Last week, many were shocked that Senate Commerce Committee Chairman Ted Stevens (R - Alaska) pronounced that he intended to apply broadcast indecency standards to cable and satellite television/radio. See, Reuters (Lawmakers Press for Decency Limits on Pay TV,Radio). Jeff Jarvis called the scheme "abhorrently unconstitutional." Others may also be under the impression that broadcast television and radio is unique in being subject to much less First Amendment protection than other media and that cable/satellite would be protected. I disagree. I think it is quite possible to draft constitutional satellite/cable indecency regulation. From Reuters:

Stevens disputed assertions by the cable industry that Congress cannot impose limits on its content. "If that's the issue they want to take on, we'll take it on and let the Supreme Court decide."

Stevens may well be right.

Read on to find out why...

Herewith, my first-draft proposed language to regulate cable/satellite indecency:

(a) Whoever utters any obscene, indecent, or profane language by means of radio or cable service shall be fined under this title or imprisoned not more than two years, or both.

(b) A multichannel video programming distributor shall not be liable under this section for channels primarily dedicated to sexually-oriented programming.

Now, my analysis of why this may be constitutional.

The first part of the proposed statute's language is very clearly based on 18 USC §1464, which gives the FCC authorization to set fines for broadcasting indecent language over the air. If 18 USC §1464 is constitutional, then the only question is whether the addition of the words "or cable service" would be render the statute unconsitutional. If it did it would have to be because cable service and radio broadcast are sufficiently different according to a constitutional analysis. I don't think they are.

First, let's look at the justification for regulating indecent language in broadcast. There are two reasons, according to Pacifica,

[T]he broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place. [citations omitted]

Is cable and satellite television a "uniquely pervasive presence" today? With approximately 85% of homes receiving cable/satellite, I would have to say "yes." It would be interesting to see what percentage of homes received broadcast television in 1978, when Pacifica was decided, or 1973 when the broadcast of George Carlin's monologue took place. Television had achieved 85% penetration in 1958, but how much more makes it "pervasive"? Or, was television not "pervasive" before 1958?

Televison invades the privacy of the home, but only after you buy a television set. Cable invades the privacy of the home, but only after you pay for cable. Is there a difference here?

The cable audience is constantly tuning in and out, and prior warnings cannot completely protect the listener or viewer from unexpected program content. You can't run away from a cable assault to follow the Court's analogy.

Of course, it may be that you know that some cable channels are usually offensive. That is why there is an exemption for channels primarily dedicated to sexually-oriented programming. If you tune into the Playboy channel, you should know well enough to expect indecent programming. That is why there is 47 USC §560, which requires cable operators to block channels upon a subscriber's request. If you know you are likely to be offended, then you have the option of blocking that channel. Block Playboy, block Spice, if you're worried.

But the problem is the channels that are primarly dedicated to non-offensive content, the channels that broadcast the occasional indecent language. For example, should we expect people to block ESPN? It its a sports channel. It is generally non-offensive. You might even encourage your children to watch good 'ol American sports. But what happens when they broadcast the occasional indecent language? What happens is they are doing a "College Game Day" broadcast and some enthusiastic co-ed flashes the cameras and it slips through the live editing? Can you imagine the damage that would do to a young child? Or if an athlete uses a profanity? Are you supposed to block ESPN because that might happen? And, when it does, is there no recourse? Cartoon Network has been known to push the boundaries with "Adult Swim" which is broadcast late at night on the East Coast, but is available at 9pm on the West Coast. Heck, even C-SPAN might be offensive every once in awhile, you never know.

Let's return to Pacifica,

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message ["Fuck the Draft"] might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629 , that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. Id., at 640 and 639. The case with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. [footnote omitted]

Cable is just the same. Kids don't know the difference between cable and broadcast as they channel surf. Heck, kids may not even be aware that there is a difference anymore. Cable channels are generally as accessible to children as broadcast, perhaps even more so in many cases, thanks to improvements in cable interface.

Now, sure, you can use a channel lock on cable, but that doesn't stop the unlocked channels from broadcasting indecent language every once in awhile. You know that Playboy will broadcast indecent material, so you block them. But the Discovery channel might push the boundaries with a documentary or two, but is otherwise inoffensive, so you don't block it.

