Roberts, Scalia oppose the invisible hand of the market

[Fear_Itself]

The Supreme Court is considering a suit by broadcasters to relax the standards of decency imposed by the FCC on broadcast networks but not on cable networks.

Lawyers for the networks urged the Supreme Court to throw out the fines and strike down the FCC’s indecency rules. They said federal policing of broadcast content was outdated and no longer warranted. They said most Americans receive entertainment and news though cable TV or the Internet, and these media have full 1st Amendment rights. Broadcasters deserve the same rights, they said.

But conservatives on the high appear to be reluctant to ease restrictions on indecent content:

Broadcasters use the public airwaves, and the “government can insist on a certain modicum of decency,” said Justice Antonin Scalia during oral arguments on the constitutionality of a ban on four-letter words and nudity.

“All we are asking for is for a few channels” where parents can be confident their children will not hear profanity or see sex scenes, said Chief Justice John G. Roberts Jr., who is a parent of two young children.

But what about the invisible hand of the market, which responds to the will of the consumer? If there was a demand for channels with no profanity or sex scenes, wouldn’t the market fill that demand? Is it the purpose of government to intervene to create products the market apparently does not want? If conservatives want sex-free channels, are they not free to start their own networks?

It seems to me these are the same arguments conservatives make against liberals when they try to justify support for public broadcasting, or regulating insurance companies, or any number of other markets where conservatives want government to butt out and let the free markets decide which products survive. So why is sexual content different? Why does the conservative wing of the court find sexual content to be uniquely deserving of government intrusion? Have they lost their faith in the invisible hand job? Or, are they just hypocrites, who use one argument for things they favor, and the opposite against things they oppose?

[ShibbOleth]

I was thinking exactly this when listening to a news story about the issue while driving today. FWIW, the story I heard had pretty much a unanimous decision with Sotomayor(sp?) abstaining.

[jshore]

@ShibbOleth

FWIW, the story I heard had pretty much a unanimous decision with Sotomayor(sp?) abstaining.

I don’t think that they’ve made a decision yet…I think they were just hearing arguments. You can sometimes tell how the decision might go from the what the Justices say during the arguments, but it is far from certain.

[Musicat]

I’m not surprised. Roberts is a conservative, and Scalia is an ass.

Do they really think that if left to market forces, there would be porn on Saturday morning Nickelodeon?

[Fear_Itself]

Sure, one would expect the liberals to support big government control of the markets; there is no hypocrisy there. But how do the conservatives justify it?

[BrainGlutton]

@Fear_Itself

Sure, one would expect the liberals to support big government control of the markets; there is no hypocrisy there. But how do the conservatives justify it?

By invoking competing principles, also considered conservative ones.

Is there any political ideology where such conflicts would never arise?

[Fear_Itself]

@BrainGlutton

By invoking competing principles, also considered conservative ones.

So the social importance of the purity of broadcast television is more important than freedom of speech, or the free market? Where is their dedication to upholding the constitution now? Cognitive dissonace is such a bitch.

[RickJay]

What does any of this have to do with the law in question?

Conservative or liberal, the case has nothing to do with “the invisible hand of the market.” It’s not necessary for a conservative justice to abide by “the invisible hand.” The law’s the law.

The point made by Scalia, at least, is perfectly valid; the public owns the airwaves and is entitled, through the mechanism of the government, to decide how they may be used. If the broadcasters want more tits and swearing on TV they should pressure the legislature to change the rules.

[Musicat]

@RickJay

The point made by Scalia, at least, is perfectly valid; the public owns the airwaves and is entitled, through the mechanism of the government, to decide how they may be used.

The “public owns the airwaves” theory was brought forward years ago as a derivative of scarcity. Only so much broadcasting space to go around, so the government must parcel it out.

That was before cable, the Internet, digital broadcasting and other technologies that broadened the available space so greatly that a scarcity argument no longer works.

Maybe it’s time to revisit the “public owns the airwaves” concept. Why should the public ownership be applied only to that and not, say, all cable channels or apple orchards?

[Fear_Itself]

@RickJay

What does any of this have to do with the law in question?

Conservative or liberal, the case has nothing to do with “the invisible hand of the market.” It’s not necessary for a conservative justice to abide by “the invisible hand.” The law’s the law.

The point made by Scalia, at least, is perfectly valid; the public owns the airwaves and is entitled, through the mechanism of the government, to decide how they may be used. If the broadcasters want more tits and swearing on TV they should pressure the legislature to change the rules.

And the point by Roberts? Is it the purpose of government to ensure that there are channels that are guaranteed free of profanity or sexually explicit content? Doesn’t the invisible hand provide that, if the consumer demands it? If the market does not provide it, then it just isn’t wanted by enough people. That is what I have always been lectured by invisible hand jobbers. Were they wrong?

[Martin_Hyde]

Actually public ownership of the airwaves is still very important. If the government did not have the ability to regulate the airwaves I’d be able to try and use say, the same frequency your cell phone uses to broadcast some totally different content that might cause all cell phones in the area to not work.

