Media and Technology Stats and Studies – May 13, 2013

A Grunwald Associates report commissioned by AT&T concluded that parents’ level of education correlated with their level of enthusiasm about the benefits of mobile technology in their children’s education. The report concluded that most parents whose children did not use mobile devices or who were less believing of the benefits of using devices to enhance learning do not have college degrees. According to the National Center for Education Statistics, 30.4% of all U.S. adults aged 25+ have earned a Bachelor’s degree, which breaks down to 50.8% of Asians, 34% of Whites, 20.2% of Blacks, and 14.1% of Hispanics. Seventy-eight percent of parents surveyed in the Grunwald/AT&T report indicated that someone in the family owns a “personal or portable computer” with 52% saying their children use these devices. Forty-six percent of parents surveyed own a tablet, with 34% of their children using it. Additionally, in a recent Pew Research study, 62% of parents believed libraries should offer access to a wider selection of e-books.   

Disney’s media networks business is enjoying its most profitable year ever, generating $5 billion in revenues in 1Q13, which grew by 6% since last year. ESPN led Disney’s growth, with its ad revenue up 10% in 1Q13. However, ABC – the company’s broadcasting unit – continues to struggle, with operating income down 40%, even though Shonda Rhimes‘ Scandal is breaking ratings barriers and is on track to become the #1 drama on TV for the second time in 3 weeks. Last Thursday, Scandal was up in ratings by 68% among 18-49 year olds, compared to the same night last year. Scandal also outperformed Fox’s American Idol for the first time ever last Thursday night, according to Nielsen.

The White House released new open data rules to make data the federal government collects more accessible by the public.

Nielsen reported that the number of TV Households are up 1.2% since 2012 to 115.6 million. Further, the Leichtman Research Group (LRG) report found that more than 1/4 of U.S. adults watch video daily on devices other than TVs. Nielsen will begin including Internet viewers in its ratings estimates later this year.

A University of Montreal discussion paper showed a positive correlation between broadband adoption and marriage rates among 21-30 year olds.

A Park Associates report found that 78% of U.S. broadband households have a home network. This rate is expected to increase to 95% by 2016.

The Federal Communications Commission released its quarterly report on consumer inquiries and informal complaints. Telephone Consumer Protection Act (TCPA) matters comprised more than half (58%) of inquiries. Radio and television complaints increased by 104% and cable and satellite services complaints increased by 67% in the 4th quarter of 2012, compared to the 3rd quarter of 2012. The FCC attributed most of the increase in complaints in these two categories to programming.

Fortune: Glenn Beck’s TheBlaze Media Network generates between $35 and $45 million in annual revenues.

Considering Benefit Corporations as an Integral Part of Tax Reform and our Economic Future

by Ernie C. Jolly

At a shareholders’ meeting for the fictional corporation Teldar Paper, Wall Street (20^th Century Fox, Dec. 11, 1987) antagonist Gordon Gekko argued that “greed, for a lack of a better word, is good” and that “greed, in all its forms, greed for life, for money, for love, [for] knowledge, has marked the upward surge of mankind.” Although a fictional tale, the blockbuster hit may have foreshadowed what became the dominant culture among private corporations prior to the 2008 financial meltdown.  Since the crisis, financial analysts have identified greed as the impetus that encouraged Wall Street executives to amass unsustainable amounts of financial risks. Notwithstanding its negative impact, the crisis sparked a movement that has the potential of changing corporate culture for better. Through “benefit corporation” statutes, lawmakers in several states have modified their laws to encourage more altruistic behavior among entities. This movement may have been futile if the crisis had not challenged the notion that greed is essentially good. In that vein, the time may be ripe for federal policymakers to consider ways to encourage other states to enact similar legislation.

Corporations are creatures of state statutes that define the standards for incorporation. Despite differences among the states’ corporate codes, these laws are rather consistent in compelling corporate directors and managers to pursue the single goal of increasing profits for the benefit of shareholders. Accordingly, among many corporations, profit maximization usually trumps any desire to serve a public purpose.

