This week I want to talk about bans and prohibitions in a free society. My friend Jesse Harris passed along an article about how a group of Liberaltarians have submitted an amicus brief to the U.S. Supreme Court opposing the Federal Communications Commission censorship of bad language on television and radio. Signers of the brief, including the Cato Institute, argue that old concerns about pervasive obscenities over the airwaves are rendered obsolete because of technological advancements.
Some of you old enough might recall George Carlin’s comedic routine about the seven words you can never say on television. As a teenager back then I can tell you I remember it well. I can still recite those seven words – and do sometimes use a word here and there even to this day, unfortunately. When a California radio station rebroadcast that routine in 1978, the FCC fined the station and the case ended up at the Supreme Court. The court stated that the FCC was well within its regulatory bounds to prohibit such foul language over public airwaves. It cited the “uniquely pervasive” aspect of television and radio in 1978, as well as how television and radio are “uniquely accessible to children.”
Signers of the brief want the court to declare broadcast censorship unconstitutional altogether. They argue that free speech is protected regarding newspapers and books and other publications, so why not extend those First Amendment protections to speech on television and radio?
First of all, maybe the signers of the brief haven’t watched television or listened to radio lately, but just about anything is being said over the airwaves. If someone were to ask me about censorship on television, I’d be hard pressed to think of any kind of censorship these days outside of the F-word. So I assume that their objections are more ideological than practical.
Second, it seems their objections rest on the court’s use of the word “uniquely” – as in “uniquely pervasive” and “uniquely accessible to children.” These days we have iPhones and iPads and video games and game players that connect to the Internet. We essentially have mobile computers in our pockets that connect all of us, instantaneously, to the wide open world of the Internet. It’s true that television and radio are no longer “unique” modes of communication in that sense. I would argue that both modes remain pervasive, if not uniquely pervasive, especially for the youngest of children. Both are one pervasively available, cost-free click away from the minds of children.
Banning and prohibiting harmful “substances,” including foul language, over public airwaves is appropriate because manners and morals still exist. The law is restraint precisely in these cases of extreme human behavior. The plaintiffs can argue the pervasiveness of foul language if they want. But they don’t get to decide prevailing morality, which dictates when and how we empower the law to reflect that morality. If they want to change our laws in such matters, they should work to change prevailing morality to make such rude behavior commonly pervasive. At that point, legal restraints on human behavior don’t make any sense. But, then again, at that point manners and morals will have essentially disappeared. Free speech will become meaningless because anyone will be able to say anything in any setting – and that’s not free speech, that’s diarrhea of the mouth. When Liberaltarians argue that old concerns about pervasive obscenities over the airwaves are rendered obsolete because of technological advancements, all they’re really saying is that they think that obscenity is so pervasive now that there’s no need for regulations of any kind.
The Liberaltarians want to legalize everything they see as “victimless crimes.” The problem is that there aren’t any victimless crimes, especially not within a welfare state where everyone is treated as if they’re too big to fail. The rehabbing drug addict next door is at least his neighbor’s next tax increase, if not his neighbor’s next B&E reported to the local police. The Liberaltarians will slide us into tyranny faster than any government agency they oppose.
I’m not arguing against the finer points of any given case. I am arguing in favor of manners, morals and free speech – not just any speech – but free speech.
For Sutherland Institute, I’m Paul Mero.