Or I might decide as the owner of 105.7 FM that I want to take over the entire 105-108 range and just try to overpower my competitor’s frequencies.

No, the airwaves are a public good because there is true scarcity there and because there is no clear means for normal private ownership (like there is with gold or timber.) Some frequencies are more desirable than others, but the ones that are desirable are still worth hundreds of millions to billions of dollars as evidenced by recent frequency auctions.

It’s in the nature of the airwaves that there needs to be rules in place to make sure things aren’t interfering with one another. The only natural regulator is government. If the airwaves weren’t viewed as a public property then there would be no guarantees whatsoever that the public could even use them.

That’s all irrelevant though. The SCOTUS can’t issue a ruling saying that the airwaves are no longer public property, that’s outside the scope of their power as deciding such things is clearly in the legislature’s sphere. I’d go so far as to say if the SCOTUS tried to rule the airwaves should no longer be viewed as a public property, the legislature would pass new legislation re-emphasizing the public ownership of the airwaves and then they would pass legislation prohibiting the SCOTUS from hearing cases about the public airwaves, which would prevent any further disruption. This would pass with large bipartisan support on both sides of the aisle for a wide range of reasons.

So with that being said, in the real world where the airwaves are public property and will remain public property, precedent has shown that the FCC does have the authority to put some limited amounts of regulation on the content of what goes over the public airwaves.

I personally am against any sort of morality censorship, but I don’t think it is unconstitutional, because the constitution has always had restrictions on speech. I have a right to free speech, but I don’t have a right to go into a public building, interrupt a court proceeding and strip down naked and start singing Ave Maria through a megaphone. That violates decency standards (both for the nudity and my singing voice), as well as interrupting a court proceeding and denying the public proper use of the public facility for its intended purpose. So there is pretty much obvious precedent even aside from the decades of actual precedent for the FCC regulating the airwaves, for the government regulating speech in certain circumstances on public land.

As for Roberts argument, he’s obviously making a nanny-state parent of small children argument to which I’m intrinsically opposed. Last I checked Chief Justice John Roberts hasn’t come out as a member of the Cato Society or an Austrian School Economist or any other form of die hard libertarian, so I don’t know why anyone would expect his primary concerns would be the free hand of the market.

In truth as a Chief Justice of the Supreme Court I wouldn’t want him to be concerned with the free hand of the market but instead the constitution of the United States. I also wouldn’t want him to be concerned with what he personally wants his kids to see on TV, but with the constitutionality of the FCC regulating what his kids can see on public TV. As it is, while I think his motivation is wrong, I think he’s legally correct that it is constitutional and thus a matter for the legislature to resolve.

[RickJay]

@Fear_Itself

And the point by Roberts?

Absent any context I don’t agree with him, but then I don’t know what he was saying in full.

But that’s not the point. the point is that invoking some imaginary “free market’s invisible hand” hypocrisy charge is is just ridiculous. The Supreme Court’s job is to interpret the law, not decide law based on whether or not they like free markets. Scalia and Roberts have made hundreds upon thousands of judicial decisions and none of them involved saying “well, whatever the law is, I’m a conservative, so by God, I have to do whatever Adam Smith would have said the free market would want.”

[Musicat]

@Martin_Hyde

Actually public ownership of the airwaves is still very important. If the government did not have the ability to regulate the airwaves I’d be able to try and use say, the same frequency your cell phone uses to broadcast some totally different content that might cause all cell phones in the area to not work.

Which has nothing to do with the content.

Or I might decide as the owner of 105.7 FM that I want to take over the entire 105-108 range and just try to overpower my competitor’s frequencies.

Which has nothing to do with content.

No, the airwaves are a public good because there is true scarcity there and because there is no clear means for normal private ownership (like there is with gold or timber.) Some frequencies are more desirable than others, but the ones that are desirable are still worth hundreds of millions to billions of dollars as evidenced by recent frequency auctions.

You just defined how they can be “owned” – auction or sell the use of certain frequencies.

It’s in the nature of the airwaves that there needs to be rules in place to make sure things aren’t interfering with one another. The only natural regulator is government. If the airwaves weren’t viewed as a public property then there would be no guarantees whatsoever that the public could even use them.

Sure there would. Regulate only the frequencies and broadcast power, don’t regulate the content.

That’s all irrelevant though.

You said it.

Hey, you can string cable TV along the road if the government allows it, where it allows it, but the govt doesn’t tell you what content to put on cable. And you can’t interfere with other cable providers by ripping down their cable, analogous to trampling on a broadcast signal. Why should the airwaves be any different?

[Really_Not_All_That_Bright]

There’s really no legal support for Roberts’ comment, though perhaps in context it makes sense. Scalia’s point is simply a restatement of current law. There’s no hypocrisy here.

[smiling_bandit]

@Musicat

Regulate only the frequencies and broadcast power, don’t regulate the content.

