeed America - - - as of late.
These are challenging times for the broadcast industry.
For one, we are coming off an explosive debate about media ownership. The heated rhetoric often far exceeded the facts, but in any event, it created a very hostile climate for the media industry that will likely have lasting consequences. Of particular significance, and concern, is that the debate re-energized the previously fading debate about the role of government in content—whether it be restricting offensive content, or promoting favored content and viewpoints. I am greatly concerned that many have expressed increased comfort with governmental content intrusion in the furious debate about broadcast indecency and excessive violence.
While the broadcast medium does not today enjoy the full breadth of the First Amendment privilege, we should never be comfortable with content intrusion by the government.
In addition, the competitive pressures from other media sources continue to dramatically fragment audiences while the growing convergence of technology is evaporating any meaningful distinctions among distribution mediums. Competition continues to grow stronger from cable and satellite, but we are also seeing the use of advanced technology to create many other platforms that folks turn to for entertainment, information and news --- and the distinctions between these mediums and broadcast will grow increasingly blurred. Perhaps more importantly, competition is coming not only from traditional and not-so-traditional media sources, but also from what have naively been called “consumers,” who are increasingly becoming creators and participants in “citizens’ media.”
The rise of satellite radio, the Internet, video gaming, TiVo, and, of course, citizens’ media, all have combined to present sharp threats to traditional broadcasting, but also new opportunities for broadcast innovation, promoting free expression, and citizen empowerment.
But this competitive pressure also has unfortunate consequences as well. Indeed, I am of the view that it is this competitive pressure, much more than consolidation, which accounts for much of the programming that tests the limits of indecency and violence. As audience continues to fragment and the number of choices multiplies, it is harder and harder to grab and hold a viewer or listener, so the less innovative and creative resort to programming meant to gain attention through shock and titillation.
But it would be a mistake to think that all programming that tested the limits of indecency was merely meant to shock and titillate. Our history is replete with works, once thought beyond the bounds of decency, which have ultimately been recognized as important works of merit.
It is for this reason that the indecency laws, which are not new, periodically create a furor as each generation revisits their enforcement. For 77 years, Congress has had a statute that prohibits any obscene, indecent, or profane utterance over the airwaves. Yet, seventy-seven years later, what is seen as commonplace today would certainly have shocked the conscience of the Congress that originally passed the statute.
The FCC has always enforced these laws with varying success, in great part due to the ever-changing standards upon which we must base our judgments. In some periods, the FCC has been fairly light in its enforcement and in other years comparably heavy. I have seen both. I have argued passionately that we should have no such laws out of respect for the First Amendment, and others have argued with equal gumption that we should draw even more stringent limits. Such forces have always buffeted the FCC’s enforcement efforts --- or content intrusion generally for that matter --- and they always will.
These are always very difficult decisions. It is very hard to balance and reconcile our shifting moral and cultural values on one hand, and the enormous value we place on speech free from government intrusion on the other. At the margins this is quite difficult and the FCC has, in view of the emphatically narrow scope of our censorious power, generally been cautious.
However, as in every periodic furor, we are talking about speech or conduct that many Americans believe has clearly crossed that margin and has set off the current powder keg in the country. We see increasing - - - I might even say escalating - - - complaints from many Americans because increasingly it seems to these citizens that the media is not playing close to the line, but is outright leaping past the line and in fact daring the audience and daring the government to do anything about it.
Some of the transcripts I have been forced to read reveal content that is pure trash, plain and simple. But I always remind myself that the history of free expression in this country is one of vindication involving speech that many citizens have found shabby, offensive, and pure trash, plain and simple.
I think it is important, moreover, to understand what many Americans are actually upset about. The Super Bowl incident and the debate it unleashed is not really about a bare breast. It is not whether our society can accept public displays of the human body. It can. What really upset some people was the shock and amazement that such material would appear on that program at that time.
In other words, the debate is not best understood as one about what you can do or cannot do on radio or television. Rather, it is more about whether consumers can rely on reasonable expectations about the range of what they will see on a given program at a given time.
It is not Janet’s nudity that is decried. It is the fact that “it was the Super Bowl!” the largest prime television event of the year. It was promoted as an event for friends and family, but clearly much of the material was inappropriate for many Americans. Moreover, it was not simply Janet’s performance that was classless, crass and deplorable. Many of the commercial advertisements were just as crude, if not more so.
I cannot say that people would necessarily have been any less shocked with the supposedly family friendly Super Bowl had it been available only on cable rather than broadcast. But I do know that people do not like the sense that they have no safe expectation of what they might see or hear during a given program, whether broadcast, cable or DVD.
Like other media, people rely on a program’s or a network’s reputation to determine whether future programs will be appropriate for themselves or their family. This past Super Bowl CBS and the NFL broke faith with many in their audience in terms of expectations. Consequently, many responsible viewers will no longer view or permit their children to view CBS’ sportscasts of NFL games. Like any publishers who have betrayed their audience’s expectations, it will be CBS’ and the NFL’s tasks to earn back their viewer’s trust.
A station broadcasts a variety of fare during the day, and is limited by day parts. Over time, consumers came to expect and arrange their viewing choices around programming at certain times --- the morning shows, afternoon soaps and talk shows, primetime, and late night have had special meaning in broadcasting, unlike in other media. But these expectations are changing. Citizens, no longer simply consumers, are using devices such as TiVo to arrange their viewing choices to suit their convenience. They may watch their soaps in the evening and late night programming in the morning before work.
In the past, given the free over the air nature of the medium and limited viewing choices --- not least limited by the FCC itself --- consumers did not have the opportunity to express much in the way of prior consent to receive certain sounds and images. But today, with a wide range of viewing options, from cable to satellite, from DVD to DivX, consumers are expressing more and greater prior consent than ever before. As I’ve said before, most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on.
The First Amendment is cherished, but it bends only for you among media services. The Supreme Court and countless legal decisions create a special exception that allows government to demand more from broadcasting.
However, due to many of the changes I have already spoken of, the justifications for that exception are under increasing attack. Eventually, the time will come when we will have a single standard of First Amendment analysis that recognizes the reality of the media marketplace and respects the intelligence of American citizens. We must prepare for that eventuality by giving citizens greater ability to take on the responsibilities this will entail.
Consequently, I am announcing a new program that will put increased power to make informed choices into the hands of citizens and parents. I am going to strongly encourage broadcasters to freely provide much more electronic metadata about their programming in order for citizens to be able to make better-informed choices.
I am not talking about the V-Chip and a ratings system, which are limited in their usefulness. I am speaking merely of robust information from broadcasters that will clearly identify their programming and its origins.
With such rich information in electronic format, third parties will be able to easily create the tools for parents and citizens to receive only those sounds and images they feel appropriate. Parents will be able to download annotated and sanctioned programming guides from groups they trust and, for example, program their TiVo accordingly. Even for those without TiVo, third-party systems could easily control access to television with much finer distinctions than the V-Chip, channel blockers, or FCC rulings are capable of making. For example, parents would be able to allow their children to watch sporting events, such as football, without having to worry about their children being exposed to alcohol ads.
It must be recalled that the FCC’s ability to regulate only extends as far as the patently or grossly offensive to community standards for the broadcast medium. We cannot levy fines against that which is only mildly offensive, or offensive only to one community’s standards. Furthermore, the FCC can only act long after the fact, as the process for determining fines is an extended one, not least because we must carefully balance important values.
But the availability of robust electronic metadata and programming guides will give citizens the ability to give their informed consent prior to receiving broadcast images and sounds. The viewers, as in any other medium, will discipline broadcasters who violate this trust. Both broadcaster and citizen will benefit. Citizens will benefit from being able to exclude that which offends them, while broadcasters will know that those viewing programs do so willingly.
This industry has always had a proud tradition of serving the public interest and has always relished that honor --- wearing it right out on your sleeve. This is a public-spirited medium that prides itself on delivering the news, weather, traffic, and critical information in an emergency, such as the Amber Alert and the countless contributions you make to your local community. Robust electronic metadata is just one more step in providing timely information in your communities’ interest.
In this vein, I want to strongly encourage you to develop and adopt a voluntary and robust metadata standard that will empower your viewers, the American people, to make informed decisions as to the content they view. I believe you can create such a standard and that you and your audience would benefit from you doing so.
The FCC will continue to enforce prohibitions on broadcasting obscene, indecent and profane material, not least because the law says so. But such enforcement alone will not be enough to meet the increased expectations of citizens to protect themselves and their family from inappropriate material. That is why I have proposed a program to give them even greater power to deny or permit broadcast programs into their homes.
As I once concluded a speech on the First Amendment several years ago: “We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.” Let us, instead, give citizens the power to filter information as they see fit.
Thank you.
I wish this were an April Fools joke, like Howard Stern's. Yesterday, the Chairman of the FCC, Michael Powell, and Commissioner Michael Copps addressed (behind closed doors) the National Association of Broadcasters on the subject of broadcast indecency. The content of their speeches should be chilling to any advocate of the freedom of expression. For example, Copps is calling to regulate satellite and cable indecency in addition to broadcast as well as insinuating that the depiction of violence is profane (and thus subject to FCC regulation). The speeches are available at the FCC's website and I highly recommend reading both of them, all of them:
Remarks of FCC Commissioner Michael J. Copps, NAB Indecency Summit, Washington, DC, March 31, 2004 [PDF]
My annotated version of these travesties is below. I found it extremely difficult to excerpt particularly egregious examples of attacks on freedom of speech since the entire content of both speeches (with one small exception) is incredibly hostile to the very idea that speech that offends should be defended. Please see Jeff Jarvis' take on Powell's speech as well (The Daily Stern: Life without Howard).
Commissioner Copps
I'll start with the worst of the two, Commissioner Copps' remarks:
Let’s begin with why we are here today. We are here because millions of Americans have made it convincingly clear that they no longer will tolerate media’s race to the bottom when it comes to indecency on the people’s airwaves. We are here because it is no longer possible for your industry or the Federal Communications Commission to duck the issue with impunity. And we are here because people are demanding action— action now.
Would these be the same Americans who are the target audience for this "race to the bottom"? Would these be the same Americans who are bringing ratings to these controversial, titillating shows? Millions of people demand action for lots of things. Luckily, we have a Constitution and political process that prevents many of their demands from being met. Millions of people demand to have evolution removed from school curriculums. Wisely, we resist that.
Another refrain I had been hearing was: “Let the V-Chip handle it.” Don’t get me wrong, I like the V-Chip. But it was irrelevant that Sunday night.
I'm probably going to write a longer post about this, but the fact of the matter is that the V-Chip is irrelevant because the FCC has made it irrelevant. Sure, the V-Chip might not have mattered that Sunday night, but we're not only talking about that Sunday night, are we? One of the reasons that the V-Chip is irrelevant is that the FCC doesn't even bother to take it into consideration. For example, the V-Chip isn't mentioned at all in the Commission's Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency. It isn't even part of the test the FCC uses when it determines whether something is indecent or not. So, of course it was irrelevant that Sunday night. Apparently, it is always irrelevant.
What if the Superbowl had been rated TV-14? Would that have made a difference? If a TV show, broadcast between the hours of 6am and 10pm, has the word "fuck" in it but is rated TV-MA, does that make a difference? Apparently not, even though and all television sets 13 inches or larger manufactured after January 1, 2000 must have V-Chip technology.
How do you warn against half-time shows or slimy ads or sensation-seeking previews of coming movie and television attractions?
I don't know. How do you warn against sensation-seeking articles in the New York Times? I mean, every morning when I look at the NY Times, who knows what I'll get? They might just decide to publish words like "fuck" without warning, and no one can stop them! Who knows, maybe the NY Times will start publishing racy "page 3 girl" pictures without warning. Generally, a publisher of information gets a particular reputation for what they publish. I expect little, if any, nudity in the NY Times, I expect it on Page 3. If a publisher is inconsistent, then they get a reputation for that.
