A Decent Proposal: The Constitutionality of Indecency Regulation on Cable and Direct Broadcast Satellite Services

Abstract:     
When the Supreme Court explicitly approved indecency regulation over broadcast signals, it deemed compelling the government's dual interests of protecting children and preventing unwanted indecency from entering private homes. In the intervening years since FCC v. Pacifica was decided, those interests have become no less compelling. If anything, they have become more so.

Yet the FCC refuses to regulate indecency on cable or direct broadcast satellite services. It matters not that satellite television is increasingly pervasive, nor that once installed it is easily accessible to children. As households have transitioned from free broadcasting toward digital subscription services, complaints about unexpected indecency have increased exponentially. The FCC claims that without a change in the law, it lacks authority to act outside the realm of free broadcasting. That statement is untrue: the FCC, not Congress or the courts, limited its reach to free, non-subscription broadcasts. The self-imposed restriction is just as easily self-removed.

In this paper I argue that if the government is serious about its stated goals of protecting children and the sanctity of the home, then the FCC should expand indecency regulations to cable and DBS. The current enforcement system - fining the handful of free broadcasters hundreds of thousands of dollars for each instance of indecency they air, while completely ignoring the much more extreme indecency commonplace on cable and DBS - is arbitrary and nonsensical.

Keywords: indecency, broadcast, cable, dbs, direct broadcast satellite, constitutionality, free speech, first amendment, obscenity

Accepted Paper Series