Bill passed to help fight cyber bullying: but how far can regulation go?

As the popularity of the Internet has continued to grow throughout the past two decades, the addition of social networking sites such as MySpace and Facebook have taken communication among individuals to an entirely new level; and not always for the best. In 2006, thirteen year-old Megan Meier began an online friendship through MySpace with whom she thought was 16 year-old “Josh Evans”. However, the user’s real name was Lori Drew, mother of Sarah Drew who apparently Meier had spread rumors about (3). But after awhile, the tone of the messages changed, turning very negative; this included such things as “I don’t know if I want to be friends with you anymore because I’ve heard that you are not very nice to your friends”, and a final message that read “Everybody in O’Fallon knows how you are. You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.” (3).  After this, Meier proceeded to hang herself in her closet. Drew was brought to court in California and charged on one count of conspiracy and three counts of accessing protected computers without authorization to obtain information to inflict emotional distress. She was also charged for violating MySpace’s terms of use by using a fictitious name. (3). Many have questioned how closely Drew’s online torturing of Meier linked with her death. “I don’t think she set out to- in any way, shape or form- have this girl commit suicide. No, I don’t… But I think that in her knowledge of this girl having depression and suicidal tendencies, I think that she made poor judgment,” said forewoman Valentina Kunasz on the NBC morning program. (5).

            Since the advent of these and many other cases of cyber bullying and/or stalking, Linda Sanchez (D-California) introduced the Megan Meier Cyber Bullying Prevention Act. This bill would change the Section 881 of Title 18 and punish cyber bullying as follows: “Whoever transmits in interstate or foreign commerce any communication with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.” (1). Missouri, Meier’s home state, updated an existing law to include communication from computers and text messages. (1).

            In a similar scenario, teenaged girl Stefanie Price received between 500 and 1,000 messages on MySpace. Eventually her MySpace stalker took her profile picture and posted it on RateMyBody.com and listed her “hobbies” as various sexual acts. (4). The messages were traced to a boy that went to Stefanie’s high school; his identity was found and he was arrested, charged with harassment (4). The boy apologized for his actions, saying “Anyway, I did not mean any threats I made to her. I am very sorry for what I have done, and the stuff I said does not reflect how I really am. The messages I was sending on MySpace were just a joke. I wasn’t being serious and did not want to hurt anyone.” (4).

            I agree that cyber bulling and/or stalking is a horrible thing. Drew demonstrated a total lack of maturity while taunting an already emotionally unstable girl. Similarly, although Stefanie Price’s online stalker was apologetic, his obsessive messaging and horrible comments were inexcusable, and quite frankly, raise questions about his own mental health. I believe that while the passage of the Megan Meier Cyber Bullying Act is a good first step in fighting these types of situations, I think that the government needs to be very careful about what standards are put on web surfers. Earlier this year, Kentucky State Representative Tim Couch proposed a bill that would not allow Kentucky residents to comment anonymously on the Internet. (2). This bill, House Bill 775 would require anyone who wants to leave a moment on a web site to register their real name, address, and e-mail address to the web site. (2). While I agree with the intent to protect the receivers of this horrible speech, I believe that this puts too much pressure on the speaker. The “sword” approach of an active government, while somewhat necessary to prevent further online stalking and bullying, may lead to further suppression of speech on the Internet, especially with a law as overbroad as the Tim Couch bill. Not to mention, this law would be next to impossible to enforce with the vastness of the Internet. Yes, making people be responsible for what they say seems like the right approach, but what about people who have chosen to speak anonymously for safety reasons? Speech of any sort, not necessarily harassing, would have to be attributed to a source, and would breach the right of a speaker to remain anonymous. Obviously, the Megan Meier Cyber Bullying Law is not this regulatory, but I believe that similar laws that may result could follow the trend of the unnecessary burden being placed on the speaker.

