1. America’s First Amendment
Twilight Zone
(and What to Do About It)
Spring 2009
Adam Thierer
athierer@pff.org
Senior Fellow
Progress & Freedom Foundation
www.PFF.org

2. Purpose:
 Illustrate the problems with how
lawmakers and the courts currently
read the First Amendment
 Show how illogical it is to determine
First Amendment protections by
medium or mode of transmission
 Make the case for a consistent First
Amendment for the Information Age
2 Adam Thierer – ―America’s First Amendment Twilight Zone‖

3. Presentation based on…
“Why Regulate Broadcasting: Toward a
Consistent First Amendment Standard
for the Information Age,” by Adam
Thierer, Catholic University Law School
CommLaw Conspectus, Vol. 15, July 2007.
“FCC v. Fox and the Future of the First
Amendment in the Information Age,” by
Adam Thierer, Engage, February 2009.
“Joint Amicus Brief of Center for
Democracy & Technology and Progress
& Freedom Foundation, U.S. Supreme
Court in the matter of FCC v. Fox
Television Stations” by Adam Thierer,
John B. Morris, Jr., and Sophia Cope,
August 8, 2008
www.PFF.org
3 Adam Thierer – ―America’s First Amendment Twilight Zone‖

4. The First Amendment:
It’s really pretty clear!
Congress shall
make no law …
abridging the
freedom of speech
4 Adam Thierer – ―America’s First Amendment Twilight Zone‖

5. The Problem:
A Jurisprudential Twilight Zone
 Even though the Constitution is clear, modern
jurisprudence is not.
 Congress & the Courts have made a mess of it.
 The First Amendment — at least as Congress
and the courts read it today — is a house
divided.
 We are stuck in a veritable jurisprudential
Twilight Zone in which identical words and
images are being regulated in completely
different ways depending on the mode of
transmission.
5 Adam Thierer – ―America’s First Amendment Twilight Zone‖

6. Did you hear the one about
“So, a regulator walks into a bar…” ?
A thought experiment courtesy of First
Amendment expert Robert Corn-Revere*
of Davis Wright Tremaine
Bob’s Scenario:
Imagine a regulator walks into a room where
the same program is being shown on five or
six different screens.
* See: Robert Corn-Revere, ―New Technology and the First Amendment:
Breaking the Cycle of Repression,‖ Hastings Communications and
Entertainment Law Journal, Fall 1994.
6 Adam Thierer – ―America’s First Amendment Twilight Zone‖

7. So, imagine 6 screens playing a
George Carlin monologue…
7 Adam Thierer – ―America’s First Amendment Twilight Zone‖

8. On Which of These Screens Can George
Speak Freely?
Which Screen Gets Full First Amendment Protection?
8 Adam Thierer – ―America’s First Amendment Twilight Zone‖

9. The Current Problem:
The regulator looking at these screens
would not be able to determine the
regulatory treatment of each until he
determined how the signal had been
transmitted to each one.
“Each [medium] is a law unto itself.”
– Justice Robert Jackson in Kovacs v. Cooper (1949)
9 Adam Thierer – ―America’s First Amendment Twilight Zone‖

10. Internet 
Mobile Phone  Cable, Satellite, DVD 
Video Game System 
Broadcast TV (or Radio)
iPod & MP3  NO!
10 Adam Thierer – ―America’s First Amendment Twilight Zone‖

11. Welcome to The Twilight Zone
Print,
Medium / Broadcasting Cable & Internet &
Platform Satellite Video
Games
Nature of Intermediate
Court Relaxed (for econ) Strict
Scrutiny Strict
(for speech)
• Indecency Regulations • Must carry
Types of • Political Airtime / • ―PEG‖
Regulation Access Rules Access Largely free
• Educational TV • Some Educ.
Mandates TV Rules
• Fairness Doctrine
11 Adam Thierer – ―America’s First Amendment Twilight Zone‖

12. Key Questions:
 Can such a schizophrenic speech regime
survive in an age of information abundance
and platform convergence?
 And, to the extent technological convergence
leads to policy convergence, in which
direction should that convergence occur?
 Should broadcasting be treated more like the
Internet and print, or vice-versa?
 Why not apply the old paradigm to
everything?
12 Adam Thierer – ―America’s First Amendment Twilight Zone‖

13. Problem with the Old Paradigm:
The World Has Changed
…Radically!
13 Adam Thierer – ―America’s First Amendment Twilight Zone‖

14. Why Regulate Broadcasting?
The Old Rationales Are No Longer Valid
1. Scarcity (Red Lion) is dead
 Never really valid; certainly no longer is
2. ―Pervasiveness‖ (Pacifica)
 Never really sensible
 Regardless, now true of everything
3. Licensing less relevant
 New Reality = Abundance & Convergence
 Everything is coming together in one big
bucket of bits
 Nicholas Negroponte: ―Bits are bits.‖
14 Adam Thierer – ―America’s First Amendment Twilight Zone‖

