Indecent Proposal: End, Don't Mend, TV Content Regulation

New York Post - reprinted in Reason Magazine ^ | June 7, 2006 | Jacob Sullum

[Paul678]

June 7, 2006

Indecent Proposal: End, don’t mend, TV content regulation.

Jacob Sullum

Syndicated Columnist

New York Post / Reason Online

The overwhelming support on Capitol Hill for legislation that will dramatically increase the fines for broadcasting "indecent" programming suggests there's broad agreement that the federal government should get serious about cleaning up TV. But the more closely you examine the justifications for this crackdown, the clearer it becomes that the ban on broadcast indecency either goes too far or does not go far enough.

Sen. Sam Brownback (R-Kan.), who introduced the Senate version of the bill raising the maximum penalty for broadcast indecency from $32,500 to $325,000 per violation, says businesses that use "the nation's public airwaves" have special obligations. "Broadcast spectrum is a very valuable and scarce national resource," he says. "In return for a license, each broadcaster must not air indecent content between the hours of 6 a.m. [and] 10 p.m."

Broadcast spectrum is a "national resource" only because the government insisted on nationalizing it. There's no reason in principle why the right to transmit at a certain frequency in a certain area could not be treated the same way as the right to graze cattle or build a skyscraper on a particular piece of land. Broadcast licenses already are de facto property, bought and sold along with stations, except that the Federal Communications Commission occasionally clobbers broadcasters with fines if it does not like what they air.

Nor is it clear why using a public resource to send a message should affect the speaker's First Amendment rights, making him subject to government content regulation. Newspapers are delivered via "the public roads," and Web site information travels on wires across public property (sometimes even through "the public airwaves"), but that doesn't mean forcing journalists and bloggers to be "decent" is constitutionally permissible.

In any case, for the politicians and activists who want to protect children from the shows their parents let them watch, the "public airwaves" argument does not go far enough. Nearly nine out of 10 American households get TV via cable or satellite, modes of transmission that are not subject to indecency rules.

As Senate Commerce Committee Chairman Ted Stevens (R-Alaska) has pointed out, that distinction makes little sense. "Most viewers don't differentiate between over the air and cable," he told the National Association of Broadcasters last year, and "cable is a greater violator in the indecency arena."

It was music to the ears of broadcasters losing viewers to the racier shows on cable. House Commerce Committee Chairman Joe Barton (R-Texas) agreed that "it's not fair to subject over-the-air broadcasters to one set of rules and subject cable and satellite to no rules." Barton said he would join Stevens in supporting the extension of content restrictions to cable and satellite "if we can work out the constitutional questions."

That part may be tricky. The Supreme Court has applied "strict scrutiny" to content regulation of cable TV, finding a "key difference between cable television and the broadcasting media" in "the capacity to block unwanted channels on a household-by-household basis."

Yet in the age of the V-chip and content ratings, parents (even the small minority without cable or satellite TV) have the ability to block not just entire channels but particular kinds of programming, including violence and other potentially objectionable content that goes far beyond the sexual and excretory stuff covered by the FCC's indecency rules. Instead of banning "Deadwood" and "The Sopranos," or banishing them to the FCC's late-night "safe harbor," how about asking parents to take some responsibility for monitoring what their kids watch?

When it upheld the FCC's content rules back in 1978, the Supreme Court said "indecent material presented over the airwaves confronts the citizen... in the privacy of the home," as if TV were a robber or a rapist. But TV is not a criminal invading our homes; it's an invited guest. If we think he might misbehave, it's up to us to keep an eye on him.

http://www.reason.com/sullum/060706.shtml

[qam1]

Sen. Sam Brownback (R-Kan.), who introduced the Senate version of the bill raising the maximum penalty for broadcast indecency from $32,500 to $325,000 per violation, says businesses that use "the nation's public airwaves" have special obligations. "Broadcast spectrum is a very valuable and scarce national resource," he says. "In return for a license, each broadcaster must not air indecent content between the hours of 6 a.m. [and] 10 p.m."

