Tuesday, June 28, 2011

Save the Children - Thoughts on the Impact of Media on Children

The Supreme Court's decision, announced yesterday, finding that California's legislative attempt to ban violence in video games violated the First Amendment rights of children to access creative works, regardless of the levels of violence or brutality found in those works, contains some strong language favoring freedom of expression. The Court held that while states can protect children from harm, they have no "free-floating power to restrict the ideas to which children may be exposed".

The Court rightly reasoned that imposing this kind of restriction on video games was the proverbial slippery slope - because violence exists in many forms of media, including classic stories like Snow White, and Saturday morning cartoons.

The Court also had to address the issue of why, since it had upheld laws restricting minors access to sexually explicit material, it should not extend that same logic to violent material. Justice Scalia, writing for the majority of five justices, rejected that argument, noting that unlike hard-core pornography, there is no "long-standing tradition in this country of specially restricting children's access to depictions of violence". He also rejected the argument that children viewing violence in media has any causal link to violent behavior. At best, that research simply shows that some children have more feelings of aggression after playing the games - but there is no direct correlation between those feelings and any action being taken by the players.

The Court's decision follows a long line of cases rejecting a causal connection between video games and other violent media and children's violent or aggressive behavior. Ten years ago I participated in a Silicon Spin television debate with an attorney who had filed a lawsuit against a series of videogame companies on the theory that watching violent video games caused the shooters in the Columbine massacre to become violent mercenaries. The suit was subsequently dismissed for lack of proof of a causal link.

In her excellent essay in the June 26th issue of the New York Times Magazine, entitled "The Ninny State', Emily Bazelon points out that this is the same debate that in 1954 led Congress, based on the alleged "scientific" evidence of Dr. Fredric Wertham, to investigate whether violent comic books were a primary cause of juvenile delinquency. Fifty-six years of comic book censorship, which ended just this year, had no effect on juvenile delinquency; however those who would rather find media the cause of violence, instead of the harder social issues to solve, like poverty, illiteracy, joblessness, under-supported schools and teachers, racial and other forms of discrimination, continue with laws like this California statute to scapegoat media - it's an easier target.

Bazelon notes that there is an overwrought level of fear that parents have about the effect on their children of what they see and participate with in social media. She points out that the overall rates of child sex crimes and of teen sex are down since the 1990s, as are juvenile crime, school violence and teen fighting. She quotes David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, who calls the gap between parents anxiety and reality "juvenoia" , which he says reflects an "exaggerated fear about the influence of social change on children".

So while I agree with the Supreme Court's rejection of the California statute, I question the distinction Justice Scalia makes between media depictions of violence, and depictions of sexual activity. The social science claiming a causal link between depictions of sexual conduct in media, and behavior, by adults and children, is as equally fuzzy, vague and unsupported as the link between violent media and content. I am presently writing a law review article on this subject, and will share more of the results of my research in future blog posts and in the article, which I hope to publish either later this year, or in early 2012.

Wednesday, June 15, 2011

A New Case Worth Watching: The Puerto80/Rojadirecta Domain Seizure Dispute

Spanish web company Puerto80 filed suit recently in U.S. District Court in New York against the U.S. Government over the seizure, by the Department of Homeland Security and Immigration and Customs Enforcement (ICE), of its popular sports forums Rojadirecta.org and Rojadirecta.com, which were used to exchange links for live streams of U.S. sporting events. Presumably, the government action was based on the possibility that some of the linked sites were operating in violation of the sports leagues copyright ownership rights.

Puerto80 has successfully defended itself against similar claims made in home courts in Spain. In the U.S. lawsuit, filed by the Durie Tangri LLP law firm, which includes Stanford IP Law Professor Mark Lemley, Puerto80 denies any liability for any copyright infringement, both as to civil and/or criminal liability.

A significant issue in the case is the use by the Government of seizure law to shut down the URLs without any prior hearing. While this allows the government to act quickly on behalf of copyright owners, it arguably does deny due process rights to companies that may have a valid defense. Secondary liability cases are fraught with complexity (see last year's Viacom v. Google case for an example), and taking away the right to present a defense until after a seizure has occurred may result in significant financial losses (although Rojadirecta can still be found at Rojadirecta.es, the company claims to have lost 30% of its traffic as a result of the seizure of the URLs).