And who is to blame here? It isn't as if the advertisers are sneaking their content past the networks, they have to accept the advertising for their shows. If I can't trust CBS to keep nudity off their shows then I stop watching CBS. Works the same way as in regular publishing.
Copps asks, what are the reasons for more indecency?
One is that some chose to push the envelope too far. Particularly in this age of huge media conglomerates, the unforgiving expectations of the marketplace have more influence than they once did in driving media behavior.
And who made the conglomerates possible? Hmmmm? Maybe Satan the FCC? What a strange complaint. Moreover, once again, the American public is at fault because they are the marketplace that drives media behavior. Why does Copps call it "the marketplace" instead of calling it "the degenerate members of the American public who desire such disgusting content?"
I am supposed to take it [the statutory obligation to protect children from indecent, profane and obscene programming] with utmost seriousness—whether I agree with it or not—because it’s the law.
Well, does Copps agree with the obscene/indecent/profane law or not? Why does he use this cowardly way of framing the argument? Doesn't he have the guts to say, "I disagree with this, but will enforce the law to the best of my ability," or say, "and I agree with and support this law." This entire speech seems to show strong support for the law, why not make your position clear here? Or will this result in fewer dinner invitations in Washington?
In recent Congressional testimony, I laid out some steps we could take at the Commission to carry out our statutory obligations. These include using our full authority, including license revocation hearings, to punish those who violate the statute; reforming the complaint process to make it consumer-friendly and also to make decisions more quickly; tackling the depiction of graphic violence that has become such a pervasive problem, something we should have done long ago; making certain that affiliated stations have the right to preempt programming that is on their stations; and refusing to renew the licenses of those who wantonly disserve the public interest.
Violent programming? That isn't covered by indecency and obscenity. Could the newly revived doctrine of prohibiting the "profane" mean violent programming? After all, what is "profane"?
Many of you remember the old Codes of Broadcaster Conduct. Through enlightened self-regulation, the industry clamped restrictions on the presentations of sexual material, violence, liquor, drug addiction, even on excessive advertising. The Codes also affirmed broadcaster responsibilities toward children, community issues, and public affairs. It didn’t always work perfectly; I’m not saying it was some golden age; but it was at least a serious effort premised on the idea that we can be well entertained at levels several cuts above the lowest common denominator that now dictates so much programming. It is time for a tough new code. And the code I’d like to see is not some bland statement of general principles, but something explicit and including incentives to encourage compliance.
Great. Put into place a "voluntary" code and maybe we will go easier on you. We can't go after people who say things like, "Jumping Jesus Christ on a pogo stick," but we expect you will.
I believe the industry could come together and craft a new code, perfectly able to pass court muster, and one that would serve the needs of businesses as well as those of concerned families. Some other ideas: broadcasters could commit to family hours during prime time. More diversity in program-development and program-sourcing could also help—that means more independently-produced programs. And you need to include in your deliberations what public interest standards you think appropriate for the new world of multi-casting that digital television is already beginning to bring us. These are just a few suggestions; I am certain you can come up with many more.
Wow. The chilling hand of Thomas Bowdler is all over this paragraph. Of course, these are just a few "suggestions," you can certainly "come up with many more." And I'm sure they will pass court muster because they will be "voluntary." Copps is essentially saying that, as much I would love to personally censor the heck out of you, the courts and Constitution stand in my way, so I will content myself, for now, with vague threats to encourage "voluntary" compliance. Cue maniacal laughter.
Successful resolution of the indecency issues must in the end include cable and satellite. Eighty-five percent of homes get their television signals from cable or satellite. Most viewers, particularly children, don’t recognize the difference as they flip channels between broadcast stations and cable channels. Because cable and satellite are so pervasive, there is a compelling government interest in addressing indecency when children are watching. Indeed, the courts have already applied this to cable. And let’s not forget that cable and DBS make liberal use of the people’s spectrum too and this incurs an obligation to serve the public interest. Cable could also explore such options as offering a family tier so that families don’t need to receive channels like MTV in order to get the Disney Channel. Commissioner Martin has made positive suggestions on this. Cable could also make sure that family channels offer all family-friendly programming.
Wow. Seriously, wow. Copps, I am sure, is familiar with the legal justifications for regulating indecency on broadcast and why those arguments don't apply to cable and satellite. Still, here he is trying to extend his reach to satellite and cable. Could the internet be far behind, especially as convergence makes the distinction between broadcast, cable and the internet disappear? Of course, I'm not sure what spectrum cable uses, but Copps is the smart Commissioner.
Cable could offer a family tier. They could also offer ala carte program selection (but that would be truly offensive to the powers that be). Cable does offer something called a "lockbox" that parents can use to block particular channels. There are even more sophisticated versions that can block particular channels during particular hours (How TV Allowance Works).
I know many of you personally, and as I meet and talk with you, I am impressed so often to see the flame of the public interest still burning. Sometimes it flickers for want of oxygen, particularly in the new media environment in which we live. That new environment explains a lot, but it excuses nothing. And I am here today to ask you to breathe the clean fresh air of citizen concern and common sense on that flickering flame. Passing our airwaves on to the next generation in better shape than we found them is your job and my job, and how you and I, in our individual ways, handle the matter before us today will provide ample opportunity for people to judge the success of our stewardship. They are watching and they are judging right now.
As usual, the censorious Puritan couches his speech in terms of the "public interest." Apparently, Copps doesn't recognize that the flame of public interest burns brightest in corrosive, but free oxygen, not the dead vacuum of the censor.
Chairman Powell
Of particular significance, and concern, is that the debate re-energized the previously fading debate about the role of government in content—whether it be restricting offensive content, or promoting favored content and viewpoints. This increased comfort with content intrusion is part of what is on display in the furious debate about broadcast indecency and excessive violence.
Increased comfort with content intrusion? Restricting offensive content and promoting favored content and viewpoints? Since when was it the job of the FCC to promote favored viewpoints? I've read 18 USC 1464 a few times and I don't recall anything about promoting favored content and viewpoints. Now the government is permitted to promote its own viewpoints, for example, through government owned publications, such as brochures from the FTC. When did broadcast become government owned?
Some of the transcripts I have been forced to read reveal content that is pure trash, plain and simple, and few, other than staunch libertarians, could possibly stand up and defend it publicly.
Yeah, all those people who believe in free speech even for highly offensive speech are just nutters. Can you imagine a government one of whose fundamental principles was the defense of offensive speech? Ridiculous!
It is not Janet’s nudity that is decried. It is the fact that “by god it was the Superbowl!” the largest prime television event of the year. An event for friends and family. People do not want to feel that they can be struck by lightning, or hit by a truck at any moment. Similarly, they do not like the sense they have no safe expectation of what they might see or hear during a given program—precisely the formula some are using to grab headlines.
Yeah, they don't. But what is the proper response? If the NY Times suddenly had a nude centerfold tomorrow, what would happen? People would be surprised and shocked, and they would respond by cancelling NY Times subscriptions en masse. Same goes for Sports Illustrated, though likely people would be less shocked. What if it were a printing accident? People would still be upset with the NY Times and the newspaper would have to make some effort to redeem itself with its readership. Would millions of people be calling for regulation of the NY Times? Yes, but the government couldn't do a thing.
Why is the Super Bowl different?
A station broadcasts a variety of fare during the day, and is limited by day parts. Consumers expect to arrange their choices around programming at certain times—the morning shows, afternoon soaps and talk shows, primetime, and late night have special meaning in broadcasting, unlike in other media.
Increasingly, consumers expect to arrange their choices around programming when they want to watch it. It's called TiVo. I know you've heard of it Chairman. Why not encourage a change in the way we view broadcasting, rather than try to shore up an increasingly obsolescent view? "Morning," "primetime" and "afternoon" may have special meanings now, but they won't soon. Perhaps you could encourage people to take a little more responsibility for their own viewing habits? Most people find the power of TiVo quite liberating. Bonus: TiVo encorporates sophisticated parental controls!
Given the free over the air nature of the medium, consumers do not express any prior consent to receive certain sounds and images—at least not to the extent they do with cable or rented videos, for example.
You don't have prior consent when a guy with a "Fuck the Draft" jacket walks into the courthouse, either. The government expects you to avert your offended eyes instead. This is called personal responsibility, Chairman. There are many, many options for controlling how a television works, from the V-Chip to some rather sophisticated aftermarket products. At some point, if you aren't taking advantage of these additional products you are in fact as responsible as someone who gets cable or rents videos. Speaking of which, I note you don't mention anything about not regulating cable and video rental, perhaps you might discuss that with Commissioner Copps.
In this vein, I want to strongly encourage you to develop and adopt a new voluntary code to guide your actions in the same spirit you have in years past. I believe you can create such best practices and guidelines, consistent with the law. It would be in your interest to do so.
"It would be in your interest to do so." Man, these guys can't stay away from the melodramatic enforcer language. Clearly, Powell is speaking with the best interests of the broadcasters at heart. I bet he'll regret it when he has to punish them too.
Finally, I have heard some of you call for an FCC rulemaking to create more “clarity” as to what is prohibited. I want to warn you that this is unwise. You do not want to ask the government to write a “Red Book” of Dos and Don’ts. I understand the complaint about knowing where the line is, but heavier government entanglement through a “Dirty Conduct Code” will not only chill speech, it may deep freeze it. It might be an ice age that would last a very long time.
Yeah, right. Actually, it is the government that doesn't want to write a "Red Book" of Dos and Don'ts. First, such a book will please no one. The more conservative will complain that the "Don'ts" don't go far enough. Liberals will be outraged that they go too far. Either way, both sides will be able to ridicule the government parsing such important distinctions as to why "kick butt" is okay, but "kick ass" goes too far. Additionally, Powell probably doesn't relish having to defend the darn thing in court. Publishing such a book would be an invitation to First Amendment facial challenges that would keep FCC lawyers busy for a decade, at least.
And what is more chilling? Bright line rules saying what is and what is not acceptable, or amorphous rules that leave broadcasters fearing that relatively innocuous words might put them across the line? For shame, Powell, for shame for your twisted words.
I will conclude, as I once concluded a speech on the First Amendment several years ago: “We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.”
These last words are actually a beautiful reminder of one reason why government regulation of speech is a bad idea, which is also why it is grossly offensive that they are part of this disgusting speech. The words actually come from a speech Powell made in 1999: Remarks by Michael K. Powell, Commissioner, Federal Communications Commission, Before the Media Institute, Acceptance Speech for the Freedom of Speech Award. That's right, Powell said those words while accepting a "Freedom of Speech Award."
Read the 1999 speech. Compare and contrast, especially this paragraph:
This state of affairs is not all the Government's doing. The industry has regularly traded its First Amendment rights to obtain favors from the government. However, I submit, the Framers did not mint the First Amendment to serve as currency. To offer it as such is to trade away one's moral right to cry victim when the bargain is accepted.
Yesterday, the 4th Circuit Court of Appeals issued a decision that upheld a district court ruling invalidating a Virginia law aimed at curbing speech on the Internet. Read the decision: PSINet vs. Chapman [PDF]. Read a press release from People for the American Way: Free Speech Victory In Virginia Internet Case. Two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit.
Basically, the Virginia law,
in its present form makes it unlawful to "sell, rent or loan to a juvenile" or to knowingly display for commercial purposes in a manner whereby juveniles may examine and peruse: [material harmful to juveniles]
This is a pretty darn broad law. It would require any media on the internet considered harmful to juveniles in Virginia be locked behind some sort of age authentication system, such as an adult PIN. Thank goodness it has been challenged successfully, so far.
