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Time for the Supreme Court to End FCC Indecency Censorship

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Does the First Amendment allow the FCC to censor "indecent" content like the occasional curse word or a brief glimpse of a bare butt on broadcast TV? The Supreme Court hears arguments on this question Tuesday in FCC v. Fox -- the first time in more than 30 years the Court will squarely confront this constitutional question. The case stems from the use of "fleeting" expletives by Nicole Richie and Cher at the Billboard Music Awards show nearly a decade ago, which prompted a draconian crackdown on broadcasters by the Bush FCC in 2004.

Our five organizations -- which differ widely on many issues -- have filed a joint amicus brief urging the court to recognize that the Constitution demands an end to FCC censorship of television, given the fundamental transformation of the media landscape. In its 1978 FCC v. Pacifica decision, the Court gave broadcasting less protection than other media (like newspapers) because it was both "pervasive" in American culture and "invasive" -- an "intruder" in the home from which parents were powerless to protect their children. But that rationale long ago disintegrated.

When a federal appellate court struck down the FCC's indecency rules last year, it hit the nail on the head: "we face a media landscape that would have been almost unrecognizable in 1978." Back then, nearly all Americans relied on broadcasting to deliver a limited range of video media to their homes. Today, only 8 to 15 percent of American households rely on over-the-air broadcasting, with the majority subscribing to cable or satellite service. More and more Americans are getting video content online from Netflix, Hulu, YouTube and countless other sites. These services are not "intruders" in the home, but invited guests.

More importantly, a wide range of tools empower parents to decide what broadcast content their children can access. Since 2000, every television larger than 13 inches has come with the V-Chip. This free technology empowers parents to block content based on ratings that include age-based designations as well as several specific content descriptors (coarse language, sex, violence, etc.). A wide variety of other tools have empowered parents, such as DVD players, digital video recorders and video-on-demand services, which allow parents to build, and even pre-screen, libraries of preferred programming for their children. Similar tools are available for cable content, video games, movies and the Internet.

Today's world of converged, customizable video media would have seemed like science fiction to the Pacifica court 31 years ago. But it is precisely the kind of world the Supreme Court contemplated in a 2000 opinion, boldly declaring: "Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the government is best positioned to make these choices for us."

The last decade has vindicated this vision, with parental empowerment tools flourishing even as the media landscape changed dramatically. In a dynamic world, technological tools and parental control methods need not be perfect to be preferable to government regulation.

The Supreme Court has already decided as much for cable television: in 2000, the Court struck down a law that had caused cable operators to restrict adult content on subscription channels to between the hours of 10 p.m. and 6 a.m. While operators scrambled these channels for non-subscribers, Congress worried that children might still be able to see or hear something on these channels during the day. But the Court insisted that total preemption of adult content was excessive, because concerned parents could request targeted blocking of the adult channels:

[I]t is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

That's precisely the right standard for the digital "revolution." Anything less will allow the continuation of censorship of a bygone era -- and help to validate censorship in countries like China, which is often justified as protecting children. We urge the Supreme Court to affirm that this standard applies just as much to broadcasting as to the Internet or newspapers. That means striking down Pacifica's double-standard.

Invalidating the FCC's indecency rules doesn't mean the government can do nothing. It can still assist in improving parental controls, promote awareness of existing tools and methods, and punish companies that fail to live up to their voluntary content labels. But our Constitution requires that government focus on helping parents -- rather than choosing for them.

Berin Szoka is president of TechFreedom. Ilya Shapiro is senior fellow in Constitutional Studies at the Cato Institute. Emma Llanso is a Policy Counsel at the Center for Democracy & Technology. Lee Tien is a Senior Staff Attorney at the Electronic Frontier Foundation. John Bergmayer is a Senior Staff Attorney at Public Knowledge. All five organizations are public interest non-profits with a focus in technology policy.