Video Games and Children of Color: There is More than One Compelling Interest at Stake

The Supreme Court’s decision to strike down a California law banning the sale of video games to children may disproportionately harm minority children, but it was not surprising in light of the Court’s First Amendment doctrine or the Roberts court’s business-friendly stance on corporate speech.  For minority children, video games present more than one compelling interest state laws should seek to address.  In addition to seeking to address the effect of video game violence on children’s psyches, state legislators should also seek to address the impact of video games on achievement gaps in education.

At first glance, it is difficult to conclude that the Court’s decision was based on ideology rather than the letter of the law: While the Roberts court has demonstrated a proclivity for protecting corporate and business interests (see, e.g. Wal-Mart v. Dukes, Citizens United v. Federal Election Commission, and AT&T Mobility v. Concepcion), Justice Scalia’s majority opinion in yesterday’s Brown v. Entertainment Merchants Association decision was actually joined by the two justices widely considered to be the Court’s most liberal—Justices Ginsburg and Sotomayor. Nevertheless, Chief Justice Roberts and Justice Alito issued concurring opinions that can be read as a refinement of their doctrine protecting corporate speech.

The majority analyzed California’s state law from a strict scrutiny point of view.  To pass Constitutional muster, state laws abridging fundamental rights, such as the right to free speech and freedom of expression, must address a compelling governmental interest and must be narrowly tailored via the least restrictive means for achieving that interest.  In the context of free speech, this means that the state law in question must be designed to prevent speech that harms the compelling interest at stake.  Here, the interest advanced by the State of California was to protect minors from violent content in video games.  However, the majority reasoned that the scientific studies presented by the State of California to justify the statute did not prove a direct connection between violent video games and the asserted harmful effects on children.  Writing for the majority, Justice Scalia further stated that the California law was not the least restrictive means that could have been advanced because it was “underinclusive” — while the California law restricted the speech of game developers,  it did not restrict violence in other media targeting children, such as children’s books and television shows.

Chief Justice Roberts and Justice Alito deliberately avoided the “broader” issue of strict scrutiny, choosing to focus instead on whether the California statute provided adequate notice to game developers as to the standards that determine which content is too violent and which is not.  Thus, not only must a state law even remotely abridging corporate speech meet the strict scrutiny standard of review, such laws must be so specific as to require legislators to put themselves in the shoes of corporate speakers trying to determine what kinds of speech are prohibited. 

Such was the disposition of the majority opinion and the concurrence, neither of which were particularly surprising or groundbreaking.  The strict scrutiny test itself remains largely unchanged, and the notion that legislators must consider the First Amendment from the point of view of speakers other than individuals is a bedrock principle, especially in light of Citizens United—this decision simply solidifies it.

Still, we are left with considerable uncertainty as to whether violent video games actually harm children.  This will obviously require further research.  This issue is particularly important for children of color.  Last month, Northwestern University released a study that found that, on average, white children spend the least amount of time per day playing video games (:56), compared to Blacks (1:25), Hispanics (1:35), and Asians (1:37).  Not only could violent video games potentially lead to real violence, more time spent playing video games could mean less time learning the skills needed to create those games.  Addressing the impact of the media on educational achievement should be considered at least as compelling as addressing the impact of media content on violence.

Allied Media 2011: What Was Right and What Was Missing

This past weekend, I got to attend the 2011 Allied Media Conference in Detroit.  Since 1999, media change agents have convened at the Allied Media conference to discuss strategies for using media to enhance grassroots advocacy and to promote independent media.  Designed to mash up ideas and generate healthy dialogue, it is one of the few—if not, the only—media conferences of its kind.  But activism is essentially where it ends.  Missing from the conference was a discussion on how to commercialize different new media ideas. 

Grassroots activism is one very critical component that is needed to reduce inequality in the United States.  The other aspect is economic empowerment—giving people the tools they need to not just organize and promote media justice, but also to make a living.

