FCC Chairman Strays Even Further From Reality, and Constitution

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I read with horror the latest issue (Dec. 2007) of Indiana University’s Federal Communications Law Journal. The leading “article” is a transcript of a November 2005 debate among Federal Communications Commission (FCC) Chairman Kevin Martin and others about expanding the FCC’s regulation of indecency. During the debate, in response to a discussion about radio “shock jocks,” Chairman Martin bluntly said, “If you really want to talk about kids, you could hold parents criminally liable for allowing them access to this . . . that would really protect kids.” (p. 25) Adam Thierer at the Progress & Freedom Foundation did a good job of analyzing this outrageous proposal, which flies in the face of both the right to freedom of expression and the respected values of individual choice and privacy of the home.

What’s also shocking about Chairman Martin’s statement is that he wasn’t referring to prosecuting parents for allowing their minor children to access indecent broadcast radio programming, but instead to satellite radio programming. It’s no secret that the FCC wants to get its regulatory hands on satellite, cable, and even Internet content, but so far Congress and the courts have failed to find a justification for such expanded FCC jurisdiction. CDT and other First Amendment advocates have argued that, given the increased convergence of media and entertainment technologies (e.g., traditional “broadcast” shows are now available online), the constitutional foundation for the Commission’s censorship power is increasingly waning. It’s hard to say anymore that media is “invasive” or uncontrollable, justifying government regulation in the name of the public’s interest. Through subscriptions and user controls, parents and other consumers have a say over what media enters the home. We made this point last year in a brief to the Second Circuit Court of Appeals, which looked favorably upon our argument that the FCC’s days are numbered.

Chairman Martin went on to say that parents should be held liable for allowing their children to access indecent media content “in all circumstances.” Referring to the high constitutional bar the government must overcome to justify censorship under the First Amendment, Chairman Martin suggested that protecting kids from indecent programming is a “compelling interest” and “[t]hen we just get rid of their least restrictive means aspect of strict scrutiny.” (p. 25) Under First Amendment jurisprudence, regulation of content (as opposed to regulating when, where and how someone may speak) is frowned upon the most. Thus the government must have a “compelling” public interest to censor speech, and the government must show that there are no other means to achieve the compelling goal that are also less burdensome on speech. It’s not clear how Chairman Martin envisions getting rid of this “least restrictive means” consideration, but his dismissal of an important part of the constitutional analysis of censorship proposals is highly disturbing. He seems to imply that the government should have the authority to regulate content at any cost, regardless of how burdensome the government’s chosen method is on the right to freedom of speech. We should expect more responsible rhetoric from a public leader who has such immense power to affect a fundamental liberty.

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