Wednesday, July 11, 2007 - The Progress & Freedom Foundation Blog

Senate Plan to Roll Back Clock on Broadcast Regulation

Fresh on the heels of Sen. Jay Rockefeller’s (D-W.Va.) show trial hearing about “violent TV” in the Senate Commerce Committee two weeks ago, Senator Sam Brownback (R-Kan.) has just announced he would be proposing two new amendments that would seriously roll back the clock on broadcast industry regulation. According to a report in today’s Broadcasting & Cable,

"Brownback, a member of the Senate Appropriations committee, said Tuesday that he will offer two amendments to a general government appropriations bill Thursday, July 12, one that would "continue support for the FCC to fine broadcasters who air indecent, profane, or obscene content," and another that would "fine broadcasters for airing excessively violent content during the hours when children are most likely to be in the audience."

Before getting into the substance of these measures, a word about the process. I find it more than a little troubling that Senator Brownback is attempting to legislate on sensitive constitutional matters like this through the appropriations process. It seems to me that any measure that cuts to the core of an industry’s First Amendment rights should not be snuck into a bloated spending measure in order to get it passed. But hey, who cares about the Constitution… this is about “protecting children”! Right? Well, actually, it wouldn’t do that either.

“Fleeting” Fantasies

Brownback’s first proposed amendment is a response to the decision the Second Circuit Court of Appeals’ handed down in early June in the case of Fox Television Stations v. Federal Communications Commission. This was the indecency case involving the FCC's new policy for "fleeting expletives." In that decision, the Second Circuit held that:

"We find that the FCC’s new policy regarding “fleeting expletives” represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act."

Sen. Brownback’s amendment would overturn that decision by amending the Communications Act such that “In enforcing federal restrictions on the broadcast of indecent or profane material, the Federal Communications Commission shall maintain a policy that indecent or profane material may include a single word or image.” In other words, even the smallest slip-up could cost a broadcaster millions. Remember, Sen. Brownback and others successfully passed a law in 2006 raising maximum indecency fines ten-fold, from the previous $32,500 limit up to $325,000 per violation with a $3 million cap per violator.

Let’s step back and review the fundamental unfairness of all this, shall we? First, consider the First Amendment status of all the major media platforms in America today…

Newspapers = Full First Amendment protection
Magazines = Full First Amendment protection
Journals = Full First Amendment protection
Movies = Full First Amendment protection
DVDs = Full First Amendment protection
CDs = Full First Amendment protection
Cable TV = (for the most part) Full First Amendment protection
Satellite TV = Full First Amendment protection
Satellite Radio = Full First Amendment protection
Internet = Full First Amendment protection
Blogging = Full First Amendment protection
i-Pods = Full First Amendment protection
Podcasts = Full First Amendment protection
Video Games = Full First Amendment protection

... and then...

Broadcast TV & Radio = Second Class Citizenship Rights in Terms of the First Amendment

As I point out in my recent law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age," that’s not the only thing that is insulting to broadcasters about this ridiculously unfair regulatory regime. What’s even more ludicrous about all these asymmetrical broadcast laws and new fines is that they are premised on the idea of "protecting the children." As much as I appreciate the government trying to raise my kids for me, I feel I have this job under control on my own and don't need them to come in and play the role of surrogate parent. [More on this below.]

But here's the real news flash for our lawmakers: Kids are increasingly tuning-out broadcast TV and radio and tuning-in to all those other media outlets and technologies listed above. Therefore, would someone please explain to me how we are "protecting the children" here instead of just protecting adults from themselves?

You think I’m exaggerating? Check out this recent article by Lisa de Moraes of The Washington Post. She points out that median age of broadcast television viewers continues to rise quite rapidly. “Fox [Television].. now has a median age of 42, passing the 40-year milestone this past season for the very first time. That's after aging up three years in just one season,” she notes. And “ABC's median age hit 48 -- two years older than the previous season.” NBC’s median age is 49. [emphasis added].

Incidentally, some of the specific TV shows that censorship-happy critics routinely go after have some of the highest median age viewership rankings:

“24” = 48 years old
“CSI” = 52 years old
“Law and Order” = 52 years old
“Cold Case” = 55 years old
“NCIS” = 56 years old

Obviously, these are uncomfortable statistics for the broadcast industry to discuss publicly since those numbers make it clear that their audience is aging.. and fast! But what these numbers don’t show is exactly where the younger generation is going. The competition for their eyes and ears is intense and they now spend their time multi-tasking among myriad multi-media inputs and options. And, again, none of those other media platforms are regulated like broadcasting.