Analysis
The first argument in the case was whether or not a previous, failed facial challenge back in 1989 precludes any facial challenge in 2002. The arguments in favor of allowing the challenge include the fact that the law had been amended a couple of times since the original challenge, in particular, language was added to include electronic files and to exempt from liability ISPs who merely host such materials. Additionally, the original law contemplated physical bookstores, not virtual ones. One argument that wasn't raised with regard to the earlier challenge was that the original challenging party was unable (because the internet had not become widespread) adequately represent the interests of cyber businesses. Even if a speech regulating law could be constitutionally applied to a particular party, that party can bring a facial challenge to the whole of the law. This is based on the assumption that the challenging party will vigorously and adequately represent the interests of all to whom the law applies. I don't see how this assumption can remain valid when the industry which is being regulated didn't exist when the law was challenged.
In any case, the district judges permitted the facial challenge, while Judge Niemeyer viewed the original law as much more expansive and, consequently, saw the change in technology as legally irrelevant.
The second major line of arguments dealt with statutory construction. Virginia wanted the broadly-drafted law narrowly construed, otherwise there would be no way it could pass constitutional muster. Read the decision if you want to know more.
The reason I don't spend too much time on the statutory construction issues is because even if you allow Virginia its narrow construction of the law, it still fails constitutional muster. One of the main reasons is that there is no way in heck that a ban on freely available material on commercial websites located in Virginia that is harmful to juveniles will prevent juveniles in Virginia from getting access to harmful materials through the internet. So maybe the law shuts down a few thousand websites. There are a million more still out there. The burdens the law creates on free speech will accomplish virtually nothing, which means there is no real reason to permit the law to remain on the books. Here is the key graph from the opinion:
Even if the Court completely construed section 18.2-391 in the manner that the Commonwealth requests, such a construction would leave the Act virtually powerless. When the government defends a regulation of speech as a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." Turner Broad. Sys. v. F.C.C., 512 U.S. 622, 664 (1994) (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). "It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. at 624; see also Edenfield v. Fane, 507 U.S. 761, 770-71 (1993)(explaining that the burden is on the party seeking to uphold a restriction on commercial speech to "demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree"); Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) (explaining that a "[c]ourt may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity"). Where strict scrutiny applies, a statute that "leaves appreciable damage to th[e] supposedly [compelling] interest" uncorrected is invalid. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal citations omitted). Even commercial speech regulation "may not be sustained if it provides only ineffective or remote support for the government’s purpose." Central Hudson Gas & Electric Corp. v. Public Service Comm’n of N.Y., 447 U.S. 557, 564 (1980).
Good stuff. Here is the singularly unpersuasive dissent:
Finally, the majority falls back on the notion that if the statute operates as Virginia suggests, the statute would be rendered "power-less." Ante at 16. This effect, however, is a legislative judgment that must be left to the Virginia legislature. Certainly by creating adult zones for commercial websites that distribute pornography, the legislation reduces the range and quantity of materials accessible to juveniles. It has been often stated that a legislature need not solve the entire problem; it is free to take steps to solve only part of the problem. See, e.g., New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
New Orleans v. Dukes is a case about exempting (through a grandfather clause) otherwise banned push carts in New Orleans. Yeah, that's a case on point.
The rest of the decision deals with whether the law violates the Commerce Clause. The opinion holds "yes."
That's pretty much it for the case as far as I'm concerned.
via How Appealing
Last Friday I wrote about the FCC's decision last Thursday to begin enforcing their power to regulate "profane" language, something they have not done before (FCC Revives Notion of the Profane). See also this followup by Constitutional law guru Jack Balkin: Hate Speech Codes For Broadcasting?. Jeff "BuzzMachine" Jarvis has been, well, a machine when it comes to posting on this issue. Start with today's "Daily Stern" and just follow the links to previous posts for all the news fit to blog.
Despite all this discussion, however, I am still in the dark as to what "profane" means as the FCC interprets it.
Warning: Highly offensive language used as examples below.
The FCC has updated its policy page for "Obscene, Profane & Indecent Broadcasts," which declares briefly that:
Profane Broadcasts Restricted to 10 P.M. - 6 A.M.
The FCC has defined profanity as “including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing the latter part of this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.” [emphasis, hyperlink in original]
Hmmm ... that definition clears things up ... not. So, confused, I called the FCC's Enforcement Bureau's Investigations & Hearings Division (the number is usefully posted on their page). Unfortunately, they could provide me no more guidance than what was on their webpage and what was in the recent decision. I asked if they had any plans to provide guidance, as they do with regard to indecency (In the Matter of Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency), though I expect the indecency guidelines will need some major revision. The answer I received was, "that is up to the Commission."
Since the FCC seems too busy to let people know what their definition means, or at least provide some examples and guidance, I suggest that, as a public service, Howard Stern test the limits of the new definition of "profane." Howard can do this either by broadcasting content that is arguably "profane" or by gathering examples from other broadcasters of the arguably "profane" cough*Oprah*cough. Below, I list several particular areas of the FCC's definition that can be challenged.
But first, in order to test the limits of the "profane," any examples should be free of indecency. Thus, any test-worthy "profane" content should not depict or describe "sexual or excretory organs or activities." The Seven Dirty Words and closely related terms are right out. Phrases like "shit-eating nigger" don't count because "shit-eating" obviously refers to excretory activities. Phrases like "dumb, stupid nigger," however, might make appropriate test cases.
Blasphemy
Traditionally, the "profane" has been closely related to blasphemy, which the FCC acknowledges. The FCC now claims that the "profane" encompasses more than blasphemy, however, the FCC does not say that the "profane" does not still include the blasphemous:
We recognize that the Commission’s limited case law on profane speech has focused on what is profane in the context of blasphemy, but nothing in those cases suggests either that the statutory definition of profane is limited to blasphemy, or that the Commission could not also apply the definition articulated by the Seventh Circuit. Broadcasters are on notice that the Commission in the future will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation... [footnotes omitted]
The FCC could have declared that not only is "profane" not limited to blasphemy but that it does not include it. What possible reason for not restricting the definition could they have had except that they are angling to come down hard on those who "sin against the virtue of religion"? While the Supreme Court has said one may not censor films for being "sacrilegious" (Burstyn v. Wilson, 343 U.S. 495 (1952)), apparently the Commission believes it still retains some authority over blasphemy. Someone should test that theory.
John Lennon once claimed the Beatles were "bigger than Jesus," which resulted in a rather large backlash (lots of people were quite offended) but a phrase so mild would be unlikely to work. Precedents hold that phrases like "god damn it" are not profane. However, if we go a little further back, say 70 years, we find a case in which profane speech was upheld (Duncan v. United States, 48 F.2d 128 (9th Cir. 1931)):
I'll put on the mantle of the Lord and call down the curse of God on you, that's what I'll do. You infamous harlot, you arch criminal, the people should tar and feather you and yours,
Perhaps Howard Stern could start his tests with that little speech addressed towards Michael Powell, for example. Using the words "by God" multiple times and in conjunction with irreverent speech has also been found to be profane, by God.
Perhaps there could be a contest on Howard Stern's show in which listeners are invited to profane the name of God (without being indecent). The real question is what would it take to get a blasphemy ruling from the FCC?
Hate Speech
Likely, hate speech is a much richer vein to mine when it comes to testing the FCC's new "profane" language ruling. Speaking of mines, the following was once found to be profane: "I can whip any damn Groover of the name." Seriously, when we think of "grossly offensive" language that is not "indecent," hate speech has to be at the top of the list. It would be easy enough to let loose with a racist diatribe (just be sure to avoid sexual or excretory words) and grossly offend people.
"Grossly offensive" does not necessarily require an out-and-out racist diatribe, however. The New York Daily News reports that WWPR fired a DJ for racially insensitive remarks (DJ fired for race remark). According to the article, the DJ spoke out against interracial relationships. Subsequently, "The station received many E-mails, phone calls and messages from listeners who were displeased and felt alienated as a result of her actions." As the DJ said, "I am being censored not for sexual indecency, but racial indecency." Sounds about right to me; the FCC ought to do something about it.
In any case, we should find out what some of the boundaries are. How far does "grossly offensive" extend?
Who Must be Offended?
According to the FCC, in order to be indecent, a broadcast must be "patently offensive as measured by contemporary community standards for the broadcast medium." For this, the FCC provides a little more clarification, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant."
The "contemporary community standards" test is fairly standard for naughty bits, but the FCC did not adopt that test for profane language. Instead, the FCC declared that profane language must be "grossly offensive to members of the public who actually hear it as to amount to a nuisance." Hmmm ... "members of the public." Could it be that two offended members of the public would be enough to trigger a fine? If a broadcast is a nuisance to two members of the public is that enough?
The FCC does, sort of, provide a definition for "nuisance":
Nuisance has been defined as including “a condition of things which is prejudicial to the . . . sense of decency or morals of the citizens at large . . . .” Ballentine’s Law Dictionary (3d ed. 1969).
Nice use of the passive tense. Sure, nuisance has been defined that way. Nuisance has been defined lots of ways, but the FCC doesn't say which definition of "nuisance" they are adopting. And why does the FCC have to reach back to a legal definition more than 40 years old? Is the government so poor they can't afford more recent legal dictionaries?
In Pacifica, the "nuisance rationale" isn't about nuisances per se, but rather nuisance "law generally speaks to channeling behavior more than actually prohibiting it." Well, grossly offended members of the public are likely to want to channel offensive language, rather than prohibit it. Alternatively, "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." Whatever that means.
Indeed, whatever "nuisance" means. Obviously, "nuisance" is not the same thing as violating "contemporary community standards," otherwise the FCC would have used that language. Unfortunately, the FCC hasn't seen fit to provide guidance on what the distinctions might be. Is there anyone at the FCC who bothers to read the decisions they issue?
Probably the best way to test this aspect of the decision is for those people issuing complaints to declare that, while they don't believe the offending statements violate contemporary community standards they are definitely a nuisance.
Conclusion
The FCC's new "profane" language doctrine is a mess just waiting to be challenged. The opportunity to embarrass the FCC is there. Which broadcast personality will accept the challenge?
In a decision released yesterday, the FCC announced a new doctrine of fining "profane" broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?
Caveat: This decision is in a really vague area of First Amendment law and I've written my thoughts within hours of the decision's release, so my analysis is preliminary.
Background
Back in October, the FCC ruled that the use of the word "fucking" as an adjective was not indecent (Bono Says 'Fucking' on TV; FCC Says 'OK'). Following Janet Jackson's wardrobe malfunction, the FCC decided to revisit that decision. Unsurprisingly, it was overturned and the use of the word "fucking," as in "this is really, really fucking brilliant," was found to be indecent. Read the press release: FCC Finds That Broadcast of "F-Word" During Golden Globe Awards Was Indecent and Profane [PDF]. Read the decision: In the Matter of: Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program [PDF].
The first thing that struck me, however, was not that the use of "fucking" as an adjective was found to be indecent. I understand the FCC thing about indecency. I don't agree, but I understand it. What struck me and what I don't really understand is this whole "profane" thing. Isn't "profane" something like blasphemy or contempt for the sacred? Well, it used to be. Used to be, as in people are seldom prosecuted or fined for it anymore, and the FCC never used it.
Turns out, where most anti-indecency folks would have been happy with overturning the original "fucking" decision, the FCC decided to go one big step further and has decided to basically create a doctrine of the profane. Why they would want to do this I have no idea. Nevertheless, this renewed doctrine seems to have the strong support of every commissioner:
Chairman Michael Powell
For the first time, the Commission has applied the profanity section of the statute for the broadcast of this highly offensive word, an application I fully support.
Commissioner Kathleen Abernathy
Although I support applying the definition of “profane” as discussed in Tallman to this particular incident, this too is a new finding by the Commission. The courts never applied the standard in Tallman to an isolated broadcast of the fword and the FCC has never used this definition in any analysis of “profane” content, let alone the use of expletives. Rather, “profane language” has historically been interpreted in a legal sense to mean blasphemy. Moreover, the Mass Media Bureau in a document entitled “The Public and Broadcasting” stated that “[p]rofanity that does not fall under one of the above two categories [indecency or obscenity] is fully protected by the First Amendment and cannot be regulated.” [footnotes omitted]
Commissioner Michael Copps
I support the decision to find the utterance of the f-word on NBC’s broadcast of the “Golden Globe Awards” to be both indecent and profane. I found ludicrous the Enforcement Bureau’s decision that a word that might otherwise be indecent is not indecent or profane merely because it is used as an adjective or expletive.
