Selected Skirmishes: Child's Play

Direct mail hucksters boast that a helpless child's picture is worth a thousand bucks. Nothing jump-starts an adult's protective rush like "the children." For "the children," adults will sacrifice more than money—even sacred liberties protected by the U.S. Constitution.

Congress has just enacted a measure directing the Federal Communications Commission to assess the effect of a television station's programming upon the children before renewing its broadcast license. The law also caps the amount of advertising on kids' shows at 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.

President Bush allowed the bill to become law without his signature. Of course, Bush has no principles—on principle. His own press statement on the legislation solemnly warned, "The First Amendment…does not contemplate that Government will dictate the quality or quantity of what Americans should hear. Rather, it leaves this to be decided by free media responding to the free choices of individual consumers." Voilá! Having castigated the law as detrimental to the very freedoms we Americans hold dear, the president vacated his oath of office and allowed this assault on the Constitution to become the law of the land.

The Washington-swell for the law was bodysurfed by teachers' unions, religious orders, and health-care professionals—along with the National Association of Broadcasters. The designated spokesperson was Peggy Charren, of a lobbying group called Action for Children's Television, who so adroitly summed up the realpolitik: "There was no constituency for a veto." Mr. Madison a nobody, Ms. Charren?

Just moments before the vote, cocktail-hour freedom fighters were beefing about David Souter's ostensible softness regarding individual protections implicit in the Bill of Rights. But these limousine libertarians drew a huge collective blank while the Congress voted explicitly to regulate the content of electronic publishers.

"I'm just appalled at the way Judge Souter refuses to reassure Americans about his firm commitment to an American's right to privacy, found right there if you read between the lines in that Fourth Amendment. Oh, yes, wouldn't it be swell to give federal regulators more discretion over what television producers tell our impressionable young people." Congress shall make no law…abridging freedom of speech, or of the press? (Between those lines: Except, of course, where creep "the children"!)

The Lucifer lurking in this censorship coalition is the NAB. Even Beltway bubbleheads with the golly-gee-whiz gullibility of a Jimmy Carter could ID this mischief. The legislation limits the amount of commercial time that stations can sell. If the broadcast competitors ran this pooling arrangement on their own, they'd bump into quite another body of law: Sherman Antitrust, Section 1. Indeed, just a decade ago the Justice Department's Antitrust Division knocked out a previous NAB collusion: the networks' Family Hour agreement not to start the T and/or A until 8 P.M. (when adults, presumably, stood a better chance of enjoying it in peace). But get the feds to police the conspiracy themselves, as the Good Government activists have done for the NAB, and your cartel is (a) legal; and (b) a hero to America's youth!

While broadcasters regulated according to "public convenience, interest, or necessity" quiver when making this rudimentary point, the reason for having a Bill of Rights that cuts government off at the pass is that lots of well-meaning ETAers, not to mention political ruffians on the order of a Lyndon Johnson or a Richard Nixon, will want to shave the prerogatives of those possessing "no constituency for a veto." The slick skids this censorship legislation coasted upon reveal the delicate nature of fundamental freedoms that fail to make the interest group Top 40.

There is no trade-off of repression of choice for quality of output. Federal supervision of television has proceeded since the very first yawn to a test pattern, yet all the equal-time, fairness-doctrine, and public-interest licensing rigmarole has secured are artificially imposed scarcity of media, mediocrity in product of Geraldoesque proportions, timidity in news gathering, hack favoritism in awards, and political whack-a-rounds at license-renewal time. Even the classic fairness-doctrine legal precedent, Red Lion v. FCC (1969), turns out (unbeknownst to the High Court that decided it erroneously) to have sanctioned Kennedy-Johnson harassment of right-wing radio broadcasters—via expensive fairness-doctrine license challenges—in a calculated campaign to shut up political dissenters.

Tots plugged into Saturday TV will be no more protected from flaky 'toons by FCC monitoring than adults have been shielded from Sam Donaldson in prime time. But don't expect to see exclusive footage of regulatory failures and abuses on "Live at Five," so long as federal marshals keep their fingers on the "off" switch. Which is precisely why all speech—printed, beamed, wired, or uttered—merits protection by the First Amendment's remote control.

Contributing Editor Thomas W. Hazlett teaches economics and public policy at the University of California, Davis. This year he is a visiting scholar at Columbia University.