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