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Adam Thierer on the new censorship thang: Expanding indecency

Adam Thierer on the new censorship thang: Expanding indecency
Adam Thierer on the new censorship thang: Expanding indecency

Previous Politech messages: 

-------- Original Message --------
Subject: 	Wash. Post op-ed on new censorship threats
Date: 	Tue, 7 Jun 2005 09:32:06 -0400
From: 	Adam Thierer  


             I thought you might be interested in seeing my editorial
that ran in today=92s Washington Post entitled =93New Worlds to Censor.=94 In
this editorial, I discuss the threat of expanded media censorship and
point out why traditional regulatory rationales are no longer applicable
in our new media environment.  This editorial builds on the First
Amendment studies that we have been publishing at PFF in recent months,
which can be found here
, here 
, and 
here . 

Cheers - - Adam Thierer


*New Worlds To Censor*

/By Adam Thierer/


Tuesday, June 7, 2005; Page A23

A troubling shift is underway in how lawmakers censor media in this
country. Sen. Ted Stevens (R-Alaska) and Rep. Joe Barton (R-Tex.),
chairmen of the Senate and House commerce committees, as well as Kevin
Martin, the new head of the Federal Communications Commission, are
proposing to broaden federal broadcast "indecency" regulations to cover
cable and satellite television. And a separate measure recently
introduced in the Senate would regulate "excessively violent"
programming, not just in broadcasting but on cable and satellite service
as well.

These lawmakers argue that just regulating over-the-air broadcast TV and
radio content won't cut it anymore. In our modern world of abundant,
ubiquitous media -- where 85 percent of homes subscribe to cable or
satellite TV and many citizens rely on the Internet or mobile devices
for news and entertainment -- broadcast censorship regulations afford
lawmakers less and less control over the media outlets people use most.


In searching out a legal justification to censor new media outlets,
policymakers are falling back on the same arguments they have used to
regulate broadcast television and radio: They are "pervasive," and they
are "intruders" that are "uniquely accessible" to children at home.
These are the catchphrases a slim 5 to 4 majority of the Supreme Court
used in /FCC v. Pacifica Foundation/ (1978) to rationalize treating
broadcasters like second-class citizens in the eyes of the First
Amendment. There are many reasons to doubt Pacifica in today's world,
but even under that case there's no logic for new indecency rules for
cable and satellite channels.

To begin with, almost all new media outlets are subscription-based.
Consumers must take affirmative steps -- and spend a fair amount of
money -- to bring those services into the home. Basic cable costs almost
$40 per month. Satellite costs more. And Internet access doesn't just
fall from heaven. When consumers spend good money to bring these
services into their homes, the "media-as-invader" logic breaks down.
These technologies are not "intruders" in the home; they are invited guests.

Moreover, parental responsibility has to count for something. Once
parents bring these media devices into the home, it does not absolve
them of their responsibility to monitor how their children use them.
After all, parents don't bring power tools or chemicals home and then
expect the government to assume responsibility for their children's safety.

Some lawmakers seem to believe that once any media technology becomes
popular enough, it becomes "pervasive" and therefore some degree of
censorship is justified. But the notion that "popularity equals
pervasiveness" is frightening, because it contains no limiting
principles. This wasn't the standard we applied to print outlets such as
newspapers as they grew in popularity. Nor is it the standard we apply
to the Internet. In fact, recent Supreme Court decisions have rejected
attempts to apply indecency controls to cyberspace.

Of course, none of this is going to stop pro-censorship policymakers
from pushing the envelope to incorporate new media -- at least basic
cable and satellite programming -- into the indecency mix. If this
"popularity equals pervasiveness" regulatory paradigm becomes law and
passes muster in the courts, we will have entered a world in which the
public has to pay to escape censorship. Anything Congress or the FCC
deemed "indecent" would likely be forced onto a premium or pay-per-view
tier, where consumers would spend considerable sums to receive some of
their favorite programs. But here's the really interesting question: If
large numbers of viewers still flock to premium or pay-per-view services
to get their favorite programming -- such as HBO, or Howard Stern's new
show on satellite radio -- wouldn't the "popularity equals
pervasiveness" calculus apply to those channels as well? If so, we could
look forward to still more laws to protect us from ourselves.

No doubt, some parents will welcome efforts to extend indecency
censorship, feeling somewhat overwhelmed by all the new media outlets
out there. As a parent of two children, I can certainly sympathize. But
technology gives parents more ways to control media exposure every day.
And just because the job of being a good parent is difficult, we should
not call in government to act as a surrogate parent and make these
decisions for all of us.

/The writer is a senior fellow at the Progress and Freedom Foundation
and director of its Center for Digital Media Freedom./


Adam Thierer

Senior Fellow and Director,

Center for Digital Media Freedom  

Progress & Freedom Foundation  
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