The Mythical Right to Decency

Jacob Sullum

6/27/2012 12:01:00 AM - Jacob Sullum
Pity the poor speech regulators at the Federal Communications Commission, who are charged with sifting through complaints about TV and radio programs in a farcical attempt to determine which references to "sexual or excretory organs or activities" are "patently offensive as measured by contemporary community standards for the broadcast medium."

Last week, the Supreme Court declined to rule on the constitutionality of this charade, thereby forcing the FCC's butt-coverers and word-bleepers to contemplate a backlog of 1.5 million or so complaints.

"The FCC must now enforce our right to decency on the public airwaves," declared Morality in Media President Patrick Trueman. Unpacking that statement reveals the intellectual and constitutional bankruptcy of this whole censorious enterprise.

Trueman's "right to decency" is, in essence, a right not to be offended, which sits rather uneasily with the right to freedom of speech. The First Amendment would not amount to much if it extended only to inoffensive utterances.

And what about the right to indecency? Profit-driven broadcasters do not air things that offend Patrick Trueman out of a perverse desire to upset him; they do so because they are trying to attract viewers, who evidently have different tastes. Why should Trueman's idea of good television trump theirs?

Here is where the concept of "the public airwaves" comes in: The government graciously allows broadcasters to use a precious public resource and therefore has a right to impose conditions on them. That was the Obama administration's position in the case decided last week, where the Supreme Court overturned three FCC indecency actions on narrow due process grounds but dodged the broader First Amendment issue.

Notably, this view of the airwaves as a public resource was not the basis for the 1978 ruling in which the Court first upheld the federal government's authority to regulate TV and radio content. That decision hinged instead on the premise that broadcasting was "uniquely pervasive" and "uniquely accessible to children" -- neither of which is true now that programming is widely and readily available via cable, satellite, Internet, DVD and DVR.

Unlike broadcasting, none of those media is monitored by the government for naughty words and images, and the Court has made it clear that any attempt to do so would violate the First Amendment. Yet there is no constitutional basis for this distinction, no matter how many times professional puritans like Trueman call the airwaves "public."

After all, satellite TV, cellphones and the Internet also use "the public airwaves," but that fact does not subject them to content regulation. I used the public airwaves, through a Wi-Fi connection, to transmit this column, but that does not mean I have to worry about being fined if I happen to offend the FCC.

Extending the concept only slightly, coaxial and fiber-optic cables follow public rights of way, periodicals are delivered via public roads, and every speaker's voice is both powered and transmitted by the public air. Does Patrick Trueman have a right to decency in these media, as well?

It's true that the government treats broadcasting as a privilege with strings attached, as opposed to a transferable property right, but that decision does not justify itself. If the government has the authority to regulate broadcast content because it controls the airwaves and licenses TV stations, why can't it regulate newspaper content by nationalizing printing presses and licensing journalists?

In addition to violating the First Amendment, the ban on broadcast indecency undermines the rule of law because it is so hard to predict what will offend the FCC. A glimpse of bare buttocks (which are not, technically speaking, "sexual or excretory organs") may be deemed indecent in a cop show but not in a war movie. Four-letter words that can trigger multimillion-dollar fines may be tolerated if the FCC deems them artistically or journalistically justified. Such embarrassingly subjective, unjustly arbitrary and unconstitutionally speech-chilling judgments are unavoidable as long as the government insists on protecting the mythical right to decency.