Should Government Censor Speech on Cable and Satellite TV?

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An important and troubling shift may be developing regarding theway lawmakers regulate mass media in the United States. Duringrecent congressional hearings on broadcast television and radioviolations of Federal Communications Commission indecencystandards, several lawmakers hinted that they believed federalcensorship efforts should extend beyond licensed TV and radiooperators to unlicensed media sources, such as cable, satellite,and Internet providers. And a debate is about to take place on theSenate floor during which some lawmakers have said they willattempt to apply indecency regulations on such subscription-basedservices.

Leaving aside the Janet Jackson incident during this year'sSuper Bowl halftime show, it seems reasonable to question thewisdom of Congress getting involved in regulating "pay TV"programs. Subscription-based media providers have not faced suchregulatory scrutiny in the past because they are not licensed bythe FCC and, therefore, receive strict First Amendmentprotection.

But some lawmakers seemingly feel that should change. Forexample, during recent hearings, Rep. Cliff Stearns (R-FL)suggested that Congress needs to create a "code of conduct" fortelevision that encompasses cable and satellite TV. And Rep.Heather Wilson (R-NM) and Republican FCC commissioner Kevin Martinboth suggested that cable and satellite companies should offer a"family-friendly" tier of programming. Presumably, they'd like somesay about what is included in that package. Lawmakers like Sen.John McCain (R-AZ) offered an alternative regulatory approach thatwould force cable and satellite companies to offer every channel onan "a la carte" basis to apparently help consumers weed outchannels that were not family friendly. In essence, this would makeprogram "tiers" on cable and satellite systems illegal and likelydrive up the cost of individual channels now in the "basic tier" onmost networks. Finally, legislation has been advancing in bothchambers of Congress that would raise fines on broadcasters forairing indecent programming, and several lawmakers have expressedinterest 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 betweenover-the-air and pay TV sources anymore. More than 85 percent ofhouseholds currently subscribe to either cable or satellitetelevision services, and traditional broadcast networks are nowjust a few of the options we can flip through in our 500-channeluniverse. So why should older broadcast television networks be theonly ones taking the regulatory heat?

The downside of regulatory parity is obvious: Congress and theFCC would start censoring pay TV providers and programs. Considerwhat that might mean for cable networks like HBO or Showtime, whichproduce popular, but admittedly controversial, programs, such asThe Sopranos, Sex and the City, Queer asFolk, and The L Word. Should Congress or the FCCreally have the right to regulate the content of such programs, oreven when they are shown?

Moreover, what happened to common sense and personalresponsibility in this country? After all, cable and satelliteboxes, personal computers, and Internet connections didn't justmagically appear in our homes; we put them there! Once wevoluntarily bring these devices into our homes we shouldn't askgovernment to assume the bulk of the responsibility for thenminding our children. Those of us who are parents understand thatraising a child in today's modern media marketplace is a dauntingtask at times. But that should not serve as an excuse for invitingUncle 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 offreedom of speech and expression. Lawmakers have never been able tocensor supposedly "indecent" material in newspapers, magazines,books, cable, satellite, or the Internet the same way they havebroadcast television. Courts will simply have none of it.

But the danger of back-door censorship still lurks with thegrowing convergence of media providers and technologies. In thefuture, traditional broadcasters might deliver their shows directlyto consumers via cable, satellite, or even Internet videostreaming. If they do so, even more regulatory pressure will bebrought to bear on those private operators. However, given thetraditional court-based protections for those other mediaproviders, media convergence could result in less censorship foreveryone, including traditional broadcast stations.

But make no mistake, this fight is no longer just about a briefflash of flesh during the Super Bowl or a few dirty words on radio;it's become about a blatant political effort to gain more controlover cable and satellite television as they supplant over-the-airbroadcasting in America. And if Congress and the FCC win the rightto censor speech on pay TV, they will gain additional powers, suchas 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 oranother, Ms. Jackson's "wardrobe malfunction" might just end upushering in a veritable revolution in federal censorshippolicy.