In late August, Salon reported that FCC Chairman Kevin Martin has met privately with numerous religious and “pro-family” groups to coordinate policies to address “racy content on cable and satellite television.”
Rick Schatz, president of the National Coalition for the Protection of Children and Families, who sat in on those meetings, told Salon, “[Martin] said the free rein of cable and satellite and satellite radio is not acceptable,” and that Martin is “committed to seeing something is done during his tenure.”
That comes as no surprise. While things have been quiet for the past few months, most industry watchers agreed that the reason for the delay on this front was that the pro-regulatory forces were quietly planning their attack on cable and satellite. As the Salon article makes clear, censorship proponents know they have an uphill battle and are tightly coordinating their efforts to radically expand the scope of federal indecency law.
The pressure comes amid ongoing media and technological convergence that has placed a great deal of strain on the old analog-era, broadcaster-oriented model of content regulation. The result is a collision of jurisprudential visions that has profound ramifications for the First Amendment treatment of all media providers and forms of content.
Premised on the notions of “scarcity” and “pervasiveness,” this regulatory model accords broadcasters the equivalent of second-class citizenship in terms of First Amendment rights. Meanwhile, most other media outlets–from newspapers and magazines to the Internet–are accorded the gold standard of First Amendment protection.
A jurisprudence so radically divided cannot stand in an age of rapid technological convergence. Today, media and media outlets are blurring together thanks to the rise of myriad technologies and competitors, most of which ignore the distinctions of the past.
It is now possible to watch or listen to the same piece of content on a broadcast TV or radio station, a cable channel, a satellite system, a DVD player, a cell phone, a portable gaming system, or over the Internet. In this environment, media regulation in general, and speech controls in particular, will become increasingly complicated and intrusive as lawmakers attempt to apply the old rules to newer technologies and outlets.
Ironically, Martin and his allies understand and accept the argument that media and technological convergence will require a rethinking of the law and leveling of the regulatory playing field. Unfortunately, however, they wish to level the playing field in the direction of less freedom of speech instead of more.
The problem with this “regulate up” solution to the level playing field problem is that it means almost any type of speech or media outlet in the future will be fair game for regulators. If Martin is successful in regulating basic cable next year, why not enhanced tiers or pay-per-view tiers after that? After all, did you know that, according to a recent Kaiser Family Foundation survey, 55 percent of children live in homes that subscribe to HBO? Does that mean HBO is “pervasive” enough to justify differential First Amendment treatment?
In essence, this is the logic Martin and pro-censorship supporters are using in defense of regulating basic cable–the fact that 85 percent of all U.S. homes currently subscribe–so why not apply it to Tony Soprano and everyone else on premium cable as well?
The slippery slope is all too real here. Where does it end? In a world where television content is now being made available over cell phones, portable video game platforms, and Internet television (IPTV) systems, we have to ask if the Internet and mobile media are next on the regulatory hit list.
Adam Thierer ([email protected]) is senior fellow and director, Center for Digital Media Freedom, at the Progress and Freedom Foundation. The extension of media content regulation is a major topic in his new book, The Future of Indecency Regulation in a World of Media Convergence.