Paper Lion:
Why the Supreme Court Must Overturn TV Restrictions

Alexander Volokh
E-Net, July 24, 1996

Leave It To Beaver is bad. Winnie the Pooh and Friends is good. The Jetsons is bad. The Flintstones is bad. The Smurfs is not only good, itís Smurfy.

These are the sorts of distinctions that the Federal Communications Commission has made and will soon be asked to make again, if a proposed rule that television broadcasters must carry at least three hours of children's educational programming per week goes into effect. And Supreme Court precedent allows it.

If this were any medium other than broadcast TV or radio, a blatant, content- based speech restriction like this so-called "kidvid" mandate would be unconstitutional on its face. But ever since the Supreme Court's 1969 decision in Red Lion Broadcasting v. FCC, the media has been divided into broadcast media -- scarce, licensed, and with few First Amendment rights -- and everything else, which is broadly protected. Red Lion is misguided, paternalistic, and untenable today; if push comes to shove, it may be overturned. But under current law, the three-hour rule is legal.

Because the government grants broadcast licenses, the Red Lion court said, it can essentially dictate what broadcasters can say: "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." And these rights, according to the court, include "suitable access to social, political, aesthetic, moral and other ideas and experiences."

According to law professors Thomas Krattenmaker and Lucas Powe, this legal doctrine is "intellectually bankrupt" and rests on "an impoverished conception of the First Amendment."

First, the Red Lion decision insults the viewing public -- insinuating that a group of elite experts knows better than viewers what's good for them. Since any station only has 24 hours of programming, any resources spent on new children's programming would displace something else -- who knows what? More importantly, who should have the right to say?

Second, it is too quick in asserting rights. Given the nature of broadcast media, some regulation may be necessary, but to require children's programming, one must first establish that the public is entitled to it -- on every station. The government has never claimed such an entitlement for non-broadcast media, and rightly so.

Third, the broadcast/non-broadcast distinction assumes that scarce broadcast space means scarce information. If this was ever true, it isn't now. Newspapers, magazines, books, movies, cable TV, videos, and online services supplement broadcast TV and radio. There is a wealth of children's material available already. Free shows like Beakmanís World, Carmen SanDiego, and Bill Nye the Science Guy offer high-quality children's programming. Clearly, "quality" programming, whoever defines it, isn't in short supply, but may be in short demand.

Moreover, any distinctions between "good for children" and "bad for children" would have to draw laughable and arbitrary lines between shows. The FCC, realizing this, implemented a vague policy in 1991 that allowed broadcasters to claim that The Flinstones taught history, The Jetsons taught science, and Leave It To Beaver taught interpersonal relationships. Modern-day kidvid nannies would like a standard to exclude, say, . But can the FCC draw intelligent distinctions without sliding into censorship? If they do, will kids watch the approved shows? The prospects seem bleak.

The good news is that Red Lion happened long ago, and may not survive today. Justice Kennedy, writing for the majority in Turner Broadcasting v. FCC (1994), noted that "courts and commentators have criticized the scarcity rationale since its inception." More recently, Justices Thomas, Rehnquist, and Scalia have called the distinction between broadcast and other media "dubious from its infancy."

The other bit of good news is regulatory gridlock. For months, the FCC has been in limbo. Commissioners James Quello and Rachelle Chong oppose numerical requirements; FCC Chairman Reed Hundt and Commissioner Susan Ness favor them. (A fifth seat is vacant.) Quello announced in June that he would support a compromise measure, but on July 12, he changed his mind because he found the FCC's proposed rule inflexible and burdensome. Quello, too, weighs in against the Red Lion rationale: "Scarcity was a justification for regulation years ago when broadcast TV was the only show in town and a very limited number of TV stations were the only source of video programs. Today, there is a superabundance of broadcast outlets."

Meanwhile, the government isn't helping. By championing the V-chip and the Communications Decency Act, President Clinton has shown that he is not above censorship -- and Congress, which passed the same legislation, also deserves its share of the blame. Vice President Gore's analogy du jour is that TV violence is to real violence as smoking is to cancer; the "simultaneously sugary and sociopathic" Mighty Morphin Power Rangers is just "not good for children" -- and "anybody who's ever seen a young child after they've watched the show understands why."

Our best hope, then, is continued gridlock at the FCC, and Supreme Court intervention if the three-hour rule becomes law and is challenged -- barring, of course, a change of heart among politicians regarding the value of the First Amendment. And the chances of that happening, as Brainy Smurf might put it, are "a million smurfbillion to one. Maybe more."

Alexander Volokh is an assistant policy analyst at the Reason Foundation, a public policy think tank in Los Angeles.

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