But the media have changed. The so-called scarcity rationale, which has allowed the government to regulate everything from political speech to what words may not be spoken over the air when children might be listening, has gone the way of typewriters, phonograph records and rabbit-ear antennas. Today, 85 percent of American households subscribe to cable or satellite TV. A small but growing number of folks have signed up for satellite radio. In this new media universe, there is no scarcity: hundreds of TV and radio stations ensure that just about every taste can be accommodated. At the same time, the broadband Internet is rapidly morphing into something that is both wireless and ubiquitous -- meaning that, in just a few years, the number of potential video and audio programs available will, theoretically, be infinite.
Yet, rather than adjusting to this new technological reality by getting out of the way, government officials -- members of Congress and the Federal Communications Commission, which oversees the broadcast industry -- are threatening to sink their fangs into cable and satellite. And though such efforts would almost certainly amount to an unconstitutional violation of the First Amendment, these would-be censors may well succeed in intimidating media conglomerates -- which depend for their very existence on government favors ranging from relaxed ownership restrictions to the free use of the broadcast spectrum -- into diluting their content. Indeed, the paradigm that pits over-the-air broadcasters against cable channels is itself an artificial one, given that the Big Four broadcast networks -- CBS, ABC, NBC and Fox -- are part of media behemoths that control nearly all the most popular cable channels.
Performers who thought they'd gotten one step ahead of the censors by switching to cable and satellite services may be in for a rude surprise. Howard Stern, who will jump from broadcast radio to the Sirius satellite network next year, may find his old nemesis, the FCC, waiting for him before he can even unveil his new show. Controversial basic-cable fare such as South Park, MTV's programs or even The Daily Show, which liberally mixes smart media satire with penis jokes, could come under scrutiny as well.
For the moment, at least, programs that are on premium pay channels, such as The L Word and The Sopranos, are presumably safe from the government bluenoses. Not even the most puritanical of the indecency crusaders is talking about going after pay services. Rather, their focus is on basic cable and satellite channels, on the theory that people who want, say, Nickelodeon and Disney shouldn't have to worry that their kids will stumble across Brigitte Nielsen and Flavor Flav pawing each other on VH1.
But if Showtime's glamorous lesbians are in no danger of being censored today, that doesn't mean they might not be targeted tomorrow. The censorship machine is insatiable, and each victory only makes it stronger. If recent history is any guide, the censors and those who are driving them -- principally religious-right groups such as veteran conservative activist Brent Bozell's Parents Television Council, which reportedly generates the vast majority of complaints received by the FCC -- are fighting this battle in incremental steps. Jeff Chester, executive director of the Center for Digital Democracy, a media-access and anti-censorship organization based in Washington D.C., warns that even though the scarcity rationale may no longer apply, the fact that cable and satellite signals must travel through the public airwaves (cable systems pull signals off satellites in order to distribute programming to subscribers) may give would-be regulators the hook they need.
'Congress could potentially impose restrictive content legislation, certainly on basic cable and satellite-delivered channels, and perhaps even on these private pay-radio and -television channels,' says Chester. 'Because it is public airwaves, which the government controls, they may have a legal justification for it.'
He adds: 'This is having a chilling effect all across the board.'
GOVERNMENT'S ASSAULT ON FREE SPEECH on cable and satellite takes many forms. Here are three recent developments that show these efforts are widespread and bipartisan -- and not going away anytime soon.
• Late last month, Republican senator Ted Stevens of Alaska, who chairs the Senate Commerce, Science, and Transportation Committee, said an effort by the cable industry to increase public awareness of parental controls such as channel-blocking and the V-chip may not be enough to stave off efforts to regulate indecency on cable and satellite. According to Congressional Quarterly, Stevens said the cable industry will be begging for mercy once it becomes clear how far-reaching some of these regulatory proposals may be. 'I think when they see some of the bills people are talking to me about, they'll say, 'What can we do?'' Stevens was quoted as saying. 'There's some bills coming that will make your hair curl.' Perhaps even more ominous is a Stevens quote reported by the Associated Press: 'In this country, there [have] to be some standards of decency.'
• Democratic senator Ron Wyden of Oregon filed legislation earlier this month that would require cable and satellite operators to offer a 'family friendly' tier of at least 15 channels or face a fine of $500,000 per day. Technology Daily reports that such a tier would be defined as 'a group of channels that does not carry programming, advertisements or public service announcements that would be considered inappropriate for children due to obscene, indecent, profane, sexual or gratuitous and excessively violent content.' Such a law would be obviously unconstitutional if it were applied to the print media, which enjoy full First Amendment protections. (The exception would be 'obscene' content, extremely hard-core pornography that is illegal to manufacture or distribute regardless of medium.) Thus, if the Wyden bill becomes law and is upheld by the courts, it would deal a heavy blow to the notion that non-broadcast media such as cable and satellite should be entitled to the same constitutional guarantees as print. 'The key here is to guarantee that parents will have adequate viewing options for their kids without imposing federal regulation on all paid content provided on satellite and cable,' Wyden was quoted as saying, ignoring the fact that his bill would do just that.
