When is Indecency Regulation "Censorship"?

Reuters is carrying a wirestory in which FCC Chairman Michael Powell claims that the FCC's indecency regulations are not censorship (Oxygen Cable TV Boss Decries FCC's 'Censorship'):

"I don't think we should use the word indecency; we should call it what it is: censorship," [Oxygen Media Inc. CEO and founder Geraldine] Laybourne said Tuesday during one of the show's panel discussions.

"I don't agree with that," Powell told reporters after his dialogue. "For 70 years, the country has had limits on broadcast television. To me censorship is prior restraint, and I don't think anybody has been involved in that limitation on content."

But Powell can't be making sense, can he? For example, Jeff Jarvis agrees with Laybourne as would most people when confronted with Powell's dissembling distinction (The Daily Stern: May 05, 2004). Read on for my answer ...

However, technically, Mr. Powell is right. You see, what the FCC is doing can't be censorship, because the FCC is legally prohibited from censoring radio. See, 47 USC § 326:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

In FCC v. Pacifica, the Supreme Court held that punishing stations after the fact for broadcasting indecent material was not censorship under § 326. If the FCC were to require broadcasters to submit their broadcasts for approval before broadcasting them, that would be a prior restraint and would count as censorship. Punishment after the fact (which is not a prior restraint) is therefore not censorship.

Simple really. (Unless you try to understand how the FCC can consider past indecent speech as an indicator of future indecent speech and deny a license to those it thinks may use excessive indecent speech in the future, which seems to be a prior restraint to me.)

Anywho, this distinction between censorship as prior restraint and censorship as subsequent punishment goes back a long way in our legal history. The dissent in Alexander v. US has a good discussion:

Early in our legal tradition, the source of the distinction was the English common law, in particular the oft-cited passage from William Blackstone's 18th-century Commentaries on the Laws of England. He observed as follows:

"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity."

The English law which Blackstone was compiling had come to distrust prior restraints, but with little accompanying condemnation of subsequent punishments. Part of the explanation for this lies in the circumstance that, in the centuries before Blackstone wrote, prior censorship, including licensing, was the means by which the Crown and the Parliament controlled speech and press. As those methods were the principal means used by government to control speech and press, it follows that an unyielding populace would devote its first efforts to avoiding or repealing restrictions in that form. [citations omitted]

Well, of course, prior restraints are something that the First Amendment should be greatly concerned about. Prior restraint is the paradigmatic violation of free speech by the censor. But what of the case where you can say what you want but the state will subsequently bankrupt you and throw you in jail? Wouldn't that be a regime of censorship as well? Any fool can see that subsequent punishment can lead to the same harms as prior restraint. Indeed, fools have been noticing this for a very long time. Take, for example, James Madison (James Madison, Report on the Virginia Resolutions):

The freedom of the press under the common law is, in the defences of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications by persons authorized to inspect and prohibit them. It appears to the committee that this idea of the freedom of the press can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made. [italics in original, bold added]

So, while Chairman Powell might be technically and legally correct under our current law, I doubt his logic would impress the founding fathers.