Next Battle of the Indecency War is Cable and Satellite… and Unconstitutional

Salon has an article on the forces girding for the next stage of the regulatory battle over indecency. One of the next fronts may be cable and satellite, which FCC Chair Kevin Martin would like to see subjected to indecency regs just like broadcast TV and radio. According to Salon the staff of Senate Commerce Committee Chair Ted Stevens has been, “reviewing new regulatory options, looking for ideas that would survive a court challenge on First Amendment grounds.”

Call me an optimist, but I don’t think extending indecency regs to cable and satellite will pass constitutional scrutiny. Even former FCC Chair Michael Powell agrees with me on that point.

The justification for the FCC’s ability to regulate indecency in broadcast rests on two basic premises about the very nature of broadcast media, as set forth in FCC v. Pacifica:

First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. …

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children.

Both of these are very important tests that fail when applied to cable and satellite. On the first point, regarding the “uniquely pervasive presence,” cable and satellite are subscription services. You don’t just turn on a TV and get them as you do broadcast. Further, even if you own a satellite receiver, you still have to actively subscribe.

I believe that cable and satellite fail to be sufficiently “pervasive” under the Court’s definition.

Secondly, on the point that “broadcasting is uniquely accessible to children,” I think the analogy to movie theaters and bookstores is most illustrative of how cable and satellite differ from broadcast. The Court finds the barriers that these two venues present to children to be sufficient to shield them and different from broadcast. Again, with both cable and satellite, parents may choose not to subscribe to the services, or choose not to subscribe to particular channels. Further, most digital cable systems and all satellite systems allow parents to block out particular channels.

Don’t want your kids to hear the bleeped “fucks” and see the Christmas Poo on South Park? Lock out Comedy Central and you’re done.

Again, I believe the cable and satellite fail this second test, in that they are not nearly as accessible to children, and their content may be easily withheld from children without the aid of regulation.

In making this argument I don’t mean to express agreement with Pacifica. I think the metaphor that compares broadcast signals to an “intruder” is patently and “uniquely” absurd. The argument for protecting children perhaps holds a little more water, but only if you believe that children are easily harmed by a few dirty words — a belief for which there is no record of scientific proof (even while there’s substantial research indicating that violent programming may be more harmful).

What’s most interesting, and disturbing, about what Salon reports is that reactionary conservative and religious forces are preparing to fight the war over “indecency” on multiple fronts, including going after pornography by trying to outlaw it outright.

I’m pretty sure these efforts will fail — does anyone see any lasting effects of Reagan-era attorney general Ed Meese’s report on pornography? Do you even remember it?

It’s political posturing in the vain hope that the dying days of the Bush regime will have some sort of legacy besides the blood of American soldiers and Iraqi citizens, a ballooning debt and oil-driven inflation.

It’s good for us to be awake and aware, but we do no good to overreact.