Broadcaster comments to the FCC on its indecency enforcement regime were music to the ears of First Amendment fans (see Washington Watch).
There was a time when Disney stayed at arm’s length from the indecency fight, because others were willing to carry the standard. Plus, having Mickey Mouse defending some of the content that folks have to hold their noses and defend did not fit with the corporate image. And the National Association of Broadcasters has stopped short of asking for full First Amendment freedoms, given that the other shoe might be having to buy their spectrum at auction.
There are still differences among the networks and between the networks and the NAB, but their arguments have begun to converge around an idea whose time has come.
Broadcasting is no longer uniquely pervasive, nor is it uniquely accessible. Those are the underpinnings of the Supreme Court’s Pacifica decision, but those pegs have been kicked aside in the race to distribute content over wires and birds and the Internet.
Now, broadcasters have a bit of a message gap between their defense of the industry as growing—when they are talking about spectrum auctions—and their arguments for scrapping indecency enforcement on the grounds that they are being dwarfed by MVPDs. But actually, how many people get over-the-air broadcasts isn’t really the point.
In fact, the more people who rely on over-the-air broadcasts, the more important it is that their content choices not be dumbed down and determined by three unelected bureaucrats all in the name of protecting children.
That is a system that gives us censorship of award-winning documentaries because people were swearing in them like, well, people do.
It has now been a decade of wasting government and industry resources and time and energy and money on a few cuss words and some flashes of bare skin, while wars rage and economies teeter.
It is time to say “enough.” The FCC should get out of the content regulation business. But if it doesn’t, it should certainly return to a more hands-off policy. It has enough to do with figuring out how to remake the broadcast and wireless industries and how to accommodate over-the-top delivery in its regulatory cosmogony. Leave the parenting to parents and the programming decisions to broadcasters who know their markets and have yet to fill the 10 p.m.-6 a.m. indecency safe harbor with sex and sailor talk, though they have been free to do so.
And yes, we know, there were more than 100,000 comments in the FCC docket, most from folks who want the FCC to continue to pursue fleeting nudity and profanity, and probably more. They deserve to be heard, but they should not be given a “heckler’s veto,” as one broadcaster put it last week. And even if that number were 10 times as great, the tyranny of the majority is no better. Putting torches and pitchforks on the scale should not tip the balance.
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