Federal Judge Rules First Amendment Doesn’t Protect “Harm by Design”

A court case in America today about online security stems from a decision in 1980 under Ronald Reagan to knowingly expose children to harmful products, which he reaffirmed in 1988 with bogus framing about the Constitution.

…the Constitution simply does not empower the Federal Government to oversee the programming decisions of broadcasters in the manner prescribed by this bill. […] It would inhibit broadcasters from offering innovative programs that do not fit neatly into regulatory categories and discourage the creation of programs that might not satisfy the tastes of agency officials responsible for considering license renewals. […] The bill’s limitation on advertising revenue for certain types of programming places the Federal Government in the inappropriate position of favoring certain kinds of programming over others.

If it sounds crazy, that’s because it was CRAZY.

By the late 1970s, concern about advertising to kids had grown so strong that a Federal Trade Commission taskforce took on the question about whether to ban or regulate this onslaught of marketing. Sixty thousand pages of expert testimony and 6,000 pages of oral testimony from leading experts on health, child psychology, and nutrition followed. The conclusions were clear: kids can’t distinguish between programs and commercials. As the report published at the time put it: “very young children are cognitively unable to understand the selling intent of ads.” Experts argued that these findings provided strong legal ground for special protections for children. […] Everything changed in 1980. As one of his first moves of his presidency, Reagan appointed a new FTC chairman, one more interested in pleasing business than parents. Within a year, the proposals were killed. What’s worse, Congress passed the Federal Trade Commission Improvement Act, which, Westen says, “mandated that the FTC would no longer have any authority whatsoever to regulate advertising and marketing to children, leaving markets virtually free to target kids as they saw fit.”

Ronald Reagan, one of the most corrupt and hate-mongering racist Presidents in American history (a very tough goal to achieve), used double-speak to say the government protecting children from harms would be inappropriate because it was “favoring certain kinds of programming”.

Yeah, people who cared about children were favoring safe programming. Safety for children comes from special protections, which is a very useful and common role for government that should surprise exactly nobody. It’s not only appropriate governance, it’s exactly what limitations on advertising should have ALWAYS been about.

Meanwhile, the political director of Ronald Reagan’s campaign described the heart of their platform as favoring certain kinds of people…

…all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites.

The predictable trajectory from these angry racist white men gutting societal safety laws, effectively unleashing ruthless corporations to prey on the vulnerable, has landed on families suffering the worst consequences. Grieving parents and friends of the alarming number of injured and dead children now question why American companies were unleashed to peddle such products harmful by design.

Last week, the families in the case received a powerful boost when a federal judge ruled that the companies could not use the First Amendment of the US constitution, which protects freedom of speech, to block the action.

The judge ruled that, for example, a lack of “robust” age verification and poor parental controls, as the families argue, are not issues of freedom of expression.

Lawyers for the families called it a “significant victory”.

Companies delivering and curating content with an intentional lack of safety from harms are deemed to not be protected by claims of a Constitutional freedom of expression.

…the story of Molly Russell, from north-west London, who took her own life after being exposed to a stream of negative, depressing content on Instagram. An inquest into her death found she died “while suffering from depression and the negative effects of online content”.

This ruling strikes directly at the heart of cold and cruel binary/oppositional calculus of Reaganism, where his “shining hill” dog-whistle of tyranny has always meant Blacks are meant to get hurt worse than whites, women are meant to get hurt worse than men, Muslims are meant to get hurt worse than Christians, children…

It reminds me of another judge in 2019 who said Americans could be protected from online domestic terror groups, leaning on the idea that their hate speech is physical harassment.

And for that matter, I’m sure many of you are reading the news that “intentional incitement of the Jan. 6 marauders overcame any free-speech claim”.

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