• As if the efforts by Stevens and Wyden were not enough to demonstrate the bipartisan nature of the war against indecency, Democratic senator Jay Rockefeller, of West Virginia, and Republican senator Kay Bailey Hutchison, of Texas, are co-sponsoring a bill that would order the FCC to study the effectiveness of the V-chip and other parental controls -- and to impose anti-indecency and anti-violence regulations on cable and satellite if it finds that those controls are ineffective. 'I would welcome voluntary actions by the industry to address both indecency and gratuitous violence, but they aren't stepping up to the plate, and that's why Congress cannot wait any longer to protect our communities and our families,' Rockefeller told The New York Times. 'If the industry won't protect our children from gratuitous violence and indecency, then we must act.'
Rockefeller's definition of voluntarism -- volunteer, or else -- says much about what is going on. Congress and the FCC are moving ahead rapidly in their crackdown on the broadcast industry, where they have unchallenged legal authority to regulate and prohibit indecent programming between 6 a.m. and 10 p.m., the hours that children are most likely to watch or listen. In 2004, the FCC proposed levying $8 million worth of fines -- up from just $440,000 the year before. Congress appears poised to raise the fine for indecency from $27,500 to $500,000. Republican congressman James Sensenbrenner, the powerful chairman of the House Judiciary Committee, has gone so far as to suggest that the most egregious violators of broadcast-indecency standards should be prosecuted and imprisoned.
The climate pervading the broadcast world today is one of fear and caution, with television-station managers going so far as to wonder whether running the unexpurgated version of Saving Private Ryan would get them in trouble with the FCC, and PBS yanking an episode of Postcards From Buster because a cartoon rabbit meets two families headed by lesbian couples. PBS also warned its affiliates that it could not protect them from the FCC if they broadcast a profanity-laced Frontline documentary about American soldiers in Iraq. Nor is entertainment programming on PBS exempt: last year, the network edited a British episode of Masterpiece Theatre, offering two versions to its member stations. Indeed, the notion that public broadcasting is a refuge for sophisticated, adult-oriented entertainment may well fall victim to the indecency crusade. Now, granted, PBS is a special case, under assault from the likes of Secretary of Education Margaret Spellings and Corporation for Public Broadcasting chairman Kenneth Tomlinson, the subject of a recent New York Times investigation into his attempts to pull public television and radio to the right. Nevertheless, if the war against indecency has spread to news programming such as Frontline, then the move toward an unusually pernicious level of censorship is very far advanced.
Given how successful the forces of repression have been in cracking down on broadcast indecency, the sense on Capitol Hill is that they don't want to blow it by overreaching -- at least not this year. According to a congressional source who works for a liberal Democratic House member, Congress is unlikely to actually pass a law that would regulate indecency on cable or satellite. Rather, the idea is to threaten and cajole, and use the specter of regulation to extract concessions. 'Most of them recognize that it's constitutionally problematic, but they're using it as a club to force a family-friendly tier,' says this source.
In other words, volunteer -- or else.
THE PRESS CORPS SWOONED with delight and admiration when Laura Bush delivered her unexpectedly racy monologue at the White House Correspondents' Association annual dinner recently. The raunchiest -- and funniest -- line: 'I'm proud of George. He's learned a lot about ranching since that first year when he tried to milk the horse. What's worse, it was a male horse.' She also paid tribute to Desperate Housewives, the sexually loaded television show that has been a target of the indecency cops since it debuted last fall.
The president himself has given mixed signals on whether to extend indecency regulations to cable and satellite. In a sign of just how absurd this has become, he also signed legislation recently that exempts a company that excises the naughty bits from DVDs from being prosecuted for copyright violation. But if Bush's heart doesn't quite seem to be in the indecency crackdown (after all, his wife needs something to watch after 9 p.m., when he goes to bed), his head certainly is. Going after those cultural elitists in the entertainment industry is good politics.
The notion that indecency must be regulated in the first place is based on the belief that somehow it's bad for children. As Marjorie Heins points out in her 2001 book, Not in Front of Your Children: 'Indecency,' Censorship, and the Innocence of Youth, this idea dates back to Plato, who wrote that 'it is most important that the tales which the young first hear should be models of virtuous thoughts.' In the Victorian era, censorship became inextricably linked with the belief that masturbation was a dangerous, unhealthy habit, and that anything that might be used as an aid to self-gratification must be banned. Movies (two beds, please), early television, and even comic books paid tribute to these beliefs by implementing strict self-censorship schemes.
