Well, here we go again. Not satisfied with the prospect of merely regulating the broadcast television and radio airwaves, Congress is poised to again introduce legislation that would extend indecency regulations to cable and satellite television. Broadcasting & Cable magazine reports today that Rep. Dan Lipinski (D-Ill.) and Tom Osborne (R-Neb.) are introducing a bill, "The Family Choice Act of 2006," that would try to control cable content by giving the industry a choice among three regulatory approaches.
The bill would require multichannel video providers to choose one of three options:
1) apply FCC broadcast indecency standards to their own programming;
2) offer channels a la carte so subscribers could choose not to take certain channels; or
3) offer a family-friendly tier that meets the definition supplied in the bill.
Wow, now how's that for a devil's choice! But cable or satellite providers shouldn't be forced to pick among these poisons because government has absolutely no rational legal or philosophical basis for imposing censorship on pay-TV providers. As I noted last June in a Washington Post editorial:
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.
If you care to do some more reading about what's so wrong with government efforts to censor cable and satellite, here are a few things you might want to check out:
* "Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?" by Robert Corn-Revere, PFF Progress on Point 12.8, May 2005.
* "'Kid-Friendly' Tiering Mandates: More Government Nannyism for Cable TV," by Adam D. Thierer, PFF Progress Snapshot 1.2, May 2005.
* "Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill," by Adam D. Thierer, PFF Progress on Point 12.6, April 2005.
... and on the moral and economic bankruptcy of a la carte regulation, see:
* "Moral and Philosophical Aspects of the Debate over A La Carte Regulation," by Adam Thierer, PFF Progress Snapshot 1.23, December 2005.
* "A la Carte Cable Concerns," by Adam Thierer, PFF Progress Snapshot 2.2, January 2006.
* "False "Choices," by Adam Thierer and Raymond Gifford, Progress Snapshot Release 2.1, January 2006.
