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Statement of The Media Institute Regarding Regulation of Broadcast Indecency

FOR RELEASE: March 10, 2004

Contact: Richard T. Kaplar
The Media Institute


Recent incidents on live TV broadcasts involving celebrity entertainers have caused Congress and the FCC to propose a panoply of stricter laws and regulations governing broadcast indecency. These proposals include (among other things) vastly increasing the dollar amount of indecency fines; imposing license revocations; subjecting cable programming to the indecency standard; and expanding the FCC's enforcement authority to include violence.

We urge both bodies to proceed with the utmost caution, however, because these proposals raise serious constitutional questions. For example, the notion of extending the broadcast indecency standard to cable television is highly egregious and fraught with problems. Even basic cable is a pay service invited into the home - and just as easily blocked - at the discretion of the subscriber. It is unrealistic and almost certainly unconstitutional to subject cable programming to the over-the-air standard. Regarding violence, violent content on TV has never definitively been proved to cause violent behavior in children. Policymakers would do well to consult the exhaustive and definitive review of the literature on this topic by University of Toronto researcher Jonathan Freedman.

Moreover, any actions by Congress or the FCC will be built upon a regulatory framework for indecency whose twin pillars are shaky at best: (1) Because of the growth of cable and satellite, broadcasting today is neither a uniquely pervasive medium nor a scarce resource justifying extensive government regulation; and (2) the indecency standard itself has long been constitutionally suspect as ambiguous and paradoxical, since indecent speech is otherwise protected by the First Amendment.

Congress and the FCC are on a fast track to make a bad regulatory situation even worse. We urge Congress to refrain from passing legislation without the benefit of full and extensive hearings. And we urge the FCC to refrain from changing its enforcement policies without the benefit of a full rulemaking proceeding. Both bodies should focus, not only on whether specific proposals can directly advance the government's asserted interest in protecting children, but on the constitutionality of broadcast indecency regulation in the broader context of today's media landscape.