The overwhelming support on Capitol Hill for legislation that will dramatically increase the fines for broadcasting "indecent" programming suggests there's broad agreement that the federal government should get serious about cleaning up TV. But the more closely you examine the justifications for this crackdown, the clearer it becomes that the ban on broadcast indecency either goes too far or does not go far enough.
Sen. Sam Brownback, R-Kan., who introduced the Senate version of the bill raising the maximum penalty for broadcast indecency from $32,500 to $325,000 per violation, says businesses that use "the nation's public airwaves" have special obligations. "Broadcast spectrum is a very valuable and scarce national resource," he says. "In return for a license, each broadcaster must not air indecent content between the hours of 6 a.m. [and] 10 p.m."
Broadcast spectrum is a "national resource" only because the government insisted on nationalizing it. There's no reason in principle why the right to transmit at a certain frequency in a certain area could not be treated the same way as the right to graze cattle or build a skyscraper on a particular piece of land. Broadcast licenses already are de facto property, bought and sold along with stations, except that the Federal Communications Commission occasionally clobbers broadcasters with fines if it does not like what they air.
Nor is it clear why using a public resource to send a message should affect the speaker's First Amendment rights, making him subject to government content regulation. Newspapers are delivered via "the public roads," and website information travels on wires across public property (sometimes even through "the public airwaves"), but that doesn't mean forcing journalists and bloggers to be "decent" is constitutionally permissible.
In any case, for the politicians and activists who want to protect children from the shows their parents let them watch, the "public airwaves" argument does not go far enough. Nearly nine out of 10 American households get TV via cable or satellite, modes of transmission that are not subject to indecency rules.
As Senate Commerce Committee Chairman Ted Stevens, R-Alaska, has pointed out, that distinction makes little sense. "Most viewers don't differentiate between over the air and cable," he told the National Association of Broadcasters last year, and "cable is a greater violator in the indecency arena."
It was music to the ears of broadcasters losing viewers to the racier shows on cable. House Commerce Committee Chairman Joe Barton, R-Texas, agreed that "it's not fair to subject over-the-air broadcasters to one set of rules and subject cable and satellite to no rules." Barton said he would join Stevens in supporting the extension of content restrictions to cable and satellite "if we can work out the constitutional questions."
That part may be tricky. The Supreme Court has applied "strict scrutiny" to content regulation of cable TV, finding a "key difference between cable television and the broadcasting media" in "the capacity to block unwanted channels on a household-by-household basis."
Yet in the age of the V-chip and content ratings, parents (even the small minority without cable or satellite TV) have the ability to block not just entire channels but particular kinds of programming, including violence and other potentially objectionable content that goes far beyond the sexual and excretory stuff covered by the FCC's indecency rules. Instead of banning Deadwood and The Sopranos, or banishing them to the FCC's late-night "safe harbor," how about asking parents to take some responsibility for monitoring what their kids watch?
When it upheld the FCC's content rules back in 1978, the Supreme Court said "indecent material presented over the airwaves confronts the citizen ... in the privacy of the home," as if TV were a robber or a rapist. But TV is not a criminal invading our homes; it's an invited guest. If we think he might misbehave, it's up to us to keep an eye on him.