The FCC should let it be

Janet Jackson's "wardrobe malfunction" during CBS' national telecast of the Super Bowl halftime show sparked a colossal and seemingly unrelenting conservative and fundamentalist backlash. The Federal Communications Commission, under the supervision of Chairman Michael Powell, was quick to respond. It quickly reprimanded CBS, its affiliates, parent company Viacom, MTV and seemingly every other organization that was somehow involved in the breast-baring incident, and it is still considering imposing fines of $27,500 upon CBS' more than 200 local stations. The FCC has the authority to enforce decency standards over content broadcast over public airwaves; it has now begun to lobby Congress for the ability to regulate content on cable and satellite television. This power could prove perilous to creativity and to the First Amendment, and it should not be granted.

FCC regulation of premium channels will stifle innovation and creativity that attract so many viewers to cable. A recent study conducted by Nielson Media Research found that 51 percent of Americans watched cable during prime time, compared to 49 percent watching broadcast. Cable viewership as a whole almost always trumps broadcast ratings because cable stations play the groundbreaking and creatively uninhibited programs that network TV is afraid or unwilling to air, programs such as The Sopranos and Sex in the City that time and again dominate awards shows. At the 2003 Emmy Awards, for example, HBO trounced its competition with 109 nominations. NBC, its closest competitor, garnered only 77. If cable TV writers and producers are held to the same decency standards as their broadcast TV counterparts, viewers will be left with too many formulaic, bland and banal programs to watch, with little flare of daring or originality.

Furthermore, FCC policing of cable TV would just add an unnecessary censor to what viewers are exposed to. Advertisers already filter content and force cable stations to maintain a certain level of decency in their programming. They are one reason why we do not hear curse words or see nudity in most cable movies and programs. And all broadcast networks provide advertisers with previews of TV shows that might be construed as controversial or objectionable. A recent example of advertiser censorship occurred when Gatorade pulled its ads from ESPN's risqué new drama Playmakers, which enraged National Football League brass over its depiction of some fictional professional football players as wife-beaters, drug abusers and steroid users. This backlash prompted ESPN to cancel the innovative and highly-rated series.

Some media watchdog groups say that cable networks should be held to the same standards as broadcast stations, as cable and satellite services are available in more than 85 percent of homes. This ubiquity, they claim, brings cable under the Supreme Court's landmark Pacifica ruling in 1978, which allows regulation of any "pervasive" medium. However, courts have long favored the cable networks, asserting that their First Amendment rights are much stronger than those of their broadcast counterparts, as cable is not carried by means of the public airways. In May 2000, for example, the Supreme Court struck down a federal law requiring cable operators to "fully scramble" programming on adult channels when children may be watching. In a 5-4 decision, the court ruled that the law violated free speech rights.

Seventy five years ago, Supreme Court Justice Oliver Wendell Holmes Jr. wrote, "The prevailing notion of free speech seems to be that you may say what you choose if you don't shock me." Nonetheless, Holmes continued, the essence of the First Amendment is "not free thought for those who agree with us but freedom for the thought that we hate." Granted, Holmes was referring to political radicalism, but we should all hope that today, the principle of free speech for all would still hold true and that the mores of a single federal agency would not be the sole judge of what is fit to watch.

Imagine if the R-rating for movies was eliminated and theatres allowed only those over 17 years of age into movies that deserved that rating. Even if parents deemed that content in a certain R-rated movie was suitable for their child, or if they believed that the movie possessed some cultural or education significance, their child would still be forbidden from watching the film. This would essentially eliminate the right of parents to decide what their children can be exposed to. The same would be true if the government gained control over cable TV. Program ratings, channel-blockers and V-chips already allow parents to monitor what their children can watch. If parents are paying for cable or satellite TV in their home, they should be savvy enough to self-censor violent or sexually explicit material that they do not want their children to be exposed to. Government regulation is no substitute for parental involvement. And the job of the FCC should not be to police every cable network's programming.

The application of indecency strictures to cable- and satellite-delivered channels would be an unprecedented extension of the law, which previously acknowledged the distinction between free, over-the-air broadcast and privately distributed, heretofore sacrosanct premium TV services. Regulatory scrutiny of subscription services would curtail the originality and creativity that have drawn so many viewers to cable programs. But most importantly, FCC authority over cable content would infringe upon rights guaranteed to all under the First Amendment and would come dangerously close to government censorship.