Families, Free Speech, and the FCC


        “Hide your children! The British are coming!!”

        From the mouths of militiamen came the now-famous warning: the British had invaded, and the time to fight for independence had arrived.

        Today, nearly a quarter-millennium after the colonists’ struggle, some citizens see a new threat after the U.S. 3rd Circuit Court of Appeals handed down two key free speech decisions this week. Their warning would sound something like this: 

        “Hide your children! The Nipples are coming!!”

        “[N]ine-sixteenths of one second” worth of nipple, to be precise. That was the exact amount of time that halftime viewers were exposed to Janet Jackson’s breast during the 2004 Super Bowl, according to the court. A three-judge panel declared Monday that the FCC was wrong to slap CBS with a $550,000 fine following the “wardrobe malfunction,” saying that the regulatory body could not hold broadcasters responsible for actions of the “independent contractors hired for the limited purposes of the halftime show.” In other words, because CBS did not know that Jackson’s nipple would indeed slip, it could not be held responsible. 

        The court went on to say that the FCC, in handing down such a large fine, had failed to give broadcasters advance notice of changing its policy of “practiced restraint” in regulating airwaves for the past 30 years.

        While the decision was a victory for free speech advocates, some social conservatives and federal regulators saw it as a blow to American families. Kevin J. Martin, FCC Chairman, said in a statement, “I am surprised by today’s decision and disappointed for families and parents.” (Martin should not have been so surprised, in fact. The notion that people should be punished only for transgressions that they intend and over which they have some reasonable degree of control has long been written into the Anglo-American legal system. Only those with no respect for law would fail to understand this fundamental precept.)

        Just one day later, another decision favoring free speech was delivered. The same Court of Appeals ruled that the 1998 Child Online Protection Act (COPA{}) was unconstitutional, as it blocked too much content to be consistent with the First Amendment. The law, which has been under a permanent injunction since its creation in 1998, would block Web sites from making objectionable content available to minors. 

        Again, there was frustration from family advocacy groups. “The 3rd Circuit has once again come to the aid of online pornographers,” Bruce Hausknecht, judicial analyst for Focus on the Family Action said. “In effect, the court said we can’t protect our children from online filth if the law might make some adult seeking his porn ‘fix’ uncomfortable.” [emphasis added]

        What is most interesting about this statement is Hausknecht’s use of the word “we.” Who exactly is “we” in this case? Is it the federal government? Is it the advocacy group, Focus on the Family? Or does it refer to actual families?

        If he is referring to families, he is simply wrong. Leaving moral judgments in the hands of federal regulators would give families less ability to control what their children watch. And that is precisely what the court recognized. Rather than have Big Brother regulate online material, allowing less restrictive methods such as filtering technologies and other parental tools would both retain basic First Amendment freedoms and allow individual families to choose what material is appropriate in their view. 

        Trading the freedoms for which our forbearers fought in exchange for retaining a standard of “decency” (as defined by the federal government) is simply ludicrous. And, if there must be a government body like the FCC to monitor our airwaves, they must apply their “indecency” statutes with consistency. If they are not told of changing standards at the FCC, how do avant-garde programmers make new content? In short, they don’t.

        The court, in these two important decisions, has shown that it favors a less restrictive approach to regulation. Far from neglecting the well-being of our youth, the decisions recognize the inability of Washington to effectively monitor and enforce decency – a task better suited to the family. 

        But there is also a larger issue at stake – one of government thought-control and the free flow of ideas. The late Supreme Court Justice Hugo Black noted the importance attached to these issues by those who gave us the American Revolution. “The Framers [of the Constitution] knew that free speech is the friend of change and revolution,” he said. “But they also knew that it is always the deadliest enemy of tyranny.”



Kyle Smeallie assisted in the preparation of this piece. 

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