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Editorial: First Things First

5/16/2009 02:00:00 AM Eastern

“I assure you that the First Amendment has no greater defender than the former constitutional lawyer who now occupies the White House.” With that recent statement, Anna Gomez, the acting head of the National Telecommunications & Information Administration, gave broadcasters hope that the new administration might take a less active interest in the sort of indecency regulation that marked the FCC under the Bush regime. NTIA is the chief communications policy arm of the White House, so Gomez' statement is worth saving and savoring.

In his choice for FCC chair, the president has also chosen a constitutional scholar in Julius Genachowski. Both the president and Genachowski favor parental over government control of the media, which is also the kind of talk that earns points with fans of the First Amendment, though it will have to be backed up with action.

While Gomez acknowledged that the Supreme Court, in the recent Fox case, has postponed a decision on the thornier constitutional issues, she came close to echoing broadcasters' arguments that changes in society and technology may have outstripped government regulators' ability to react to them. Besides the fact that a decision on fleeting profanity and images has been put off for another day, she also suggested that those debates were getting old, citing changes in societal norms and technology.

She added that while spectrum scarcity has been used to justify regulating speech, the Supreme Court has pointed to another technological constraint, the use of content blocking and bleeping. Three and a half years ago, Gomez said, then-Senator Obama “called for giving parents the tools and information necessary to make their own informed choices about the content that comes into their homes.”

To the extent that the administration sets that tone from the top down, and makes it clear that parental content controls are the preferred method of managing children's media consumption, Obama is on the side of the First Amendment.

The new FCC should be attuned to that philosophy. But we draw a distinction between content controls like the V-chip or cable blocking technology, which are in the hands of viewers, and network bleeping. The latter can become a slippery slope if self-regulation isn't actually voluntary, but instead a nervous regulated industry's anticipation of what the reigning political power structure doesn't want to hear.

The key, then, will be having that reigning political structure remain true to its commitment to parental over government control. We have always thought that the First Amendment had no greater defender than this page. We will be glad to cede that title to the new president, but we will also keep watch to make sure administration policies share that accolade.

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