Should Government Censor Speech on Cable and Satellite TV?

Published April 29, 2004

A troubling shift may be developing in the way lawmakers regulate mass media in the U.S.

During recent congressional hearings addressing broadcast television and radio violations of Federal Communications Commission (FCC) indecency standards, several lawmakers hinted that federal censorship efforts should extend beyond licensed TV and radio operators to unlicensed media sources, such as cable, satellite, and Internet providers.

Leaving aside the Janet Jackson incident during this year’s Super Bowl halftime show, it seems reasonable to question the wisdom of Congress getting involved in regulating “pay TV” programs. Subscription-based media providers have not faced such regulatory scrutiny in the past because they are not licensed by the FCC and, therefore, receive strict First Amendment protection.

But some lawmakers appear to feel that should change. For example, during recent hearings, Rep. Cliff Stearns (R-Florida) suggested Congress create a “code of conduct” for television that encompasses cable and satellite TV. Rep. Heather Wilson (R-New Mexico) and Republican FCC Commissioner Kevin Martin both suggested cable and satellite companies should offer a “family-friendly” tier of programming.

In one sense, the argument for censorship parity is powerful. After all, viewers don’t really make a distinction between over-the-air and pay TV sources anymore. More than 85 percent of households currently subscribe to either cable or satellite television services, and traditional broadcast networks are now just a few of the options we can flip through in our 500-channel universe. So why should older broadcast television networks be the only ones taking the regulatory heat?

The downside of regulatory parity is obvious: Congress and the FCC would start censoring pay TV providers and programs. Consider what that might mean for cable networks like HBO or Showtime, which produce popular, but admittedly controversial, programs, such as “The Sopranos” and “Queer as Folk.” Should Congress or the FCC really have the right to regulate the content of such programs, or what time they are shown?

Moreover, what happened to common sense and personal responsibility in this country? Cable and satellite boxes, personal computers, and Internet connections didn’t just magically appear in our homes; we put them there! Those of us who are parents understand that raising a child in today’s media marketplace is a daunting task at times. But that should not serve as an excuse for inviting Uncle Sam in to play the role of surrogate parent for everyone.

Congress doesn’t have the right to censor pay TV, thanks to the First Amendment and America’s strong tradition of freedom of speech and expression. Lawmakers have never been able to censor supposedly “indecent” material in newspapers, magazines, books, cable, satellite, or the Internet the same way they have broadcast television. Courts will have none of it.

But the danger of back-door censorship still lurks with the growing convergence of media providers and technologies. In the future, traditional broadcasters might deliver their shows directly to consumers via cable, satellite, or even Internet video streaming. If they do so, even more regulatory pressure will be brought to bear on those private operators.

Make no mistake, this fight is no longer about a brief flash of flesh during the Super Bowl or a few dirty words on radio; it’s become a blatant political effort to gain more control over cable and satellite television as they supplant over-the-air broadcasting in America. And if Congress and the FCC win the right to censor speech on pay TV, they will gain additional powers, such as the ability to mandate a certain amount of “educational” programming, free airtime for politicians, more “public access” programming, and so on.

So stay tuned, this fight is just getting started. One way or another, Ms. Jackson’s “wardrobe malfunction” might end up ushering in a veritable revolution in federal censorship policy.

Adam Thierer ([email protected]) is director of telecommunications studies at the Cato Institute in Washington, DC.