(1) “MySpace-hoax trial shines light on federal cyberbullying bill”, by Courtney Holliday, First Amendment Center Online intern, 11/20/08

http://www.firstamendmentcenter.org/news.aspx?id=20905

(2) “Rep. Couch Feeling Heat from Ban on Anonymous Web Postings” by Abby Johnson, 3/12/08 at 7:03am

http://www.webpronews.com/topnews/2008/03/11/rep-couch-feeling-heat-from-ban-on-anonymous-web-postings

(3) “Suicide of Megan Meier”, Wikipedia

http://en.wikipedia.org/wiki/Megan_Meier

(4) “Something more disturbing that litter came unwanted into this house”, by Steven Pokin, 10/22/07 (blog)

http://stcharlesjournal.stltoday.com/stevepokin/2007/10/something-more-disturbing-than-litter.html

(5) “Juror, mother in MySpace case speak about trial outcome”, AP (USA Today)

http://www.usatoday.com/news/nation/2008-12-01-myspace_N.htm

 

Survey shows supposed link between sexuality on TV and teen pregnancy

            In a recent study conducted by the Rand Corporation, a correlation was made between teen pregnancy and sexual content in popular TV shows. The study, released in a magazine called “Pediatrics”, involved 2,003 12 to 17-year-old girls and boys nationwide. The survey was first conducted in 2001 and then a follow-up survey was conducted a few years later. Among the girls surveyed, 58 had become pregnant during the time period between surveys, and 33 boys had claimed that they had gotten a girl pregnant (1). Teens were also asked how frequently they watched particular TV programs; 23 shows in particular were evaluated for their sexual content, including “Sex and the City”, “That ‘70’s Show”, and “Friends”. (2). “Shows that highlight only the positive aspects of sexual behavior without the risks can lead teens to have unprotected sex ‘before they're ready to make responsible and informed decisions,’ Anita Chandra, a Rand Corp. behavioral scientist said.” (1). Despite the survey’s results, I believe that TV shows including a considerable amount of sexual content, while a possible influence to sexually active behavior, are merely an example of free ideas and thus cannot be blamed for viewer conduct as a result.

            However, according to another source, the same survey also yielded some results that teens who watch a large amount of television are less likely to become pregnant (3). Sources have predicted that this is possibly because teens who spend a lot of time in front of a TV spend less time socializing, thus, in a way “protecting” them from getting pregnant (3). Many have also argued that it may not be TV programming that influences sexual activity, but home life and demographics. According to a CNN report, Sandy Tomlinson of Glendale, Arizona, who had her son at age 15, said she doesn't think television affects teen pregnancy; rather, that teen pregnancy has to do with the way parents raise their children. (2). "I feel that if my parents would have been more involved in my life that I would have made different choices," said Tomlinson, "It gets old hearing all these studies that blame everything and everybody but the parents." (2).

            I believe that although there may be specific results from the Rand survey that show a correlation among teen pregnancy and these TV shows, TV stations airing these shows as well as their creators do not have responsibility for what a viewer’s conduct is after watching. TV stations have no discretion over the thought process of each viewer, thus, cannot just not air a TV show because of how it might affect some of its viewers. According to the decision in FCC v. Pacifica Foundation, TV and radio stations have a “safe-harbor” provision that allows indecent but not obscene shows between the hours of 10pm and 6am, when most children are not likely to be watching/listening (4). Although these TV programs are not broadcasted during the indecency period, I believe (having watched many of the shows in question myself) that these shows are vastly different than the shows broadcasted at this time of night. For example, “Sex talk with Sue Johanson” on the Oxygen channel, a show geared entirely towards sex and sex tips for women, is vastly different than the brief sexual content in “That ‘70’s Show”.