Many Washington-style civil rights advocates seek to advance social justice albeit via different means—corporate support.  Although large corporations are often demonized, their philanthropic support is desperately needed.  For all of the negative press that Comcast receives, its broadband adoption initiative gets little of the credit it deserves.  Microsoft’s new partnerships with Historically Black Colleges and Universities to identify and promote minority talent should also be commended much more often than they are.  However, corporate support is but one means for bringing about the kind of change our communities desperately need.  Washington civil rights groups also need foundation support so they are in a better position to partner with other funding recipients.  The role that the private equity sector can play in helping to commercialize businesses in low-income areas cannot be overstated.  Further, universities with enormous endowments should build innovation outposts in unlikely places, such as Detroit. 

In his Pulitzer and Aventis Prize-winning book entitled “Guns, Germs and Steel,” Jared Diamond famously argued that the dominance of Eurasian civilizations over others is attributable to positive feedback loops perpetuated by geographic proximity to resources.  According to Diamond, rather than being the result of some innate intellectual or cultural quality of its people, the rise of Eurasian civilizations was largely the result of luck.  Similarly, most of the innovation happening in America takes place on a handful of large university campuses or in a few geographically-gifted areas.  All the while, we claim that the Internet reduces geographic barriers!

On July 21^st and 22^nd, the Minority Media and Telecommunications Council (MMTC) will be celebrating its 25^th Anniversary at its 9^th Annual Access to Capital Conference.  MMTC has been a leading voice for minorities working in and seeking to own media companies.   This year’s agenda approaches policy “from the mountaintop.”  An ordained minister and Nobel prize winner, Dr. Martin Luther King, Jr. had been to the mountaintop.  And he got there by dealing with what was happening in the streets.  But missing from MMTC’s agenda is any discussion on what is happening on the ground that prevents entrepreneurship in low-income communities. 

It is time to stop talking about social justice in silos.  It is foolhardy to regard digital age entrepreneurship as something to be disdained, rather than as a tool for social justice and empowerment.  Nor is it something that should be viewed through an anachronistic lens.

Crime and the FCC

“It wasn’t a problem until it was in Iowa or on Wall Street where there are hardly any black people.”

-Furious Styles, as played by Laurence Fishburne in Boyz n the Hood (1991)

Media and technology policy leaders must become anti-poverty advocates.  As the first anniversary of the Federal Communications Commission’s National Broadband Plan passes, determining whether the Plan is actually working should be a function of one thing: its success in reducing the poverty rate.  This can only be achieved by discussing broadband in the context of the day-to-day realities of the poor. 

In addition to establishing a framework for improving individuals’ access to high speed Internet, the Plan is a roadmap for improving the lives of individuals.  Even where broadband infrastructure is physically available, additional considerations militate against widespread adoption.  Last year, the FCC, the Department of Commerce and leading research institutions—including the Joint Center for Political and Economic Studies—released several reports discussing the barriers preventing people from adopting broadband.  In the Joint Center report, a perceived “lack of relevance” was a primary reason people decided not to adopt broadband. Even in stable households and communities, many consumers simply do not perceive the relevance of broadband.  But in many low-income households, this lack of relevance is also symptomatic of deeper societal ills. 

Take crime, for example.  The Plan articulates an aggressive approach toward a world-class public safety broadband communications network.  The Commission has made good on this plan by initiating a rulemaking to standardize the network. Two bills before Congress—one sponsored by Senator Jay Rockefeller (D-WV), the other by Representative Peter King (R-NY)—seek to strengthen the nation’s public safety broadband communications infrastructure.  But it’s unfortunate that it took the horrific events of September 11, 2001 for the federal government to muster enough momentum for this issue.  How many years have low-income communities been rife with crime?  When Raymond Towler was picked up in Cleveland, for rolling through a stop sign, and then sentenced to 29 years in prison for a rape he did not commit, the entire system failed.  It is not just a want of DNA evidence that has led to false incriminations and an over-reliance on racial profiling tactics—they have also been due to a lack of communication. 

Unfortunately, crime disrupts learning in many low-income communities.  It reduces incentives for educational improvements, and school districts and donors are less likely to provide computers to schools without the resources to prevent equipment theft.  This eliminates an important gateway for promoting digital literacy for low-income children.

