The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Sunday, March 14, 2004

Is the entire FCC indecency regime unconstitutional?

Puzzling over the enigma that is the FCC's enforcement of the law against broadcast indecency, I'm drawn to look at the rest of the witness statements given to the Telecommunications Subcommittee.

Of particular interest is that of January 28 from Robert Corn-Revere, apparently a First Amendment lawyer often seen in Capitol corridors.

It's a 14,000 word brief which grips Michael 'Sonny Boy' Powell warmly by the throat: the test that the FCC applies and the procedures it employs to enforce it are, he suggests, founded on constitutional quicksands.

He kicks off with some delicious quotes from Powell himself (all referenced):
as government pushes the limits of its authority to regulate the content of speech, the more its actions should be constitutionally scrutinized, not less.

any responsible government official who has taken an oath to support and defend the Constitution must squarely address this important question.

[t]he TV set attached to rabbit ears is no more an intruder into the home than cable, DBS, or newspapers for that matter. Most Americans are willing to bring TVs into their living rooms with no illusion as to what they will get when they turn them on.

the government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences on the public - exactly the sort of infringement of individual freedom the Constitution was masterfully designed to prevent.

I don't want the government as my nanny.

And more.

(Quick question: did Powell have a nanny?)

Clearly that was then and, post-tit, this is now.

After the fun and games, the lawyer gets stuck into the Pacifica Foundation case. Because it's not only change of technology that brings the FCC's regime into question: cases like Reno v ACLU have brought the whole law of indecency into doubt.

On the face of it, this sounds like good news: the Comstocks on the Hill sow the wind - and reap the whirlwind. An extremely moral tale for the kiddies in that!

One has, though, to ask why no one has sought before now to have the whole edifice ripped down as infringing the First Amendment - perhaps the lax (cost of doing business) enforcement of previous Commissions gave no encouragement to long constitutional litigation.

For the moment, rank with the other druthers the chance of thermonuclear blowback against Nancy Pelosi's League of Decency.

Pretty damned good one, though...

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