Friday, April 11, 2008 - The Progress & Freedom Foundation Blog

Shall we censor newspapers "for the children"?

I'm teaching my 6-year old daughter how to read right now. It's slow going; she's struggling. So, I've been trying a variety of techniques and approaches. One strategy that seems to be working is what we call "the newspaper game." Each night before she goes to bed, we practice with word cards and a dry erase board. We drill though about 20-25 words at a time; I help her sound them out and then she writes them on the board. The following morning, when I bring in the morning newspapers, I ask her to search through the headlines in the Washington Post for words we might have practiced the night before. She is very excited when she recognizes one, and that helps reinforce what she has learned. We have been doing this a lot lately and she now even rushes out some mornings to get the papers for me so we can do this together. (I'm hoping it instills within her a love of fine journalism, too!)

Anyway, this morning she picked up the Washington Post and---not seeing any words she recognized on A1---flipped the page and spotted the word "Out" on pg. A3. She was very happy because that was one of the "O" words we had practiced a few nights before. So I walked over to praise her and to look at the article she was examining in a search for other familiar words. The full title of the article was: "The D.C. Madam Case, All Sordid Out." Yikes!

Now this is a serious article, written by one of the most respected (and prolific) journalists in America today, Dana Milbank. But Milbank's description of the trial about the now infamous Beltway prostitution ring is not exactly the sort of stuff you want to have your 6-year old reading at the breakfast table before she goes off to school. Milbank's article includes several references to various types of sexual encounters and even some talk about how some of the hookers were "inducing orgasms" for clients. Here's one particularly steamy passage from the article:

Yesterday, it was the turn of a young naval officer to take the stand; the case will almost certainly end her career. The prosecutor, Daniel Butler, had the woman spell her name slowly and clearly, then had her talk about when she was "aggressive" with a client, when she was "more submissive," when she had a difficult client ("he tried to remove the condom") and how often she got "intimate."

"What do you mean by 'intimate'? "

The soon-to-be-former naval officer looked at him in disbelief. "Touching, caressing," she explained.

"What happened" after that? he demanded.


"What type of sex?"

"Sometimes it was oral sex; usually it was normal."

"Normal?" Butler persisted.

"I'm not sure what you're getting at," the stricken witness pleaded.

"What's normal sex?" Butler again demanded.

Judge James Robertson intervened. "He wants to know if you mean intercourse."

And it goes on from there. Now, my daughter couldn't read all of it, obviously, but I bet that in another year she will be able to. I can imagine how this article is sparking some very interesting conversations in other homes around the DC area right now for those kids who might have read it and asked Mom or Dad about what some of those things meant. Some of those parents were probably deeply offended to be facing that sort of unexpected encounter and be forced to try to explain these things to their kids. So, was the Post wrong to run Milbank's article on pg. 3 since children might have been in the audience?

What makes this all so interesting to me is that this year is the 30th anniversary of the famous FCC v. Pacifica decision. You will recall that, in that in that case, a slim majority of the Court held that speech on broadcast television and radio content could be regulated by the Federal Communications Commission because:

"Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children."

As I have pointed out in my work on this issue, there have always serious problems with the “media-as-invader” logic of Pacifica. Most notably, no one forces parents to bring television sets into their homes! But what's even more twisted about this logic is that, in reality, television and radio have never really been that much more pervasive that traditional print media. As the episode with my daughter this morning proves, newspapers, magazines, and books, all present difficult "unexpected encounters" just like broadcasting. And those forms of print media were equally as ubiquitous throughout society and homes at the time Pacifica was handed down.

Despite this, the Supreme Court created an incredibly illogical and unfair asymmetrical First Amendment standard in Pacifica. And whatever legitimacy Pacifica's pervasiveness rationale might have once had, it has been largely eroded by modern media developments. Today, there is no basis in fact for claiming that one type of media platform (namely, broadcasting) is "pervasive" in light of the abundant video options available to consumers. Newer video platforms are actually becoming far more pervasive in the lives of children than broadcast television and radio. In other words, in a world of media abundance, technological convergence, and cross-platform media flows, nothing is pervasive in a relative sense. There are countless media outlets and technologies vying for our increasingly scarce attention spans. Consequently, it is illogical to claim that any one media platform or provider should have a unique regulatory status relative to the many other competing media outlets and technologies in the marketplace.

OK, so what about my daughter and that uncomfortable article in today's Post? Or what if the same material gets turned into a steamy made-for-TV movie (as it no doubt will) that airs at 8:00 at night when kids might be in the audience? What are parents like me to do about that?

Well, unexpected encounters are part of life. (Just try taking your kids to a ball game and explaining to them what all that colorful language they hear in the stands means!) So, yes, we actually do have to talk to our kids about uncomfortable topics at times. It's not easy, and I don't always like it, but it is part of life.

Second, as I show in my book on Parental Controls and Online Child Protection, there has never been a time in our nation's history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. And this is true for almost all forms of media, from TV and music to video games and the Internet. Ironically, it is print media that has the fewest parental control options, and yet it continues to enjoy the gold standard of First Amendment protection compared to other media! Quite bizarre when you think about it.

Of course, there's another thing parents can do when they don't like what they see or hear in various media platforms: they can complain! Not to the FCC, but directly to the media provider. The power of public shame should not be underestimated. Here's how I put it in my book:

Parents can also work with others to influence media content before it comes into the home, or rely on other groups they trust to help them better understand what is in the media they are considering bringing into the home. Parents can pressure media providers and programmers directly through public campaigns, or indirectly through advertisers. Groups like the Parents Television Council, Morality in Media, Common Sense Media, and the National Institute on Media and the Family can play a constructive role in influencing content decisions through the pressure they can collectively bring to bear on media providers in the marketplace.

This is why I am always careful when critiquing groups like Morality in Media and Parents Television Council. I have absolutely no beef with them when they organize public protests against media operators based upon widespread discomfort with particular TV programs or other forms of media content. I have been quite critical of those groups, however, when they cross the line and turn it into a matter of public policy by pressuring Congress or the FCC to act. There is a world of difference between the power of voluntary public persuasion and the power of regulatory coercion as a means of solving problems. In a free society, we should encourage the former and tightly limit the latter.

Finally, parents can--and do--establish a variety of non-technical "household media rules" and strategies to control media use and exposure by their children. In chapter 2 of my book, I identified four categories of household media rules that surveys show almost all parents use in some combination to control their children’s media consumption: (1) “where” rules; (2) “when and how much” rules; (3) “under what conditions” rules, and, (4) “what” rules. In fact, to the extent that many households never take advantage of the technical parental control tools or rating systems, it is likely because they rely instead on such informal household media rules. And these informal household rules can be remarkably effective in controlling access to objectionable material if parents are willing to take the time to construct and enforce them.

Will these non-regulatory strategies work perfectly? Of course not. But neither would government censorship. Even if government tried to regulate everything under the media sun, unexpected encounters would continue and lot of offensive stuff will still get through. Finally, we must recognize that decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours. Consequently, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen and household tastes and left the ultimate decision about acceptable content to them.

posted by Adam Thierer @ 11:15 AM | Free Speech