15. Old Reality
15 Adam Thierer – ―America’s First Amendment Twilight Zone‖

16. New Reality
16 Adam Thierer – ―America’s First Amendment Twilight Zone‖

17. Something’s Gotta Give!
 But what?
 Again, the Big Question:
>> Will technological convergence
lead to regulatory convergence ???
The Danger:
The Internet, video games, mobile
content, social networks, etc., could
end up getting regulated like
broadcast TV and radio
17 Adam Thierer – ―America’s First Amendment Twilight Zone‖

18. Policy Convergence Case Study #1:
“The Child Safe Viewing Act of 2007”
 Signed by President Bush in Dec ’08
 Requires the FCC to examine the availability of
―advanced content blocking controls‖ that ―may be
appropriate across a wide variety of distribution
platforms, including wired, wireless, and Internet
platforms.‖
 The FCC’s NOI mentions: video games, virtual
worlds, online video distribution networks, video
hosting sites, mobile web content, MP3 players &
iPods, P2P networks, VCRs & DVD players, PVRs &
TiVo, Internet filters, safe search tools, laptops, and
more.
 Welcome to Convergence Era content regulation!
18 Adam Thierer – ―America’s First Amendment Twilight Zone‖

19. Policy Convergence Case Study #2:
“Indecent & Gratuitous and Excessively
Violent Programming Control Act of 2005”
 Not passed, but considered in 109th Congress
 Would expand broadcast indecency fines and
penalties to cable & satellite television
 Proposed expanding indecency regime to also
cover ―excessively violent‖ video programming,
and also apply that to cable & satellite
 Again = Convergence Era content regulation
19 Adam Thierer – ―America’s First Amendment Twilight Zone‖

20. How Do We Stop This?
20 Adam Thierer – ―America’s First Amendment Twilight Zone‖

21. Option #1: The Principled Option
 First Amendment equality regardless
of platform
 Bits are bits & speech is speech. Period.
 Mode of transmission is irrelevant
 All speech and platforms get the gold
standard of First Amendment protection
 Problems:
 Unlikely that Congress & FCC are willing to let go
 Lots of opposition from other groups on both Left
& Right who want to preserve & extend old regime
 Thus, only hope is likely to be the Courts
21 Adam Thierer – ―America’s First Amendment Twilight Zone‖

22. Option #2: The Practical Option
 Firewall off broadcasting to contain
the damage
 In other words, throw the broadcasters under
the bus!
 Preserve the legal Twilight Zone to protect
the Net and new media
 Problem:
 Not fair to broadcasters
 Especially when they are fighting for survival
 Moreover, will it work?
22 Adam Thierer – ―America’s First Amendment Twilight Zone‖

23. Obvious objection to both plans:
Who will protect the children!?
23 Adam Thierer – ―America’s First Amendment Twilight Zone‖

24. Answer: Empower & Educate
 Good news: There is an
unprecedented abundance of
parental control tools & methods
 Uncle Sam need not play
national nanny when parents
have been empowered
 Let’s work together to:
1. give parents more & better
tools, and
2. educate kids about proper
media use
Read my book!
24 Adam Thierer – ―America’s First Amendment Twilight Zone‖

25. Closing Thought…
Important to understand that in an age of
information abundance, neither parental controls
nor government regulation could ever be perfect
or bottle up all objectionable content
At the end of the day, there is simply no
substitute for talking to our children in an open,
loving, and understanding fashion about the
realities of this world, including the more
distasteful “bits”
Talk to Your Kids!
25 Adam Thierer – ―America’s First Amendment Twilight Zone‖

26. About PFF
 www.PFF.org
 Market-oriented think tank and
educational non-profit with 501(c)(3)
tax-exempt status
 We study the digital revolution and its
implications for public policy
 Founded in 1993
 Based in Washington, D.C.
26 Adam Thierer – ―America’s First Amendment Twilight Zone‖

27. Further Reading from PFF
 Parental Controls and Online Child Protection: A Survey of Tools
and Methods, by Adam Thierer, Fall 2008.
 FCC v. Fox and the Future of the First Amendment in the
Information Age, by Adam Thierer, 1/20/09.
 Don't Scapegoat Media, by Adam Thierer, 12/9/08.
 Joint Amicus Brief of The Center for Democracy & Technology and
The Progress & Freedom Foundation, U.S. Supreme Court in the
matter of FCC v. Fox Television Stations, by Adam Thierer, John
B. Morris, Jr., and Sophia Cope, August 8, 2008
 Congress, Content Regulation, and Child Protection: The
Expanding Legislative Agenda, by Adam Thierer, 2/6/08.
 Why Regulate Broadcasting: Toward a Consistent First
Amendment Standard for the Information Age, by Adam Thierer,
7/10/07.
 Images Kids See on the Screen, Testimony by Adam Thierer,
6/22/07.
27 Adam Thierer – ―America’s First Amendment Twilight Zone‖