Beyond the Indecency Ban: Why We Need Stronger Property Rights
The Second Circuit has ruled against the FCC's current indecency ban. "The case," as Volokh says, "is Fox Television, Inc. v. FCC, and it holds the policy violates the First Amendment." In one sense, the only response is that it is about time. The current legal regime rests on the view that the government as the owner of the airwaves is entitled to tell the broadcasters what they can and cannot do. The decency issue is the least of the issues with this regime, which creates all sorts of difficulties in putting valuable frequencies to their best use. The bottoms up approach that leads to outright ownership increases the flexibility of frequency use, and takes away the government power as owner, which is at is should be. Given what passes for entertainment on cable and video and everything else, these remarks look pretty tame. Why should we think that ears are assaulted when the message comes over a government frequency? Sell off the frequencies, or even give them to the current users, and matters will get a lot better on this front.
As to the constitutional argument, I am always uneasy about vagueness claims, because I can never think of words with the same level of generality that are any clearer than the ones that are struck down. So we get the situation where the dislike of the underlying provisions fuels the vagueness charge. But if this language is vague, then so too the statutory grant of power to issue licenses that serve the "public interest, convenience, and necessity." Stronger property rights obviate many constitutional interpretive difficulties.
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Re: Beyond the Indecency Ban: Why We Need Stronger Property Rights
Rob Long and his fellow travelers have finally brought down the mighty FCC. The evil doers here were not pirate radio broadcasts or deranged comics or left wing stations, who were deliberately saying naughty things to challenge the norms of good taste and behavior in the cause of "art." Rather, the purveyors of smut were garden-variety network t.v. shows: not just "nipplegate," as the Court referred to the 2004 Super Bowl halftime show starring Janet Jackson's wardrobe malfunction, but also the use of curses by U2's Bono, Cher, and Nicole Ritchie on awards programs, NYPD Blue's dialogue, and a guest on CBS's Early Show (clearly the FCC's findings of indecency have nothing to do with whether anyone is actually watching the shows). [1/3]
Re: Beyond the Indecency Ban: Why We Need Stronger Property Rights
Richard has it right -- this should have happened a long tine ago. The First Amendment prohibits the government from discriminating against some speech but not others because of its content -- and racy speech has content. The Supreme Court's previous approval of the FCC's right to ban indecency was always built on the mistaken view of the world that because broadcast spectrum was limited, the government had more power to ration how it was used. This never made sense -- simply because a public square is limited in space doesn't give the government the power to decide that only Democrats can occupy the soapbox. One of the striking things is that technology has changed so much -- we have a glut of channels now -- and that the Court has recognized this by blocking a federal law trying to control indecency on the internet. [2/3]
Re: Beyond the Indecency Ban: Why We Need Stronger Property Rights
To further pursue Richard's point, it is interesting to ask whether the government is even necessary here. The government has had these silly doctrines on the books for years, but it doesn't seem to have succeeded to have prevented the coarsening of the culture (if that were even possible). It seems to me that demands by consumers will more effectively control where and when indecency appears than government diktat. Take newspapers -- most would not even reprint the naughty words quoted in the Court's decision yesterday, but they aren't reluctant because of federal regulation, but because the few people who buy and read newspapers anymore want them to keep to the standard of a "family paper." Same should work for t.v. and the internet. And if parents are worried about their children seeing it, they can install software, or buy devices to filter content with which they disapprove. Or, mirabile dictu, the parents could turn the t.v. or computer off entirely and have their children do something else, like play sports or even read. [3/3]
Edited on Jul 14, 2010 at 3:50pmJul '10
Re: Beyond the Indecency Ban: Why We Need Stronger Property Rights
We had "stronger property rights." What we "need" is less government.
Jun '10
Re: Beyond the Indecency Ban: Why We Need Stronger Property Rights
A friend of mine is a township supervisor in a community that is about to get a new highway. He leads an interesting discussion on the local talk radio station. The conversation begins at about 42:50.
May '10
Re: Beyond the Indecency Ban: Why We Need Stronger Property Rights
The idea of limited broadcast spectrum is still offered as justification for so many disguised (lefty) censorship dreams, and is a complete joke today. When the initial FCC spectrum licensing policy was established, you had very wideband AM broadcast over a narrow range (roughly 550 KHz to 1700 KHz).
Today, you can multiplex many signals, even analog, over limited carrier waves. If you use digital signals, the number of streams is essentially unlimited, even over the air (that is, you don't need satellite radio to get lots of digital signals). The rationale for government control has completely evaporated.
So now the truth is exposed- again. It is all about controlling content.
We need to be careful now to be consistent ablout freedom. Religious conservatives (like me) have to realize that obscenity censorship is my personal job in protecting my own space, not the government's job to protect my kids. Lefties need to be disabused of the idea that free political speech is not in the Constitution, no matter what the debates do to interfere with their goals of controlling thought.