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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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April 05, 2005

Criminal Penalties for Indecency on Cable?

Posted by Ernest Miller

Geez, this political posturing on broadcast and cable indecency is really getting tiresome. You want censorship? Pass some laws already. And, if you're serious, it is possible to draft constitutional censorship laws, assuming the Supreme Court doesn't reverse Pacifica.

Now we have Reuters reporting that a senior member of Congress wants criminal penalties for broadcasting indecency (Lawmaker Wants Criminal Penalties for Indecency). This isn't just any old lawmaker, but the chairman of the US House Judiciary Committee, James Sensenbrenner (R - WI).

"People who are in flagrant disregard should face a criminal process rather than a regulatory process," the Wisconsin Republican said at the National Cable & Telecommunications Association annual convention.

"That way you aim the cannon specifically at the people who are committing the offenses," and not at everyone, he said. "The people who are trying to do the right thing end up being penalized the same way the people who are doing the wrong thing."

Although he wants to toss people in the slammer for broadcasting indecency, he doesn't believe in regulating indecency on cable, yet. In this way he is unlike some of his congressional colleagues, who are ticking off cable companies (oohhh, scary) LA Times (Indecency Proposal Getting Static From Cable). In fact, cable is so ticked off, they're pre-emptively censoring themselves:
Sources said that Roberts was considering not renewing "The Howard Stern Show" — the videotaped version of the shock jock's rant-filled radio program — when the contract expires this spring. The show, which helped put the E channel on the map, is still a ratings winner. But Roberts is worried that Stern, who has racked up more than $2 million in indecency fines for the nation's radio stations, could provoke unwanted scrutiny from Washington, especially if he gets even raunchier once he moves to satellite radio in January.
And more love from Disney:
Several cable executives privately accuse Disney of urging [Sen.] Stevens to crack down on cable. They point to the close relationship Stevens has with Mitch Rose, his former chief of staff who is now a top Disney lobbyist.

Disney would not comment. But one Disney source, while acknowledging that Rose and Stevens talk frequently, said it was only fair to level the playing field now that most homes have cable.

"If a kid is sitting with a remote control that has 70 channels on the up and down buttons, how stupid is it that the indecency rules only apply to six or seven of them?" this executive said.

That executive is right. It is stupid to regulate only six or seven channels on the remote when there are dozens or more. Of course, no one seems to be saying the obvious, that the answer is to get rid of censorship entirely.

Read the whole, sordid mess.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression


1. Scote on April 6, 2005 10:16 AM writes...

So what was the point of the federally mandated "V-Chip?"

The attempts to regulate basic cable will mean that "basic" cable will dissapear and all cable will be called "premium" cable to avoid the new law.

This, to a certain extent, has already happened to basic cable because of the federal price regulation of basic cable. Now channels that were once part of basic cable, like CNN, TNT and EXPN2 are part of "extended basic" to avoid the regulations.

Since you have to pay extra for "extended basic" it would seem that it either wouldn't be covered by attempts to impose indecency laws on basic cable, or, alternately, there is no way to legally distinguish extended basic from "premium" except for the fact that extended basic channels still have ads.

The obvious answer, along with "don't censor," is to mandate ala carte availability of individual channels at a pro rated amount of the bundle. (Well, that or just make people use the "V-Chip" that all TVs have by federal law...)

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2. PBCliberal on April 6, 2005 10:20 PM writes...

The V-Chip was only one solution. Wasn't Pax TV the deus ex machina for all those family values folks who claimed that America's moral majority would flock to good old fashioned squeaky clean programming if it were only available?

Today comes word that Byron Allen is negotiating to buy Pax and turn it black-oriented, because the family-safe network is in the ratings toilet.

So here we have Congresscritters and the Bozellites with their complaint mill trying to force standards through making the production of programs that people actually want to watch a crimnal offense.

This is madness.

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