An Indecent Proposal: Expanding FCC Speech Controls to Cable

Ten years ago, when the GOP first took control of Congress, there was much excited talk about abolishing the FCC. Its days were numbered, many thought.

Ten years later, those numbers look pretty large. Rather than talk of shrinking the FCC, two key GOP leaders yesterday said they would expand it. Sen. Ted Stevens–chair of the Senate Commerce Committee–told a group of broadcasters that he wanted to extend the agency’s control over “indecent” speech to cable and satellite television. Rep. Joe Barton–his House counterpart, agreed.

FCC indecency rules–even for broadcasters–are a bad idea. The idea of government bureaucrats deciding what speech can and can not be heard my Americans is repugnant, especially so to conservatives who should recognize the limits of regulators’ competence. It is also naive to think that regulators can draw a neat line between what is appropriate and what is not–as most recently shown by the reluctance of many PBS stations last month to air unexpurgated versions of a “Frontline” documentary on American troops in Iraq.

The bright side has been that the FCC’s follies are limited to broadcasters, who operate under FCC license. Sen. Stevens and Rep. Barton now want to eliminate that distinction, seeing it as a loophole for cable and satellite programming, which does not depend on broadcast licenses. Never mind that this programming largely comes over privately-built facilities, and does not enter anyone’s home unless requested (and paid for).

Worse, speech regulation is unlikely to stop there. What about video transmitted over the Internet? Wouldn’t that be a “loophole” that the FCC would need to plug? Or Internet radio for that matter? Why not other pervasive media that might cause offense? If we’re plugging loopholes, what about the big one that lets newspapers and magazines print virtually anything they want? Shouldn’t a regulator be looking at them to make sure no one gets offended?

Even FCC chairman Michael Powell–who initiated the FCC’s drive against broadcast indecency–sees a problem here. “I think it’s a dangerous thing to start talking about extending government oversight of content to other media just to level the playing field,” he said earlier this year. Sadly, however he’s leaving, and other regulators are not so adverse to expanding their domain. For instance, current Commissioner Kevin Martin–widely touted as Powell’s replacement–is sympathetic to increases in the FCC’s indecency domain.

Fortunately, even if the proposed expansion of controls passes Congress, it would have a hard time getting past the Supreme Court. It wouldn’t take an activist judge to see a clear conflict with the First Amendment here. Still, the fact that key GOP leaders are supporting the idea doesn’t bode well for supporters of limited government, and the spirit of ’95.

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