Editorial: Content Control Countdown

Starting next week, the Supreme Court indecency
watch begins in earnest. No…the robes are not
coming off to reveal, well, whatever those folks
either do or don’t wear underneath. The High Court
is expected to weigh in on the Fox and company
challenge to the FCC’s indecency rule enforcement.

Ironically, it does not include the Janet Jackson reveal, which is yet a separate
case. But since it is a challenge to the constitutionality of the FCC’s regime, a
Supreme Court decision that the commission was unconstitutionally chilling
speech would apply to that $550,000 Janet Jackson fine as well.

And that is exactly what the Court should conclude. While the FCC was parsing
language, and attempting the TV equivalent of draping naked statues at the Justice
Department, most of the kids they are trying to “protect” are watching cable and going
online from their computers and phones—with no such restrictions on content.

The FCC has actively pushed to have unregulated online content available in every
home, while at the same time defending its limits on broadcast content. By contrast,
the FCC has not exactly been playing up the future of broadcasting. But it seems as
though the commission needs the medium as a place where it can park the kids so
it can push universal—and universally uncensored—broadband for everybody else.

Broadcasters are going to have a tough enough time competing, with the FCC pushing
stations to get off their spectrum, and proposing not to loosen the local ownership
caps despite burgeoning local and regional news competition from cable (see Station
to Station) and the Internet. They do not need three out of five commissioners
making case-by-case content calls. The FCC has effectively been out of that
business for several years while courts vetted its enforcement regime, and broadcasters
have not started filling the airwaves with full frontal and swear-a-thons. It bears
repeating that even under the FCC’s indecency regs, broadcasters have been free to
air between 10 p.m. and 6 a.m. anything that shows up on the restricted sections of
hotel PPV guides, but they don’t. That is not part of their business model.

When former FCC chair Newton Minow says the agency’s indecency enforcement
regime is unconstitutionally chilling speech, the statement should flash in neon. The
JFK appointee is the most famous content critic in FCC history, once famously dubbing
TV a “vast wasteland” that needed cleaning up. But when it comes to the FCC’s
effort to regulate indecent content, Minow has joined Reagan appointee Mark Fowler
to tab the effort a Victorian crusade that has hurt broadcasters and viewers. In a filing
supporting broadcaster challenges, they said the FCC “has radically expanded the definition
of indecency beyond its original conception; magnified the penalties for even
minor, ephemeral images or objectionable language; and targeted respected television
programs, movies and even noncommercial documentaries.” True, true and true.

FCC chairman Julius Genachowski has consistently championed parents
armed with new-tech tools as the best media defense. It is time for the Supreme
Court to make it official by getting the commissioners out of the content control
business. That will still leave them plenty of work to do.