Parents can do a better job of controlling what their children watch than the government. That’s why Public Knowledge joined TechFreedom, the Center for Democracy & Technology, the Cato Institute, and the Electronic Frontier Foundation in an amicus brief in FCC v. Fox, asking the Supreme Court to overturn the government’s outdated broadcast indecency regulations.
Today, broadcasting is the last bastion of government censorship. In recent years, the FCC has issued millions of dollars of fines against broadcasters for “infractions” such as failing to bleep dirty words in live celebrity interviews. The Supreme Court upheld the FCC’s indecency policies in 1978, when a radio station was fined for airing George Carlin’s “Seven Words You Can Never Say on Television” monologue. Back then, the Court reasoned that broadcasting was uniquely “pervasive,” in that the majority of viewers watched TV over the air, and highly “invasive,” in that there was no way for parents to control what their children watched. Thus, the Court held, the government had a “compelling” reason to keep the airwaves squeaky clean. It’s for the children!
Even if that rationale made sense in 1978, the media landscape has changed so much since then, that lessened First Amendment protections for broadcasters can no longer be justified. Today, most viewers watch TV over cable or satellite, not over the airwaves. People buy and rent DVDs and Blu-Rays, and video content is increasingly available on the Internet. In fact, video content itself increasingly competes with web browsing, social media, and even video games for people’s attention. Over-the-air broadcast television is just no longer as culturally ubiquitous as it was in 1978. At the same time, parents have countless tools to control what their children watch. Software can keep them on kid-safe, mother-approved websites, TV set-top boxes can limit what channels and programming children can watch, and even those few viewers who watch over-the-air TV can control what their children watch with the V-Chip, which has been part of nearly every TV sold since 2000. Both of the justifications that the Court advanced in 1978 for censoring broadcasters have fallen away. The Court in 2011 should acknowledge this changed media landscape and get rid of broadcast censorship.
The groups that joined this brief are ideologically diverse, and have taken opposite sides of other technology and media policy issues. But we all recognize that parents, technology, and the marketplace can do a better job of shielding children from indecent content than government censors.