            In the case Entertainment Software Association, Video Software Dealers Association, and Illinois Retail Merchants Association v. Rod Blagojevich, Lisa Madigan, and Richard A. Devine, the court for the Northern District of Illinois discussed the constitutionality of two laws put into place to prevent the sale of videogames to minors; the Violent Video Games Law (VVGL) and the Sexual Explicit Video Games Law (SEVGL). The defendants claimed a correlation between anti-social/violent behavior in children and children who played violent and/or sexually explicit videogames. However, the court found that “…there is barely any evidence at all, let alone substantial evidence, showing that playing violent video games causes minors to ‘experience a reduction of activity in the frontal lobes of the brain which is responsible for controlling behavior’”. (5). The court also said that “Such a sweeping regulation on speech—even sexually explicit speech—is unconstitutional even if aimed at protecting minors” and “Because SEVGL—particularly its definition of ‘sexually explicit’—is vague and not narrowly tailored, the Court holds that its sale, rental, and check-out provisions are unconstitutional.” (5). Essentially, this was a case of correlation, not causation. Children displaying violent behavior may also like playing violent video games; but home life and demographics were not factored into this supposed “causation”. There is no proof that these video games directly caused this antisocial behavior. Similarly, I believe that while there may be a correlation between sexuality in TV shows and viewer pregnancy, I do not believe that this is causation. The Rand survey did not take into account the home life of each teen surveyed. Perhaps a teen’s parents never talked to him/her about sex; or, perhaps the teen was pressured to have sex by peers or by a boyfriend/girlfriend. TV networks cannot be held responsible for how viewers conduct themselves; TV is a transfer of ideas, thus placing a more strict regulation on this medium will only deprive viewers who want to watch these programs, who may have no intention whatsoever of being sexually active. While yes, I would agree that some content in TV shows today may not be suitable for all audiences, TV stations cannot be held responsible for the actions of adolescent teens from different backgrounds.

 

(1) “Research suggests link between sexy TV, teen pregnancies”, by The Associated Press, 11/03/08

http://www.firstamendmentcenter.org/news.aspx?id=20834

(2) “Study links sexual content on TV to teen pregnancy”, by Elizabeth Landau, CNN

http://www.cnn.com/2008/HEALTH/11/03/teen.pregnancy/index.html

(3) “Behind the Statistics on TV and Teen Pregnancy”, by Tara Parker-Pope, 11/3/08, 3:58pm

http://well.blogs.nytimes.com/2008/11/03/behind-the-statistics-on-tv-and-teen-pregnancy/

(4) http://en.wikipedia.org/wiki/Seven_dirty_words

(5) No. 05 C 4265, “Entertainment Software Association, Video Software Dealers Association, and Illinois Retail Merchants Association v. Rod Blagojevich, Lisa Madigan, and Richard A. Devine” (pages 149-158 in book).

 

Campus gossip website raises "juicy" questions

JuicyCampus.com, a website created by Duke graduate Matt Ivester, serves essentially as an online source for students of various college campuses to anonymously post gossip about their fellow peers. The site includes all the “juicy” details of life on college campuses. Students included in the “gossip” are also often mentioned by name, causing many to be outraged and concerned as to how this will affect their future job searching. JuicyCampus also prohibits students’ ability to delete posts; Ivester claimed that this is because “We’re not in the business of censorship. We want to create a free, open forum where college students can discuss the topics that interest them most in the manner they deem appropriate.” (2). However, the site clearly spells out its rules for privacy and hate speech. Ivester continued that “What we will do is if we’re notified that someone’s contact information has been posted such as an e-mail address or a phone number, we’ll delete that. If there is a rampant hate speech and it’s not saying anything, that’s not what Juicycampus is all about, so we’ll delete that.” (2). Although I think that this website is completely childish and immature (college is NOT high school), I believe that the existence of sites such as these that promote free speech are essential to the existence of first amendment rights within our nation.

            The popularity of this site has risen incredibly fast on college campuses; what began as a seven-campus website has grown into a site with pages of over 500 colleges and universities throughout the country. (2). Students, in addition to being offended as to what is posted about them, have also developed concerns of how the site will affect their future careers. Yet Ivester claims that the site material is blocked from appearing in Google searches (1). “I think they’re going to have to start developing a sense of humor,” Ivester said, according to The Post, when he was pressed about the potential of a more intensive employer background-checking. “It’s not going to work if they start taking unsubstantiated, ridiculous gossip as the truth.” (1). These may not be the most comforting answers, however, I believe that the site is no different than Facebook. While yes, at least on Facebook one can delete things or pictures tagged of themselves, nothing that is said is completely private. Yet people still have Facebook accounts.