Commissioner Kevin Martin
I am pleased that the Commission finally is making clear that the use of the “F-word” during this prime-time broadcast was both indecent and profane, regardless of whether used as an adjective, adverb, or gerund. I am particularly pleased that, at long last, the Commission is enforcing the statutory prohibition against the broadcast of profanity. Better late than never.
Even more troubling is the conclusion that we cannot issue a fine for the use of profanity. The majority argues that there is no notice. How ironic that the majority relies on the Commission’s own failure to enforce its statutory mandate as the basis for NBC not knowing that the F-word is prohibited profanity. Taking a step back, I can’t help but think NBC was “on notice” that the F-word was profane. [footnote omitted]
Commissioner Jonathan Adelstein
The same statute also proscribes broadcast profanity, and I am pleased that we apply a profanity definition endorsed by the courts to give meaning to our statutory directive. While we have historically interpreted “profane” to mean blasphemy, I support our application of the statute to the F-word, a highly offensive and commonly understood “profanity.” [footnote omitted]
Analysis of the Decision
Despite the fact that this is, essentially, a brand new doctrine, the decision gives this new interpretation of the law relatively short shrift, though it has the potential to be incredibly far reaching. Only two of nineteen paragraphs are devoted to expounding the new doctrine of fines for "profane" broadcasts. I'll go through these paragraphs line by line.
13. We also find, as an independent ground, that the use of the phrase at issue here in the context and at the time of day here constitutes “profane” language under 18 U.S.C. § 1464.
Independent ground. Even if the courts throw out our interpretation of law with regard to the "profane", we still have the count of indecency (and vice versa). The context and time is language meant to meet the burdens of FCC v. Pacifica (aka Seven Dirty Words case), which upheld the FCC's ability to regulate indecent broadcasts. As in Pacifica, the Commission is relying on a "nuisance rationale under which context is all-important."
The term “profanity” is commonly defined as “vulgar, irreverent, or coarse language.”34
34 Black’s Law Dictionary 1210 (6th ed. 1990) (citing 18 U.S.C. § 1464). See also American Heritage College Dictionary 1112 (4th ed. 2002) (definition of profane includes “[v]ulgar, coarse.”)
It is odd that they have to cite back to the 6th edition of Black's Law Dictionary. I don't think the 7th edition has the term "profanity" in it. Odd also that they define "profanity" instead of the term actually used in the statute: "profane." According to Black's Law Dictionary (7th ed. 1999):
profane, adj. (Of speech or conduct) irreverent to something held sacred.
I'm not really sure how common their definition of profane is, since the online version of the American Heritage Dictionary has three other definitions ahead of the one the FCC chooses (profane):
1. Marked by contempt or irreverence for what is sacred. 2. Nonreligious in subject matter, form, or use; secular: sacred and profane music. 3. Not admitted into a body of secret knowledge or ritual; uninitiated. 4. Vulgar; coarse.
Sounds like a variation on blasphemy to me.
The Seventh Circuit, in its most recent decision defining “profane” under section 1464, stated that the term is “construable as denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”35
35 Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972). In United States v Simpson, 561 F.2d 53 (7th Cir. 1977), the court called into question the nuisance rationale for the regulation of offensive speech set forth in Tallman, suggesting that it might not survive cases such as Cohen v California, 403 U.S. 15 (1971). Id. at 58 & n.7. But the Supreme Court's Pacifica decision subsequently upheld an indecency finding that "rested entirely on a nuisance rationale." 438 U.S. at 750. See also 12 Am. Jur. 2d Blasphemy and Profanity 9 (citing Tallman standard in connection with section 1464).
This is the crux of the new doctrine. There is a lot going on here, so bear with me.
First, "most recent decision" in this case means 1972. Thirty-two years is a long time without revisiting the doctrine of what constitutes the "profane." Second, we only have the interpretation of a single circuit. Look at some of the other circuit's "most recent definitions" and you'll find things that would definitely not withstand scrutiny today. Third, it isn't clear that the Seventh Circuit's definition is valid today for several reasons.
The first half of the definition doesn't really matter, as it deals with "fighting words," and isn't relevant to this particular case. I doubt the still valid but weakened "fighting words" doctrine is relevant to nearly any broadcast case (though I suppose one might be able to come up with a highly imaginative hypothetical where it was relevant).
The second half of the definition is really what is of interest. My first question in regards to this is, what is the difference between "grossly offensive" and "patently offensive"? There is no distinction in law between the two that I am aware of. Generally, the two terms have been used interchangeably, though "grossly offensive" is rarely used outside the military courts (which use it as part of their definition of indecent). So I will use them interchangeably.
If this is the case, then Pacifica has some interesting relevant quirks. For example, in Pacifica, the Commission had determined that George Carlin's language was "patently offensive." The Pacifica Foundation did not dispute this, they disputed whether or not Carlin's language was not only "patently offensive" but also indecent: "Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive."
This is a serious problem for the FCC's (and Seventh Circuit's) definition of profane since, in Pacifica, the broadcast would be admittedly "profane" under the FCC's (and Seventh Circuit's) definition. If the FCC's definition is valid, Pacifica should never have been decided the way it was. Rather than determine whether or not Carlin's Seven Dirty Words were indecent and thus subject to FCC regulation, the Court could have simply declared that Pacifica was subject to FCC regulation under the definition of "profane" and would not have had to go on to analyze whether or not the speech was indecent.
For the FCC, a finding that something is "patently offensive" should terminate any further inquiry as to whether the speech can be regulated. Under the FCC's definition, once you have determined that something is "patently offensive," it is profane and you can regulate it. The FCC will never have to make a further inquiry as to whether that particular speech is indecent.
Interestingly, in Manual Enterprises v. Day, the terms indecency and patent offensiveness were used interchangeably: "These magazines cannot be deemed so offensive on their face as to affront current community standards of decency - a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.'" Pacifica, seems to reiterate this definition of indecency:
Prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality.14
14. Webster defines the term as "a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . ." Webster's Third New International Dictionary (1966).
Consequently, Pacifica may also cause another problem for the FCC's proposed definition for "profane". Pacifica holds that "The words 'obscene, indecent, or profane' are written in the disjunctive, implying that each has a separate meaning." If "patently offensive" is synonymous with "indecent" then it cannot also be synonymous with "profane." The FCC may argue that they define indecency as relating to sexual acts, organs and excretion. However, just because the FCC chooses not to regulate indecency to the extent permitted, does not mean that indecency is not what is "patently offensive." By this logic, "profane" must mean something other than simply "grossly offensive."
Finally, it is not at all clear from Pacifica that the Court would not find the FCC's definition of "profane" vague and/or overbroad. Following the logic of Reno v. ACLU, there are a number of ways in which the court could distinguish Pacifica's permissible regulation of indecency from regulation of the profane, even though they regulate the same broadcasting medium. For example, in Pacifica it was conceded that the language was "patently offensive." I hardly think the same concession would be made in a case challenging this decision. The FCC's own internal fighting over whether profane language could be regulated would also be a factor in distinguishing Pacifica. But let us move on.
We find that the broadcast of the phrase at issue here in the context and at the time of day qualifies as “profane” under the Seventh Circuit nuisance rationale.36
36 Nuisance has been defined as including “a condition of things which is prejudicial to the . . . sense of decency or morals of the citizens at large . . . .” Ballentine’s Law Dictionary (3d ed. 1969).
Once again the FCC claims that the specific context justifies a finding of profane language. However, this once again raises the question of how you distinguish the definition of "profane" from the definition of "indecent." Moveover, this is rather conclusory, with very little argument as to why this particular context makes this language "profane" as well as "indecent."
Use of the “F-Word” in the context at issue here is also clearly the kind of vulgar and coarse language that is commonly understood to fall within the definition of “profanity.”
Yes, but the statute discusses "profane" language, not profanity. They are related terms to be sure, but they are not synonymous - we still need a definition of "profane" that is not identical to "indecent." Furthermore, by emphasizing a definition of "vulgar and coarse" language, the FCC seems to be emphasizing a highly vague and overbroad standard. After all, not all vulgar and coarse language is indecent or "profane." For example, "Check out that hot momma!" is vulgar and coarse, but it is hardly indecent or profane. The American Heritage Dictionary claims that "kick butt" is vulgar slang. Well, maybe, but I hardly think it is profane or indecent in nearly any context. Indeed, "fuck" is always a profanity, but it is not necessarily "profane" to say it, for example as part of a bona fide news cast. So, although "fucking" might be "patently offensive" in this context, we still haven't gotten any closer to an idea about what "profane" means.
14. We recognize that the Commission’s limited case law on profane speech has focused on what is profane in the context of blasphemy,37 but nothing in those cases suggests either that the statutory definition of profane is limited to blasphemy, or that the Commission could not also apply the definition articulated by the Seventh Circuit.38
37 See, e.g., Raycom, Inc, 18 FCC Rcd 4186 (2003) (referring to God as a “sonofabitch” not profane under section 1464) (citing Gagliardo v. United States, 366 F.2d 720, 725 (9th Cir. 1966) (“God damn it” not profane under section 1464) and Warren B. Appleton, 28 FCC 2d 36 (B’cast Bur. 1971) (“damn” not profane under section 1464) (also citing Gagliardo). See also Duncan v. United States, 48 F.2d 128, 134 (9th Cir. 1931) (conviction under section 1464 for using profane language upheld where “the defendant . . . referred to an individual as ‘damned,’ . . . used the expression ‘By God’ irreverently, and . . . announced his intention to call down the curse of God upon certain individuals”).
38 In this regard, the Supreme Court noted in Pacifica that “[t]he words ‘obscene, indecent, or profane’ are written in the disjunctive, implying that each has a separate meaning.” 438 U.S. at 739-40.
Good to see that the Commission isn't necessarily using a definition of blasphemy as the baseline for the profane. Of course, they really don't have much of a choice. I highly doubt the court would countenance such a definition under both freedom of religion and freedom of speech grounds. I've dealt with the Seventh Circuit's pseudo-definition above. However, this does emphasize that the profane has had a lot to do with blasphemy. Consequently, it seems likely to me that shifting the definition away from earlier definitions would require something a little less vague than "grossly offensive."
Broadcasters are on notice that the Commission in the future will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation, but, depending on the context, will also consider under the definition of “profanity” the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. and 10 p.m.39
39 See Pacifica, 438 U.S. at 749-750.
Speaking of vagueness, it is interesting that the FCC doesn't rule out using a definition of the profane based on blasphemy. Time to get more concrete about the profane FCC, if you really intend to run with it. Heck, based on this, I think there are many a judge who would throw out the whole "profane" definition if the FCC insisted on holding onto the blasphemy elements.
We will analyze other potentially profane words or phrases on a case-by-case basis.
I'm not really sure how the FCC will really get to this point with a definition of "profane" that isn't distinct from "indecent." But let's pretend that the FCC's definition of profane is distinct from indecent. What, then, is the difference? Well, it would seem to be that indecency "describe[s] or depict[s] sexual or excretory organs or activities." Well, that pretty much covers the seven dirty words. What words would generally be considered patently or grossly offensive, but don't deal with sex and excretion? Hmmm ... well, the only ones I can think of (perhaps my imagination is limited) are racial and sexual epithets. Nigger, Bitch, Kike, Fag, Guido, I could go on, but you get the picture.
"Profane" can't be about blasphemy, that would raise all sorts of freedom of religion issues, but it has to be distinct from "indecent." I think that leaves hate speech. Seems to me the FCC has decided that it wants to regulate the broadcast of hate speech.