Poor educational attainment often leads to higher incidences of domestic violence among frustrated adults.  And domestic violence is an overlooked barrier to broadband adoption.  According to the Bureau of Justice Statistics, people with annual incomes lower than $25,000 have 3 times the risk of intimate partner violence than those who earn more than $50,000.  The sense of helplessness attendant to domestic violence can obfuscate the role of broadband.  In its safety plan for domestic violence victims, the Mayo Clinic advises against the use of home computers for seeking help and for the meticulous management of email passwords and web history data.  It is easy to see why domestic violence victims may find it safer and easier to avoid going online entirely, even where broadband is otherwise available.  Here’s an opportunity for the FCC to improve communication, both from a law enforcement perspective and from the perspective of victims whose life circumstances are so dire they are unable to perceive the relevance of broadband.

The successful implementation of the National Broadband Plan requires interdisciplinary approaches that transcend the often superficial discussions as to the difference between wired and wireless broadband.  The economic and policy analysis that Washington insiders engage in, at forty-thousand feet, can be very interesting.  But in low-income communities throughout the United States, it is simply not enough. 

It’s time for the FCC to go outside of its comfort zone.  This would not necessitate overstepping its authority.  By working in an advisory capacity to local law enforcement and the Department of Justice, the FCC would vastly improve the effectiveness of its public safety agenda.

Public Broadcasting, Rush Limbaugh and Doritos

“I hope that you do not mean to suggest that it is the job of the federal government, through the Federal Communications Commission, to determine the content that is available for Americans to consume,” wrote Rep. Joe Barton of Texas to FCC Commissioner Michael Copps last December.  Now we know Mr. Barton wants it to be this Congress’ job.

To the beneficiaries of the vastly conservative talk radio establishment, the fairness doctrine has long been the Great Satan.  And it takes many forms, apparently.  One of them is federal funding for public broadcasting.  It is quite alright for the public to subsidize hate speech, for example, via the social costs attendant to that speech, including politically-motivated hate crimes and the public resources needed to prevent and prosecute them.  But far be it from the federal government to have to pay $1.35 per citizen to preserve even the appearance that the First Amendment is worth the paper it’s printed on. 

These days, aside from the pittance the federal government spends on public broadcasting, it seems that only privately-funded content over the broadcast spectrum is worthy of First Amendment protection.  After all, the members of Congress who are pushing to have public broadcasting removed from the federal ledger can tolerate the content, so long as it is entirely funded by either advertising or foundation support—they’re betting that, in its current form, it won’t survive in the commercial marketplace.  They’re probably right.

The judiciary isn’t much help here, either.  Just last year, the Supreme Court’s Citizens United decision left us scrambling for signs of free speech life.

So here we are.  I can go and buy a bag of Doritos for $1.99 even though, unbeknownst to me, Doritos runs ads in Rush Limbaugh.  Even though I don’t listen to Rush Limbaugh, I am effectively subsidizing him.  But somehow Rush Limbaugh’s listeners are put upon by paying $1.35 per year each for public broadcasting content.

Rural broadband disparities should not trump unemployment

If the overall unemployment rate were anywhere near what it is for African-Americans and Hispanics, the policy debates happening in Washington would be a lot different. The FCC announced today, for example, that its broadband subsidy program (known as USF) would focus on bringing high-speed Internet to rural areas. While this is a noble objective—many rural areas are among the hardest hit by unemployment—it ignores the biggest problem staring this country right in the face.

According to the Bureau of Labor Statistics, the overall unemployment rate in January was 9.0%. For African-Americans, January unemployment was a whopping 15.7%. Latino unemployment was 11.9%. Last year, The Joint Center for Political and Economic Studies’ Broadband Adoption Study revealed: “Nine out of ten low-income African Americans … use the Internet for job searches. Among families with an annual income of less than $20,000, 92% of African Americans and 63% of Hispanics go online for job searches as compared to only 54% of Whites.”

