April 10, 2005

The FCC won’t let us be

By: AFF Editors

Enjoy Deadwood? How about South Park? If some regulators and politicians have their way, those shows may cease to exist. Just try to imagine either show’s creators kowtowing to politically imposed limits on their characters speech and actions. Imagine Kyle and Stan saying, “Oh golly, they killed Kenny! You bums!” Of course, Kenny wouldn’t be shown dying because that would encourage violent behavior.

Currently, the FCC has authority to regulate broadcast content because broadcasters use the “public” spectrum to deliver their product, in effect an exception to the First Amendment because the government “owns” the soapbox from which broadcasters do their speaking. Cable and satellite, however, own their soapboxes free and clear, and thus have been free to show pretty much whatever they want.

The FCC thus has authority to regulate speech on the broadcast dial, but not over cable or satellite systems. Though “indecency” is ill-defined, broadcasters are generally safe if they only air “indecent” programming during the hours of 10 p.m. and 6 a.m., when all good little boys and girls have gone to bed.

But now fewer folks are watching broadcast television. Regulators and lawmakers have discovered, to their horror, that over 85 percent of American households subscribe to cable or satellite TV services that let them watch nekkid women and hear swear words. Several recent New York Times stories reported that the new chairman of the FCC, Kevin Martin, plans to crack down on indecency on television, with an eye to regulating cable and satellite content too. Earlier this year, senator Ted Stevens (R-AK), began using his bully pulpit to threaten cable with an expansion of indecency regulations if they don’t “voluntarily” clean up their act. Jim Sensenbrenner (R-WI) thinks that the FCC is doing such a poor job of regulating indecency that he’d “prefer using the criminal process rather than the regulatory process,” for violations.

Indecency isn’t just a Republican bandwagon either. Senator Hillary Clinton has jumped on too: “Kids today are playing increasingly violent video games while sending instant messages to friends and strangers on-line and listening to music they’ve downloaded on their iPods,” she recently lamented.

In order to “make sure that parents have the tools they need to keep up with this multi-dimensional environment,” Clinton has co-sponsored a bill with Joe Lieberman (D-CT), Sam Brownback (R-KS), and Rick Santorum (R-PA) to study the effects of media exposure on children. To get some idea where this is likely headed, consider that Hillary aggressively pushed the V-chip in the mid-90s, a little-used technology that allows parents to block objectionable programs. One commentator has convincingly suggested that Senator Clinton’s latest bill is an attempt to spread V-chip-like mandates to other technologies such as the iPod.

I’m skeptical of such efforts. These folks, after all, are the same people who are caught time and time again cheating on spouses, taking kickbacks, and otherwise engaging in less that exemplary behavior. Bipartisan moral crusades should give anyone pause — especially when they target new technologies.

But groups like the Parents Television Council, and especially its leader Brent Bozell, are overjoyed that lawmakers and regulators are finally cracking down on nudity, foul language and violent programming. (Helpfully, the PTC provides video clips of recent “indecent” episodes that its members found by scouring the dial for “filth.”) Opponents of indecency in media contend that exposure to sex, violence, and profanity coarsens society. The PTC wants to use the law to make every adult’s choice for him when it comes to what kind of images and words will be permitted on television and radio, whether or not it’s “free” or “pay”, not to mention Internet offerings.

Regulators, lawmakers, the PTC, and the like claim to be upholding family values by driving indecent material off the airwaves. The irony is that they are working to preempt parental decision-making concerning what their children will be permitted to see and experience. Surely the pro-parent, pro-family position in this debate is to give parents the ability–as every major satellite and cable provider does–to monitor what their children watch and block objectionable content.

Rather than using these tools or trying to persuade others to change their viewing and listening habits, the PTC files almost every indecency complaint that the FCC receives. That may be a way to score some cheap culture-war points in the short run, but it’s a finger in the dyke of human preference, and this dam is already bursting. Ultimately, censorship is a failed strategy, as consumers in an increasingly diverse world seek out the content they want despite the barriers erected by the professional scolds like Bozell.

Indeed, as media and communications platforms converge, with television “mobisodes,” and even novels delivered via mobile phones, we’re likely to hear a Greek chorus of calls to censor content not only on pay TV, but on new devices as well. But as convergence continues apace, we’ll also see the divergence of programming and content into increasingly niche markets. Phenomena like blogging and podcasting, which give individuals control over what they watch, hear and read as well as how it’s produced mean that content can now be tailored to tiny audiences.

These developments likely mean that attempts at censorship will do little to reduce the amount of “objectionable” content in society. Attempts to clamp down will only result in consumers and producers fleeing to less-regulated platforms, while destroying the profitability of the more-regulated platforms.

The fact that over 85 percent of homes in the U.S. subscribe to less-regulated cable or satellite television shows that consumers are willing to pay for programming that is racier or even raunchier than traditional broadcast TV. The defection to satellite radio of popular shows, such as Howard Stern and Opie and Anthony, which have received fines for “indecent” programming in the past is further evidence that some consumers want such content. That doesn’t mean the rest of us have to like it. But using the force of government to stop it is both technologically infeasible and jarringly at odds with America’s heritage of freedom of expression. As Counselor Mackey might say, “Censorship is un-American, mmmkay.”

Thomas Pearson is a writer living in Arlington, Virginia. He contributes regularly to the Technology Liberation Front.