            JuicyCampus was recently subpoenaed by the New Jersey Office of the Attorney General and the Divison of Consumer Affairs in relation to the site’s operations. The subpoena was also issued to Lime Blue, L.L.C., the owner of the site, concerning how the company selects the campuses identified on the site and how the potential anonymous posters’ school affiliations are verified. (3). This also extended to how non-18 posters are differentiated from actual college student posters (3). While these all seem to be relevant questions in the ability to identify the truth in what and who posts what is posted, I find that it is nearly impossible to have the ability to truly identify anyone who posts something on the Internet. While yes, many posts have included hate speech which has brought this website to the attention of many federal officials, the site does in fact make users agree not to post content that is “abusive, obscene, or that might invade privacy rights. JuicyCampus.com informs the public that such offensive content may be removed.” (3).

            I believe that while this website does evolve around the existence of immature gossip, it is indeed an example of free speech, thus, not allowing it would be in violation of the first amendment. According to an article mentioning the case Reno v, ACLU, “…Justice Stevens had never explicitly relied on the ‘scarcity rationale’ in Pacifica, he noted in Reno how the rationale did not apply to the Internet. The Red Lion Court had noted that the limited availability of broadcast frequencies justified the government regulation of those frequencies, and the FCC had used scarcity among other rationales in its administrative ruling in Pacifica. But Justice Stevens emphasized that no such scarcity occurred in cyberspace. Everybody was their own publisher and web surfers had as much access to any blogger as they had to the New York Times online.” (4). The case, which examined the constitutionality of the Communications Decency Act of 1996 (CDA), found that the CDA’s regulation of speech on the Internet, while in the interest of protecting children, infringed upon adults’ rights to access information. Justice Stevens wrote that “The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials, see, e.g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive,” (5). The Internet is too vast a medium to governed like other mediums. The existence of websites such as these, although the cause of much social controversy, is an essential test as to whether we still live in a society that accepts the first amendment. Of course I don’t agree with the content of the website; who would like to be mentioned in a campus-wide gossip site? But the idea of giving students an outlet to post what they want without limitation (except for hate speech of course) is a great privilege. Offense is the price of having free speech and an open marketplace of ideas.

 

(1) “College gossip site creator unapologetic at student Q&A”, Washington D.C., October 30, 2008

http://www.rcfp.org/newsitems/index.php?i=7100

(2)  “JuicyCampus Creator, Matt Ivester”, by Jillian Gordon, Saturday Night Magazine

http://www.snmag.com/MAGAZINE/Destination-Success/JuicyCampus-Creator-Matt-Ivester.html

(3)  “JuicyCampus.com Under Investigation”, by Eric Sinrod, FindLaw

http://technology.findlaw.com/articles/00006/011151.html

(4) “Applying the Models to Sexually Themed Expression”, pages 69-81 in Jour 199 book

(5) Reno v. ACLU, 521 U.S. 844 (1997)

FCC proposes harsh penalties for "fleeting expletives"

            The FCC has recently begun cracking down on television stations for what they call “fleeting expletives”, or indecent language that escapes censorship or occurs on live unscripted broadcasts. The FCC has come across a number of cases in which to exercise their power, beginning with the 2002 Billboard Music Awards, in which singer Cher said “People have been telling me I’m on the way out every year, right? So fuck ‘em.” (5). A year later, while presenting at the Billboard Music Awards, Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." (2). And in January of 2008, the FCC proposed a $1.43 million fine against the ABC for a February 2003 episode of "NYPD Blue” in which the side and back of a naked woman were briefly shown while getting into a shower. (4). Many ABC affiliates across the country were also fined for airing the show, but some were not because they were broadcasted after 10pm, not violating the 6am to 10pm time period when nudity and language are heavily watched by the FCC (4). The FCC is hoping to continue punishing television stations for airing vulgar language and indecency, even if it only occurs once and does not describe a specific act of sex (3). However, contrary to what the FCC argues, I believe that television stations should not be responsible for “fleeting expletives” that slip through live unscripted broadcasts; this is an example of excessive censorship, penalizing television stations for conduct that they are not responsible for.