The Commission itself has acknowledged, among other things, that broadband is “the latest challenge to equal opportunity” …

FEDERAL COMMUNICATIONS COMMISSION, NATIONAL BROADBAND PLAN (2010)(“Broadband can expand access to jobs and training, support entrepreneurship and small business growth and strengthen community development efforts.”); Id. at 3 (“Jobs increasingly require Internet skills; the share of Americans using high-speed Internet at work grew by 50% between 2003 and 2007, and the number of jobs in information and communications technology is growing 50% faster than in other sectors.”); Id. at 5 (“If learning online accelerates your education, if working online earns you extra money, if searching for jobs online connects you to more opportunities, then for those offline, the gap only widens.”); Id. at 29 (Broadband is “[C]reating high-paying jobs in important sectors such as information and communications technology (ICT).”); Id. at 59 (In considering the transition from circuitswitched network to IP-based services, the Commission “[S]hould consider the impact of the transition on employment in the communications industry, particularly given the historic role of the sector in providing high-skill, high-wage jobs.”); Id. at 129 (“Access to broadband is the latest challenge to equal opportunity . Americans . can use broadband to . apply for jobs.”); Id. at 193 (asking “Why is it that many jobs are posted online, but too many Americans-particularly in low-income and minority communities [emphasis added]-lack the access or skills to see those postings?”).

But since when do rulemaking proceedings take up mere policy statements?

The basis for determining where broadband subsidies should go should be areas of high unemployment first, and geography second. Focusing on rural areas does not cast a wide enough net. No pun intended.

How to Define “Broadband Social Justice”

The key net neutrality issue for people who have not adopted broadband is not whether they should be “for or against” it. The net neutrality debate itself has become a broadband adoption barrier. The latest vitriolic exchange (see here, here, and here), between James Rucker, who heads up Color of Change, a Silicon Valley-based advocacy organization, and Congressman Bobby Rush, who has served Illinois’ 1st Congressional District since 1993, is a case in point.

The public interest groups that support net neutrality have been far more accommodating of varying interpretations of the end-to-end principle (the central design component of the Internet) than they have been of differences of opinion when it comes to defining “broadband social justice.” Last year, Barbara van Schewick, an Associate Professor of Law at Stanford Law School, published a book laying out the differences between the “broad” definition and the “narrow” definition of the end-to-end principle. The purpose (or, at least, the effect) of the book was to facilitate collaboration by describing, in highly specific terms, the policy implications of each definition, so that proponents of net neutrality would be in a better position to understand the different interpretations of its underlying principle.

Advocates and policy makers should also recognize two differing approaches to “broadband social justice”—a “blue” definition and a “green” definition, if you will.

The blue definition sees the key component of broadband social justice as broadband adoption—increasing the number of people who are able to use the Internet. Under this view, broadband adoption must be prioritized before all else. The blue definition holds that while net neutrality is a concern, it is not a primary concern where broadband is not being adopted (for want of access, low enough prices, etc.). The green definition, on the other hand, turns on the importance of network integrity and protecting the ability of people to do what they want to do after they go online.

When the Egyptian government blocked demonstrators from accessing the Internet during the still ongoing Tahrir Square revolt, some groups were all over it. They decried it as anti-democratic and held it up as an example of what would happen without strong net neutrality rules here in the United States. These groups have been reliable and persistent net neutrality advocates here and abroad. They have been completely against throttling traffic or blocking access to the Internet where it already exists. But when it comes to improving adoption rates right here in the United States, their opinion is barely audible. I went five pages in, on Free Press’s Press Release page, before I gave up looking for a single mention of broadband adoption. Where the debate shifts from net neutrality to access and adoption, these folks tune out. Similarly, the Minority Media and Telecommunications Council (MMTC)—another organization that Rucker has attacked—did not address, on its blog, the Egyptian government’s speech suppression.

So, who’s right? Both! And that’s okay.

When Can We Start Working Together Again?

“American history is longer, larger, more various, more beautiful, and more terrible than anything anyone has ever said about it.”

