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CONTACT: Patrick Ross
April 21, 2005
(202) 289-8928
Senate Bill Threatens First Amendment
Thierer Also Sees S-616 as Step Toward Internet Regulation

WASHINGTON D.C. - Senate legislation introduced recently that aims to extend broadcast indecency regulations to cable and satellite providers, if passed, "would represent the most significant congressional effort to regulate speech since the Communications Decency Act of 1996," says Progress & Freedom Foundation Senior Fellow Adam Thierer. In "Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill," Thierer provides a section-by-section breakdown of the bill by Senators Jay Rockefeller (D-West Virginia) and Kay Bailey Hutchison (R-Texas), which he feels could be a precursor to regulation of content on the Internet.

The CDA was found unconstitutional, writes Thierer, director of PFF's Center for Digital Media Freedom, but with S-616 Rockefeller and Hutchison clearly are trying to avoid the same fate. The bill apples broadcast rules found constitutional in FCC v. Pacifica in 1978 to cable and satellite offerings because they are all ubiquitous. "While this is a more nuanced argument for speech regulation than what we saw during the CDA debate," he says, "it is precisely for these reasons that cross-media censorship must be rejected. The fact that new media outlets have grown in popularity and that millions of Americans voluntarily subscribe to them, are powerful arguments against speech controls, not for them."

"The First Amendment will be an empty vessel" if a popularity-equals-pervasiveness doctrine is adopted, Thierer says. Shows like "The Shield," " South Park," and "Nip/Tuck" would be forced to migrate to premium tiers to avoid regulation. "What this means is that, should S-616 pass, viewers will have to pay significant sums of money to escape censorship in the future."

Among Thierer's assessments of S-616:

  • Section 2's pervasiveness rationale has never been applied to newspapers and the Internet, and would be constitutionally suspect for cable and satellite.
  • Sections 4, 7 and 8 would impose mandates on warning systems and filters deployed voluntarily by programmers. "These efforts might best be grouped under the theme 'hanging the industry with its own rope.'" Ratings systems are subjective, and government shouldn't have any say over them.
  • Section 5's significant fines would carry the "clear as mud" indecency enforcement to cable and satellite, expanding the current confusion on what is appropriate.
  • Section 6 would potentially abrogate contracts between national networks and their TV affiliates by forcing networks to expand veto power over programming, despite the fact that local affiliates already have significant influence.
  • Section 10's proposal of a return of a "voluntary" code of conduct seems far from voluntary, with an implicit "or else" attached.
  • Section 11 would exempt premium and pay-per-view channels, but what happens if S-616 forces popular content onto these networks and viewers follow? Would they then be regulated as well?

Senate Commerce Committee Chairman Ted Stevens (R-Alaska) recently said that there was no reason to regulate broadcast, cable or satellite channels while not regulating video over broadband connections. "This is a frightening prospect," Thierer writes. S-616 could just be the start of more sweeping regulation. "Specifically, it means that the Internet is fair game."

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



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