The specific United States Code (1464) that the FCC uses to enforce its discretion over television companies states that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." The FCC has added that "Indecent speech is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Such indecent speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience." (5). The FCC, responsible for content broadcasted throughout the television medium, clearly has a viable reason to go to great lengths to protect youthful audiences. FCC commissioner Deborah Taylor Tate stated that "Our action today should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly.” (4). But one has to wonder, does this reason really allow them to blame television stations for the unexpected ignorant behavior of some celebrities?

While the FCC has a rightful concern for what is broadcasted to families with young children, I feel that shows containing live footage, or footage in which a second of indecency slips through the censors, should not be penalized. While yes, Nicole Richie’s choice of words at the Billboard Music Awards was unfortunate, a television station broadcasting the live feed from an awards show should not be responsible for the negligence of a celebrity. According to the Communications Act, the FCC can regulate the broadcast medium, yet it is not allowed it to engage in censorship. (5). Imposing such as sanction as this, to me, is clearly engaging in censorship. ABC defended its program by saying that "ABC feels strongly that the FCC's finding is inconsistent with prior precedent from the Commission, the indecency statute, and the First Amendment, and we intend to oppose the proposed fine," the network said in a prepared statement.” (4).

In the Supreme Court case FCC vs. Pacifica Foundation, Justice John Paul Stevens defined “indecent speech” as “any depiction or description of ‘sexual or excretory activities or organs’ in a manner that is deemed ‘patently offensive as measured by contemporary community standards for the broadcast medium’." Stevens focused on protecting “dirty” speech from young children (3). While the Pacifica case set guidelines as to when certain programs could be broadcasted (indecent speech could be broadcasted after a certain time at night when children were not likely to be watching, where as obscene speech was never broadcasted), I feel that this does not apply in this case. The FCC is trying to limit indecency during a live showing, at a time in which television stations have little discretion over what is said during the broadcast. Senator Patrick Leahy (D-VT), claimed that the FCC’s “fleeting expletives” no-tolerance policy was a  "rigid and unyielding application of so-called indecency ruled." He continued that the media should be "bringing vibrant and interesting voices and views into our homes," not worrying that "an inadvertent slip is going to land them in trouble with regulators." (1). I agree with Senator Leahy that the media is an outlet in which American citizens gain access to knowledge of the world around them, and any sort of censorship of it really is an infringement on everyone’s rights. But essentially, the FCC is infringing upon the rights of television channels because of the amount of censorship that this sort of discretion entails. Yes, I believe that children should be protected from indecent and/or obscene speech on television; but speech not anticipated within live programming is not the fault of television companies, and thus, should not be punishable.

(1) “News Corp. Defends High Court's Indecency Challenge”, Oct 22, 2008, Jeffrey Yorke, Radio and Records

http://www.mediaweek.com/mw/content_display/news/media-agencies-research/e3if5f4f8d2ae5cf7f05e100a064aca89bc

(2) “THE F-WORD VS. THE STRIPPER POLE”, Michael Smerconish, June 7, 2007

http://www.mastalk.com/daily_news2/06_07_07.htm

(3) “High court to review penalties for TV expletives”, Bill Mears, CNN Washington Bureau

http://www.cnn.com/2008/US/03/17/fcc.expletives/index.html

(4) FCC Fines ABC for Indecency, Wall Street Journal

http://www.godlikeproductions.com/news/Breaking_News/12546-FCC_Fines_ABC_For_Indecency

(5) “FCC's ban on 'fleeting expletives' ruled unconstitutional: TV's over-zealous profanity police rebuked by court”, By OUT-LAW.COM, Posted in Law, 11th June 2007 09:23 GMT

http://www.theregister.co.uk/2007/06/11/fcc_profanity_ruling/

 

 

National Security Agency infringing on free speech/privacy rights?

