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First Amendment Twilight Zone (Adam Thierer   Pff)
 

First Amendment Twilight Zone (Adam Thierer Pff)

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    First Amendment Twilight Zone (Adam Thierer   Pff) First Amendment Twilight Zone (Adam Thierer Pff) Presentation Transcript

    • America’s First Amendment Twilight Zone (and What to Do About It) Spring 2009 Adam Thierer athierer@pff.org Senior Fellow Progress & Freedom Foundation www.PFF.org
    • Purpose:  Illustrate the problems with how lawmakers and the courts currently read the First Amendment  Show how illogical it is to determine First Amendment protections by medium or mode of transmission  Make the case for a consistent First Amendment for the Information Age 2 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Presentation based on… “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, Catholic University Law School CommLaw Conspectus, Vol. 15, July 2007. “FCC v. Fox and the Future of the First Amendment in the Information Age,” by Adam Thierer, Engage, February 2009. “Joint Amicus Brief of Center for Democracy & Technology and Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations” by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008 www.PFF.org 3 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • The First Amendment: It’s really pretty clear! Congress shall make no law … abridging the freedom of speech 4 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • The Problem: A Jurisprudential Twilight Zone  Even though the Constitution is clear, modern jurisprudence is not.  Congress & the Courts have made a mess of it.  The First Amendment — at least as Congress and the courts read it today — is a house divided.  We are stuck in a veritable jurisprudential Twilight Zone in which identical words and images are being regulated in completely different ways depending on the mode of transmission. 5 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Did you hear the one about “So, a regulator walks into a bar…” ? A thought experiment courtesy of First Amendment expert Robert Corn-Revere* of Davis Wright Tremaine Bob’s Scenario: Imagine a regulator walks into a room where the same program is being shown on five or six different screens. * See: Robert Corn-Revere, ―New Technology and the First Amendment: Breaking the Cycle of Repression,‖ Hastings Communications and Entertainment Law Journal, Fall 1994. 6 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • So, imagine 6 screens playing a George Carlin monologue… 7 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • On Which of These Screens Can George Speak Freely? Which Screen Gets Full First Amendment Protection? 8 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • The Current Problem: The regulator looking at these screens would not be able to determine the regulatory treatment of each until he determined how the signal had been transmitted to each one. “Each [medium] is a law unto itself.” – Justice Robert Jackson in Kovacs v. Cooper (1949) 9 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Internet  Mobile Phone  Cable, Satellite, DVD  Video Game System  Broadcast TV (or Radio) iPod & MP3  NO! 10 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Welcome to The Twilight Zone Print, Medium / Broadcasting Cable & Internet & Platform Satellite Video Games Nature of Intermediate Court Relaxed (for econ) Strict Scrutiny Strict (for speech) • Indecency Regulations • Must carry Types of • Political Airtime / • ―PEG‖ Regulation Access Rules Access Largely free • Educational TV • Some Educ. Mandates TV Rules • Fairness Doctrine 11 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Key Questions:  Can such a schizophrenic speech regime survive in an age of information abundance and platform convergence?  And, to the extent technological convergence leads to policy convergence, in which direction should that convergence occur?  Should broadcasting be treated more like the Internet and print, or vice-versa?  Why not apply the old paradigm to everything? 12 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Problem with the Old Paradigm: The World Has Changed …Radically! 13 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Why Regulate Broadcasting? The Old Rationales Are No Longer Valid 1. Scarcity (Red Lion) is dead  Never really valid; certainly no longer is 2. ―Pervasiveness‖ (Pacifica)  Never really sensible  Regardless, now true of everything 3. Licensing less relevant  New Reality = Abundance & Convergence  Everything is coming together in one big bucket of bits  Nicholas Negroponte: ―Bits are bits.‖ 14 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Old Reality 15 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • New Reality 16 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Something’s Gotta Give!  But what?  Again, the Big Question: >> Will technological convergence lead to regulatory convergence ??? The Danger: The Internet, video games, mobile content, social networks, etc., could end up getting regulated like broadcast TV and radio 17 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Policy Convergence Case Study #1: “The Child Safe Viewing Act of 2007”  Signed by President Bush in Dec ’08  Requires the FCC to examine the availability of ―advanced content blocking controls‖ that ―may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.‖  The FCC’s NOI mentions: video games, virtual worlds, online video distribution networks, video hosting sites, mobile web content, MP3 players & iPods, P2P networks, VCRs & DVD players, PVRs & TiVo, Internet filters, safe search tools, laptops, and more.  Welcome to Convergence Era content regulation! 18 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Policy Convergence Case Study #2: “Indecent & Gratuitous and Excessively Violent Programming Control Act of 2005”  Not passed, but considered in 109th Congress  Would expand broadcast indecency fines and penalties to cable & satellite television  Proposed expanding indecency regime to also cover ―excessively violent‖ video programming, and also apply that to cable & satellite  Again = Convergence Era content regulation 19 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • How Do We Stop This? 20 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Option #1: The Principled Option  First Amendment equality regardless of platform  Bits are bits & speech is speech. Period.  Mode of transmission is irrelevant  All speech and platforms get the gold standard of First Amendment protection  Problems:  Unlikely that Congress & FCC are willing to let go  Lots of opposition from other groups on both Left & Right who want to preserve & extend old regime  Thus, only hope is likely to be the Courts 21 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Option #2: The Practical Option  Firewall off broadcasting to contain the damage  In other words, throw the broadcasters under the bus!  Preserve the legal Twilight Zone to protect the Net and new media  Problem:  Not fair to broadcasters  Especially when they are fighting for survival  Moreover, will it work? 22 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Obvious objection to both plans: Who will protect the children!? 23 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Answer: Empower & Educate  Good news: There is an unprecedented abundance of parental control tools & methods  Uncle Sam need not play national nanny when parents have been empowered  Let’s work together to: 1. give parents more & better tools, and 2. educate kids about proper media use Read my book! 24 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Closing Thought… Important to understand that in an age of information abundance, neither parental controls nor government regulation could ever be perfect or bottle up all objectionable content At the end of the day, there is simply no substitute for talking to our children in an open, loving, and understanding fashion about the realities of this world, including the more distasteful “bits” Talk to Your Kids! 25 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • About PFF  www.PFF.org  Market-oriented think tank and educational non-profit with 501(c)(3) tax-exempt status  We study the digital revolution and its implications for public policy  Founded in 1993  Based in Washington, D.C. 26 Adam Thierer – ―America’s First Amendment Twilight Zone‖
    • Further Reading from PFF  Parental Controls and Online Child Protection: A Survey of Tools and Methods, by Adam Thierer, Fall 2008.  FCC v. Fox and the Future of the First Amendment in the Information Age, by Adam Thierer, 1/20/09.  Don't Scapegoat Media, by Adam Thierer, 12/9/08.  Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008  Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, by Adam Thierer, 2/6/08.  Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age, by Adam Thierer, 7/10/07.  Images Kids See on the Screen, Testimony by Adam Thierer, 6/22/07. 27 Adam Thierer – ―America’s First Amendment Twilight Zone‖