-James Baldwin

Leading progressive organizations were noticeably absent from the Minority Media and Telecommunications Council’s Second Annual Broadband and Social Justice Summit in Washington, D.C. today.  Organizations including Free Press, the National Hispanic Media Coalition, Public Knowledge, Media and Democracy Coalition, Color of Change, Consumers Union, and other organizations were simply not in the audience, or on the panels, in any meaningful or significant way.  

Why is this?  The conversation around social justice and civil rights has split into two camps, and it has been due to a single debate: net neutrality.  The larger, nationally-based civil rights organizations including the National Urban League, Asian American Justice Center, LULAC, NAACP, and NCLR have simply entertained the notion that regulating ISPs’ network management could harm the interests of minorities.  On the other hand, the influential organizations listed above, among others, vigorously advocated in favor of robust net neutrality rules.  The debate is certainly not over, and it has begun to work its way through the judicial system, but we are long overdue for a discussion as to when we can start working together again.

Now that the FCC has released its net neutrality order, it is time to step back, let these issues work their way through the judicial system, and work together on the issues that directly impact our communities:

• The need for media ownership diversity
• The need for improved EEO enforcement
• The need for a look at hate speech and its effects
• USF Reform
• Science, Technology, Engineering and Mathematics Education
• Lowering the Costs of Broadband for the Poor
• Privacy
• Spectrum Reform

The net neutrality debate has made enemies of natural allies.  We must work together with all stakeholders toward more meaningful outcomes for millions of Americans who remain untapped as both consumers and producers.  This is not rhetoric. This is not paid for by so-and-so.  This is real.

At the FCC, Empiricism Gives Way to Politics in Net Neutrality Order

“If you would be a real seeker after truth, it is necessary that at least once in your life you doubt, as far as possible, all things.”

-René Descartes

Today, the Federal Communications Commission (FCC) passed a set of rules designed to protect an open Internet. But its inquiry was far from complete. Lacking throughout the record was an empirical, data-driven analysis of what net neutrality actually means to people of color—especially African-Americans and Latinos. This matter is destined to end up in the judicial system. Pitted against each other are ISPs and content providers who have begun to wield considerable market power. These two debates are often cloaked in the veil of being about progressives on the one hand, who purportedly seek to preserve democracy, and free market capitalists on the other who, ever since slavery, have sought to prioritize profits above all else.

So who’s right? Who knows! But what this debate has never been about is the American people. It has been a battle of egos. Despite the volumes of attention given to this debate, we have arrived at no single conclusion as to whether a deregulatory framework or a regulatory framework, similar to the one proposed by the Commission today, is the best approach to preserve democracy while, at the same time, promoting innovation and competition.

Chairman Genachowski has a particular affinity for invoking the metaphor of innovation happening in “dorm rooms and garages” as the reason why he endorses today’s order. But is it possible that innovation can happen in places other than the suburbs and a handful of elite college campuses around the country? Many of the same people who advocate for the Internet as “the great equalizer” seem to be the most presumptuous when it comes to defining the archetype of the American innovator (suburbanite, flip flops, ivy league, etc.). Meanwhile, we see sparse genuine attention paid to broadband adoption in low income areas, which can serve to drive creativity and entrepreneurship in communities from which not much has been expected.

Despite the numerous accolades bestowed upon those at the Commission who “worked so hard” to devise this middle-ground solution, the Commission still lacks perspective. The Commission has kicked the media ownership diversity can down the road, while the diversity within its own ranks is dismal to say the least.

Republicans will take control of the House of Representative in a few days. The Presidential election is less than two years away. How can the Commission arrive at a well-informed solution with the constraints imposed upon it by the political calendar? The empiricism Descartes articulated, which has led to so many scientific breakthroughs, including the Internet, has apparently given way to political expediency when it comes to policy. How sad.

Blogging While Brown

It was so great to see so many folks here in D.C. at the Blogging While Brown conference.  This town has a bad reputation for being navigable only by those with the closest ties to the people in power.  It’s inspiring to see the “people in power” being redefined, even in the face of palpable push back from entrenched interests.  Congrats to the entire BWB crew and thanks to Gina McCauley for having me on as a speaker.