As a result, as I note in my recent law review article, “America’s media policy is now stuck in what might be described as a jurisprudential ‘Twilight Zone’” because the things that kids are consuming less of (broadcast television and radio) are regulated most heavily in the name of protection those kids. Meanwhile, all the other platforms kids are increasingly using are completely unregulated. So, one wonders exactly what Sen. Brownback thinks he’s accomplishing by regulating broadcasting in the fashion his amendment proposes without also covering all the other platforms that kids are using today. (Note: I am not calling for the regulation of those other platforms, rather, I am just pointing out the sheer futility of regulating broadcast platforms in the name of “protecting kids.”)

Banning Shakespeare from Television?

The other amendment Sen. Brownback has proposed would require that the FCC implement new regulations “prohibit[ing] television broadcast station licensees from broadcasting excessively violent video programming during the hours when a substantial number of children are reasonably likely to be in the audience.” His amendment goes on to define “excessively violent video programming” as “a depiction or description of physical force against an animate being that, in context, is patently offensive as measured by contemporary community standards for the broadcast medium.”

Oh my, where to begin with this one! Well, for starters, I think it’s clear that Sen. Brownback’s definition of violence is going to raise some very sticky constitutional issues. Could there be anything vaguer than “physical force against an animate being” as defined by “contemporary community standards”? I have no idea what that means but apparently we’ll find out once 5 unelected bureaucrats down at the FCC get to play national nanny and decide for all the rest of us.

But I think it’s safe to say that Sen. Brownback’s definition would cover most war movies, many nature documentaries, and even a lot of Shakespeare plays. It’s tough for me to think of a Shakespeare tragedy that doesn’t include “a depiction or description of physical force against an animate being.” And I can’t wait to see how the FCC wiggles its way out of petitions to apply that regulatory standard to football, hockey, boxing and wrestling. Unless the agency wants a public mutiny on its hands, they must know they can’t relegate those sporting events to the wee hours of the night “when a substantial number of children [aren’t] reasonably likely to be in the audience.” (By the way, does that “safe harbor” / “time-channel” restriction really make any sense in an age of personal video recorders, pay-per-view programming, and instantaneous online downloads?)

The Constructive, Constitutional Alternative

But what’s most troubling about both these new amendments is that they are not needed at all. As I pointed out in my recent paper, “The Right Way to Regulate Violent TV” as well as my recent book on “Parental Controls and Online Child Protection,” there are many better ways to regulate objectionable media content than through government mandates. Parents DO have the power to regulate the media in their lives and the lives of their children. And technical controls like the V-Chip and cable and satellite set-top box controls are only one part of that process. Informal household media rules and third-party-provided content ratings and program information are equally as important. My paper and book document all these more constructive, and perfectly constitutional, solutions in great detail.

Bottom line: Public officials should not act in loco parentis when parents have the power to make media decisions on their own. Raising children, and determining what type of media they consume, is a quintessential parental responsibility. “Community standards”-based regulation must give way to “household standards” when parents have the power to effectively implement them as they do today.

I could go on forever about the many other constitutional problems raised by what Sen. Brownback is proposing here, but I will just instead strongly encourage you to read the outstanding written testimony that Harvard University Prof. Laurence Tribe submitted to the Senate Commerce Committee when he testified two weeks ago. He makes a devastating case against such a legislative enactment and makes it clear why this entire endeavor is an exercise in regulatory futility that will ultimately result in it all being ruled unconstitutional after a prolonged legal fight.

That’s clearer than ever in the wake of the Second Circuit decision cited above. In that case, the court noted that:

“we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television.”

In other words, this regulatory house of cards is about to come crashing down. All it will take is the right case getting to the Supreme Court for review.

So, here’s a simple suggestion for Senators Brownback, Rockefeller, and all congressional lawmakers considering supporting these regulatory efforts: Don’t burn a bunch of money fighting legal battles. Instead, consider using that money for serious media literacy and awareness-building efforts that can inform parents about all the tools and methods at their disposal to determine for themselves what’s best for their families. That’s the more constructive approach, and one that does not harm the Constitution as Senator Brownback’s two amendments would.

posted by Adam Thierer @ 8:36 PM | Free Speech