The Supremes on the failure of broadcast content controls

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In Dahlia Lithwick's report on FCC v. Fox (about the FCC's TV indecency policy), she writes:
Justice Stephen Breyer raises a question about why the ABC ass case is being heard together with the fleeting-expletives case. Justice Ginsburg asks whether Hair could be broadcast on network television (Verrilli: "Serious questions") and then whether the opera Metropolis could be broadcast (Verrilli: "Context-based approach"). Then Justice Anthony Kennedy interrupts the parade of naked horrible to clarify: "What you're saying is that there is a public value in having a particular segment of the media with different standards than other segments." Verrilli replies that, yes, this is about preserving "a safe haven where if parents want to put their kids down in front of the television at 8:00 p.m. they're not going to have to worry about whether the kids are going to get bombarded with curse words or nudity."

Because if you want that, you can find it in the back seat of my car, at rush hour when we're late for Kung Fu. Just ask my children.

Kennedy replies that the V-chip is available and that "you ask your 15-year-old, or your 10-year-old, how to turn off the chip. They're the only ones that know how to do it."

I'm not saying this isn't true--though I rather suspect it's more likely that parents don't know how to turn on the V-chip [explanation here, in case you don't know] than that they don't know how to turn it off. However, I think discussion illustrates pretty clearly the confusion over the problem that people are trying to solve. (The terminology "threat model" as applied to children probably sounds funny to non-parents.) In any case, there are two different things one might be trying to accomplish with respect to potentially objectionable content:

  • Prevent children from inadvertantly accessing objectionable content.
  • Prevent children from intentionally accessing objectionable content.

If your objective is the former, then the V-chip works fine (except for the horrible UI); you just configure your device to suppress objectionable content. The sort of content-based regulation the FCC is engaging in works as well, assuming you don't let your kids watch TV except in the "safe" period, but it's a very inefficient mechanism compared to the V-chip, being both overbroad (affecting everyone, including people who don't have children) and not very effective, as it applies only to broadcast TV.

On the other hand, if your model is to prevent children from intentionally accessing objectionable content, and you further expect them to attempt to bypass content controls, then restrictions on broadcast TV don't do very much given that (a) if you have cable your kids can just tune to unrestricted channels and (b) large number of other sources of such content exist on the Internet. Blocking the tiny sliver of such content you still get through broadcast TV mostly looks silly and anachronistic. Though I guess it's less silly if you get hit with a huge fine for breaching the rather unclear rules.


But you don't engage with the foundation of this policy: that broadcast spectrum is a limited resource doled out by the government, and cable bandwidth is not. Point being that a parent can eliminate cable and internet into their house and still have some confidence in decency standards on broadcast TV. (I can't believe I just said that.)

I feel like you're making two separate points here: one is that the scarce broadcast spectrum resource makes broadcast TV different so 1A doesn't apply as much (the foundation of Pacifica). The second is that a parent can protect their kids from objectionable content by getting rid of cable and Internet.

I'm not sure I agree with the first point, but it's non-silly and I'm not arguing it. The second, however, while literally true, seems increasingly silly, at least as far as Internet is concerned. Unless you're some kind of luddite, it's rapidly becoming impractical not to have Internet access, especially if you have children, which means you're in either the technical content control game or you have to do close supervision, at which point the broadcast safe harbor doesn't add much.

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