I will end this quick analysis with the words of Chairman Powell:
Going forward, as instructed by the Supreme Court, we must use our enforcement tools cautiously. As I have said since becoming a Commissioner, government action in this area can have a potential chilling effect on free speech. We guard against this by ruling when a clear line has been crossed and the government has no choice but to act.
Yeah, right.
The LA Times (reg. req.) reports that California state legislators are hauling water for Hollywood once again (Setting a Trap for Net Pirates). The basic idea of the bill is to extend a "true name and address" statute to cover virtually all exchanges of copyrighted audiovisual information. That is, if you send someone a copy of a recording or audiovisual work electronically without also providing your true name and address, you could be fined $2,500 and spend a year in the clink.
Read Assembly Bill 2735 (the Assembly Version): An act to amend Section 653v of, and to add Section 653aa to the Penal Code, relating to Internet piracy.
What is the point of this bill? According to a sponsor:
[State Sen.] Murray [D - Culver City] says the point isn't to take names; his idea is to give state prosecutors, who have no jurisdiction over copyright infringement, a charge they can bring against online pirates.
Hmmmm ... the concept of federal preemption of copyright law comes to mind. One might argue that many states have "true name and address" statutes, but they generally apply only to sales of physical goods. Like copyright law, this proposed law applies to any transfer (outside your home and family), not only sales. If this isn't preempted I'm not sure what would be.
And what is this? Hollywood can't afford to sue people? We citizens of California have to expend precious tax dollars and limited law enforcement resources on copyright enforcement because Hollywood is too darn cheap? With massive statutory copyright damages available as a remedy, there is no excuse for Hollywood not to prosecute copyright infringers directly. Heck, it could even be a profit center.
An Attack on Privacy and Anonymity
Read the EFF press release: California Bill Backed by Hollywood Attacks Internet Privacy. The EFF notes the pernicious effects on children's privacy: "These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights."
There are many more problems with this bill as well. EFF notes that there are no exceptions for fair use. For example, if one emails a friend a copy of a political campaign commericial that includes copyrighted music, I'm a Dole Man comes to mind, you can be fined and sent to jail. Heck, posting and commenting on Janet Jackson's wardrobe malfunction could get you sent to jail.
This is certainly an attack on the anonymity protections of the First Amendment. Unlike commercial "true name and address" statutes, this bill reaches beyond a state's interest in preventing fraud to cover all types of anonymous speech, including speech that is clearly protected by the First Amendment. State Sen. Murray says, "There's one way to maintain your privacy in my bill. That is not to engage in illegal activity." But that is the problem. The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment.
An Attack on the Creative Commons
Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?
We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.
UPDATE
You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.
Doc Searls has an interesting take on the ongoing FCC indecency brouhaha (Enjoy the obscenery). His points are echoed and emphasized by Jeff Jarvis (The Daily Stern: The real issue). Searls analysis begins:
Ever since we reconceived press and broadcast as "channels" and "media," and their goods as "content," we have understood them, literally, in terms of shipping.
He says this as if it were a bad thing.
When you subsume speech into "content delivery," you reduce it to cargo. It becomes just another deliverable. Packing material. You can abridge its freedoms all you want. (At least on the broadcast side. It's a little harder where printing presses are still involved.)
On the contrary, the more that we treat speech as undifferentiated cargo, the better off freedom of expression is. When everything is cargo you worry more about how it is distributed than the content of the cargo. FederalExpress is a distribution company. They don't really care what is in the boxes they ship (with certain obvious, practical exceptions), they just want to ship them as efficiently as possible. The more the boxes are undifferentiated cargo, the more efficiently they can be shipped.
The most obvious example of this in the free speech realm is the doctrine of common carrier. For example, the telephone network is a common carrier. Consequently, the telephone company doesn't care what the fuck you say on their telephone lines and neither does the government (with certain obvious, practical exceptions).
Searls notes that the government treats printing press speech different than broadcast speech. Why is that? Because they use different means of distribution. The government is regulating the content of speech, but it is doing so because the means of distribution is different. As far as the government is concerned books are undifferentiated cargo (with certain exceptions, such as obscenity and child pornography). As long as I follow the general rules for shipping cargo, I can ship whatever sorts of books I want. This is freedom of expression enhancing.
The internet is another example. Although the government is trying its best to regulate content on the internet, the courts have so far been quite sceptical. The courts have generally held the position that people can ship whatever darn content they want via the distribution channel known as TCP/IP. Bits are bits and we should treat them that way as much as possible.
From a public relations point-of-view, focusing on delivery rather than content also seems best. If we focus the discussion on means of distribution rather than particular, offensive content, we'll probably be better off. Many fewer people are upset by the idea that you can watch porn on cable then see a nipple on broadcast. Rather than argue about the relative merits of letting people see nipples or watch porn, we should be arguing that broadcast as a means of distribution should be treated similarly to cable as a means of distribution and leave the nipples out of it.
Speech as Place
Searls next speeks of freedom of speech with as a mixture of the personal and place:
Speech, as the founders conceived it, was something that happened among people, in society. It had a place: the street, the parlor, the town square, the village commons. Even when published, by a press, it was still personal. Take the example of Franklin's original blog, Poor Richard's Almanac. It was a form of printed speech that grew and spread like a weed on the lawn of the marketplace. But popular as it may have become, it was still "speech" because it was personal. People speak. "Content" doesn't. It's just cargo. And you can regulate the crap out of cargo.
....My point: a bar is a place. Free speech happens in a place. The very presence of a local bar on everybody's radio both offends and threatens the shipping mentality of the mediocracy — a group that includes not only giant mutant transport companies like Clear Channel and Viacom, but also its allied lawmakers and regulators: Congress and the FCC. That's why the latter feel just fine "controlling" what "goes out" through "the media" as if all of it were container cargo.
But what are these places? They are channels for distribution. The sidewalk is a place, sure, but it is a means of distribution too. It is a public place where I can speak to those citizen nearby and the government has very limited means to restrict what I may say through that means of distribution. Today, we don't have physical places, we have virtual channels. If you are reading this, you aren't reading in a particular place, you are receiving this communication through a particular channel, whether HTTP, RSS or something else. Rather than confusing ourselves with imperfect analogies to physical spaces, we should embrace the immateriality of "channels."
You know, container cargo is a great analogy for my point of view. The wonderful thing about the container ship revolution was that ships no longer really had to care about what sort of content they were carrying: electronics in one container, furniture in another, clothing in another, the ship doesn't have to worry about it or care. They just stack the undifferentiated containers. Before container ships you really had to worry about what went next to what and even more regulation was involved.
Nor does speech have to be personal to be worthy of protection. Even impersonal speech is worthy of protection. Indeed, sometimes it is the most impersonal speech that is the most powerful and important. Personal, impersonal ... it isn't the content of speech that we should be concerned with. We should treat all speech the same.
As I've argued previously (It's Freedom of the Press, Stupid), I believe that one of the critical elements of our free speech doctrines is the limitations the First Amendment puts on government's ability to regulate distribution of information. The real problem here is that the government has totally messed up how we should regulate broadcast. I would prefer something based on my formulation:
The government shall neither create nor sustain a monopoly carrier in the distribution of speech that discriminates in what it will or will not carry.
UPDATE
Jeff Jarvis responds (The Daily Stern: PM edition).
I must admit it is very frustrating to read, frankly, ignorant security columns on the op-ed page of America's most prestigious newspaper, the New York Times (reg. req.). Columnist Nicholas Kristof is the culprit this time, with a couple of half-baked security measures (May I See Your ID?). In response I ask Kristof, may I see your security analyst credentials?
The first idea is, as the title gives it away, a renewed call for a national ID card. Argues Kristof:
If the right is willing to imprison people indefinitely and send young people off to die in Iraq in the name of security, then why is it unthinkable to standardize driver's licenses into a national ID?
This is an argument, why?
Hey, I'm not too happy with the imprisoning people indefinitely thing either (at least without, you know, some judicial process), but Guantanamo makes national ID cards a good idea how? And sending troops overseas to war justifies national ID cards at home because...? Let's try that argument again: "If the right is willing to send young people off to die in Afghanistan in the name of security, then why is it unthinkable to standardize driver's licenses into a national ID." Make any more sense?
More than 100 nations have some kind of national ID card. And the reality is that we're already moving toward a government ID system — using driver's licenses and Social Security numbers to prove who we are — but they neither protect our privacy nor stop terrorists. Instead, they simply promote identity theft.
You might think he would have made a stronger case in favor of a national ID card before he brings out the "everyone else is doing it" argument. You know, identity theft is a serious problem. National ID cards solve this how? Many security experts believe that they may, in fact, exacerbate the identity theft problem. A real security expert, Bruce Schneier, wrote, in Crypto-Gram Newsletter - December 15, 2001 - National ID Cards:
Identity theft is already a problem; if there is a single ID card that signifies identity, forging that will be all the more damaging. And there will be a great premium for stolen IDs (stolen U.S. passports are worth thousands of dollars in some Third World countries).
But, whatever, Kristof continues:
At least seven of the Sept. 11 hijackers, some living in Maryland hotels, managed to get Virginia ID cards or driver's licenses, which can be used as identification when boarding planes. Americans routinely travel to and from Canada, Mexico and the Caribbean with just a driver's license.
And I guess that foreigners won't be allowed to get these ID cards and will not be permitted to live in Maryland hotels? Of course, we will have to issue some sort of identification to foreigners ... and we all know how reliable the identity paperwork from foreign countries is. As Scheier notes, "Some of the 9/11 terrorists who had stolen identities stole those identities overseas." Yep, national ID cards will stop that.
Some U.S. officials privately fret that security may depend on a harried immigration officer in Maine who is handed a forged Guam or North Dakota driver's license. One undercover federal study underscored the vulnerability last year by using off-the-shelf materials to forge documents that were then used to get driver's licenses in seven states and the District of Columbia. The forgeries worked in each place attempted.
And having a national ID card will stop people from forging documents to get the licenses how? And I guess that Kristof is guaranteeing that relying on a single national ID card won't lull that harried Maine officer into complacency?
So why not plug this hole with a standardized, hard-to-forge national ID card/driver's license that would have a photo, a fingerprint and a bar code that could be swiped to check whether the person is, for example, a terror suspect who should not be allowed onto a plane?
Yeah, because we know who the terror suspects are and terror suspects are happy to properly register themselves with the government. They also, when asked politely, explain to the airline counter clerk that, yes, someone else packed their luggage and they are carrying gifts for strangers. And from Schneier again, "Biometric information, whether it be pictures, fingerprints, retinal scans, or something else, does not prevent counterfeiting; it only prevents one person from using another's card. And this assumes that whoever is looking at the card is able to verify the biometric."
Schneier summed up the national ID issue best I think:
I am not saying that national IDs are completely ineffective, or that they are useless. That's not the question. But given the effectiveness and the costs, are IDs worth it? Hell, no.
Kristof's other concern is with the availability of instructions for creating weapons of mass destruction:
The other area where I'd like to see a tougher approach has to do with "cookbooks" to make anthrax, sarin and other chemical, biological or nuclear weapons. Over the last few years, I've collected a horrifying set of booklets, typically sold at gun shows or on the Internet, detailing how to make mustard gas, VX, anthrax or "home-brew nerve gas."
....Sure, I cherish the First Amendment. But remember what Alexander Bickel, the eminent First Amendment scholar, told the Supreme Court when he argued on behalf of this newspaper in the Pentagon Papers case. Pressed by the justices on whether publication could be blocked if 100 Americans would certainly die as a result, he reluctantly agreed: "I am afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment."
Funny quote from Bickel, that. Why, if I knew for certain that Kristof's column would lead to certain death for even one person, let alone 100, I would have to agree with Kristof that "In these exceptional circumstances, we are — I hate to admit it — better off banning books."
