Heritage Foundation Leadership for America

Background:  Under the First Amendment, the government normally cannot restrict speech unless it is considered to be “obscene.” Under FCC rules, however, television and radio broadcasters face broader restrictions and are barred from airing any content that is “indecent” or “profane.” The rules apply between the hours of 6 am and 10 pm, and only to media that use FCC-licensed broadcast frequencies, which excludes cable TV and satellite radio.

Status:   A much-publicized “wardrobe malfunction” at the 2004 Super Bowl, in which Janet Jackson was briefly exposed on national television, spurred many in Congress to propose strengthening and expanding these restrictions. In February, the House of Representatives approved a bill, H.R. 310, to increase fines for indecency and profanity to $500,000 per violation. In addition, several members of Congress, including Senate Commerce Committee chair Ted Stevens (R-AK) have called for expanding the rules to all TV and radio programmers, regardless of whether they use broadcast spectrum.    

Discussion:  Lawmakers are responding to a genuine concern that television and radio programming is becoming more offensive. However, the proposed solution – increased restrictions on speech – is fundamentally misguided. The idea of government bureaucrats deciding what can and cannot be heard is repugnant to American values. Conservatives – who have long been the targets of politically correct speech codes on college campuses and elsewhere – should be particularly wary of such restrictions.

Expanding speech restriction to non-broadcast media is especially troublesome. Such a step is sure to encounter constitutional hurdles, since cable and other media use privately-owned facilities rather than government-licensed resources. Moreover, such expansion may lead to limits on more types of media, such as the Internet.

Even former FCC chairman Michael Powell sees a problem here, saying “I think it’s a dangerous thing to start talking about extending government oversight of content to other media just to level the playing field.”

Action item:  Rather than impose ever-stricter limits on media content, lawmakers concerned about the quality of programming should instead promote policies that would expand the choices available to consumers. By reducing governmental barriers to new outlets, policymakers could increase the number and quality of choices available. For instance, Internet-based TV systems could provide viewers with much more control over what they watch, but their construction is hindered by outdated cable franchise rules.

This brief was prepared by Heritage Research Fellow James L. Gattuso.

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