But starting in the 1960s, as the media, like the rest of the culture, began to test previously accepted limits, the FCC began to push back. In 1978, the U.S. Supreme Court upheld the FCC's ruling that George Carlin's famous 'seven dirty words' monologue violated the agency's indecency regulations -- marking the first time, as Heins observes, that the government had the power 'to ban constitutionally protected, socially valuable speech.' Over time, those guidelines became more vague, and thus more pernicious, as the FCC began cracking down on radio personalities ranging from Howard Stern to Bubba the Love Sponge. (Despite the recent focus on television, the FCC has historically intervened more with radio, which has tended to feature more outrageous programming.)
The problem with this, Heins notes, is that there is no scientific evidence that suggests indecent content is harmful to minors. In Not in Front of the Children, she writes that indecent content may interfere with how parents wish their children to be socialized, which, she says, is a legitimate concern. But that's quite different from asserting that indecency actually harms kids, and it calls for an entirely different governmental approach.
Reached late last month at the New York University School of Law's Brennan Center for Justice, where she is coordinator of the Free Expression Policy Project, Heins pronounced herself mystified by the continuing public controversy over indecency -- a controversy that any family can end, she noted, simply by changing the channel. 'I'm cynical, but it seems to me like it's a wonderful distraction. Everyone can wax indignant about our falling cultural standards, and meanwhile the real responsibilities of government get ignored,' she says.
Heins doesn't disagree that much of what passes for entertainment on television and radio today is crude and vacuous. But she says the real solution is not to regulate content, but to come up with real alternatives in the form of nonprofit broadcasting and cable ventures, separate and apart from PBS. 'You need noncommercial sources of information' that would be 'insulated from political censorship pressures,' she says, adding somewhat ruefully: 'This may be utopian.'
In fact, as more than a few media critics have noted, conservatives in recent years have pushed simultaneously for less regulation of ownership and more regulation of content. The opposite approach would lead to more choices, more diversity and possibly higher quality. There might still be plenty of indecency. But the chances would be much greater than they are today that if you changed the channel, you'd find something worth watching.
WITH BROADCASTERS UNDER ASSAULT from the indecency crusaders, and with cable and satellite on the horizon, First Amendment advocates might assume that the Internet will remain the last bastion of free expression. But that's not necessarily true. For instance, Jonathan Rintels, a screenwriter who is the executive director of the Center for Creative Voices in Media in Washington, D.C., observes that if content on cable TV can be regulated, it only makes sense that government will claim the right to regulate Internet content delivered over those same cable lines. Indeed, Rintels imagines the cable operators themselves would be willing collaborators in cracking down on the Internet. 'Are they going to allow programming to come over their pipe on broadband that competes with their cable offering?' he asks. 'I don't think so.' Nor would the emerging wireless Internet be much of a safe haven, given that government could claim the right to regulate it on the basis of its heavy use of the public airwaves.
Then there is the very fact that the Internet has become such a crucial part of our lives. Jonathan Zittrain, a lawyer and faculty co-director at the Berkman Center for Internet and Society at Harvard Law School, predicts that someday in the not-too-distant future the Net will be taken down by a catastrophic virus, disrupting air travel, financial transactions and just about every other facet of modern life. Such an event, he says, will make people far more willing to accept strict regulation of the Internet than they are now. And that, inevitably, would pave the way for a crackdown on online indecency.
'Supply creates demand,' Zittrain says. 'As soon as it's easy to regulate, the temptation to find all kinds of other things to regulate becomes hard to resist.'
Last week, in a rare display of backbone, the CBS, NBC and Fox networks announced a lobbying campaign called TV Watch to oppose increased government regulation of indecency on both broadcast and cable. It remains to be seen whether the effort is serious or if we'll never hear about it again, but at least it's a step in the right direction. By contrast, the National Association of Broadcasters, a trade group for over-the-air television and radio stations, has actually called for indecency regulations to be extended to cable in order to level the playing field -- a 'craven' proposal, says Paul McMasters, First Amendment ombudsman for the Arlington, Va.based Freedom Forum. 'Why,' McMasters asks, 'should all television viewing be reduced to what's acceptable to a 6-year-old?'
Meanwhile, the urge to censor continues unabated. In a recent appearance before a gathering of cable-television executives in San Francisco, FCC chairman Kevin Martin sounded a familiar theme: that he opposes new indecency regulations for cable -- unless, of course, the industry fails to clean up its act.
'We're hearing increasingly from consumers and a lot of parents about what is appropriate and what is inappropriate to be on television,' the Dow Jones news service quoted Martin as saying. 'That is a serious and significant issue that the commission needs to continue to be focused on.'
Apparently it never occurred to Martin that parents can always change the channel -- or turn off the TV altogether. Of course, such a radical step would put Brent Bozell out of business, leave Kevin Martin with little to do, and strike terror into the hearts of media executives.
Come to think of it, that sounds like the best solution of all.