            The National Security Agency (NSA) has recently been discovered to have listened to many non-terrorist affiliated Americans’ conversations in the “Green Zone” of Iraq. An act passed by the Bush administration, the Protect America Act (PAA) of 2007 sought to protect the security of American citizens by running a “program limited to those who are known al-Qaeda terrorists and their affiliates,” according to President Bush (2). However, what began as a project for national security has turned into a mass invasion of privacy, according to former workers for the NSA. Clearly, the NSA has been monitoring speakers’ rights too closely along a private medium that they have no warrant to search. The PAA demonstrates a level of high neoliberal protection of what the public is exposed to in an effort to “protect” them; but in reality, it is what could lead to further suppression of their free-speech rights.

            The NSA was created by executive order from President Bush shortly after the 9/11 attacks to monitor the content of certain phone calls of al-Qaeda suspects or affiliates, even if the receiver is in the US (4). While created to preserve national security, many people, including former employees of the NSA, have argued that the scope of the program is too broad, thus, infringing upon the rights of non-terrorist affiliated Americans.  Adrienne Kinne, an Army Reserves Arab linguist, previously worked for NSA and claims that the content of the calls was “personal, private things with Americans who were not in any way, shape, or form associated with anything to do with terrorism.” Kinne continued that that they were “personal calls that no one else should have been listening to.” (2).

            The Foreign Intelligence Surveillance Act (FISA), enacted by Congress in 1978, involved surveillance of foreign intelligence information, however, placed limits upon when such surveillance could be used. The act states that "’Foreign intelligence information’ is defined as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage, or international terrorism.” (4). FISA defines a “foreign power” as “a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government.” (4). However, FISA says that the government must obtain a warrant up to 72 hours prior to the surveillance, provided that there is a “probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power.” (4). The Bush administration extended the surveillance power of the government in 2007 by enacting the PAA, thus eliminating the requirement of obtaining a warrant before beginning surveillance (4). Government officials have relied on the defense of “minimization”; thus saying that citizens’ rights will be affected minimally by the surveillance. However, according to an argument presented by the Center for Democracy and Technology, “the “minimization” rules that would be applicable to the PAA permits the government to retain, analyze, and disseminate to other agencies the communications of people inside the US, including US citizens.” (3).

            Employees from the NSA, such as Kinne, knew what they were doing was wrong, however, continued because it was their job; it was what they were told to do. According to Kinne’s interview with ABC, “collection of phone conversations US soldiers and aid workers in Iraq had with their families in the US continued even after NSA analysts knew that the telephone numbers on which they were eavesdropping belonged to Americans who had no ties to terrorism.” (1). Yet, Bush administration officials such as Michael Hayden, head of the CIA, contend that the program is “narrowly focused and drilled on protecting the nation from al-Qaeda and organizations affiliated.” (2). And eventually, as Kinne later pointed out in her ABC interview, the meaningless “eavesdropping” that happens at the NSA takes away from the true reason that the agency was established in the first place. “It’s harder to find the piece of information that might be actually useful; this is actually hurting our ability to effectively protect our national security.” (2). The legislation of the PAA act as well as the NSA are too vague; the government has too much discretion over what is listened to. If the government were allowed this much power when eavesdropping on private speech, imagine what implications this could have on free speech, over a public or private medium. The burden would be on the speakers to defend what they say if it falls into the government’s “terrorism category”. And for that matter, where would the category end? Where would government discretion end, if almost anything and everything said over any medium was under surveillance as possible terrorist speech? I disagree strongly that this is what the founding fathers had in mind when writing the “freedom of speech” part of the first amendment.

Essentially, the government is taking an ultra-neoliberal stance in allowing itself such power over the privacy of a telephone conversation to protect the public’s security. The PAA goes along with the neoliberal belief in active government; thus, if the government isn’t involved, neoliberals argue that citizens’ freedom is being violated. While yes, obviously the public’s freedom could be violated by a terrorist attack, I believe that giving the government the ability to listen in on any phone conversation without a warrant is going a bit far. There must be other means of detecting terrorism that do not involve a power-hungry government.

