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Thursday, August 23, 2007

Laurence Tribe on the First Amendment & Technological Change
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Progress & Freedom Foundation hosted its 13th annual “Aspen Summit” this week and, as always, it featured some of the leading thinkers in the field of technology and media policy. This year, we were also lucky enough to be joined by one of America’s leading constitutional scholars, Prof. Laurence H. Tribe of Harvard University Law School.

I invited Prof. Tribe to Aspen to deliver a keynote address on the future of the First Amendment in an age of rapid technological change and media convergence. It was an amazing speech and I thought I would share a few highlights from his address with you here. I hope to transcribe the complete address and publish it sometime soon. [Update 8/27: The video is now online.]

Prof. Tribe began by noting that the Supreme Court had perpetrated a “profound fallacy” in the Red Lion and Pacifica cases in holding that spectrum scarcity or a medium’s “pervasiveness” in society could be used as a rationale for censorship of broadcasters or any other media operator. And he argued that although “today’s FCC continues to sing the Pacifica tune,” if the Supreme Court reconsidered Red Lion or Pacifica today, “the odds are overwhelming that the Court [would overturn them]” because the Court would recognize that those rationales were probably never valid but are certainly not valid in an age of media abundance and cross-platform convergence.

This is especially the case, Tribe argued, because the trend in the courts since Red Lion and Pacifica have been increasingly in the direction of greater freedom of speech. He cited several cases, including those emanating out of the Internet and video game sectors.

Tribe also argued that the recent push by the FCC and some in Congress to regulate “excessive violence” on broadcast or cable television is doomed to fail if tested in the courts. Depictions of violence are already considered protected in other contexts through cases such as Winters v. New York. And because there is almost certainly no way to define a strict category of objectionable violence, the regulations would likely be held to be overly broad or excessively vague by the courts. And such regulation would create a “chilling effect” on many reasonable forms of speech and artistic expression.

Tribe also pointed out that the growing supply of parental control tools and methods makes it even less likely that such regulation would pass constitutional muster. The courts have found in recent Internet, video game, and even cable cases that so long as a variety of such parental control tool exist, they represent a “less restrictive means” of dealing with underage access to objectionable material. Also, Tribe pointed out that the fact that parental control tools and methods are sometimes imperfect is not a reasonable defense of government regulation. Private tools and methods need not be prefect to be preferable to government regulation, he said.

Also, "the malleability of children’s minds is not a defense [for regulation],” Tribe noted. Many pro-censorship laws and regulations are premised on the idea that government action can be justified in the name of protecting children from objectionable content or communications. But Tribe argued that the exact opposite is the case. Precisely because children’s minds are malleable, we should not empower government officials to have greater say over how they think or develop. In a free society that task should be left to families, Tribe argued. He cited the 1972 case of Wisconsin v. Yoder in defense of that proposition. [In that case, the Supreme Court held that the case in which the United States Supreme Court found that Amish children could not be placed under compulsory education since it violated their fundamental right to freedom of religion].

Prof. Tribe also touched on the likely unconstitutionality of a la carte regulation. A la carte interferes with the editorial freedom of programmers, Tribe argued, and it would be unjust for government regulators to take that authority away from private programmers and make those decisions instead. Tribe used an analogy many of us on this blog have often used in opposing a la carte. He noted that no one would think it wise or constitutional for the government to ban a newspaper from selling bundled sections (news, metro, arts, sports, etc) together in one edition. But that’s essentially what the government is proposing with a la carte mandates for cable and satellite television.

In sum, it was a tour de force performance from Prof. Tribe. He covered all the bases and thoroughly decimated any and all arguments for government censorship. Again, I hope to get the speech transcribed and published very soon and will link to it here once I do.

[P.S. If you"re really interested in these issues, I recently penned a 50-page law review article for the Catholic University CommLaw Conspectus entitled "Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age." I also discuss these matters in the Introduction of my new book "Parental Controls and Online Child Protection: A Survey of Tools & Methods."]

posted by Adam Thierer @ 12:13 AM | Free Speech

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