Now, whether or not it should be legal to publish information about making WMDs is a serious question and one that shouldn't be addressed lightly. But lightly, in a few paragraphs, is how Kristof deals with it. He couldn't even write an entire column on the issue? There are many questions he doesn't even raise, such as, how and where do you draw the lines on such information? Is a recipe for ricin bannable? What about flight simulator software? What about dual-use items?
Maybe, for certain types of exceptional information, we should have more control. But to simply come out and say, "we are ... better off banning books" is not a terribly compelling argument by itself. I am surprised that the New York Times is the source for this perfunctory argument in favor of censorship.
The New York Times (reg. req.) reports on an amazing research finding - those who buy highly partisan books are likely to buy more highly partisan books! At least that is all I was able to get out of the article which hypes a rather pedestrian study (Study Finds a Nation of Polarized Readers). The article reports on a recent study by social networking guru Valdis Krebs. The study can be found here: Divided We Stand... Still. Would it kill the NY Times to include a link or URL? This study is a followup on an earlier report (Divided We Stand???) as well as a white paper on book networks (The Social Life of Books). From the study the NY Times is referring to:
From the New York Times Bestseller List, I selected political books as starting points for 'snowball sampling'. Two books are linked in the network if they were purchased by the same person -- "Customers who bought this book also bought: ". Many of the books have changed from last year but the overall pattern is the same. The pattern reveals two distinct clusters with dense internal ties. These political books are preaching to the converted. The extreme book titles on both sides reveal a focus on hate, instead of debate.
While interesting, just how surprising is this finding? First, the political books are selected from the New York Times Bestseller List. Not to knock bestseller lists, but what sort of books make it to the top? I doubt that audience-challenging, even-handed books of any complexity are likely to compete with simple-minded polemics that cater to existing prejudices.
Of course, if you are in market for buying partisan polemics, are you really interested in even-handed books? I would think it is sort of a self-selecting sample. That isn't the way Krebs looks at it though:
(Of course, it is always possible, he [Krebs] concedes, that undecided voters aren't reading political books at all, that they simply "can't stomach either side.")
My centrist political views may not be the norm, but I'm certainly not unique. I'm interested in real debate about issues, not simply confirmation of my own point of view. Consequently, I will no more spend money on Dude, Where's My Country? then on Deliver Us From Evil. Let's face it, most of these books are crap. All the rhetorical fallacies are there: straw man arguments, ad hominem attacks, and the ever-popular argumentum ad odium (argument directed to hatred), among others. Why would someone who is interested in honest debate be interested in these books? Maybe undecided voters are reading political books that, while less popular, are not partisan polemics.
Speaking of rhetorical fallacies ...
Mr. Krebs, who got similar results when he conducted the same experiment last year, calls this pattern the "echo chamber" effect: for the most part, he found, buyers of liberal books buy only other liberal books, while buyers of conservative books buy only other conservative books. This finding appears to buttress the argument made by Cass Sunstein, a law professor at the University of Chicago, in his influential study "Republic.com" (Princeton University Press, 2001) that contemporary media and the Internet have abetted a culture of polarization, in which people primarily seek out points of view to which they already subscribe.
Does this study really buttress the argument of Cass Sunstein in Republic.com? I don't think so. Sunstein was complaining about the potential of too much personalizing of sources of information through the internet, such as a "daily me" newspaper. His concern was with new technologies, in particular, their potential for individual customization. I don't really recall Sunstein concerned about dead tree media. Now, it may be that internet polarization (even assuming such a thing) is increasing polarization in other media, but this study provides absolutely no evidence of this fact. Call me crazy, but I rather suspect that partisan political polemics through the ages have mostly appealed to partisans and were seldom purchased by the partisans on the other side of the argument. For example, I don't think that many copies of the abolitionist The Liberator sold in the antebellum South.
Unfortunately, we don't have Amazon's databases for much of our history. If similar databases do exist it would be interesting to see if they show a similar pattern. I, for one, would be most surprised if they showed that McGovernites were frequent purchasers of Nixonian apologias.
Of course, if the study does support Sunstein's argument, perhaps we should extend his call to have links to dissenting viewpoints not only the internet, but in books. Perhaps Michael Moore's publisher could include blurbs for Bill O'Reilly's books in Moore's latest. Or perhaps Sunstein's publisher's page of reviews for Republic.com could include some reviews that might have disagreed with Sunstein's conclusions? Now that would be an unplanned encounter.
via Furdlog (but don't read him, because he and I agree frequently)
Findlaw's Modern Practice's Anita Ramasastry has written a column on the recent California appellate decision upholding the city of Garden Grove's requirement that cybercafes maintain surveillance cameras (Can a City Require Surveillance Cameras in Cybercafes?). She is disapproving of the decision and cites the dissent's comparison of Garden Grove's actions with those of dictatorial governments. I've written on the decision extensively here: CyberCafe Ordinance Decision - First Amendment Victory - Privacy Defeat.
via Ernie the Attorney, whose response to this privacy invasion is incredulity
If you care about freedom of expression, go read the latest Jeff Jarvis on the whole FCC/indecency mess (The daily Stern - March 10, 2004). This especially ticks me off:
Howard Stern's source in the FCC tells him today that there have been meetings at a high-level in the agency strategizing when to fine Stern based on the impact it would have on the election of George Bush. Some argue that fining him now will make him a martyr and help him rally voters against Bush; others say not fining him will make him look like a boy who cried wolf; others say they should get rid of Stern now because, to their surprise, much of his audience does vote. and he can have an impact on the election.
If that is true, that that could not be a clearer violation of the First Amendment: an agency of government using fines for political ends to affect political speech.
If that is true, if any such discussion occurred in the agency, then they should be hauled before Congress or courts right now.
Amen!
There is much, much more from Jarvis. Read it all.
Senator Fritz Hollings (D - SC), aka "the Senator from Disney", has for the seventh time introduced legislation against television violence (Hollings’ TV Violence "Safe Harbor" Legislation Approved by Commerce Committee). Read the summary of the bill here: BACKGROUND: Senator Hollings' TV Violence "Safe Harbor" Legislation, which claims, among other things, that:
The legislation is narrowly targeted to comply with Constitutional scrutiny. The "safe harbor" legislation does not prevent broadcasters from offering violent programming. It simply directs those programs to hours when most children are not watching – the same way the FCC treats "indecent" programming today. Courts have upheld the regulation of indecency, and furthermore, Attorney General Janet Reno and several Constitutional scholars have testified that the "Children's Protection from Violent Programming Act" would be "constitutionally permissible." If children can be constitutionally protected from indecent material, they should also be protected from gratuitous violence.
Since the Senator is retiring I doubt we will have to worry about this never-gonna-pass legislation being introduced an eighth time.
Perhaps he can append the legislation to the flag burning amendment, which Hollings has voted for in its previous incarnations. The Hartford Courant (reg. req.) editorializes about this ridiculous assault on freedom of expression here: Has Anyone Seen A Flag Burn?:
In reality, the flag-burning amendment is a solution in search of a problem. Does anyone remember seeing flag desecration recently? Ever? Such deplorable incidents are rare, and can be handled with local vandalism laws unless the desecrator owns the flag in question.
via Buzzmachine and How Appealing
John Palfrey uses his blog to summarize what sounds like an extremely interesting lecture by a visiting scholar to the Berkman Center (Prof. Jean Nicolas Druey: "Information Cannot be Owned"). The post is somewhat unclear, but it seems to be an attack on the "property" concept of information and that what is important is not regulations of the substance of the communication, but rather, regulation of the channel of communication.
Hmmm ... I would definitely like to know more. Seems very similar to what I've been saying for a few years now, such as:
It's Freedom of the Press, Stupid
It's All About the Distribution, Stupid
Senator Zell Miller (no relation, thank goodness) (D - GA) (is that really a "D"?) has introduced a bill to levy heavy but variable fines on those involved with broadcasting indecency on the public airwaves. Read the press release: Miller Introduces Bill to Crack Down on Indecent Broadcasts. Read the bill: S. 2147.
In the colorful language of a Southern caricature stereotype Senator, the bill is described thus (I am not making this up):
This is a tough bill, and it’s meant to be. It is not a little Red Ryder BB Gun like most of the proposals I’ve seen. It is a double barreled 10 gauge shot gun loaded with buckshots [sic] that will hit all of those involved when its trigger is pulled.
The collected fines would pay for the costs of administering the program with the remainder going to "faith based programs selected by the Faith Based Initiative Office of the White House."
In addition to the fines, the Senator's bill would create a nine-member "Council of Decency" made up of 3 ministers, 3 teachers and 3 media representatives. The council is obviously designed to be the arch-nemesis of the "League of Obscenity," which coincidentally is made up of 3 ministers, 3 Senators and 3 media representatives.
James Grimmelmann of LawMeme refers to members of the proposed council as "Decency Nazgul" (Sen. Miller: Raise Fines for TV Indecency, Give the Money to Churches). I think this is unfair to the nine ringwraith servants of the dark lord.
I'm talking to you, FCC Commissioner Kevin J. Martin.
According to a Reuters wirestory posted on Infoshop, Martin wants the FCC to consider regulating indecency on satellite and cable (FCC's Martin ponders indecency on pay TV, radio).
Let me think about that ... um, no.
"Cable companies need some way to empower parents and families to have more choice," Martin said. "I think that it has the potential to be a problem when they are receiving things they object to and have to pay for that."
It's called stop paying for cable, Martin. It's called a lockbox, Martin. Its called the First Amendment, Martin.
What a maroon.
Yesterday, Prof. Jack Balkin wrote a short post on his view of the purpose of freedom of expression in response to David Bernstein (Save Freedom of Speech, Get Rid of Public Universities?). Bernstein doesn't respond in depth (too busy), but notes the post as an example of "what the brightest minds on the left are thinking on such topics" (Balkin on Free Speech).
I believe that Balkin's view of the purpose of free speech being to promote democratic culture as absolutely spot on, and take exception to Bernstein's suggestion that this is a view from the left. Balkin may rightly be called a "leftist", but his views on freedom of speech are classically liberal, though not libertarian. For example, Balkin doesn't particularly privilege one type of speech over another (as Meiklejohn does), but sees participation in culture as a critical element. This doesn't seem to me particularly leftist, especially given the success of conservatives and rightists in taking advantage of democratic culture (i.e., right-wing bloggers and South Park Republicans).
Furthermore, Balkin believes that "freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression." In my view, this is obvious. Intellectual property law, telecommunications regulation, the postal service and even property law (to name but a few) all have profound implications for freedom of expression. Even so-called "content neutral" regulations can substantively alter our free speech rights. For example, the choice between end-to-end and centralized communications architectures are content neutral. However, they are not substantively neutral. One architecture will promote democratic freedom of expression values better than another. It hardly seems to me that this view of freedom of expression is leftist.
If you would like to know what the brightest minds, period, are thinking on such topics as freedom of expression and universities, Balkin's piece is a good place to start.
The Trademark Blog posts a interesting disturbing image of Miss Piggy with a breast baring pose obviously reminiscent of Miss Janet at the Super Bowl (Warning: the image may upset the sensitive) (Parody - Discuss Amongst Yourselves). Marty asks whether the image is a non-infringing parody (which comments on Miss Piggy) or an infringing satire (which merely uses Miss Piggy to comment on Miss Jackson). The case is point is the famous Dr. Seuss case which held that a satire of OJ Simpson in the style of Dr. Seuss was infringement.
Tech Law Advisor is quick to take up the discussion and quickly concludes that (Not Parody):
Miss Piggy baring her breast does not comment on Janet Jackson's exposed breast. The work shown here is quite simply infringement.
The problem here as in the Dr. Seuss case that Marty cites is that the supposed parodist merely use the work [Miss Piggy] as a vehicle to satirize something completely different [Miss Nasty]. [comments/links in original]
I disagree. To me this is a fairly clear case of parody of a parody.