In April of 2010, Maryland became the first state to enact a benefit corporation statute. Currently, Maryland has been followed by 11 other states. These statutes legally allow entities to pursue interests beyond simply increasing profits for investors. According to B Lab, a nonprofit whose mission is to use the power of business to solve social problems, benefit corporations:  “(1) have a corporate purpose to create a material positive impact on society and the environment; (2) are required to consider the impact of their decisions not only on shareholders but also on workers, community, and the environment; and (3) are required to make available to the public an annual benefit report that assesses their overall social and environmental performance against a third party standard.” After electing to become a benefit corporation, corporate directors and officers are legally protected if they consider the non-financial interests of their workforce, local communities, and the environment while making decisions, even if the decisions do not yield the most profit.

Despite the flexibility afforded to them on the state level, benefit corporations are treated by the Internal Revenue Service as any other for-profit entity, and donations to them are not deductible as they would be if given to a charity. Therefore, a benefit corporation’s income is fully taxable, and their investors and donors are not provided the same tax incentives as traditional charitable donors. As the House Committee on Ways and Means considers comprehensive tax reform, the Committee should also consider organizing hearings on benefit corporations. If this current tax treatment is eventually changed, there may be both more incentive for entities to adopt the new corporate form, and more pressure on state legislatures to jump on the bandwagon.

Ernie C. Jolly is a spring 2013 intern at the Joint Center for Political and Economic Studies and a second-year law student at American University’s Washington College of Law.

Media and Technology Stats and Studies – February 19, 2013

Local Phone Companies and Libraries Split on Whether NTIA’s ‘BTOP’ Program Has Been Wasteful

Local phone companies complained the federal government’s program to build broadband to remote areas has been wasteful.  The companies and others complained about millions of dollars in duplicative— and, in some cases, lavish—expenditures by BTOP grant recipients.  In a separate report, the American Library Association said the broadband stimulus program has had a strong and positive impact on public libraries.

WSJ: Many Recipients of Lifeline Mobile Phone Subsidies Cannot Show Eligibility

The Wall Street Journal reported the FCC could not confirm whether some 41% of 6 million Lifeline subscribers were eligible to receive mobile phone subsidies.  According to the Journal, the FCC spent $2.2 billion last year providing mobile phones to low-income Americans. Mobile phone carriers responsible for collecting eligibility data said many subscribers simply did not provide the data needed to confirm their eligibility to receive mobile phone subsidies.

Pew: Blacks and Hispanics Prefer Twitter/Instagram, Women Prefer Pinterest

The Pew Research Center released a report on demographic trends in social media.  Among the findings, blacks and Hispanics are avid users of Twitter, and women prefer using Pinterest.

Univision and Disney Announce Fusion– New Channel for Latinos

Univision and ABC News, which is owned by Disney, announced it will premiere Fusion, an English-language news and entertainment channel targeting Latinos, this summer.

Other Reports:

FCC: Broadband Service Providers Deliver Close to Advertised Speeds

The National Intelligence Agency concluded the United States is the target of a massive cyber-espionage campaign. The report identified China as the leading culprit most aggressively attempting to access computer systems of American institutions and exploit the data it uncovers for its own competitive advantage. Disclosures from the U.S. Department of Commerce and China’s customs administration reveal China has surpassed the U.S. as the world’s largest trading nation with $3.87 trillion traded in goods in 2012, compared to $3.82 trillion traded during the same period for the U.S.

The U.S. Government Accountability Office released its cybersecurity report and recommendations.  The Committee to Protect Journalists released a report stating cyberattacks against media companies and journalists are on the rise.

Raytheon has developed a technology to covertly track social media users.

Thompson Reuters announced it will cut 2,500 jobs.          

The European Union cut its €7 billion ($9.36 billion) fund for expanding access to broadband in Europe and assisting businesses in adopting cloud services.  However, ZenithMedia reported Western Europe leads in new media adoption.

Gartner research reported global mobile phone sales fell in 2012.

Dealbook reported a significant rise in merger activity in 2013. Comcast perfected its ownership of NBC/Universal, buying GE’s 49% share for $16.7 billion.  Charter Communications acquired Cablevision Systems’ Optimum West for $1.625 billion. Optimum West boasts approximately 304,000 customers in Utah, Wyoming, Colorado, and Montana.  Google Ventures has become the number 3 venture capital firm in the U.S.