Setting aside the criminal law claims, I wonder why the civil law seizures don't require at least an ex-parte hearing procedure, with notice to the other side, and an opportunity to be heard, similar to injunction and claim and delivery proceedings in civil law. I'll be keeping an eye on this one, and will update this blog as the case develops.

Wednesday, June 8, 2011

Free Speech and Moral Conduct: Tears in the Fabric of Society

There has always been a connection between intellectual property and the right of free speech: sometimes the two are in conflict, usually in the context of copyright law versus free speech, and sometimes they work in tandem, as when intellectual property rights lend support to the right of free expression. This connection allows me to comment on free speech matters, despite the fact that the primary focus of this blog is on intellectual property rights.

Two recent controversies reflect how free speech rights are being invoked to protect conduct which strains the fabric of society and the need for citizens to consider the moral consequences of their actions.

In Alamogordo, New Mexico, Greg Fultz commissioned and put up a highway billboard ad showing him holding the outline of an infant. The text next to the picture reads. "This Would Have Been A Picture Of My 2-Month Old Baby If The Mother Had Decided To Not KILL Our Child". Nani Lawrence, the ex-girlfriend, has filed suit against Fultz for harassment and invasion of privacy. She also asserts that she did not have an abortion, and that the loss of her infant was the result of a miscarriage. Fultz' defense is that under the recent holding in the Westboro Baptist Church case, he has a right of free speech which allows him to post this admittedly unpopular and offensive billboard.

The ongoing debate over whether circumcision is a valid medical procedure has spawned an online comic featuring a handsome, muscular superhero called Foreskin Man, battling an evil Monster Mohel. The Monster is depicted as a dark, bearded Jew in Orthodox garb (a bearded man wearing a black hat, prayer shawl and a long black coat) looming over a naked child on a table. A mohel is a Jew trained to perform religious circumcision on babies. The author of the comic, Matthew Hess, acknowledges that he sees himself as Foreskin Man, noting that he and his character are both of German ancestry and have light-colored hair.

Hess and associates are the driving force behind a ballot measure in San Francisco's upcoming election which makes circumcision done within the city limits a misdemeanor subject to a $1000 fine, even if it is done for religious reasons. A previous cartoon, released last summer, that depicted an evil Doctor Mutilation, who circumcised boys for medical reasons drew far less attention than the Monster Mohel version.

Jewish leaders have responded to the new comic, branding it as anti-Semitic. Hess acknowledges that his purpose in creating the comic is to ruffle feathers; he claims that he is not an anti-Semite - he is just opposed to any person who circumcises children, regardless of the reason.

In an article about the controversy written by Will Kane and published in SFGate.com on June 7th, USF Professor Corey Cook offers his view of Hess' comic: "Whatever the intent, these images are certainly working to get attention...I do think these will start conversations (about circumcision), but I am not sure it is the conversations these people want us to be having."

In his famous 1978 graduation address at Harvard, author Alexander Solzhenitsyn decried the absence of morality in our legally oriented society. He noted:

"If one is right from a legal point of view, nothing more is required, nobody may mention that one could still not be entirely right, and urge self-restraint, a willingness to renounce such legal rights, sacrifice and selfless risk: it would sound simply absurd. One almost never sees voluntary self-restraint.


A society which is based on the letter of the law and never reaches any higher is taking very scarce advantage of the high level of human possibilities.


The defense of individual rights has reached such extremes as to make society as a whole defenseless against certain individuals. It is time, in the West, to defend not so much human rights as human obligations."

Solzhenitsyn makes a very important point. I can't say as a matter of law that what Fultz and Hess have done is not a valid exercise of their First Amendment rights, although I have my doubts on that score. What I can say with certainty is that they have acted without voluntary self-restraint, and in advocating their views, they further encourage the descent to a low level of human behavior, and further strain the fabric of a moral society.