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Editorial: Time to Say Goodbye

7/11/2011 12:01:00 AM Eastern

It is time for the FCC to get out of the contentregulation
business. Broadcasters won’t be saying
that too loudly, in part thanks to the FCC’s hold on their spectrum future. The public interest compact with viewers
and the government has, at least up until now, protected their spectrum
from being auctioned but also allowed the FCC into their business.

But it remains our belief, long-held and unalloyed, that broadcasters could
better serve the public’s interest by being free to program as they and their
public choose. They should do so without fear of government retribution, a
fear that has only been heightened by the FCC spectrum reclamation push.

The Supreme Court last month gave broadcasters their best chance in decades
to escape the shadow of a former high court finding that they are uniquely
pervasive and available to kids, the rationale in 1978’s Pacifica decision. The
court agreed to rule on the constitutionality of FCC content regulation.

Combining cable and satellite and the Internet, kids have access to an
abundance of media that have no government content restrictions. In addition,
whether over the air or over a wire, there is a rating system and V-chip
that allows parents to control the TV. Yes, we know, it is tough to figure out
the V-chip, but try reading the manual for most electronic devices these
days. The Supreme Court has already ruled in the Playboy case that the fact
that people don’t choose to avail themselves of a technology does not mean
it is not the appropriately less restrictive means of regulating speech than a
government ban, which we have now.

A federal appeals court said that the FCC’s pursuit of swearing and nudity
is vague and chilling and the high court should come to the same conclusion.

So, what is the FCC to do? It could return to simply enforcing the so-called
seven dirty words standard in scripted programming, as it did in an earlier
time when nobody swore on TV and husbands and wives slept in separate
beds, but that won’t work. If it gives broadcasters what some have asked for,
the equivalent of bright-line rules on what is or isn’t indecent, it is the sort of
prior restraint by proxy that the FCC, to its credit, knows it needs to avoid.

And how different would broadcast programming look if the court did rule
that broadcasters deserved full First Amendment rights? Probably not a lot.
We have said this before, but it bears repeating often. Broadcasters are fully
protected from 10 p.m. to 6 a.m., free to program profanity and nudity at will.

The difference would be mostly at the margins in terms of programming,
but it would be huge as a signal that, absent some clear and present
danger—which Charlotte Ross’ backside and Cher’s colorful language
aren’t—government should not be deciding what we see and hear.

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