Corn-Revere Cites First Amendment Cases in New Paper
WASHINGTON D.C. - While it is understandable that there is political interest in expanding indecency regulations, there is little wisdom in doing so, according to a new paper released today by The Progress & Freedom Foundation, "Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio?" According to First Amendment attorney and FCC veteran Robert Corn-Revere, "any effort to extend indecency regulation to cable television or other non-broadcast media would be almost certain to fail a constitutional challenge."
After examining various legislative proposals that have surfaced in the last two years on indecency, Corn-Revere documents all relevant court cases regarding indecency and the FCC, starting with FCC v. Pacifica Foundation in 1978. One thing becomes clear after examining these cases, he says. "The ability to regulate 'indecent' speech is a limited constitutional exception, not the general rule, and the Supreme Court has invalidated efforts to restrict indecency in virtually all other media."
Corn-Revere dismisses the argument that as cable programming becomes more popular, it falls under the same "pervasiveness" that Pacifica used to justify broadcast regulation. "But this ignores Judge Jenkins' observation in Community Television, Inc. v. Roy City that 'sheer numbers' cannot determine the appropriate constitutional standard and that '[l]evels and degrees of choice, not popularity or circulation, are the significant distinguishments.'" Even in Pacifica, Corn-Revere argues, "the Court focused not on whether most people watch television and listen to the radio, but on whether they have the ability to control their access (and that of their kids) to the programming in advance." With technologies such as the V-chip and set-top box locks, he says, parents have more control than ever. In short, he concludes, popularity does not equal pervasiveness.
Recognizing the First Amendment challenges of direct content regulation of cable and satellite programming, some legislators instead prefer regulation of business practices, such as pushing for "family-friendly" tiers or a la carte service. Such regulatory efforts cannot be disguised as rate regulation but are by definition motivated by content-based considerations, says Corn-Revere. Under either a strict or intermediate scrutiny test, these efforts also would be unconstitutional under the First Amendment.
"Riding the wave of official indignation over indecent broadcasting, the current proposals to extend indecency regulations to cable television and satellite radio undoubtedly are politically potent," Corn-Revere says. "But the arguments for doing so are undermined by every judicial decision that has addressed the issue of indecency -- Pacifica included -- and the notion of expanding federal control over media content runs contrary to well-established trends in First Amendment law."
Robert Corn-Revere is a partner at Davis Wright Tremaine in Washington, D.C., where he practices First Amendment and communications law. He previously served as Chief Counsel to FCC Chairman James H. Quello. The views expressed are his own and do not necessarily reflect the views of his clients or of the Foundation.
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.