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The 'Fleeting Expletive' Follies

The recent federal appeals court decision upending the FCC's “fleeting expletives” policy, though correct and welcome, will not be celebrated by everyone. Perhaps, though, it sets the stage for a reasoned dialogue on the issues of violent and indecent content, and what can and cannot be done about it.

In order to jump-start such a dialogue, First Amendment advocates should acknowledge that concern about such content is not limited to certain geographic, religious, or political groups. And they should also acknowledge that this concern is not a matter of political grandstanding. To take just one example, and as anyone who has ever spoken to the gentleman knows, FCC Chairman Kevin Martin is genuinely offended by indecent and violent programming, and worried about its potential effects on children.

In short, it would be smart to acknowledge the obvious: that many people who are neither small-minded nor uninformed are concerned about some or all of these matters.

In all likelihood, such people were distressed by the decision handed down in the 2nd U.S. Circuit Court of Appeals on June 4. We, however, were not. In earlier comments filed with the FCC, The Media Institute argued that the commission's new indecency standards were ambiguous and arbitrary, and would likely be ruled unconstitutional.

As it happened, the court based its ruling on narrower grounds, but it warned the FCC that “[w]e are doubtful that … the commission can adequately respond to the constitutional and statutory challenges raised by the networks.”

This decision means that, for the umpteenth time, a federal court has ruled against a scheme that gives the government influence over media content. How many more such decisions will have to be handed down before legislators and regulators cease and desist? The FCC is likely to appeal this decision, and Sen. John “Jay” Rockefeller (D-W.Va.) plans to hold a hearing tomorrow (June 26) on giving the FCC power over violent TV content.

And how many more blind alleys must concerned parents travel in the false hope that the government is the solution to a coarsening of popular culture and the dissemination of material they deem harmful to their children?

When the judicial writing is so clearly on the wall, isn't it time that people who are serious about these issues look in new directions? We believe that education and technology are the best bets. A burgeoning field within education — called media literacy — is one such approach. Another is the design and acquisition of blocking or filtering technologies in the home.

In all events, it's important that the government respect its limitations, and that the marketplace be allowed to grow and evolve, unhindered by intrusive content or economic regulations. In a relatively short period of time the marketplace has delivered a virtual cornucopia of new media, with the concomitant effect that consumers are becoming their own programmers.

Sooner rather than later, that marketplace is going to deliver far more diversity and excellence than anything government could do, even if it were constitutionally permissible.