The time has come to strip the Federal Communications Commission of its jurisdiction over broadcast indecency.
Originally, the rationale for the FCC's indecency jurisdiction lay in the fact that a broadcast license is a public trust, and no broadcaster should air anything that is damaging to the public good (a principle that was designed to keep not merely the obscene, but also the politically undesirable, off the airwaves). With the gradual abandonment of the public-trust model, the rationale for FCC indecency jurisdiction has shifted to protecting children from inadvertently hearing inappropriate broadcasts.
That was the motivation in the FCC's 1978 fine of the Pacifica Foundation for its broadcast of George Carlin's “Seven Dirty Words” monologue: A father allegedly complained that his child heard the broadcast while riding in the car with him one afternoon.
Unfortunately, the FCC's indecency standard is both vague and erratically enforced. The only prohibition in the Communications Act that has been clearly defined by the U.S. Supreme Court is “obscenity,” and even that varies from one community to the next. In fact, the Court has repeatedly rejected federal legislation (such as the Communication Decency Act) that purported to make “indecency” a felony. A good argument can also be made that FCC indecency decisions are driven by politics: from 2003 to 2004 (a tough re-election year), FCC indecency fines leapt from $440,000 to $7.7 million.
Both of these problems are compounded by the fact that the FCC only acts retroactively: Broadcasters have only the entrails of previous decisions to guide them as to whether a particular broadcast (like ABC's telecast of Saving Private Ryan) now might cost them hundreds of thousands of dollars in fines.
The vagueness of the FCC indecency standard is illustrated by the fact that at least three of Carlin's dirty seven are in regular broadcast use today; but putting that aside, the real shift over the last 30 years lies in the fact that technology is rapidly rendering “broadcast” moot.
Roughly 90% of the country pays to watch television via cable or satellite, and a growing percentage are using satellite radio as well. An even larger percentage of consumers are purchasing specific content on a “pay-to-play” basis from cable providers or Web sites like iTunes. As more and more people specifically choose to pay for content, the “accidental exposure” rationale for FCC indecency jurisdiction correspondingly diminishes.
Closely related to the demise of broadcast is the rise in consumer information. If a consumer purchases specific media content, then presumably he or she has some reasonable idea of what that content is. The increase in purchased content also makes it easier for parents to supervise and monitor what their children are listening to and watching.
At its core, however, the concept of FCC jurisdiction is simply inconsistent with the idea of personal responsibility in a representative democracy. Relying on a federal agency to determine what is or is not decent sends a bad message to our children (and to our legislatures). If we are to maintain a strong and vibrant democracy, we need to teach our children the values which will enable them to make their own decisions on these types of issues.