AAF Government Report

June 30, 2011

Clark Rector Jr., Executive Vice President – Government Affairs

Dwayne Fitzhugh, Federation Intern

Supreme Court Issues Free Speech Rulings

The U.S. Supreme Court ended its current term by issuing two important First Amendment rulings and promising the prospect of another in next year’s session.

By a vote of 7-2, Court overturned a California law that banned the sale of violent video games to minors under the age of 18.  In Brown v. the Entertainment Merchants Association (EMA) the Court ruled that video games should be granted the full protection of the First Amendment.  

“Even where the protection of children is the object, the constitutional limits on government action apply,” wrote Justice Antonin Scalia in his majority opinion.  Game manufacturers had argued that their self-regulatory rating system was adequate to keep violent video games from children.

On the same day, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett the Court ruled 5-4 that an Arizona law giving public money to political candidates who faced better funded opponents was unconstitutional.  Challengers of the law argued that it penalized the better funded candidates because their expenditures triggered subsidies to their opponents.  Chief Justice John Roberts agreed, stating in his opinion, “Laws like Arizona’s . . . that inhibit robust and wide-open political debate without sufficient justification cannot stand.”

Major First Amendment rulings are expected in the Court’s next term also.  The justices will hear a challenge to Federal Communications Commission rules on indecent speech on broadcast outlets.  Broadcasters argue the rules – which have been in effect since 1978 – are no longer needed given the proliferation of cable, broadband and other programming distribution channels.

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AAF/Industry Write Senators on Privacy

The Senate Commerce Committee held a June 29 hearing on online privacy and data breech issues.  Committee members were in widespread agreement about the need for data breech legislation, but less so when it came to online privacy. 

Chairman Jay Rockefeller, D-W.Va., spoke in favor of his own bill, S. 913, the Do-Not-Track Online Act.  Senator Pat Toomey, R-Pa., urged caution noting that no one has yet established any harm that is being addressed by the legislation.  He also called for more study of the issue and warned against possible unintended consequences of passing legislation too soon.

Prior to the hearing AAF and many industry allies sent a letter to committee members urging them to proceed carefully. 

The letter argued that privacy and date breech are two separate issues and should be treated as such.  AAF and industry would support carefully crafted data breech legislation as long as it does not obstruct innovation or disallow beneficial uses of data.  Legislation should include federal preemption so that consumers and businesses will benefit from one clear, strong standard nationwide.

The letter argued that absent any identifiable harm in the marketplace, privacy issues are best addressed through industry self-regulatory programs and best practices.  AAF has been a leader in this area through participation in the Digital Advertising Alliance and the self-regulatory program for online behavioral advertising at www.aboutads.info.

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