From: tcmay@got.net (Timothy C. May)
Date: Sat, 13 Apr 1996 22:01:16 +0800
To: cypherpunks@toad.com
Subject: Any examples of mandatory content rating?
Message-ID: <ad93dffc1b021004ed13@[205.199.118.202]>
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There are several swirling proposals for "rating" of Internet packets,
Usenet articles, Web pages, and perhaps other computer-communicated items.
There are also things like the "V-Chip," included as part of the
Telecommunications Act. (The V-Chip is ostensibly a "voluntary self-rating"
scheme, with an included mandate that government will give industry a year
or so to come up with a plan.)

I foresee major legal challenges to mandatory ratings of content. Issues
involving prior restrain, censorship, and the First Amendment of the U.S.
Constitution.

I'm interested in hearing about any _actual_ examples where a government
body in the United States has mandated that intellectual property (roughly,
written words, magazines, motion pictures, CDs, etc.) be "rated" or
"age-labelled." Before anyone out there fires up his "Reply" and tells us
about movie ratings, magazine warning labels, and the like, read on.

To forestall a couple of likely examples some will cite, let me discuss a
few oft-cited cases:

1. Movie ratings. The familiar "G," "PG," "R," and "NC-17." (Used to have
"M" for "Mature," and "X" for, well, X-rated stuff.)

In actuality, these ratings are _not_ mandated by law, and are done by the
MPAA, the Motion Picture [something] Association. There may be serious
legal charges brought if, say, a 10-year-old child was let into a showing
of "Debbie Does Fort Meade," but this would be after the fact and would
presumably involve negligence charges of some sort (contributing to the
delinquency of a minor, child abuse, etc.).

(A parallel to this is ordinary speech to a child. While speech is not
required to be rated, there might well be various sanctions applied to an
adult who spoke to a child in various indecent or obscene or "patently
offensive" ways. I'm not saying whether I endorse this, and it would depend
on just what was said, but the point is that there is no "rating" system
for speech imposed, nor would the Constitution admit one.)

We may speculate that had the movie industry not adopted "voluntary
ratings" in the 1960s, government may have tried to impose ratings, but the
fact is that government did NOT impose content ratings. (The important
point being that we cannot look to how the movie situation evolved for
hints about how Internet packets or articles might be rated.)

Note also that the MPAA ratings are not "self-ratings," but are done by a
panel of MPAA representative. Many film directors have been very angry over
the MPAA ratings they received, and would not have rated their films as the
MPAA panel did.

There are then local ordinances about allowing children in to see "R" or
"NC-17"-rated movies, but this is a case where the government piggybacks on
the "private" ratings service (which could raise some important
constitutional issues if it was ever seriously challenged, which seems
unlikely).

This MPAA situation is an important example because it is neither
"self-rating" nor "government" rating, but is, instead, something else.
This model would be extremely hard to apply to the Internet, as there is no
similar body to the MPAA, nor is there the same economic incentive for any
such body to form and then to try to cope with tens of thousands (at least)
of articles and pages per day....

1A. A special case of this system is _television and radio broadcast_ of
indecent material, a la the FCC's regulations about content broadcast over
the airwaves at various times of the day. Cable is not regulated in the
same way, though most cable systems I have seen have "adult" material in
the evening hours (though definitely not confined to late evening). Lots of
wrinkles here, and the FCC is attempting some regulation of some
cable..."The Playboy Channel" is involved in a dispute where they are being
told they can only send their channel out after certain hours...details
should be accessible on the Web.

I think this special case of FCC involvement covers a different set of
issues than the "content" issue per se. Though this may help to explain
some of the rumors about the FCC seeking a broader mandate to regulate
"cyberspace," as this gives them a foot in the door to regulate content on
the same basis they regulate content of broadcasts.

Moving on....

2. Magazines, as in "For Adults Only!" emblazoned on the covers. In doing
my "research" for this article, I consulted my "reference materials," and
discovered that such warnings are less common than I remembered them as
being. Neither "Penthouse" nor "Playboy" issues that I have at hand contain
any such warnings, though some other mags do.

So far as I know, there is no government requirement for labelling. Again,
there may be sanctions imposed for, say, selling such a magazine to a
minor. I can't say as I've ever heard of a court case along these lines.

Importantly, there appears to be no "ratings board" run by the government
that rates such materials a priori. ("Obscenity" is not the same as
pornography or nudity, as we all must know by now.)

I conclude that magazines need not be labelled, voluntarily or otherwise,
though there may be sanctions if children are exposed to certain materials
(though this is unlikely). More to the point, it seems likely that the laws
which exclude children from entering bars and strip joints are the one
which would apply to keeping children out of "adult bookstores."

An important point was made recently by someone on the Cypherpunks list,
that some libraries make a point of providing access to _all_ materials, by
_all_ patrons, including back issues of "Penthouse." So far as I know, no
librarians have gone to jail for this.

Moving on...

3. "Explicit Lyrics" labels on CDs and music. This one is more iffy. I
recall the _proposals_ to require such labels, and Tipper Gore (wife of VP)
was a leader in this campaign some years back, but I don't believe any laws
were formally passed. I could be wrong. And some local jurisdictions may
have such laws; I recall some part of Florida mandated a labelling law, or
banned sales of explicit lyrics CDs in some way. (The "2 Live Crew" issue,
with "Me So Horny" and other gems.)

And none of the CDs I have seen here in California with "Explicit Lyrics"
or "Parental Advisory" notices mention who did the rating, whether the
lyrics are "Government Censor Approved," etc.

This tongue in cheek mention of "Government Censor Approved" is an
important point: any hint that a government censor is to apply ratings to
written or spoken or similar materials runs smack dab into the First
Amendment. This is not just an academic matter. There is no provision for a
"ratings board" to review content, and such a "prior restraint" (can't
publish something until it's been rated or approved) is a textbook case of
prior restraint, forbidden by the First Amendment. (The H-Bomb case
involving "The Progressive" was ultimately decided in favor of no prior
restraint, even for such a potentially serious situation.)

So, if anybody's still reading this, I am interested in _any_ examples
where intellectual content (as opposed to food or drug packaging, for
example) is required to be labelled.

Such examples might shed some light on how these various proposals for
"labelling" of Net traffic might work. And absent such examples, might show
just what a tough road lies ahead for those advocating such labelling.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."