Tuesday, August 30, 2005

Tasteful vs. Legal

A quotation attributed to Kevin J. Martin, chairman of the Federal Communications Commission, in an article on Salon (if you're not a paid Salon member, you have to watch a brief ad to access the article):
Certainly broadcasters and cable operators have significant First Amendment rights, but these rights are not without boundaries. They are limited by law. They also should be limited by good taste.
The problem with that sort of mindset, other than it is held by someone who might actually be able to implement it, is that applying the freedom of speech only to legal and tasteful speech is pretty much the antithesis of the First Amendment. It has long been my understanding that we have a Constitutionally guaranteed right to free speech specifically so we can say things that are legal but not necessarily tasteful. It's illegal to advocate violence against high-ranking government officials, but it's only in poor taste to refer to them as the explosive diarrhea of an elephant. The latter is protected speech and should remain so no matter what media it is broadcast on.

If these "pro-child, pro-family" advocates think it is hard to legislate a working definition of pornography that catches all of their objectionable content but doesn't include legitimate medical information, they should try defining "good taste." That's even more nebulous that "community standards." At least the latter can be empirically determined by subpoenaing the mailing lists of magazines and catalogs that arrive in plain brown wrappers.

The reason that over-the-air broadcasts are subject to the FCC is that they transmit over segments of the radio frequency spectrum that are considered public property held in common by the people of the US. What keeps cable and satellite to lower levels of regulation is a matter of jurisdiction: the satellites and miles of cable used in transmission are privately held, not public or government property. However, if the FCC manages to get jurisdiction over the wires that feed cable TV to our homes, I don't see as there is anything stopping them from regulating the internet traffic that flows over those same wires.

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