 

Footnotes:

1) Center for Democracy and Technology, October 9, 2008

http://www.cdt.org/

2) “Exclusive: Inside Account of US Eavesdropping on Americans”, By Brian Ross, Vic Walter, and Anna Schecter, October 9, 2008

http://abcnews.go.com/Blotter/story?id=5987804&page=1

3) Center for Democracy and Technology; “Minimization Cannot Be Relied Upon to Protect the Rights of Americans under a Warrantless Surveillance Program”, September 17, 2007

http://www.cdt.org/security/20070917mimization-memo.pdf

4) “NSA Warrentless Surveillance Controversy” Wikipedia

http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy

 

FCC proposes "must-carry" requirements for TV stations

In an effort to transfer all television stations from analog to high-definition digital cable in February 2009, the FCC has made “must-carry” rules for TV stations. Recently, the Community Broadcasters Association (CBA), advocating rights for Class-A TV stations, has filed suit against the FCC, claiming that the dual must-carry rule was “a violation of the First Amendment” (2). Class-A TV stations are smaller, low-power stations that are required, by law, to carry at least three hours of local programming each week; most of these stations are designed to serve minority and rural audiences (1). With these case filings, the CBA has expressed concerns over how the required local programming will affect smaller Class-A stations’ survival in larger cable networks through the switch from analog to digital cable in 2009. Cable associations have claimed that they already carry some Class-A stations, but the CBA says otherwise (1).  According to the terms of the FCC’S “must-carry” rules, a low-power station is “considered ‘qualified’ if: (1) it broadcasts at least the minimum number of hours required pursuant to 47 C.F.R. Part 73; (2) it adheres to Commission requirements regarding non-entertainment programming and employment practices, and the Commission determines that the programming of the LPTV station addresses local news and informational needs that are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station’s community of license” (3). However, I believe that the rights of these smaller stations have not been infringed upon because of the lack of spectrum scarcity that exists in television broadcasting as well as the government’s interest in delivering information to users of both analog and digital mediums until the 2009 shift.

            Many argue that the problem with enacting such laws for lower-power stations is that they may become less of a priority because of their narrowly local focus. “The requirement, which does not include an exemption for even the smallest operators in terms of MHz or subscribers, will force hundreds of operators to either drop channels their customers want to watch or prevent the addition of new channels, in order to carry duplicates of channels they already offer, all while costing each operator tens of thousands of dollars in equipment upgrades” said Matthew M. Polka, American Cable Association president (2).

            However, I find it very difficult to imagine that customers will get massive amounts of programming cut just because of the existence of duplicate channels; the duplicates will only be the few larger-scale channels that everyone watches. In the opinion delivered by Justice Kennedy in Turner Broadcasting System Inc. v. FCC, the court found that previous similar FCC mandates given to Class-A stations were indeed not an infringement on First Amendment rights. “The less rigorous standard of scrutiny now reserved for broadcast regulation should not be extended to cable regulation, since the rationale for such review--the dual problems of spectrum scarcity and signal interference--does not apply in the context of cable” (4). Regulations that apply to broadcasting methods such as radio, where there are only so many channels in which to broadcast information (the issue of spectrum scarcity), do not apply to as broad a medium as cable television. Thus, although the shift from analog to digital cable may require the existence of duplicate channels broadcasting the same material, there is no specific evidence as to how these “duplicates” will take the place of the Class-A stations within such a broad medium. Justice Kennedy continued in Turner that “Viewed in the abstract, each of the governmental interests asserted--preserving the benefits of free, over the air local broadcast stations, promoting the widespread dissemination of information from a multiplicity of sources, and promoting fair competition in the market for television programming--is important” (4). The purpose of the switch from analog to high digital does not violate any of the “governmental interests” mentioned in the Turner case; this switch does not inhibit the delivery of free information to viewers, but rather, enhances it by offering it on both analog and digital mediums. Similarly, the FCC is in no way violating the free-market of television programming by allowing certain major channels to be broadcasted multiple times, but rather, is trying to relate information that is most relevant to a maximum amount of viewers. The FCC is in no way infringing upon the rights of smaller local stations; the switch from analog to digital is inevitable, thus, the preferential broadcasting of major stations is directly related to the government’s interest in allowing a free-flowing medium of information.