Miss Piggy, afterall, is a sanitized, child-friendly parody of celebrity divadom, of which Miss Janet Jackson is an example. Miss Piggy was originally called "Miss Piggy Lee" after diva singer Peggy Lee. Since then, Miss Piggy has vamped in parodic versions of Calvin Klein, Guess? Jeans, Pulp Fiction, Sports Illustrated Swimsuit Edition, and Pretty Woman, not to mention so many, many others, including a Pigtoria's Secret shoot.
Miss Piggy clearly is meant to parody the sexuality of modern female celebrity-dom. Nevertheless, like all the Muppets, Miss Piggy's parody is sanitized for family consumption. Clearly, such sanitized family entertainment is itself ripe for parody, see, for example, directorial genius Peter Jackson's Muppet parody Meet the Feebles, in which Muppet-like creatures do drugs, porn and engage in other degenerate acts.
How better to parody Miss Piggy then to push her parody of female celebrity-dom into the realm of the absurd? The humor of this parody lies not simply in its reference to Janet Jackson's breast episode, but to our recognition of Miss Piggy as following in Janet's footsteps (as Miss Piggy has followed in the footsteps of so many other divas). The image is funny because it pushes our expectations of the sanitized parody of Miss Piggy beyond what her creators would have chosen. In the words of the Dr. Seuss decision, this image of Miss Piggy "mimics an author's characteristic style and holds it up to ridicule."
John Palfrey takes an interesting and brief look at CBS's decision to air non-controversial issue ads, but not controversial ones, such as the MoveOn.org anti-Bush contest winner (Is anti-smoking not an issue?). Palfrey's intutition seems to be that there is something wrong with CBS's decision, though under existing law it is clearly constitutional. For example, Palfrey points to Marsh v. Alabama, a company-town case. Although it isn't legally on point, Palfrey seems to be making an analogy to the Super Bowl because of the game's incredible popularity. Just as it is bad policy for a company-town to restrict the pamphleteer, so it is bad policy for CBS to restrict its television commercial sales for the extremely popular Super Bowl (though Palfrey is not claiming it is unconstitutional).
I agree with Palfrey's intutition that what CBS is doing is wrong. However, I don't think the problem has anything to do with the Super Bowl (should speech be more subject to regulation because it is popular?), but with our telecommunications regulatory scheme in general. Broadcasters, cable and satellite networks have the power to discriminate because the government has given them that power. Speakers, of course, should have the right to discriminate, that is what freedom of expression is all about. However, broadcasters, cable and satellite networks are not merely speakers but distributors as well. Of critical importance is that these networks are the creation of government regulation.
As I've argued previously, creating and maintaining such distribution monopolies is precisely one of the things the First Amendment was meant to prohibit (It's Freedom of the Press, Stupid). Letting broadcasters descriminate in what they will broadcast is like letting Chevrolet build a bridge on public land and then decide what cars get to cross it, or having railroads built using eminent (I almost wrote, "public") domain and then deciding who gets to transport goods via train. Interestingly, a similar analogy is used in Marsh v. Alabama, noted above:
Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. And, though the issue is not directly analogous to the one before us we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. [emphasis added]
Palfrey ends his post with this:
But, leaving the Constitutionality question aside, and thinking hard about the relevant policy questions, I'm still unconvinced that CBS is wholly in the right on this one.
The whole brouhaha about the boorish publicity stunt pulled off by Janet Jackson and Justin Timberlake during the Super Bowl Halftime Show is truly pathetic. Janet, Justin, CBS and MTV are getting exactly what they want, oodles of free press coverage that touts them as somewhat daring or something. Even better, as they probably calculated, the FCC is now helping out by launching an expensive taxpayer-funded "investigation" into the stunt that will produce little in the way of information or deterrence, but will provide for even more coverage and give politicians and FCC Commissioners/Politicians an opportunity to prove their cultural conservative bona fides. See, FCC Chairman Michael Powell's statement: FCC Chariman Powell Calls Super Bowl Halftime Show a "Classless, Crass, Deplorable Stunt." Opens Investigation [PDF].
Of course, if the Super Bowl had been broadcast on cable, there most likely would have been some controversy over the baring of a partially concealed breast for a couple of seconds, but there certainly wouldn't have been any call for an investigation into the act by the FCC. Why? A little thing called the First Amendment, that only partially applies to broadcast, apparently. We should abandon this asinine "indeceny" policy that only applies to broadcast and I certainly agree with the following statement on the issue:
I want to also say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. I sincerely question how long we can continue to maintain in the face of technological convergence that broadcasting is uniquely undeserving of full First Amendment protection. Technology has evaporated any meaningful distinctions among distribution medium, making it unsustainable for the courts to segregate broadcasting from other medium for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.
Larry Lessig has written a brief note about a California Appeals Court decision that eviscerated privacy rights in cybercafes (mandated telescreen upheld). There is a Law.com article here (Internet Cafe Ordinance Sparks War of Words). Read the decision (Thany Thuy Vo v. City of Garden Grove [PDF]). The issue that has Prof. Lessig rightfully incensed is an operational requirement for cybercafes that forces them to monitor (read over the shoulder) what people are doing on cybercafe screens, whether it is reading email, browsing the web or playing a game of Counter Strike. However, there are other major issues involved and the decision has some very important victories in it for those who care about the First Amendment.
The ordinance in the City of Garden Grove was initially passed as a typical political overreaction to some isolated violence associated with a handful of cybercafes in the city. Places where young people, particular young males, spend time are almost always suspect in the eyes of older citizens. Cybercafes attract many young males. Think this revised chorus from "The Music Man":
Trouble, oh we got trouble,
Right here in Garden Grove City!
With a capital "T"
That rhymes with "C"
And that stands for Cyber,
That stands for Cyber.
We've surely got trouble!
Right here in Garden Grove City,
Right here!
Gotta figger out a way
To keep the young ones moral after school!
Trouble, trouble, trouble, trouble, trouble...
The evidence of trouble in Garden Grove City was basically anecdotal:
By memorandum of December 31, 2001, Joseph M. Polisar, the city’s chief of police, advised the city manager of the rapid growth in the number of CyberCafes operating in the city. In the space of two years, the number of these establishments had risen from three to a total of twenty. Polisar’s memorandum detailed seven incidents of criminal activity occurring in or near four different CyberCafes during the last three months of 2001. Five of the seven incidents involved gang activity. The most recent incident, occurring the day before the memorandum was written, was the murder of a 20-year-old male while he was standing in front of a CyberCafe. Polisar also reported that patrol officers were finding school aged children at these establishments during school hours, and he expressed concern about minors being able to access inappropriate and dangerous web sites. Polisar concluded: “[T]he Police Department believes that it is vital that the City enact an ordinance regulating the use of ‘Cyber Café’s [sic].’”
Heavens to Betsy! A whole seven incidents of crime! The murder was a terrible thing, but people are frequently murdered outside many other establishments as well. And my, oh, my, minors might access inappropriate dangerous web sites. Someone ought to do somethings about those libraries and schools, where children might also access inappropriate information. Seriously, read the dissent for an analysis of how much "trouble" these cybercafes really create. The original "study" by the police was a joke. For example, there are no baseline comparisons to similar business or general crime rates. If this sort of "study" were valid, one could find that any business was dangerous to the well-being of the community. Do you know how many shoplifting violations stores create?
In any case, the ordinance was passed and attacked the "problem" several different ways, with zoning and other permit requirements. The first ordinance was clearly not going to pass judicial muster, so the city revised it. The revised ordinance is what the decision considers.
One of the most important parts of the decision is that the court declares quite clearly that cybercafes enjoy First Amendment protections, much as book publishers and movie theaters:
We perceive no rationale by which CyberCafes should be accorded less protection than any of these older or more traditional businesses. As the court below aptly observed, “The targeted business is a gateway to the information super highway [—] the modern new location for information’s dissemination.” [citation omitted]
This may seem obvious (because it is), but it hasn't been obvious to many courts previously. Most of the regulations of cybercafes has been based on regulations similar to those for videogame arcades and penny arcades. Most courts have not found that videogame arcades and penny arcades have protected First Amendment status. You see, games aren't protected speech, apparently. Anyway, since cybercafes also provide access to email and the internet, regulation aimed at them does raise First Amendment issues. It would have been nice to see language about videogames being covered by the First Amendment too, this is still a significant victory.
One of the reasons is that regulation aimed at First Amendment protected businesses must beat a slightly higher standard of judicial scrutiny, as opposed to regular businesses which can be regulated almost at a whim. For example, regulations of First Amendment protected businesses must be regulated according to "objective measurement." Which doesn't mean really "objective" but does mean there can't be too much leeway for the regulators making the decision. Basically, business regulations must meet a somewhat special version of the same test used for "time, place and manner" speech restrictions.
Conditional Use Permits
Probably the most important aspect of the ordinance, from an immediate, practical point of view, was the requirement that cybercafes needed to have a Conditional Use Permit (CUP). A CUP is basically a zoning regulation that lets a city veto (through a public hearing process) particular businesses that would otherwise be permitted. Obtaining a CUP can be very expensive, time-consuming and easily turned down, even after one has gone through all the trouble of applying for one. Typical CUP ordinances can be quite vague and arbitrary. For example, here is a passage on CUPs from the city of Los Angeles:
In approving any conditional use, the decision-maker must find that the proposed location will be desirable to the public convenience or welfare, is proper in relation to adjacent uses or the development of the community, will not be materially detrimental to the character of development in the immediate neighborhood, and will be in harmony with the various elements and objectives of the General Plan.
What the heck does the above mean? What it means is that a CUP can basically be denied if the decision-maker (frequently the head of zoning) doesn't like your business. This can be very troublesome from a civil liberties point of view, especially when one is regulating First Amendment protected businesses. Luckily, the California Supreme Court has held that "A long line of decisions has held unconstitutional ordinances governing the issuance of licenses to conduct First Amendment activities where administrative officials were granted excessive discretion in determining whether to grant or deny the license."
Accordingly, the court completely invalidated the City of Garden Grove's CUP-based regulations as applied to cybercafes.
This is an important victory because cybercafes throughout the state are being regulated, primarily through the CUP process. Indeed, in the city of Los Angeles itself, the city is using CUPs to regulate cybercafes under an antiquated statute for "penny arcades." CUPs have been challenged by videogame arcades as violating the First Amendment previously, but have always lost.
Daytime Curfew for Minors
Here the court allows the city to deny minors access to cybercafes during school hours unless accompanied by a parent or guardian. Without going into detail here, let me make a few quick points:
Employee and Security Guard Requirements
The city requires at least one employee over the age of 18 (and an additional employee if there are more than 30 computers), as well as a security guard on Friday and Saturday evenings from 8pm to 2am. The court decided that these requirements were narrowly tailored to prevent gang violence. I believe they are correct on the age of 18 requirement. However, there was never any evidence of gang violence at more than a few of more than 20 different establishments. It hardly seems narrowly tailored that all cybercafes should be burdened with expensive, state-licensed security guards when there may only be problems at a handful of similar businesses. Moreover, the burden is substantial. Cybercafes are not major profit centers generally speaking, and the additional cost associated with more employees and security guards can mean the difference between a marginally successful business and an unsuccessful business.
Privacy
Here the decision really is Big Brother-ish. The court describes the ordinance thus:
section 8.82.020, subdivision (8) to the Garden Grove Municipal Code, ... requires CyberCafes to install a video surveillance system. The video system must be “capable of delineating on playback . . . the activity and physical features of persons or areas within the premises,” and must “cover all entrances and exit points and all interior spaces, excepting bathroom and private office areas.” “The system shall be subject to inspection by the City during business hours” and “[t]he videotape shall be maintained for a minimum period of 72 hours.”
The court concludes and the City of Garden Grove stipulates, that the information collected can only be turned over to authorities according to legal process, such as a search warrant. That is fine as far as it goes, though the ordinance could have been a little more clear on the point. However, that is not really the issue.
