When indecency is pervasive, is it indecent
: Adam Thierer writes in today’s Washington Post that the spreading ooze of content regulation — aka censorship — holds more dangers on the horizon:
Some lawmakers seem to believe that once any media technology becomes popular enough, it becomes “pervasive” and therefore some degree of censorship is justified. But the notion that “popularity equals pervasiveness” is frightening, because it contains no limiting principles. This wasn’t the standard we applied to print outlets such as newspapers as they grew in popularity. Nor is it the standard we apply to the Internet. In fact, recent Supreme Court decisions have rejected attempts to apply indecency controls to cyberspace.
Of course, none of this is going to stop pro-censorship policymakers from pushing the envelope to incorporate new media — at least basic cable and satellite programming — into the indecency mix. If this “popularity equals pervasiveness” regulatory paradigm becomes law and passes muster in the courts, we will have entered a world in which the public has to pay to escape censorship. Anything Congress or the FCC deemed “indecent” would likely be forced onto a premium or pay-per-view tier, where consumers would spend considerable sums to receive some of their favorite programs. But here’s the really interesting question: If large numbers of viewers still flock to premium or pay-per-view services to get their favorite programming — such as HBO, or Howard Stern’s new show on satellite radio — wouldn’t the “popularity equals pervasiveness” calculus apply to those channels as well? If so, we could look forward to still more laws to protect us from ourselves.