NYT: How Advertising Targets Our Children

As the market for e-books continued to grow in 2012, Amazon boasted the largest overall share of book sales with 27% at the end of September compared to its 21% share the previous year. Even with efforts to promote its Nook e-book tablet in stores, Barnes and Noble’s overall share of book sales fell to 16%, down from 17% in 2011.

ITIF released a report stating, contrary to conventional wisdom, the United States has made great strides in broadband deployment, performance, and price.

NYT’s Paywall Exceeds Expectations with Explosive Digital Subscriber Growth

The White House launched Consumer.Data.gov to “empower Americans with the data and tools they need to make more informed choices in the marketplace.”

NYT: Research attempting to link video games with real world violence is contradictory, at best.

Boston Consulting Group reported consumers derive more value from online media relative to what they paid for it, than they do from offline media.  The report looked at books, radio and music, U.S. newspapers and magazines, TV and movies, video games, international newspapers and magazines, and user-generated content and social networks.

AMC’s “The Walking Dead” returned a record audience for cable television programming, with 12.3 million total viewers for its February 10 midseason premiere, against competition from the Grammy Awards and CBS’ “Big Bang Theory.”

Nielsen: State of the Union Audience Was Down 12% from 2012

Dorner Coverage Doubled Normal Local News Audience Ratings in L.A.

Can You Hear Us Now?: Communications Policy and the Criminal Justice System

by Joseph Miller, Esq.

Talk about convergence.  Not only has the Internet changed the way Americans consume content, it is also changing the criminal justice system.

The United States has the highest incarceration rate in the world.  According to the 33-country Organisation for Economic Co-operation and Development (OECD), the U.S. incarceration rate is 760 prisoners per 100,000 population.  Only 3 of the remaining OECD countries have incarceration rates above 250 per 100,000. These include Israel (325 per 100,000), Chile (317 per 100,000) and Estonia (273 per 100,000).  African-American and Hispanic men (3,074 per 100,000 and 1,258 per 100,000, respectively) comprise a disproportionate share of American prisoners, compared to just 459 per 100,000 of white men.

Policymakers should continue to monitor how the ways law enforcement officers use technology may perpetuate flaws in the criminal justice system.  Several developments over the past month shed light on these considerations.

Privacy

The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” The warrant requirement for law enforcement officers conducting investigations in the physical world is well settled, even as the law surrounding exceptions to the warrant requirement is more complex. However, the extent of Fourth Amendment protection online and on devices is murkier.

The New York Times published an article discussing the patchwork of confusing, and often contradictory, laws around the country governing law enforcement’s warrantless use of cell phone data, including New York City’s practice of keeping cell phone theft victims’ phone data beyond the data need to investigate and prosecute the theft.  The New York City Police Department is also notorious for its “Stop and Frisk” practices.  According to the New York Civil Liberties Union, black and Latino New York residents “made up close to 90 percent of people stopped and about 88 percent of those stops were of innocent New Yorkers.”

To address the challenges of privacy and Fourth Amendment policy in the digital age, policymakers are considering legislation to amend the Electronic Communications Privacy Act (ECPA). ECPA, enacted in 1986, was designed to restrict the ability of the federal government to use computer data and stored electronic communications in investigations.  But ECPA currently requires no probable cause and no warrants for law enforcement to obtain things like stored photographs, data from Facebook pages, and draft documents shared with third parties like Dropbox and Google.

On Thursday, the Senate Judiciary Committee approved an amendment to ECPA that would require police to obtain a warrant before searching suspects’ emails.  The Senate is not anticipated to vote on the ECPA amendment until next year, but this is important progress toward ensuring the Fourth Amendment warrant requirement applies to data and devices.

Recording Police Activity

The past month has also seen an important development in the role personal audiovisual recordings might play in documenting police misconduct.

On Monday, the Supreme Court declined to review a Seventh Circuit ruling that the First Amendment includes the right to record the actions of police officers while they are on duty and in public. Illinois’ eavesdropping law had made recording police officers a felony punishable by up to 15 years in prison. The Seventh Circuit held that “the act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as corollary of the right to disseminate the resulting recording.”

