It’s never easy to admit a mistake, but the Supreme Court is being asked today to acknowledge a major blunder it made more than 30 years ago when it gave the green light to the federal government’s regulation of “indecency” on broadcast TV.
Today’s oral arguments pit the TV networks against the Federal Communications Commission over the government’s crackdown on, among other things, expletives spoken by stars on Fox Television’s “Billboard Awards” and a shot of a woman’s naked buttocks on ABC’s “NYPD Blue.”
The networks argue that the court’s 1978 Pacifica ruling, which justified regulation of George Carlin’s “filthy words” monologue, was an insult to the First Amendment even at the time and that the media upheaval from cable and Internet has only heightened the problem. Government attorneys dispute those claims.
We think the networks have the better arguments and should prevail. Content regulation should cease.
Don’t get us wrong: We’re hardly fans of obscenity and nudity on prime-time shows when kids are most likely to watch. Nor do we doubt that the Parents Television Council, an advocacy group that monitors TV content, is largely accurate in claiming that prime-time profanity has risen in recent years even with the government acting as watchdog.
But as the networks correctly point out, “For more than 30 years, broadcasting alone among all mass media has been a second-class citizen. Only broadcasting is subject to content-based censorship by the federal government.” Subjecting broadcast TV to such regulation was troublesome from a free-speech perspective even back when most people could tune in to just three networks. But the marketplace has been transformed. A vast majority of households now have cable or satellite service and most enjoy Internet access as well.
As a result, the Supreme Court’s rationale in its earlier decision is simply obsolete. “Broadcasting is not uniquely pervasive because Americans today spend more time engaged with cable and satellite television, the Internet, video games, and other media than they do with broadcast media,” the networks observe. “Nor is broadcasting uniquely accessible to children because other media are no less accessible than broadcasting.”
In defiance of those facts, the Obama administration stubbornly insists in its legal brief that broadcast programming “maintains a dominant presence in American life and culture” and is still uniquely accessible to kids. Such a depiction of the TV landscape is at odds with reality.
It’s time to erase the distinction between broadcasting and other forms of media and trust parents to regulate kids’ viewing habits. We realize that isn’t a perfect solution, but neither is giving the First Amendment short shrift.
It’s even possible the networks themselves would resist a race to the bottom in content and continue to relegate most adult programming to after 10 p.m. If they don’t, after all, they risk offending a big swath of the audience with kids in the home.
