Legal Commentary

This is not, I think, the response that Justice Stevens intended.  And there's good reason not to intend it. Ads about erectile dysfunction are hardly the only elements of daytime television, apart from swear words, that are unsuitable for children.   As I noted in another recent blog post, long before Justice Stevens noted the underinclusiveness of the FCC's fleeting expletives ban in his dissent last week, George Carlin made fun of similar FCC restrictions many years ago, pointing out that why you can't say the F-word on television, many TV show plots revolve around the sexual activity that that word describes (it's between 6:14 and 7:30 on the video I've linked to).  While I suppose one could argue that in a sitcom like Friends, Seinfeld, or in numerous soap operas, the meanings may be a bit harder for kids to figure out, that's not invariably true.  There are plenty of daytime shows that deal with sex or other topics too frankly to be appropriate for young children.  So Rep. Moran's bill would hardly eliminate the need for parents to monitor their children's television watching, make use of V-chips, and/or find other ways to limit their children to watching particular channels.  (Or do what we've been doing in my household lately and foregoing broadcast and cable TV in favor of DVD and Internet video).

Fifty-two years ago, in Butler v. Michigan, the Court (in an opinion by Justice Frankfurter) rejected a Michigan law aimed at "quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence."  In a frequently-quoted statement, the Court said that the admittedly powerful interest in protecting children cannot serve as an excuse to "reduce the adult population . . .  to reading only what is fit for children."  The same should apply to broadcast television. It would be a strange cultural regime that forced senior citizens with an interest in learning about viagra (or its alternatives) to stay up until 11 pm to see the advertisements.

This isn't to say that parents shouldn't react with surprise or anger when adult themes arise in shows that are promoted as suitable for young children.  I'd certainly consider stopping my kids from watching Sesame Street if Elmo's World started to feature sexual content or violence of the kind one can finding Law & Order-SVU, CSI, or 24 (before 10 pm in some parts of the country).  And some might argue that the problem with the ads is that -- unlike these shows (which adults know are generally inappropriate for children) -- the ads might air in the middle of sporting events or award ceremonies that parents might otherwise assume are suitable for kids. I wonder if this assumption is a fair one when award shows like Oscars and Golden Globes typically feature the celebrities characterized by Justice Scalia (in FCC v. Fox Television) as the "foul-mouthed glitteratae from Hollywood" and when sporting events not infrequently result in brawls, serious physical injuries, or furious gestures and swearing from angry players, managers or coaches. In any event, as Steven Pinker notes in a recent piece in the Atlantic "in a free society, these annoyances are naturally regulated in the marketplace of people?s reactions?as Don Imus, Michael Richards, and Ann Coulter recently learned the hard way. It?s not clear why swearing on the airwaves should be the government?s business."  I think the same is true of the ads that are the focus of Rep. Moran's legislation. If they make enough viewers turn off the TV, or forego watching a particular show in the first place, networks won't air them then (or perhaps more likely, will work harder to adopt technologies that will make the ads shown during a broadcast specific, and acceptable, to the audiences watching them).