Earlier this year, the City of Boston agreed to pay $170,000 in damages and legal fees to a man, Simon Glick, who was arrested for recording police officers in public. The settlement followed a First Circuit Court of Appeals unanimous ruling that Glick had a “constitutionally protected right to videotape police carrying out their duties in public.”

Prison Phone Justice

The families of inmates are silent victims.  Incarceration removes a reliable source of household income and separates parents from their children.  One aspect of the effect of incarceration on families is the stratospheric rates telephone companies charge for collect calls made by inmates.

One study conducted by the Southern Poverty Law Center of prison phone rates in Louisiana  found these fees to be 15 times higher (30 cents per minute versus 2 cents per minute) than they are for collect calls made outside prison walls.  In September, FCC Commissioner Clyburn urged FCC Chairman Genachowski to cut prison phone rates. On November 15^th, the FCC announced at a rally led by the Center for Media Justice that it would seek public comment on prison phone rates.  Congressmen Henry Waxman (D-CA) and Bobby Rush (D-IL) attended a screening of a new film entitled “Middle of Nowhere” on the Hill earlier this week.  The film depicts the inner conflicts a mother encounters while her husband is serving an eight-year sentence.

Far too many people of color are in prisons in the United States. That makes the use of information and communications technology by law enforcement a matter of particular interest to people of color. The developments discussed here show policymakers taking constructive steps to improve how the criminal justice system uses technology. But information technology—and its uses—evolve rapidly, which means we need careful oversight of how these tools are used in the criminal justice system.

Joseph Miller, Esq., is Deputy Director and Senior Policy Counsel for the Media and Technology Institute at the Joint Center for Political and Economic Studies. More information on Mr. Miller and his work can be found at the Joint Center website.

Fairness Within the Economic Recovery

by Wilhelmina A. Leigh, Ph.D.

June of this year will mark the third anniversary of the official end of The Great Recession, the month when the downturn bottomed out and the economy started to grow again.

With the recovery, as during the recession, however, disparities by race/ethnicity have persisted in economic outcomes such as employment, and will continue to do so unless determined efforts are made to reduce or eliminate them, and the impacts of these efforts are closely monitored.

The economic recovery is currently gaining steam.  During the fourth quarter of 2011, real U.S. gross domestic product, or GDP (the output of goods and services produced by labor and property located in the United States), increased at an annual rate of 3.0 percent.  This rate of growth was faster than at any point during the last year and a half and nearly equals the average annual growth rate of GDP over the last 60 years of 3.25 percent.  In addition, unemployment rates have declined even for groups such as African Americans, who were not seeing much of a decline earlier in the recovery.  In the wake of the recent recession, the unemployment rate for the nation peaked in October 2009 (at 10 percent), while the rate for African Americans did not reach its peak until August 2011 (at 16.7 percent).  In February 2012, the unemployment rate for African Americans was 14.1 percent, while the national rate was 8.3 percent.

How can we channel the economic recovery to more completely benefit all Americans?  One way is to monitor existing and new federal, state and local programs and policies for the extent to which they can and do foster economic equity among racial/ethnic groups. An analysis by PolicyLink of proposals in the 2013 Obama budget highlights programs that are promising in this regard. For example, the Partnership for Sustainable Communities—an interagency collaboration among the Department of Housing and Urban Development, Department of Transportation, and Environmental Protection Agency—would redevelop communities to reduce barriers for low-income households to access jobs, schools and affordable housing.  The Pathways Back to Work Fund, another 2013 budget proposal, would provide funding for subsidized employment and work-based training for low-income youth, the long-term unemployed and low-income adults. Among the wish list of programs that presidents’ budgets too often become, initiatives such as these should, first, be supported and then, once enacted, be monitored for their effectiveness.

Racial/ethnic economic disparities will not be lessened or eliminated without conscious action.  We justify not addressing these longstanding disparities during recessions because we lack resources to do so.  We cannot justify the failure to act during periods of economic growth. Thus, we should insist that such action is evident during the coming recovery.  As Alan Krueger, chairman of the President’s Council of Economic Advisers noted recently, “Restoring a greater degree of fairness to the U.S. job market would be good for businesses, good for the economy and good for the country.”

