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Censoring television

Posted by Richard on May 5, 2009

The Democrats' economic policies amount to Peronism and threaten to turn us into a crony-capitalist third-world nation, but at least we no longer have to worry about social conservatives imposing their morality, censoring television, and the like. Right?

Um,wrong. I spoke too soon, according to Reason's Jacob Sullum (emphasis added): 

Rep. Jim Moran (D-Va.) has reintroduced legislation that would require the Federal Communications Commission to treat ads for Viagra and other erectile dysfunction drugs as indecent, meaning they could be legally aired only between 10 p.m. and 6 a.m. In 2005, when he introduced a similar bill, Moran complained:

You can hardly watch primetime television or a major sporting event with your family without ads warning of the dangers of a "four-hour experience" airing every 10 minutes….They just push the envelope too far….There's just too much sexual innuendo.

But there's hope, according to Reason's Jesse Walker. Last week in a 5-4 decision, the Supreme Court refused an appeal in FCC v. Fox (a case involving the airing of "obscene" explitives) on narrow procedural grounds. But Walker noticed that the argument against government censorship of broadcast TV seemed to have what some would consider an unlikely ally among the majority — the notorious "right-wing zealot," Clarence Thomas, who typically wrote his own opinion (emphasis added): 

While siding with the commission on the technical legal question immediately at hand, Thomas signaled his sympathy with the argument that the rules violate the First Amendment. The two precedents that supported the FCC's authority—1969's Red Lion decision, which upheld the Fairness Doctrine, and 1978's Pacifica decision, which upheld the government's right to restrict indecent language—"were unconvincing when they were issued," Thomas wrote, "and the passage of time has only increased doubt regarding their continued validity." He continued:

Broadcast spectrum is significantly less scarce than it was 40 years ago….Moreover, traditional broadcast television and radio are no longer the "uniquely pervasive" media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services….Broadcast and other video programming is also widely available over the Internet….And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices….The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today.

Walker thinks the case, remanded to the Circuit Court of Appeals in New York, will eventually come back to the Supreme Court. Good. I look forward to reading Thomas's majority opinion affirming the First Amendment. Or more likely, given Thomas's history, his separate opinion concurring with the majority opinion, but making a more forceful, less weak-kneed argument for freedom of speech. 

Have I mentioned how intensely I admire Clarence Thomas? His appointment was one of the few good things to come out of the George H.W. Bush administration, and almost makes up for the appointment of Souter.

Recently, I finally got around to reading his autobiography, My Grandfather's Son (given to me by a good friend). I cannot recommend this book highly enough. It's a terrific read, and he doesn't gloss over his family conflicts or personal failings, including his problems with alcohol. Especially if you're not a fan and think you know all you need to know about Thomas — read this book. If you're at all fair-minded, you'll reconsider your opinion. And you'll end up respecting and admiring him, even if you don't agree with his judicial philosophy. 

Which you should.

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