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.
