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Monday, February 11, 2008

Criminal sanctions for poor parental judgment?
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In an essay earlier today, I discussed why I believe that private censorship is superior to public censorship since it lets each family dictate for themselves what is in their own best interest. Public censorship, by contrast, expects regulators to dictate for all families what is best for them by imposing a single arbitrary standard on the entire nation. The ideal state of affairs, I argued, would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s media consumption habits to their specific values and preferences. That would include the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families.

But, for the sake of argument, let's assume that this ideal state of affairs exists but that many parents continue to allow their children to experience some types of media content that others believe is harmful. What should be done about that?

I ask because I was just reading through this month's Federal Communications Law Journal, which includes the transcript of a Federalist Society symposium on the "Expansion of Indecency Regulation." The discussion included remarks from FCC Chairman Kevin Martin and Robert W. Peters, the President of Morality in Media among others. During the discussion, both Chairman Martin and Mr. Peters suggested that it if we really wanted to get serious about protecting children from media content somehow deemed "harmful to minors," then we might need to consider criminal sanctions for parents who voluntarily bring such fare into their homes.

Early in the conversation, Mr. Peters notes (on page 17 of the transcript):

"And the other thing--was a choice made? Did a parent, in particular, choose specifically either to provide the kid with that particular access or choose specifically to bring that particular form of entertainment, whether it be a channel or whatever it would be, into their home? And I mean, I personally think that, short of very, very nasty sorts of entertainment, even when I would disagree with a parent, they have a right to bring HBO and Showtime into their home. I think they’re crazy. I don’t know how that would justify it, and I would be tempted to hold them liable if the kid got into trouble because of those channels. But I wouldn’t put them in jail, and I wouldn’t take their kids away."

It's not exactly clear what Mr. Peters would do short of putting parents in jail or taking their kids away, but I suppose one possible set of criminal sanctions would include some sort of sliding scale of fines for parents who brought such fare into the home; in this case, HBO and Showtime. [More on this below.] How would the government monitor and enforce such a regime of criminal sanctions for poor parenting? Mr. Peters does not say.

Later in the conversation, however, Chairman Martin picks up on this point during an exchange with Mr. Peters in which Peters is arguing that "shock-jock" radio personalities Opie & Anthony should only be on the premium tier of satellite radio. Here's the relevant part of the exchange (on page 25 of the transcript) in which Mr. Peters seems to back-peddle a bit while Chairman Martin seems to suggest that criminal sanctions of some sort really are worth considering:

MR. PETERS: I have to get one comment on the opt-in and opt-out. I don’t care what the issue is. Clearly, it’s almost like a 180-degree opposite; if ten opt in, you reverse it and it goes the opposite. So clearly, if we want to protect kids, the best way to protect them is to have adults who want to access entertainment that is not suitable for children to choose it, to bring it into their home one way or another. They make the choice; not necessarily to have to pay extra, they just have to do something to show that they are eighteen and over. And that’s the best way to protect kids. And there are more and more channels for that to take place. And if nobody wants to pay and sign their name to hear Opie and Anthony, maybe that’s an indication that Opie and Anthony aren’t as popular as Infinity, I think, thought they were. Or was it Clear Channel?

CHAIRMAN MARTIN: Well, I think it’s about line-drawing. If you really want to talk about kids, you could hold parents criminally liable for allowing them access to this. And you said you weren’t willing to do that, but that would really protect kids.

MR. PETERS: Well, in some circumstances I think I would, but I don’t think that’s necessarily a great answer either.

CHAIRMAN MARTIN: But why not in all circumstances? If the goal is to really protect kids, is this interest that compelling? Then we just get rid of their least restrictive means aspect of strict scrutiny.

I'm not sure if Chairman Martin was just speaking rhetorically here or if he actually believes some type of criminal sanctions for poor parental judgment make sense. Regardless, I find all such thinking extremely disturbing.

Again, even if one assumes criminal penalties are a sensible response to this problem, how in the world would the FCC's enforcement regime work? In theory, whenever a subscriber called their cable or satellite company to request certain premium channels or Internet access, they would need to be forced to reveal whether or not they have children in their homes. If kids were present in the home, such services would either be denied or somehow monitored by regulators to ensure parents were not letting their children view objectionable content. And then fines would apparently follow for parents found to be in violation of this new regulatory regime.

To be clear: neither Chairman Martin nor Robert Peters spelled out such enforcement details in their remarks; I am simply assuming this is how such a regime of criminal sanctions for poor parenting decision-making would work. But the very fact that such an authoritarian regime is even being considered is incredibly troubling.

In a free society, public officials should not act in loco parentis when parents have the power to make media decisions on their own. Raising children, and determining what they watch, play, read, listen to, or download, is a quintessential parental responsibility. We should leave it that way and keep the threat of criminal sanctions for poor parental judgment out of the discussion.

The more constructive and far less authoritarian approach to the issue would be to find additional ways to further empower parents to make decisions about acceptable media content in their homes. Shame on those public officials or self-appointed culture cops who would suggest otherwise--especially when criminal sanctions against parents are part of their regulatory playbook.

posted by Adam Thierer @ 7:27 PM | Free Speech

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