The FCC’s unintentional f$%&-up
Stuart Benjamin has a great post over at the Volokh Conspiracy on how the ratcheting up of FCC fines could actually lead to a long-term reduction of government censorship: In recent years broadcasters have refrained from bringing judicial challenges to the regulation of broadcast indecency precisely because the fines were small, and rare, enough that ...
Stuart Benjamin has a great post over at the Volokh Conspiracy on how the ratcheting up of FCC fines could actually lead to a long-term reduction of government censorship:
Stuart Benjamin has a great post over at the Volokh Conspiracy on how the ratcheting up of FCC fines could actually lead to a long-term reduction of government censorship:
In recent years broadcasters have refrained from bringing judicial challenges to the regulation of broadcast indecency precisely because the fines were small, and rare, enough that broadcasters decided it was not worth the costs of antagonizing the FCC and Congress. Now, with heavy fines (and maybe even license revocation) on the line, broadcasters are more likely to do so. Indeed, that process began yesterday, when both NBC and a coalition of media groups filed petitions asking the FCC to reverse its decision. It looks like those groups are girding for a judicial challenge to the indecency regulations. This is significant, because the Supreme Court probably would – and in my view should – find these indecency regulations unconstitutional. With respect to newspapers and magazines, telephones, and cable television, the Supreme Court has held that the government may not reduce the adult population to viewing only what is fit for children. As the Supreme Court noted in the 2000 Playboy case on cable indecency, a core principle of the First Amendment is that “The citizen is entitled to seek out or reject certain ideas or influences without Government influence or control.” Broadcast has been the glaring exception in the Supreme Court’s jurisprudence, but its special status is no longer tenable. The Court ruled, 5-4, in the 1978 Pacifica case that broadcast indecency could be penalized because broadcasting is uniquely pervasive and uniquely accessible to children. The problem is that broadcasting no longer has that distinction Broadcast’s pervasiveness and accessibility are not significantly different from, for example, cable television. Indeed, for the 88 percent of television households who use cable or satellite, a broadcaster is just another cable station. It further bears noting that the V-Chip embedded in television sets allows parents to choose what sorts of material they want to block (if they so desire), giving them control over what their children see and further undermining the case for state regulation.
Does this mean NBC will replace the Today Show with Jenna Jameson Live!? Hardly. Broadcast networks would still be beholden to advertiser preferences. If Benjamin is correct, and the short-term kerfuffle over broadcast standards erodes the government’s long-term censorship powers, I have only this to say — thank you, Janet Jackson!!
Daniel W. Drezner is a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University and co-host of the Space the Nation podcast. Twitter: @dandrezner
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