Of course, Pacifica isn't the be-all and end-all of Supreme Court indecency legislation. There is US v. Playboy, which invalidated requiring cable systems to fully scramble channels that were primarily dedicated to sexually-oriented programming. The Court noted that,

First, we shall assume that many adults themselves would find the material highly offensive; and when we consider the further circumstance that the material comes unwanted into homes where children might see or hear it against parental wishes or consent, there are legitimate reasons for regulating it. Second, all parties bring the case to us on the premise that Playboy's programming has First Amendment protection. As this case has been litigated, it is not alleged to be obscene; adults have a constitutional right to view it; the Government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents; and Playboy has concomitant rights under the First Amendment to transmit it. These points are undisputed....Here, of course, we consider images transmitted to some homes where they are not wanted and where parents often are not present to give immediate guidance. Cable television, like broadcast media, presents unique problems, which inform our assessment of the interests at stake, and which may justify restrictions that would be unacceptable in other contexts. [emphasis added]

Sounds like justification for regulating indecent language on cable to me. The Court points out the obvious, that this is content-based restriction and therefore subject to strict scrutiny: "If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative [citation omitted]." Compelling government interest? Check! When is protecting the children not a compelling government interest?

But, there is a difference between cable and broadcast, according to the Court:

There is, moreover, a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis. The option to block reduces the likelihood, so concerning to the Court in Pacifica that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners--listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests. This is not to say that the absence of an effective blocking mechanism will in all cases suffice to support a law restricting the speech in question; but if a less restrictive means is available for the Government to achieve its goals, the Government must use it. [citation omitted]

Now, this is interesting. Under 47 USC §560, cable operators must block channels, for free, upon subscriber request. This is a "less restrictive alternative" and the government must choose to use it, if possible, under strict scrutiny.

For broadcast, the government requires the V-Chip (47 USC §303(x)), which allows parents to block particular programs according to their "voluntary" ratings. Isn't this a "less restrictive alternative" for broadcast? Shouldn't the government rely on the V-Chip, instead of FCC regulation of indecent language, at least as far as broadcast television is concerned? If a requirement that subscribers can block channels on cable is sufficient to defeat indecent regulation, why shouldn't the government require that television sets be able to block channels as a "less restrictive alternative" to FCC regulation of indecency? It can't possibly be more expensive than the V-Chip requirement. The way I look at it, either the current indecency regs for broadcast are unconstitutional, as there is a less restrictive alternative (requiring televisions to include channel blockers), or it would be legitimate to regulate cable as one does broadcast.

Once again, channel blockers, don't solve the problem of broadcasts where there is inadvertant indecent language when one doesn't have the channel blocked. The only solution that would be effective would be to block all channels. For example, there you are, letting your children watch the Golden Globes on cable (ratings too low for broadcast anymore) because that seems like a decent program for children to watch, and then a rock star utters an expletive. Sure, one could argue that you simply block all channels that might have indecent language, including a cablecast of the Golden Globes, but that would apply to broadcast television too, would it not? Therefore, if regulation of broadcast is constitutional, then regulation of cable would be constitutional precisely to stop those occasional indecent "malfunctions" that might take place on cable.

Of course, if Congress were to actually try to pass this law and make sure it survives the inevitable court challenge, they should put together lots of research and findings on how people watch seemingly innocuous cable channels and then get shocked by indecent language when they least expect it. There should be findings that channel blockers are ineffective unless you block everything (or just get rid of cable). There should be findings that things like filtering are ineffective in the television context (no rehash of Ashcroft v. ACLU, where the internet was protected due to the existence of content filters). I'm sure the Parents Television Council can be of tremendous help here.

In the end, would the Court uphold such a law? Perhaps not, but it would be interesting to see the reasoning that would distinguish cable and broadcast regulation. It certainly wouldn't be a constitutional slam-dunk, me thinks. Indeed, it might be that the Court would provide guidance on how to properly regulate cable indecency, just as they have with regard to the internet.

I, of course, think regulating cable indecency would be ridiculous and abhorrent, but I also think that regulating broadcast indecency is ridiculous and abhorrent. The Supreme Court opened the door to censorship in broadcast television. Will they be able to close it for cable and satellite?