Would Family-Friendly TV Fare Disappear Without the FCC?


Patrick Trueman, president of Morality in Media, thinks my column mocking his demand that the Federal Communications Commission protect his "right to decency" was "hysterical"—and not in a good way. Trueman argues that "liberty simply does not, and cannot, exist without moral restraint," which in turn requires government restraint on liberty, such as the FCC's rules about the content of broadcast programming. More liberty, in other words, requires less liberty.

In case you don't buy that counterintuitive claim, Trueman also compares airing things that offend him to burglary. He says hearing Cher curse on a music awards show or catching a glimpse of Charlotte Ross' butt on NYPD Blue is like finding an intruder "standing in our living rooms when we get home, shouting the f-word or taking their clothes off." I perceive an important distinction here that seems to elude Trueman: While the noisy or naked stranger in the living room has violated someone's property rights by entering his home without permission, Cher and Charlotte Ross appear only by invitation. That is, you will not hear or see them unless you 1) buy a television set, 2) turn it on, and 3) tune in to a particular program at a particular time. Neither the Billboard Music Awards nor NYPD Blue is forcibly thrust upon anyone.

Because TV viewers can be offended by what they hear or see only after they voluntarily assume that risk, the Supreme Court's invocation of "the right to be left alone" in FCC v. Pacifica Foundation, the 1978 decision that upheld the ban on broadcast indecency, never made much sense. It makes even less sense now that people commonly face exactly the same risk from other media (cable, satellite, Internet) that, according to the Court, could not be subject to similar content regulation without violating the First Amendment. Trueman offers no justification for this puzzling constitutional distinction. Instead he doubles down on the notion that the government is protecting our "right to be left alone" when it punishes broadcasters for "patently offensive" references to "sexual or excretory activities or organs." To firm up that argument, he quotes Justice Louis Brandeis' famous dissent from the Court's 1928 decision in Olmstead v. U.S., which rejected a Fourth Amendment challenge to warrantless wiretapping. Brandeis observed that the Fourth and Fifth amendments "conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men" (emphasis added). Somehow Trueman reads this plea for freedom from government intrusion as a justification for government restrictions on what people are permitted to watch in the privacy of their living rooms.

For Trueman, the bottom line is that "some television content should be available and acceptable to all, including families, but if the government cannot regulate indecent content on broadcast television, it will not be." As the father of three girls, two of whom are young enough that my wife and I still restrict their TV consumption, I am sympathetic to the first part of that statement, but I know the second part is simply not true. Most of the programs that we let our daughters watch do not come from broadcast channels, and in deciding what is appropriate for our kids, we do not rely at all on the FCC's regulations; we do the regulating. Our daughters are not allowed to watch the FCC-approved Family Guy, for instance, but they are allowed to watch Phineas and Ferb, which appears on a cable channel that is not subject to the FCC's rules. As long as there is a demand for kid-friendly entertainment, there will be a supply, and there are more such options today than ever before, no thanks to the FCC. So why abuse logic, freedom, and the Constitution to maintain an arbitrary distinction that serves no useful purpose?