[opendtv] Cato: Should Government Censor Speech on Cable and Satellite TV?
- From: Craig Birkmaier <craig@xxxxxxxxx>
- To: OpenDTV Mail List <opendtv@xxxxxxxxxxxxx>
- Date: Tue, 13 Apr 2004 08:24:56 -0400
http://www.cato.org/tech/tk/040329-tk.html
Should Government Censor Speech on Cable and Satellite TV?
Issue #77
March 29, 2004
by Adam Thierer
An important and troubling shift may be developing regarding the way
lawmakers regulate mass media in the United States. During recent
congressional hearings on broadcast television and radio violations
of Federal Communications Commission indecency standards, several
lawmakers hinted that they believed federal censorship efforts should
extend beyond licensed TV and radio operators to unlicensed media
sources, such as cable, satellite, and Internet providers. And a
debate is about to take place on the Senate floor during which some
lawmakers have said they will attempt to apply indecency regulations
on such subscription-based services.
Leaving aside the Janet Jackson incident during this year's Super
Bowl halftime show, it seems reasonable to question the wisdom of
Congress getting involved in regulating "pay TV" programs.
Subscription-based media providers have not faced such regulatory
scrutiny in the past because they are not licensed by the FCC and,
therefore, receive strict First Amendment protection.
But some lawmakers seemingly feel that should change. For example,
during recent hearings, Rep. Cliff Stearns (R-FL) suggested that
Congress needs to create a "code of conduct" for television that
encompasses cable and satellite TV. And Rep. Heather Wilson (R-NM)
and Republican FCC commissioner Kevin Martin both suggested that
cable and satellite companies should offer a "family-friendly" tier
of programming. Presumably, they'd like some say about what is
included in that package. Lawmakers like Sen. John McCain (R-AZ)
offered an alternative regulatory approach that would force cable and
satellite companies to offer every channel on an "a la carte" basis
to apparently help consumers weed out channels that were not family
friendly. In essence, this would make program "tiers" on cable and
satellite systems illegal and likely drive up the cost of individual
channels now in the "basic tier" on most networks. Finally,
legislation has been advancing in both chambers of Congress that
would raise fines on broadcasters for airing indecent programming,
and several lawmakers have expressed interest in incorporating pay TV
providers into that bill.
In one sense, the argument for censorship parity is powerful. After
all, viewers don't really make a distinction between over-the-air and
pay TV sources anymore. More than 85 percent of households currently
subscribe to either cable or satellite television services, and
traditional broadcast networks are now just a few of the options we
can flip through in our 500-channel universe. So why should older
broadcast television networks be the only ones taking the regulatory
heat?
The downside of regulatory parity is obvious: Congress and the FCC
would start censoring pay TV providers and programs. Consider what
that might mean for cable networks like HBO or Showtime, which
produce popular, but admittedly controversial, programs, such as The
Sopranos, Sex and the City, Queer as Folk, and The L Word. Should
Congress or the FCC really have the right to regulate the content of
such programs, or even when they are shown?
Moreover, what happened to common sense and personal responsibility
in this country? After all, cable and satellite boxes, personal
computers, and Internet connections didn't just magically appear in
our homes; we put them there! Once we voluntarily bring these devices
into our homes we shouldn't ask government to assume the bulk of the
responsibility for then minding our children. Those of us who are
parents understand that raising a child in today's modern media
marketplace is a daunting task at times. But that should not serve as
an excuse for inviting Uncle Sam in to play the role of surrogate
parent for everyone.
Luckily, Congress doesn't have the right to censor pay TV, thanks to
the First Amendment and America's strong tradition of freedom of
speech and expression. Lawmakers have never been able to censor
supposedly "indecent" material in newspapers, magazines, books,
cable, satellite, or the Internet the same way they have broadcast
television. Courts will simply have none of it.
But the danger of back-door censorship still lurks with the growing
convergence of media providers and technologies. In the future,
traditional broadcasters might deliver their shows directly to
consumers via cable, satellite, or even Internet video streaming. If
they do so, even more regulatory pressure will be brought to bear on
those private operators. However, given the traditional court-based
protections for those other media providers, media convergence could
result in less censorship for everyone, including traditional
broadcast stations.
But make no mistake, this fight is no longer just about a brief
flash of flesh during the Super Bowl or a few dirty words on radio;
it's become about a blatant political effort to gain more control
over cable and satellite television as they supplant over-the-air
broadcasting in America. And if Congress and the FCC win the right to
censor speech on pay TV, they will gain additional powers, such as
the ability to mandate a certain amount of "educational" programming,
free airtime for politicians, more "public access" programming, and
so on.
So stay tuned, this fight is just getting started. One way or
another, Ms. Jackson's "wardrobe malfunction" might just end up
ushering in a veritable revolution in federal censorship policy.
Adam Thierer (athierer@xxxxxxxx) is the director of
telecommunications studies at the Cato Institute in Washington, D.C.
To subscribe, or see a list of all previous TechKnowledge articles,
visit www.cato.org/tech/tk-index.html.
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