Wilhelmina A. Leigh is Senior Research Associate of the Economic Security Initiative of the Civic Engagement and Governance Institute at the Joint Center for Political and Economic Studies. More information on Dr. Leigh and her work can be found at the Joint Center website.

This is Inner City…

by Joseph Miller, Esq.

“Don’t take away the music.  It’s the only thing I’ve got.  It’s my piece of the rock.” 

-        From the lyrics of Don’t Take Away the Music by Tavares.

“[T]he market shapes programming to a tremendous extent. Members of minority groups who own licenses might be thought, like other owners, to seek to broadcast programs that will attract and retain audiences, rather than programs that reflect the owner’s tastes and preferences.”

-        From Justice Sandra Day O’Connor’s Dissenting Opinion in Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990)

When the walls started shaking at the Joint Center’s offices during last week’s earthquake, I was faced with one question: leave the building or stay inside?  Similarly, the seismic transformation of the broadcasting industry brought on by mobile devices, personal computers, and digital video recorders has presented new problems for broadcasters.  But Black-owned radio stations targeting African-American audiences are faced with their own fight or flight question:  Can they stay profitable by offering black-only programming?  What is the tipping point at which diversifying their programming will begin to alienate their listener base?

Earlier this week, Inner City Media Corporation’s creditors filed an involuntary Chapter 11 bankruptcy petition against it. Inner City Media Corporation is the holding company of Inner City Broadcasting, one of the nation’s leading black-owned broadcasters and owner of WBLS-FM/WLIB-AM in New York City.  Inner City’s creditors claim that it owes some $254 million.

Inner City Broadcasting is rooted in the civil rights movement.  The late Percy Sutton, former attorney to Malcolm X and a former Manhattan Borough President; and Clarence Jones, former publisher of The New York Amsterdam News, one of the oldest black-owned newspapers in the United States, founded the company in 1970.  WBLS has been home to legendary black radio personalities like Hal Jackson, Frankie Crocker, Wendy Williams and DJ Red Alert.  WLIB has changed formats many times over the years, but it too has featured notable personalities including Betty Shabazz, Malcolm X’s widow; and Rev. Al Sharpton.  Inner City owns 15 other stations in San Francisco, CA, Columbia, SC, and Jackson, MS.

Inner City’s failure to repay its debt could be attributed to any number of causes, such as poor financial management.   But saying that poor financial management is the sole culprit, and leaving it there, does little to address the issue of why Inner City’s stations have failed to generate enough revenue to pay the bills.

Let’s take WBLS as an example.

WBLS’ Glass Ceiling

WBLS has hit a glass ceiling.  Barring a complete revamping of its format to include more mainstream content, it appears that WBLS has attained the highest ranking possible with an urban adult contemporary (Urban AC) format in New York.  According to Arbitron, the Urban AC format is the most popular format among African-Americans.  It features music by artists such as Maze Featuring Frankie Beverly, Earth, Wind & Fire Marvin Gaye, R. Kelly, Alicia Keys, Eric Benet, Ne-Yo and Usher.  The “average quarter hour” (AQH) rating of a radio station is the average percentage of a population being measured listening to a radio station for at least five minutes during a 15-minute period.  With a 3.6% AQH overall rating, WBLS is the number one station in New York targeting a predominantly black audience.  It also ranks #8 among all radio stations in the New York metro area.  WLIB, WBLS’ sister station, ranks 34^th, with a .4 AQH rating.

WBLS’ closest competitor, Emmis Communications’ WRKS-FM (98.7 Kiss FM)—the only other Urban AC station in the market—is ranked at a distant #16 overall.  But Kiss is half of Emmis’ combo which includes WQHT-FM (Hot 97), an urban station that skews toward the 18-34 demographic with hip-hop and r&b artists.  Hot 97 posted a 3.3% AQH share in July, placing it at #12 in the overall rankings.  But with the ratings of Kiss and Hot 97 combined, Emmis is actually pulling a 6.2% AQH overall rating, compared to a 4.0 combined rating for Inner City’s WBLS/WLIB combo.

