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Protecting kids or free speech: Where to draw the line?

KidComputerControlling what children see on TV, online, and in other electronic media requires a delicate balancing act between the First Amendment rights of content providers and the desire to protect kids from inappropriate material, said panelists during a Nov. 2 discussion at the Georgetown Law Center in Washington, D.C.

“The law is not settled on this subject,” said Jim Steyer, chief executive officer and founder of Common Sense Media, which sponsored the discussion along with the Georgetown Law Center. He added that “reasonable minds can disagree” on where the intersection of children’s safety and developing media should lie.

The panel, which represented a broad range of opinions and backgrounds, included Steyer; Daniel Brenner, a partner with the media group at the law firm Hogan and Harston; Georgetown law professor Angela Campbell; Federal Communications Commission (FCC) Senior Attorney Kim Matthews; and Maryland Attorney General Douglas Gansler. The discussion was titled “Media, Kids, and the First Amendment.”

The rapidly changing world of digital media–including TV, video games, the internet, and mobile devices–creates many opportunities for children but also presents potential dangers, panelists noted, including a greater chance of exposing children to inappropriate content. How to reduce this likelihood without impinging on the free-speech rights of broadcasters and publishers was the subject of the discussion.

The topic is timely. The Senate recently held a hearing on the Children’s Television Act in the digital age. And earlier this year, the U.S. Supreme Court remanded FCC v. Fox Television Stations back to the Second Circuit Court of Appeals for further consideration.

In that case, Fox had appealed an FCC ruling that the network violated its policy barring “fleeting expletives” over the public airwaves. Historically, the FCC has declined to go after the occasional use of expletives on broadcast television, but the agency changed course in citing Fox, noting that broadcasts no longer are ephemeral in an era of digital recordings.

Fox argued that the FCC’s shift in policy was arbitrary and capricious, and the Second Circuit court agreed–but the Supreme Court ruled 5-4 that the FCC followed appropriate procedure and sent the case back to the appeals court for reconsideration. However, neither ruling addressed the constitutionality of the FCC’s indecency policy on free-speech grounds, setting up the possibility for another court challenge in the future.

As the Georgetown discussion revealed, there are no clear-cut answers to these questions; the conversation was heated at times, and the panelists frequently disagreed.

Gansler said it’s no longer a question of whether media consumption affects children’s behavior.

“The best way to deal with this is to educate parents. If you don’t, [children] are going to learn from their friends,” he said, adding that technology advances faster than the laws are able to.

Campbell explained the three constitutional tests that usually are called upon for laws designed to protect children from inappropriate content. Those tests include strict scrutiny, intermediate scrutiny, and rational basis–the last of which she said is rarely applied to media.

Strict scrutiny tests to see if a law is justified by a compelling governmental interest, is narrowly tailored to achieve that goal or interest, and is the least restrictive means for achieving that interest. Intermediate scrutiny applies if a regulation involves important governmental interests that are furthered by substantially related means. Rational-basis review requires that governmental action be “rationally related” to a “legitimate” government interest.

But Brenner noted that many times when a test is chosen, the outcome has been predetermined.

“When media [are] held to strict scrutiny as a test, it’s harder to prove,” Steyer said. “Almost always the First Amendment [wins out].”

Campbell noted that different forms of media tend to be held to different standards, but that approach doesn’t make sense, she said.

“It doesn’t make sense to apply a lower standard to broadcast [media] just because it’s broadcast,” she said. “For most people, there’s no meaningful distinction. And it also has the same harm to children.” She added that combinations of the various tools available should be used to analyze laws restricting media.

The FCC recently issued a Notice of Inquiry (NOI) to ask for public input on content-control technologies and means, Matthews said. The commission is seeking information on teaching media literacy, coordinating government efforts to protect kids from inappropriate digital content, and the commission’s legal authority to regulate such content. As of press time, the NOI had not run in the Federal Register, but should be published there in the near future. Interested parties then will have 60 days from that date to file their comments.

Managing Editor Dennis Pierce contributed to this article.


Common Sense Media

Georgetown Law Center

“Empowering Parents and Protecting Children in an Evolving Media Landscape” (FCC Notice of Inquiry)

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