May 28, 2024

Adam Thierer on the First Amendment Twilight Zone

Thursday’s lunch talk here at CITP was by my co-blogger Adam Thierer of the Progress and Freedom Foundation. Adam is a leading voice in the debate over online free speech, with a particular focus on how to protect children from harmful online material while preserving First Amendment freedoms. In his lunch talk, Adam focused on the implications of technological convergence for First Amendment law. Traditionally, we’ve had completely separate regulatory regimes and constitutional standards for different media technologies—broadcast, cable, satellite, and Internet. The courts have repeatedly struck down efforts to censor the Internet. In contrast, in cases such as FCC v. Pacifica, the Supreme Court has given Congress and the FCC free rein to censor the airwaves. Adam calls broadcasting’s second-class citizenship the “First Amendment Twilight Zone.”

Adam argues that the premise at the heart of these precedents—the idea that “broadcast,” “cable,” and “Internet” are distinct categories that can be regulated differently—is rapidly being undermined by technological progress. There are far more ways to get content than in the past, and it’s far more difficult to draw clear distinctions among them. As technologies converge, the question is whether the law will converge with it? And more importantly, if the law converges, which direction will it go? Will the Internet be subject to the more censorious standards of broadcast television? Or will Internet-based replacements for broadcast television enjoy the same robust protections as online content does today?

Adam has made a screencast of his presentation, in which he answers these questions and more. It’s a great talk and I encourage you to check it out:


  1. We are still getting lots of posts that look like malformed trackbacks. These typically have a paragraph or so of text that seems copied from a blog post at the site, as trackbacks tend to, but are not labeled as such, and are frequently malformed in other ways and misplaced, sometimes appearing in the comments for a different blog post than the one they clearly refer to and often being duplicated.

    This post’s comments provide a good example; look for ones titled “The standard is that”. Both look like trackbacks in that they seem to consist entirely of quoted material and have a link in them. But the link is mixed in with the quoted text, neither is labeled a trackback (both look like ordinary comments), and they are duplicates. To top it off, both are in the wrong place; they clearly belong with the recent voting machine post instead of this post.

    Please fix this; the broken trackbacks are distracting and furthermore, make it harder and slower to catch up on unread comments because they appear as extra, unread comments rather than trackbacks, and are still trickling in to even older posts.

    This has only been going on since the relatively recent site redesign. That redesign apparently broke something. The odd thing is, some trackbacks appear looking as they should. About 4/5 are affected by this, but by no means all.

    It’s possible the common factor is the remote blog rather than this one. If so, the admin there should get a heads up, and if they don’t fix things their end, their trackbacks should be filtered out at our end, at least until they eventually do fix it.

  2. Thierer’s claim makes sense when you first hear it, but after some thought, it actually seems quite silly He writes, in underlined and bold font, that “identical words and images are being regulated in completely different ways”, and apparently sees a big problem with it (and claims this is “un logical”). He gives the example of a censor seeing six videos of George Carlin on six screens and having to decide which ones should be censored.

    This is sillyness. Suppose that I was meeting Carlin in real life and asked him to perform one of his sketches for me. Should this be regulated in the same way as TV? What about if I was seeing his show in a nightclub? Even TV itself is not regulated in consistent ways, for example consider HBO as opposed to the networks. Even the networks are not regulated consistently: A children’s show would have a more strict filter than a prime-time show, which would have a stricter filter than a late-night show. I honestly can’t understand what Thierer is thinking making such patently overgeneralized claims, except maybe as a way to carve a niche for himself. (Since a universal argument that uses big words is more appealing and sexy and easy to understand than a disclaimed complex argument).

    TV inherently draws a more mainstream crowd. Furthermore, it is “push technology”, which means that the viewer (/content-receiver) has less of a choice in what she sees than on the internets. Furthermore, TV can be easily censored by simple means, while the internet cannot. This all means that it makes perfect sense for TV and the internet to be treated completely differently. Even when the different media converge, they won’t fully converge for a long time. You’ll still have some mainstream source for content with high production values and large investment. This won’t change for at least 10 years, probably more. When we reach a point where this might change and content has become completely fragmented, let’s talk about this then, we will be much more knowlegable.

    Thierer’s claims only make sense in one context: if he wants to claim that TV censorship should be completely canceled because we can’t stop the flow of information anywhere. That’s roughly what he gets to in the end of the presentation. I don’t know if I agree with this (although I dislike censorship), but in any case, the first half of his presentaiton (and the content of this post) seem like they are trying to disguide the general anti-censorship premise.

    Oh, and I almost forgot: What does the first amendment have to do with the FCC? The FCC is not a congressional tool, and is not a tool of government. I know that the modern common view in the US, including in its courts, is to treat the first amendment as barring anyone from restricting your speech and not only the government, but the matter-of-fact way in which Thierer accepts this as a basic premise seems quite naive.

    And what is this “bits are bits” stuff? We’re not in cyberpunk era yet. Most Americans still get most of their entertainment from TV. Thierer is misrepresenting the state of affairs in order to make his claims more plausible. Technologies have not de-facto converged yet, and TV bits are not practically the same as internet bits. This is just plain wrong.

    If Thierer wants to have the law converge for different media, he can certainly argue for it and say that it’s a good idea. (I don’t think that it is). But his universal claim that it doesn’t make sense to police different mediums in different ways is inherently silly.

    I am very much opposed to censorship and would like the airwaves to be free, but that doesn’t justify demagoguery, which is what I judge Thierer’s claims to be.

    • John Millington says

      “Oh, and I almost forgot: What does the first amendment have to do with the FCC? The FCC is not a congressional tool, and is not a tool of government.”


      • Thanks for the correction. It’s my bad. I got confused with the MPAA ratings, which are not government-controlled (and that’s how they bypass the 1st amendment, but that’s a different issue altogether). Yes, now when I have my mind straight, the FCC is definitely at some level of clash with the 1st amendment, and I take back that paragraph and my comment about naivite. Those comments should be attributed to my ignorance/confusion.

        I think that the rest of my critique stands.

  3. I am very glad you touched on the parenting aspect. It is always interesting to see new measures designed/created to protect children, yet parental accountability is always missing.

  4. This is a crucial subject. I think sooner or later internet will have to be a bit more regulated. Yet, the way this will be done will probably change much of our web utilisation. In France for instance we have a harsh debate about “hadopi” a law to ban downloadings that infringe web-users’ freedom.