The issue is whether the government needs legal process to obtain certain information, but whether the government can require First Amendment protected business to create and retain such information in the first place. Yes, if information is being gathered and stored about First Amendment activities, of course the government should have to use legal process to obtain that information. But should the government be allowed to require the maintenance of such records in the first place? According to this decision, that isn't even a question.
Whatever that [privacy] interest is, it surely is not “fundamental to personal autonomy.” People don’t do things “fundamental to personal autonomy” in a public retail establishment. The dissent throws the reader off track by confusing the privacy issue with the free speech issue, asserting that CyberCafes “are the poor man’s printing press and private library.” As we have pointed out in the majority opinion, reasonable expectations of privacy in the setting of a CyberCafe are simply not present.
The court even goes so far as to say that the presence of human surveillance, such as the employee or security guard, is the same as the unblinking eye of a video camera:
Turning to what the video surveillance portion of the ordinance does say, we are not persuaded the video surveillance system affects First Amendment activity any more than does the presence of an adult employee and/or security guard.In a footnote, the court jests at any concern:
If an employee had a 72-hour photographic memory, would we make him unemployable because his presence would invade the privacy of the customers?
Apparently, this distinction is of no consequence to the Constitution:
That the video system has a 72-hour memory that may be better than the short-term memory of the average security guard, customer, or employee is not a distinction of constitutional significance on First Amendment grounds.
The court goes on to analyze the privacy rights according to the California State Constitution. The court basically finds that:
A person’s physical features are not “confidential,” nor are activities on the premises of a public retail establishment. No legally recognized informational privacy right can attach to either. Nor can it reasonably be understood that the observation of persons using a computer in a CyberCafe involves intrusion either on the making of an intimate personal decision or on the conduct of a personal activity. Plaintiffs do not explain why observation by a video camera intrudes on privacy any more than observation by employees or other patrons.
The closest analogy I can think of to show how wrong-headed this decision is, is to public telephones, which are frequently located on the premises of public retail establishments. Additionally, it happens that conversations on such public telephones might be observed (heard) by employees or other patrons (particularly those who are waiting in line to use the public telephone). Nevertheless, would it therefore be permissible to require all public telephones to be wiretapped and the recordings held for 72-hours? In Katz v. United States, the Supreme Court said wiretapping a public telephone booth was a violation of the Fourth Amendment. The telephone booth in question was enclosed in glass, but I don't think the decision would have been different if the telephone had been in an open booth. I certainly don't think the Supreme Court would have allowed pre-emptive wiretapping of all public telephones.
No More Privacy - Get Used to It
Of course the decision in Katz was also based on a "reasonable expectation of privacy." But apparently, we no longer have any reasonable expectation that we are not constantly under video surveillance in all public areas.
A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” With the near ubiquitous use of video surveillance in retail establishments, at automated bank teller machines, and at road intersections, it is difficult to imagine, certainly at the preliminary injunction stage, that the customer’s expectation of privacy is reasonable under the circumstances.Wow. I'll say it again, wow. Now we have to prove that we don't expect to be constantly videotaped in public.
The Dissent
Highly recommended reading. The dissent is a blistering attack on the majority decision and I must say the judge really does seem to understand what is going on. The dissent discusses blogging, for example, and cybercafe regulation in totalitarian societies, such as China and Vietnam. If you are interested in privacy, read it.
Prof. Jack Balkin has made a couple of good posts about freedom of speech, democracy and blogging (What I learned about blogging in a year and Political Organization and Political Discussion on the Internet). The posts are mostly in response to Cass Sunstein's wildly overblown fears of internet-facilitated cultural isolation in Republic.com and a recent article in the New York Times that has a similar thesis (Politics of the Web: Meet, Greet, Segregate, Meet Again).
Frankly, I've never really understood Sunstein's fears. It seems to me that we have far more to fear from the mass media, whether that mass media was the Catholic Church prior to the 95 Thesis or that mass media epitomized in The Triumph of the Will. I think the major conceptual problem with Sunstein's thesis is that he seems to assume that people are mostly passive consumers of information. This is one of the critical elements of the traditional mass media model. In the past, mass media has generally been dependent on top-down control of the means of production and distribution to fill the minds of passive consumers. Today's internet media doesn't eliminate the traditional model directly, but provides a competing means for bottom-up production and distribution that assumes active participation and production by people who aren't merely passive consumers.
In many ways, actually, the top-down and bottom-up means of production and distribution are complimentary, which is why Sunstein's calls for some sort of top-down control over the bottom-up internet strike me as so odd. Sunstein's thesis makes sense only to the extent that the public cannot be trusted (whether for social, technical, economic or legal reasons) to be both consumer and producer, recipient and distributer. If there are problems, the solution seems to be to give more capability to consumers to produce and distribute, rather than attempt to replicate mass media controls.
Reuters has an important story in the DeCSS saga (Supreme Court Unscrambles DVD Decision). Apparently, two weeks ago the Supreme Court of the United States reversed an emergency stay on the Pavlovich DVD case. Pavlovich, a resident of Texas, had successfully contested jurisdiction (as determined by the California Supreme Court) in a trade secrets case brought in California. The DVDCCA had claimed posting DeCSS violated their trade secrets. According to Reuters, "In the latest ruling, U.S. Supreme Court Justice Sandra Day O'Connor lifted the injunction, saying there was no need to keep DeCSS a secret." This is a major blow to the trade secrets case, though not to the DMCA case (see, EFF's MPAA DVD Cases Archive).
I wonder though, if the emergency stay was lifted Jan. 3, why haven't I heard about it before?
Read about the history of the case on EFF: DVDCCA Case Archive: Pavlovich.
C|Net News has published a Reuters wirestory on yet another First Amendment-violating anti-violent games law (Florida city targets computer game violence). Mayor Joe Celestin of North Miami City is apparently offended by the line "Kill the Haitians" in the videogame Grand Theft Auto: Vice City, calling the phrase "incitement" to violence.
Retailers would be fined (up to $500/day for repeat offenders) for renting or selling violent videogames to minors without parental permission (although one wonders why anyone should have access to the games is they are "incitement"). Violent videogames being games in which players kill or cause harm "to a human form." This is sooo not-Constitutional.
There is a great quote in the story:
"Have they ever watched Cartoon Network?" North Miami video store owner Bob Richardson told the Miami Herald newspaper. "It's the most violent network on television."
Grand Theft Auto: Vice City was partially inspired by the classic Al Pacino movie Scarface, which had the following quote, which seems apropos.
You wanna waste my time? Okay. I call my lawyer. He's the best lawyer in Miami. He's such a good lawyer, that by tomorrow morning, you gonna be working in Alaska. So dress warm.
One of the main reasons that Hollywood has been such a proponent of DRM (such as fighting to protect CSS) is not simply to protect against internet movie piracy (which remains a minor irritation at best), but to protect region coding, which allows movie studios to release the same DVD in different markets at different times, or slightly different DVDs in different markets. This form of price discrimination is a traditional means for copyright holders to maximize revenue, but in the digital age requires major restrictions on consumers to make it work. So, for example, if someone from the US buys a DVD while on vacation in Europe, they won't be able to play it back in the US.
Hollywood, of course, would love to have region coding even further mandated by law and international treaty, but if they are successful, they may not like the ultimate results.
The Competitive Enterprise Institute has a brief article on efforts by some ministers of culture to have cultural goods exempted from free trade agreements (The New Protectionism). The organization in question, International Network on Cultural Policy (INCP), seeks to help countries "develop strategies to promote cultural diversity," which generally means excluding US cultural products to some degree.
How interesting it would be for the INCP to take up the banner of region coding in order to enforce restrictions on the flow of cultural goods. This is really not that far fetched. DRM is a wonderful tool that governments can use to enforce all variety of censorship.
Prof. Larry Solum discusses a recent panel on copyright at the annual meeting of the Association of American Law Schools on Legal Theory Blog (Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment). His brief notes are a good starting point for looking at and discussing various threads regaring the intersection of the First Amendment and copyright law. Of course, his post serves to make the point that right now there is no coherent theory, nor is there a consensus as to how we will move towards one.
Of particular interest is the discussion regarding Originalism and the relation between the First Amendment and copyright law. Taking off on Prof. Neil Netanel's fairly mainstream view that the First Amendment acts as a restriction on a plenary (Solum's word) copyright power, Solum proposes an alternative (with an evocative metaphor), that the copyright power is a an island of power in a sea of liberty. Very interesting, though I am not convinced. Scrivener's Error replies to Solum and has some very good points (Originalism, Copyright, and the First Amendment).
I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution ... that they can all be analyzed through the lense of rights of distribution.
As CNN notes in an otherwise slow newsday, porn is a popular business on the internet (Sex sells, especially to Web surfers). However, see Seth Finkelstein's dissection of the "report" CNN is relying on (N2H2 "State Secrets" - PR and lying with statistics [part 1]) and (CNN, "web porn", and censorware PR Managers).
Regardless of the validity of the report, it is undisputed that pornography is popular on the internet, including P2P networks (of course, porn has been popular in every medium). Note, that contrary to some claims, pornography hasn't been shown to be more of a problem on P2P networks than the internet generally as a leaked GAO memo obtained by TechNewsWorld concludes (U.S. Congress: P2P E-Smut 'Not Necessarily' More Dangerous than Other Forms).
In any case, the debate over compulsories has raised a serious barrier to their implementation - the political unpopularity of systems which will provide cross-subsidization for pornography. In other words, taxes (whether levy or general) would be collected and then distributed to pornographers. This would not be, to put it mildly, politically popular. Furthermore, I use the term "pornography" only as the most blatant example of content that would be politically unpopular. I can imagine, for example, that certain genres of music, such as "gangsta rap," would raise similar objections (how would people feel about tax dollars subsidizing music that glorifies cop-killing?). This is a serious problem and one that hasn't really been addressed by proponents of government mandated compulsories, especially given the track record of political debate over the relatively small amount of money dedicated to the National Endowment for the Arts.
Nevertheless, the issue of compulsories and pornography may create other problems as well. One I am concerned about is the potential for mandatory filtering to go along with the mandatory compulsories. Although none of the proposed compulsory systems speaks to the issue of filtering (and I am sure the proponents would oppose it), the systems certainly enable a mechanism that would make such filtering possible. All of the proposed government mandated systems envision some form of centralized registry for copyrighted works so that the works can be monitored and tracked and appropriately compensated. How much more of a step would it be to require works in the registry to also include self-labeling information?
I can imagine that many people would make the claim that, for example, pornographers shouldn't be compensated for having their files shared by minors. Two 15-yr olds file share a pornographic movie. Should the pornographer be compensated? If not, then the system will have to include self-labeling by the pornographer as well as parental controls (filters) in the file-sharing/playback devices. How will this work? Will political pressure force "voluntary" labeling schemes onto content producers who wish to be compensated? How will the survey/monitoring systems handle devices with and without filtering mechanisms?
No compulsory scheme advocates for labeling and filtering. However, we should consider likely ramifications of such compulsory schemes, and increased political pressure for labeling, whether "voluntary" or not, is likely.
Derek Slater fights the good fight and wins a round (Update: Diebold, Harvard, and Me). Slater was one of the citizens engaged in e-civil disobedience against e-voting machine manufacturer Diebold's mendacity. He posted a mirror of the infamous Diebold memos, excerpts of which can be found on Rep. Kucinich's website here: Voting Rights. For his trouble, Slater received a notice-and-takedown letter from Diebold, via Harvard. Consequently, Harvard (following their own policy) entered a black mark in Slater's record for being a copyright infringer. One more notice-and-takedown letter addressed to him and Slater would lose access to Harvard's network for a year. Slater protested this policy, arguing that he shouldn't get a black mark due to civil disobedience (and the fact that his posting of the memo