Further, Inner City has been hauled into bankruptcy, while its publically traded counterpart is carrying a similar long-term debt load without repercussions.  The $254 million that Inner City owes to Yucaipa Cos. and others does not appear to be that unusual.  Not taking into account other liabilities, Inner City’s debt-per-station based on the $254 million alone is $14.9 million. At the end of 2Q’11, Emmis held long term debt obligations of $327.2 million.  Spread across Emmis’ 22-station portfolio, its debt-per-station is $14.8 million, just $100, 000 shy of Inner City’s obligation.

Should WBLS Change Formats to Increase Inner City’s Revenue?

Radio stations change formats all the time.  If a particular format is not working, most station owners are generally not averse to abruptly switching formats.  For example, the radio station at 101.9 FM in the New York Metro area, also owned by Emmis, has changed formats four times over the past seven years.  In 2004, the station switched from Smooth Jazz (Kenny G, Sade, Yellowjackets, Anita Baker) to an electronic/ambient music format (Massive Attack, Thievery Corporation).  It switched back to Smooth Jazz in 2005 and, in 2008, flipped to Rock (Kings of Leon, Pearl Jam, Black Crowes, Blink 182).  Finally, on August 12^th of this year, the station changed formats (and owners) yet again, switching to an all-News format.

Inner City is no stranger to programming formats targeting non-African-American audiences.  Among Inner City’s 15 other stations, only 6 target African-Americans specifically.  Inner City’s station portfolio also includes progressive talk, rock, classic rock (Allman Brothers, Rolling Stones, The Beatles, the Yardbirds), oldies (Elvis Presley, The Beach Boys, The Supremes, The Four Seasons, and Sam Cooke), Chinese-language, Vietnamese-language, and two sports talk, ESPN Radio affiliates.

But what is often a business-as-usual decision to change formats carries an additional layer of complexity for black-oriented stations.  As in the case of WBLS, radio stations targeting a predominantly African-American audience are often intimately tied to the very heritage of the communities they serve.  In our communities, having the ability to listen to black music, on radio stations owned by people who look like us, with credible air personalities we can relate to, is often about much more than entertainment.  In an era of high unemployment, mortgage foreclosures, disproportionate incarceration rates, and widening achievement gaps in education, listening to black-oriented radio has a cathartic effect.

WBLS could change formats, but why should it?  Arbitron reports a .5 percent increase in the number of African-Americans who listen to Adult Contemporary radio stations (Eric Clapton, Whitney Houston, Chicago, and Christopher Cross) since Fall of 2009.  It also reports an increase in the number of Blacks who listen to Pop Contemporary Hits (Ke$ha, Lady Gaga, Bruno Mars, Pink, Black Eyed Peas).  But this is far from a death-knell for black radio.  Radio stations targeting mainstream audiences have diversified their playlists, but black-oriented radio stations have not.

Those African-Americans that listen to both black-oriented stations and mainstream stations are signaling a desire for more diverse content.  Their behavior indicates an impulse to seek out contexts that communicate—as Pepper Miller of the Hunter-Miller group describes it—“a universal situation … living parallel to mainstream” rather than isolated in a silo with no mass appeal relevance.  This does not require black-oriented stations to change formats completely.  But what it does require is learning a lot more about black listeners who are less loyal to Urban AC formats, and addressing some of their programming needs.  If Inner City doesn’t do it, someone else will, and it is starting to look more and more like that may very well be the scenario.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director for the Media and Technology Institute for the Joint Center for Political and Economic Studies.

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

by Joseph Miller, Esq.

The Supreme Court’s recent decision to strike down a California law banning the sale of violent video games to children was not surprising in light of the Court’s First Amendment doctrine or the Roberts court’s business-friendly stance on corporate speech.  For children of color, the need for data establishing a nexus between violent video games and real-world violence is even more compelling as children of color spend more time playing video games than white children.  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 popular video games on academic achievement.

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 “under inclusive” — 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, and clearly this is a matter that requires 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 Asian Americans (1:37).  Not only could violent video games potentially lead to real violence, more time spent playing video games necessarily means less time studying.  Additional research and evidence is needed that firmly establishes these links, so that states can make the case for restricting the sale of video games to minors.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director for the Media and Technology Institute for the Joint Center for Political and Economic Studies.