With all due respect Senator Brownback, this should be #467 on your list on things to get done

Some much for Republicans being for smaller government

[qam1]

Sen. Sam Brownback (R-Kan.), who introduced the Senate version of the bill raising the maximum penalty for broadcast indecency from $32,500 to $325,000 per violation, says businesses that use "the nation's public airwaves" have special obligations. "Broadcast spectrum is a very valuable and scarce national resource," he says. "In return for a license, each broadcaster must not air indecent content between the hours of 6 a.m. [and] 10 p.m."

With all due respect Senator Brownback, this should be #467 on your list on things to get done

Some much for Republicans being for smaller government

[qam1]

Sen. Sam Brownback (R-Kan.), who introduced the Senate version of the bill raising the maximum penalty for broadcast indecency from $32,500 to $325,000 per violation, says businesses that use "the nation's public airwaves" have special obligations. "Broadcast spectrum is a very valuable and scarce national resource," he says. "In return for a license, each broadcaster must not air indecent content between the hours of 6 a.m. [and] 10 p.m."

With all due respect Senator Brownback, this should be #467 on your list on things to get done

Some much for Republicans being for smaller government

[Protagoras]

Pandering to the "social" conservatives.

[highball]

When it upheld the FCC's content rules back in 1978, the Supreme Court said "indecent material presented over the airwaves confronts the citizen... in the privacy of the home," as if TV were a robber or a rapist. But TV is not a criminal invading our homes; it's an invited guest. If we think he might misbehave, it's up to us to keep an eye on him.

Worth repeating.

This isn't Washington's job, to protect us from things we bring into our own houses.

Too many are eager to give the state the responsibility for running their lives, and too many politicians (even those with Rs after their names) are willing to take it from them.

[JamesP81]

how about asking parents to take some responsibility for monitoring what their kids watch?

Ultimately, this is the only thing that's going to fix the problem.

I'm of two minds about this. The Founders placed great emphasis on good morals of the citizenry and firmly believed it was vital to the survival of the Republic. The Constitution doesn't say anything specifically about permitting the FedGov to regulate the airwaves (although, this may be able to be done under the commerce clause with some actual justification, as opposed to the crazy interpretation of it they use now). When in doubt, we should err on the side of non-government regulation.

OTOH, indecent material is bad for society. This is a known fact. The problem we face is that the Christians in this country purchase as much of the indeceny as the non-Christians. I was once talking to my best friend about it and he had read a book on the phenomenon of internet pornography. Basically, if all the Christian men in the country quit visiting porn sites, most of them would go out of business.

The people of supposedly high moral character in this country are not doing what they are supposed to be doing. Now, the only way to get rid of the indecent material is to bring the bloated, overblown federal government into it and bloat it some more.

If the Christians in this nation refused to buy such stuff, the free market would respond accordingly and start producing programming that we would buy.

As for me, there will be no cable or satellite in my home.

[highball]

Good for you. You put your money where your mouth is, and won't ask the government to save you from yourself.

I wish that there were more responsible people like you.

OTOH, indecent material is bad for society. This is a known fact.

No, that's your opinion. Plenty of people have spent plenty of money trying to establish it as fact, but nobody has actually been able to document it. Just ask Ed Meese.

[mysterio]

End, don’t mend, TV content regulation

I completely agree. People have V-Chips and remote controls for every TV made today. We should dismantle or at least seriously cut the budget of the FCC.

[thebaron512]

I think people need to learn to use that thing called a remote or the dial that might exist on your set. Enough of the Nanny/Police state crap!

[Paul678]

I'm with all of you! Congress fails to understand that parents and individuals already have the TV ratings and content-blocking tools to make and enforce TV viewing decisions, both for their children and themselves. This makes government regulation of TV unnecessary and undesirable.

Check out TV Watch, at www.televisionwatch.org, for a common-sense voice of reason in this debate.