New Worlds To Censor

By Adam Thierer
Tuesday, June 7, 2005

A troubling shift is underway in how lawmakers censor media in this country. Sen. Ted Stevens (R-Alaska) and Rep. Joe Barton (R-Tex.), chairmen of the Senate and House commerce committees, as well as Kevin Martin, the new head of the Federal Communications Commission, are proposing to broaden federal broadcast "indecency" regulations to cover cable and satellite television. And a separate measure recently introduced in the Senate would regulate "excessively violent" programming, not just in broadcasting but on cable and satellite service as well.

These lawmakers argue that just regulating over-the-air broadcast TV and radio content won't cut it anymore. In our modern world of abundant, ubiquitous media -- where 85 percent of homes subscribe to cable or satellite TV and many citizens rely on the Internet or mobile devices for news and entertainment -- broadcast censorship regulations afford lawmakers less and less control over the media outlets people use most.

In searching out a legal justification to censor new media outlets, policymakers are falling back on the same arguments they have used to regulate broadcast television and radio: They are "pervasive," and they are "intruders" that are "uniquely accessible" to children at home. These are the catchphrases a slim 5 to 4 majority of the Supreme Court used in FCC v. Pacifica Foundation (1978) to rationalize treating broadcasters like second-class citizens in the eyes of the First Amendment. There are many reasons to doubt Pacifica in today's world, but even under that case there's no logic for new indecency rules for cable and satellite channels.

To begin with, almost all new media outlets are subscription-based. Consumers must take affirmative steps -- and spend a fair amount of money -- to bring those services into the home. Basic cable costs almost $40 per month. Satellite costs more. And Internet access doesn't just fall from heaven. When consumers spend good money to bring these services into their homes, the "media-as-invader" logic breaks down. These technologies are not "intruders" in the home; they are invited guests.

Moreover, parental responsibility has to count for something. Once parents bring these media devices into the home, it does not absolve them of their responsibility to monitor how their children use them. After all, parents don't bring power tools or chemicals home and then expect the government to assume responsibility for their children's safety.

Some lawmakers seem to believe that once any media technology becomes popular enough, it becomes "pervasive" and therefore some degree of censorship is justified. But the notion that "popularity equals pervasiveness" is frightening, because it contains no limiting principles. This wasn't the standard we applied to print outlets such as newspapers as they grew in popularity. Nor is it the standard we apply to the Internet. In fact, recent Supreme Court decisions have rejected attempts to apply indecency controls to cyberspace.

Of course, none of this is going to stop pro-censorship policymakers from pushing the envelope to incorporate new media -- at least basic cable and satellite programming -- into the indecency mix. If this "popularity equals pervasiveness" regulatory paradigm becomes law and passes muster in the courts, we will have entered a world in which the public has to pay to escape censorship. Anything Congress or the FCC deemed "indecent" would likely be forced onto a premium or pay-per-view tier, where consumers would spend considerable sums to receive some of their favorite programs. But here's the really interesting question: If large numbers of viewers still flock to premium or pay-per-view services to get their favorite programming -- such as HBO, or Howard Stern's new show on satellite radio -- wouldn't the "popularity equals pervasiveness" calculus apply to those channels as well? If so, we could look forward to still more laws to protect us from ourselves.

No doubt, some parents will welcome efforts to extend indecency censorship, feeling somewhat overwhelmed by all the new media outlets out there. As a parent of two children, I can certainly sympathize. But technology gives parents more ways to control media exposure every day. And just because the job of being a good parent is difficult, we should not call in government to act as a surrogate parent and make these decisions for all of us.

The writer is a senior fellow at the Progress and Freedom Foundation and director of its Center for Digital Media Freedom.

© 2005 The Washington Post Company