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The FCC's Decades Old War on the First Amendment [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']
Date: 2025-09-18
The decision to suspend Jimmy Kimmel over some Charlie Kirk remarks is curious for a few reasons. ABC’s decision to cave to such pressure says nothing about the content of Kimmel’s remarks, but lots about ABC. That’s because the FCC has no jurisdictional authority over networks. Not ABC or NBC or CBS or MSNBC or Fox News or News Nation or the Cartoon Network or ESPN, etc. Their authority is issuing licenses to broadcast radio and tv stations.
But over the decades, it has increasingly taken control over content. In the landmark FCC v. Pacifica Foundation (1978), the FCC's power to restrict "indecent" broadcast content was affirmed. The decision established that indecent material, while protected by the First Amendment, could be limited to late-night "safe harbor" hours (10 p.m. to 6 a.m.) when children are less likely to be in the audience.
But the Commission went full on bluenose after the 2004 Super Bowl halftime show incident (Janet Jackson’s boob) with the Broadcast Decency Enforcement Act (2005) which significantly increased the fines the FCC could levy against broadcasters for indecent programming.
The fine was issued against CBS… sort of. In September 2004, the FCC fined CBS $550,000 for the incident. But since they had no jurisdiction over the network, it levied the fine against 20 CBS owned stations. CBS's parent company, Viacom, paid the penalty in 2006 so it could appeal the decision in federal court. In 2008, a federal appeals court sided with CBS, ruling that the FCC acted "arbitrarily and capriciously" by deviating from its previous policy of not penalizing brief, fleeting indecency. In 2012, the Supreme Court of the United States refused to hear the FCC's final appeal, which ended the case and nullified the fine against CBS.
Still, with the Broadcast Decency Enforcement Act in effect, government tyranny over radio and broadcast tv content has been stifling, putting the broadcast networks and radio stations at a significant disadvantage. And while some might consider the word tyranny as lurid and excessive, consider it in the context of other media.
Imagine a Federal Book Commission that requires book publishers to provide advance copies for approval or to self-censor their publications to meet some ill-defined community standard. Or a Federal Newspaper Commission that had the power to fine or even shut down newspapers based on their content. Yet what all decent Americans would consider intolerable and totalitarian. Is taken advantage. For the most widely used media that isn’t called the internet - radio and television. Yet the principle is the same.
The solution Is to apply the free market to broadcast radio and television. The licenses currently issued by the government define a station’s frequency, transmitter power and geographic range. The federal government could auction off all their licenses, while retaining the authority to enforce their ‘borders.’ Once the FCC is out of the content policing business, it can get back to the business of keeping broadcasters on their frequencies and in their broadcast lane.
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