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.

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