 

Footnotes:

(1) "FCC exempts small cable operators from HD must-carry rule" by Matthew Lasar Published: September 05, 2008 - 07:15AM

http://arstechnica.com/news.ars/post/20080905-fcc-exempts-small-cable-operators-from-hd-must-carry-rule.html

(2) “Cable’s dying, the FCC’s killing it” by Jason Lee Miller. Published 02/07/2008 - 1:06PM

http://www.webpronews.com/topnews/2008/02/07/cables-dying-the-fccs-killing-it

(3) “Cable carriage of digital TV signals summary of FCC rules adopted January 18, 2001”

http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-06-1080A1.doc

(4)  Cornell Law School Legal Information Institute; Turner Broadcasting System, Inc.. v. F.C.C. (93-44), 512 U.S. 622 (1994)

http://www.law.cornell.edu/supct/html/93-44.ZS.html

 

San Francisco Pharmacy Cigarette Ban2

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            The battle between tobacco companies and the US government has come to light with the filing of two lawsuits this past year. In one, tobacco company Philip Morris USA, claimed that a new San Francisco law banning the sale of cigarettes in pharmacies “violates its free-expression right to sell its products” (1). The second lawsuit involved Walgreens filing suit, arguing that because the law only included pharmacies and not larger grocery-style stores, it was discriminatory and could affect the store financially.

            The Philip Morris case centers on the right of tobacco companies to have their products advertised and communicated to adult consumers. “Although called a ban on sales, the purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights,” said Joe Murillo, a lawyer representing Philip Morris USA (3). Advocates of the bill claim that specialized pharmacies should not carry cigarettes because of the health risks involved with them. Also, according to the Police Powers granted by the Tenth Amendment, the State has the power to “enact reasonable laws to protect public health, public morals, public safety, and the general welfare of the community” (3).  However, it seems to be up to the courts to find a compelling government interest in regulating what products are sold in a particular store, especially if there is limited evidence as to whether or not there is a correlation between how pharmacies sell tobacco and youth/ adult access to these products (3).

            The Walgreens case focuses the financial interest of Walgreens in cigarette sales. Recently, Walgreens filed a brief stating, “the company would lose millions of dollars, equal to nine percent of a store’s non-pharmacy sales, if the ban takes effect” (3). The company continued that “the city is discriminating by not applying the ban to grocery stores or big-box stores that have pharmacies within them and also sell cigarettes” (2). City attorneys, however, argue that “the public trusts pharmacies as health-promoting businesses and that the sale of tobacco by drugstores ‘sends an implicit message that smoking is acceptable’” (2). Walgreens argues that the law is financially discriminatory, and that customers who would usually buy cigarettes from them will now go to the larger “big-box” stores that are not included in the ban.

            I believe that the San Francisco ban is, indeed, in violation of pharmacy and tobacco companies’ rights because I do not believe that the government has any particular interest in telling pharmacies what they can and can’t sell. Yes, cigarettes are a health hazard, however, just because a pharmacy sells cigarettes does not mean the consumer has to buy them. Walgreens also has a financial interest to protect; the ban clearly favors their “big-box” and grocery competitors. In the precedent case Lorillard Tobacco Co. v. Reilly, Chief-Justice Sandra Day O’Connor wrote that “The state’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity” (4). Consumers have a choice whether or not to smoke cigarettes, thus, where they are sold (even at a pharmacy where “good health” is advocated), is inconsequential. O’Connor continues in Lorillard that “We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products… As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication” (4). An act by the State to regulate what a store sells clearly infringes upon the rights of that store, as well as the industry that the ban effects. If our government is capable of having this sort of jurisdiction in relation to the freedom of speech, think what they’ll ban next.

(1) http://firstamendmentcenter.org/news.aspx?id=20602

(2) http://www.nbc11.com/newsarchive/17592901/detail.html

(3) http://tobaccoanalysis.blogspot.com/2008/09/philip-morris-and-walgreens-file-suit.html

(4) http://www.firstamendmentcenter.org/analysis.aspx?id=4898