[snip]

Hey, you can string cable TV along the road if the government allows it, where it allows it, but the govt doesn’t tell you what content to put on cable. And you can’t interfere with other cable providers by ripping down their cable, analogous to trampling on a broadcast signal. Why should the airwaves be any different?

You have utterly missed the point. The Supremes do not answer what should be done, but rather what may be done. The difference, I would think, should be immediately obvious to anyone. It’s entirely possible for the government to be capable of doing something whether or not it should. The latter is a question for Congress, not the Court.

[Musicat]

@smiling_bandit

You have utterly missed the point. The Supremes do not answer what should be done, but rather what may be done. The difference, I would think, should be immediately obvious to anyone. It’s entirely possible for the government to be capable of doing something whether or not it should. The latter is a question for Congress, not the Court.

That’s pretty much Scalia’s argument for anything. If Congress says it, he treats that as the last word.

[user_hostile]

FWIW, the libertarian free market approach, with respect to AM radio, was given a crack at this as a result of United States v. Zenith Radio Corp in 1926. Future president Herbert Hoover, who was Secretary of Commerce, had tried to allocate and regulate the spectrum because he worried that the airwaves would eventually become unusable, but kept getting thwarted by others within the US Government and heavy lobbying by large corporations (RCA, Zenith to name a few). Per the decision, he made a brilliant move and gave anyone who applied a broadcast license with no restrictions.

In less than a year, the market forces performed admirably. Stations interfered with one another, and AM band was essentially useless.

Congress, leading from behind, finally step in and created the Federal Radio Commission (which was a precursor of the FCC), to bring some order to the airwaves and declared the broadcast spectrum was officially subject to public ownership.

That being said, SCOTUS is aware of Congress’s intent with respect to the airwaves. Ideology aside, I don’t expect SCOTUS to issue a ruling that allows ABCs wildest fantasy to come true, but I don’t expect a smack down either. They’ll muddle through and issue some kind of ruling which gives ABC some sort of legal booby prize, but SCOTUS will strongly reaffirm that when it comes to the public airwaves: thou shall not show thy naughty bits.

[robinson]

@Musicat

. . . govt doesn’t tell you what content to put on cable. . . .Why should the airwaves be any different?

Cable service provides literally hundreds of channels. Even though digital tuners may number up to 99, it has never been practical to have more than a few active broadcast channels in any market. The most I can remember is about a dozen, That is your scarcity issue. Regulation of cable and broadcast is apples and oranges.

Commercial broadcast content always sucks, but I think that nothing but a dozen titty channels would be unbearably boring. Not that its worse than a dozen antiperspirant commercials. Or a dozen televangelists. Who wins the race to the bottom? The FCC has already eliminated its public service requirements on broadcasters (which was a quid-pro-quo for use of public airwaves), which I think is a shame.

[robinson]

@Fear_Itself

If the market does not provide it, then it just isn’t wanted by enough people. That is what I have always been lectured by invisible hand jobbers. Were they wrong?

Yes. Free market theory is more often than not applied to restrictive markets. Truly free markets require a multitude of vendors. Cable TV (hundreds of channels) is a much freer market than broadcast TV (a dozen or less). The history of broadcast TV is one of repetitive copycat trash. One decent show followed by a herd of wannabees.

[Martin_Hyde]

@Musicat

Which has nothing to do with the content.

@Musicat

Maybe it’s time to revisit the “public owns the airwaves” concept. Why should the public ownership be applied only to that and not, say, all cable channels or apple orchards?

@Musicat

Which has nothing to do with content.

@Musicat

Maybe it’s time to revisit the “public owns the airwaves” concept. Why should the public ownership be applied only to that and not, say, all cable channels or apple orchards?

You’re the one making blanket statements that we should get rid of the “public owns the airwaves” concept. Which opens the door to all the reasons that shouldn’t happen. And guess what none of them have anything to do with government regulating the content, there are bigger issues at play when it comes to blatantly shortsighted and stupid things like “end public ownership of the airwaves.” That’s akin to saying “burn down the public parks because the government is doing something with them I don’t like.”

You just defined how they can be “owned” – auction or sell the use of certain frequencies.Sure there would. Regulate only the frequencies and broadcast power, don’t regulate the content.You said it.

The government can only sell rights to use airwaves because it manages them as a public resource, if the government didn’t take that role it wouldn’t be selling anything because individuals and corporations could use whatever frequencies they wanted however they wanted.

Hey, you can string cable TV along the road if the government allows it, where it allows it, but the govt doesn’t tell you what content to put on cable. And you can’t interfere with other cable providers by ripping down their cable, analogous to trampling on a broadcast signal. Why should the airwaves be any different?

I don’t think the government should regulate content on the public airwaves, but it is different because there is established legal precedent that the government can control the public resources of the United States–including regulating content broadcast over terrestrial television. The role of the Supreme Court isn’t to decide if this is wise or not, but whether this is constitutional or not.