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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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June 04, 2004

Opponents of Cable Indecency Regulation

Posted by Ernest Miller

Broadcasting & Cable reports that presumptive Democrat presidential candidate John Kerry has come out, sort of, against indecency regulations for cable television (Kerry Opposes Cable Indecency Crackdown):

"I think there is a distinction between public broadcast and the notions we’ve had historically about family time, family hour -- and what you buy privately and personally," Kerry told C-SPAN in an interview to be broadcast Sunday.

"I am not in favor of government interference and censorship and restriction of what an individual privately can decide to do in their home, in their own space, so to speak," he said, but he did seem to be OK with indecency regulation "where you have children involved, where you have a broader crossection of the public, where there is sort of a sense of family time or hour."

Not quite a ringing endorsement of free speech. Yes, he sees a distinction between cable and broadcast, but if there are "children involved, where you have a broader crossection of the public," then regulation would be okay, apparently. Perhaps someone should let him know that it isn't only the rich who have cable today, that some 85% of Americans (a broad crossection of America and many of whom are children) get television via cable. Nor does Kerry believe there has been an overreaction to Nipplegate: "there are some standards and pretty generally people should know what they are." Yeah, it would really be nice to know what the standards are. Kerry also seems to be implying that the crackdown on Howard Stern is justified, that it is not part of an overreaction.

Unsurprisingly, the libertarian CATO Institute's Adam Thierer isn't afraid to come out strongly against cable censorship in the National Review (A PG Tony Soprano). UCLA Law Professor Stephen Bainbridge completely agrees (I Want my Sopranos Uncensored).

Comments (5) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. Seth Finkelstein on June 5, 2004 03:20 AM writes...

"Unsurprisingly, the libertarian CATO Institute's Adam Thierer isn't afraid ..."

The Liberbabbler doesn't have to get elected. And neither does the professor.

No mainstream Presidential candidate is ever going to come out with pure civil-libertarian positions, for the simple reason that civil-libertarianism is by definition anti-majoritarian.

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2. Ernest Miller on June 5, 2004 04:57 AM writes...

He doesn't have to come out with a pure civil-libertarian position, but one might hope a politician has some backbone. "Cable and broadcast are different and our laws have recognized that difference for decades."

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3. cypherpunk on June 5, 2004 07:29 AM writes...

My layman's understanding of the difference between cable and broadcast regulation is the following. By default, the government has no power to regulate content, because of freedom of speech and freedom of the press. However, in the case of broadcasters, there is a claim that the airwaves are public property. In giving broadcasters the right to use this property, in exchange the public, via the government, gains the right to regulate them. However, no such condition applies to cable TV; the cables are not public property, nor is the ether within the cables that carries the broadcast data. Hence cable TV is like magazines and newspapers and can't be regulated.

The problem is that most of the public is going to perceive this as a matter of hair-splitting. Most people don't see any big difference in principle between getting CBS via rabbit ears and via a cable plug. It's hard to convince people that the regulatory situation ought to be 180 degrees different in the two cases, just because of whether the signals fly through the air or through a cable.

Ultimately, in a democracy like ours, policies must have public support. You can't rely on the courts to enforce policies which people object to. That's been shown many times in history to be a failed strategy. The courts cannot be counted on to keep cable TV free from regulation, if people are insistent that another wardrobe malfunction not appear on their cable channels.

And by the way, the issue is not the Sopranos. The issue is basic cable. I suspect that the public would support a regulatory regime which held basic cable to the same restrictions as OTA broadcasters, while allowing pay cable to be like it is today, similar to R rated movies.

Ultimately, if you want more than that, if you want to maintain this line in the sand and keep all cable free, you have to make a case for it. You have to explain why it serves the public good to keep basic cable free of regulation, to allow at least in principle for Janet Jackson to show up there, sunburst and all. You have to do more than recite the First Amendment in order to make this case.

In doing so you have to respond to critics who are going to raise the spectre of more indecency and profanity and other objectionable material showing up on those channels. Now, I'd suggest that the only reasonable response to this objection is fundamentally libertarian in nature: that stations won't do this, because the public will object, and so the stations will lose audience. I beleive that this is, in fact, the reason why we don't see nudity on MTV today, that the cable companies know that the public would not put up with it. We have these kinds of checks on corporate behavior today, and historically they have been successful. Companies following their own self-interest will maintain the distinction between basic and pay cable, and keep basic cable clean.

This line of argument, of corporate responsibility based on corporate self-interest, is associated more with the right wing. I don't know how left-wingers would see the issue, and how they would respond to the charge that basic cable needs to be regulated to keep it decent.

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4. Eric Johnson on June 5, 2004 08:12 PM writes...

What if cable weren't a monopoly, though? What if people could pay a basic rate to have a certain number of hours of programming delivered, and then pick and choose the content that they actually want to watch? Right now, what we have is a false dichotomy imposed by the artificial monopoly of cable franchises. I can either choose to get no television whatsoever where I live, or a basic subscription that includes a whole bunch of schlock that I'm not interested in. To get materials I want, I actually have to pay even more to see HBO, and I still don't get the BBC - for that I'd have to pay even more, and get even more that I'm not interested in.

Someone really interested in reforming the system would look at undermining the monopoly. That monopoly prevents consumers from choosing both what they want to see, and what they don't want to see. This means that the providers are not developing interesting new services, like only serving up "Disney" channel between 9am and 7pm, and only outside that range showing a broader range of channels. Even if kids were left at home alone with the remote control, they still couldn't find objectionable materials - they wouldn't even be "broadcast" to the house.

It seems to me that the reason we're talking about indecency on cable, then, is only because there are too many vested interests who want to keep the monopolies.

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5. John Mark Ockerbloom on June 7, 2004 12:16 PM writes...

Don't most cable providers offer a "really basic"
tier that's pretty much just the local broadcast channels with a few inoffensive public access channels thrown in? (Our local one does, and it's much cheaper than "regular" cable, but they don't advertise it much. I was under the impression that this was a mandated, price-controlled tier, but perhaps I'm wrong about this.)

This would seem to neutralize the "I don't want the indecency, but I have no other way of getting TV" argument, since that tier lets you restrict
your TV to the same standards as broadcast, in effect.

(Personally, I don't care to expose our small
children to a lot of the garbage on cable either, which is one big reason we simply don't buy cable where we live. We're close enough to broadcast transmitters that we don't need cable to get local stations, but if we weren't, we'd probably go for the "really basic" tier if we wanted to get TV.)

There's still the issue of monopolies that probably deserves more attention, since that underlies some of the assumptions in the decency/a-la-carte-pricing, etc., debates.

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