CDT Takes a Crack at Broadcast Indecency Rules
November 13, 2006
Filed under Free Expression
On November 6, the Federal Communications Commission (FCC) issued its final order finding that the use of certain expletives on broadcast television shows was both "indecent" and "profane." CDT filed comments with the FCC in the proceeding, and will likely participate in the appeal by the broadcasters to the Second Circuit Court of Appeals. Under the Supreme Court's jurisprudence, the government is able to regulate broadcast television more strictly than communications over the Internet. That was a threshold issue decided in the 1997 decision striking down the Communications Decency Act, when the Court found that the Internet was not like the broadcast medium, and thus should not be regulated like broadcast. Which raises the question of why CDT is getting involved in a broadcast indecency proceeding. The answer is that we believe that technological innovation is changing the nature of the video communications, and the increasing convergence of technology will make the broadcast jurisprudence less and less relevant. In the Internet context, the courts have looked to the availability of parental empowerment tools like filtering software as a "less restrictive alternative" to governmental regulation. We already see the emergence of parental empowerment tools for broadcast -- such as the V-chip -- and as technology converges parents will have more and more ability to use technology to decide what their kids should view. Communications media are proliferating and converging. More and more Americans are accessing video programming via cable and satellite subscriptions, and via the Internet. "Broadcast" content is merging with new media, as evidenced by its availability on Google Video, YouTube, the networks' own websites, and the DVD-rental service Netflix. Ever improving user-empowerment technologies are making it easier for parents to protect their children from unseemly content. All of these technological changes are making the body of law the FCC relies on to regulate broadcast increasingly irrelevant. As broadcast fades into history, so should the broadcast focused jurisprudence. It is important that courts begin to recognize that parental empowerment tools will be a hallmark of the converged world, and thus communications in that converged world should receive the highest level of constitutional protection.