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The Sold-Out Crowd

Now cable and satellite-delivered content finds itself in the crosshairs as Congressional leaders take new and frighteningly broader aim at indecency, with a foolhardy assist from broadcasters.

As is too often the case, when dollars are threatened or a political advantage is in sight, the Constitution becomes just another bargaining chip.

We had a foreshadowing it was going to be a bad week for the First Amendment when former Attorney General Ed Meese introduced new Attorney General Alberto Gonzalez at a luncheon speech last week.

Meese, you’ll remember, formed a commission to investigate indecency in the mid 1980s that helped chill content on radio and TV. And sure enough, Gonzalez proceeded to put cracking down on obscenity in the same category as fighting the war on terror and other violent crime.

Then, Sen. Ted Stevens, chairman of the powerful Commerce Committee, vowed to find a way to regulate cable and satellite indecency. It could come as an amendment to the broadcast-indecency legislation pending in the Senate, tied to DTV legislation, or inserted into a rewrite of the 1996 Telecommunications Act.

Unfortunately, Stevens was seconded by House Commerce Chairman Joe Barton, who said he was on the same page when it came to regulating cable speech. He made his proclamation to a roomful of broadcast executives—and they actually applauded.

The First Amendment didn’t have a chance. When Stevens suggested he is amenable to some form of digital multicast must-carry, broadcasters latched onto the idea of a package deal, suggesting that they might not fight higher indecency penalties on themselves as part of a deal that also included similar penalties on cable and a guarantee of mandatory cable carriage of their digital channels.

The broadcasters’ horrendous logic is this: If broadcasters are going to be gagged and bullied, they’re in favor of letting Congress or the FCC do it to cable, too. National Association of Broadcasters Joint Board Chairman Phil Lombardo signaled in a speech to the Media Institute several weeks ago that he would settle for restrictive new indecency rules if cable had to abide by them, too.

Even the cable industry is split on the free-speech crackdown. A Disney executive reminded reporters last week that the company does not oppose the indecency crackdown.

It wasn’t a Mickey Mouse morality play. What was left unsaid was that the chief alternative to applying indecency prohibitions would be to require cable to provide à la carte tiers that would make subscribers have to actually choose to pay extra to get ESPN. That could severely impact that Disney sports cash cow.

Broadcast and cable executives, or rank-and-filers for that matter, who do not want to become common carriers of pre-chewed government pablum need to stand up for themselves while they still can.

Ironically, they could take their cue last week from exiting FCC Chairman Michael Powell, who stood up for the pay media, opining that legislation was unwise and likely unconstitutional.

The First Amendment is not negotiable. Broadcasters who treat it that way sell out themselves and the public they are supposed to serve.