# Roberts, Scalia oppose the invisible hand of the market **URL:** \ **Category:** Great Debates\ **Created:** [January 11, 2012, 1:25am UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113 "2012-01-11T01:25:24Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 11, 2012, 5:28am UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/21 "2012-01-11T05:28:00Z")
> [@user\_hostile](#): > > …SCOTUS will strongly reaffirm that when it comes to the public airwaves: _thou shall not show thy naughty bits_. SCOTUS will say the FCC can tell broadcasters not to show naughty bits, not that naughty bits shall not be shown. If the FCC doesn’t tell broadcasters not to show naughty bits, SCOTUS won’t either. ---
**Author:** ![mack](https://avatars.discourse-cdn.com/v4/letter/m/b19c9b/32.png) [@mack](https://boards.straightdope.com/u/mack)\ **Post date:** [January 11, 2012, 12:00pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/22 "2012-01-11T12:00:58Z")
Aren’t “Public Airwaves” and “Broadcast” with regards to TV anachronisms? Didn’t we just go through this whole big thing where over-the-air TV broadcasting was shut off? I thought everything is through cable now. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 11, 2012, 12:37pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/23 "2012-01-11T12:37:36Z")
> [@robinson](#): > > 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. Try thousands, not hundreds. My cable box goes up to 999, and that doesn’t include sub-channels made possible by digital. There’s no finite limit to either broadcast or cable. It’s a long way from VHF channels 2 thru 13. There are so many channels available that my provider uses 50 of them for music only (and seemingly 500 for shopping). If you are saying it is not practical for many broadcast channels to be active, that isn’t a scarcity issue but a market one. In no market were the 83 VHF+UHF analog channels fully filled. Instead of a scarcity, we had a surplus. ---
**Author:** ![MsRobyn](https://avatars.discourse-cdn.com/v4/letter/m/90ced4/32.png) [@MsRobyn](https://boards.straightdope.com/u/MsRobyn)\ **Post date:** [January 11, 2012, 12:47pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/24 "2012-01-11T12:47:17Z")
> [@mack](#): > > Aren’t “Public Airwaves” and “Broadcast” with regards to TV anachronisms? Didn’t we just go through this whole big thing where over-the-air TV broadcasting was shut off? I thought everything is through cable now. No. Over-the-air stations still exist, and not everyone has cable or satellite. The switchover you’re talking about was the transition from analog to digital, which required everyone who didn’t have cable to either buy a new digital-capable TV or an adapter. It is true that the vast majority of Americans have either satellite or cable, but it’s not universal. That said, the market did decide to segment TV, at least as far as cable is concerned. You can see boobies on a bunch of channels if you like, or you can watch TV for kids. There are literally hundreds of cable channels for all tastes, and if you need your porn, you can get it. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 11, 2012, 1:04pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/25 "2012-01-11T13:04:57Z")
> [@MsRobyn](#): > > That said, the market did decide to segment TV, at least as far as cable is concerned. You can see boobies on a bunch of channels if you like, or you can watch TV for kids. There are literally hundreds of cable channels for all tastes, and if you need your porn, you can get it. Which is what I would envision for over-the-air broadcast, if the FCC stepped aside. Something for everyone; Roberts can watch the ones intended for 5 year-olds if he wishes, and Beavis can watch TBC (The Boobie Channel). ---
**Author:** ![MsRobyn](https://avatars.discourse-cdn.com/v4/letter/m/90ced4/32.png) [@MsRobyn](https://boards.straightdope.com/u/MsRobyn)\ **Post date:** [January 11, 2012, 1:13pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/26 "2012-01-11T13:13:42Z")
I can see doing something like that. Digital means that there are more channels available, and parental controls on TVs would allow people to block objectionable content. Of course, you’d still get the ninnies and bluenoses who would complain, as well as the occasional clueless parent, but that’s what parental controls are for. ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [January 11, 2012, 2:01pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/27 "2012-01-11T14:01:55Z")
> [@Musicat](#): > > Which is what I would envision for over-the-air broadcast, if the FCC stepped aside. Something for everyone; Roberts can watch the ones intended for 5 year-olds if he wishes, and Beavis can watch TBC (The Boobie Channel). OK, I’m trying to avoid this becoming a Pit thread, but do you not see that’s an irrational stance? The Court doesn’t decide what ought to be done, but what is Constitutionally legal. This is not new. It’s only been the case since _Marbury v. Madison_, y’know, about **two hundred fifty** years ago. You are: (a) Assuming a certain decision will be reached by the court. (b) Stuffing motives in the mouths of the justices (which, even if they did say these things, would be a normal part of the often-aggressive court inquiry). (c) Insulting the court based on your political preconceptions, when probably most co-politicos wouldn’t share your opinion on the case or the result. ---
**Author:** ![mack](https://avatars.discourse-cdn.com/v4/letter/m/b19c9b/32.png) [@mack](https://boards.straightdope.com/u/mack)\ **Post date:** [January 11, 2012, 2:52pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/28 "2012-01-11T14:52:01Z")
> [@MsRobyn](#): > > No. Over-the-air stations still exist, and not everyone has cable or satellite. The switchover you’re talking about was the transition from analog to digital, which required everyone who didn’t have cable to either buy a new digital-capable TV or an adapter. It is true that the vast majority of Americans have either satellite or cable, but it’s not universal. Ah. Thanks. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 11, 2012, 3:09pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/29 "2012-01-11T15:09:25Z")
The only “invisible hand” relevant to this case is the one some guy would be sticking down his pants while watching porn on broadcast TV if the porn industry had its say. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [January 11, 2012, 3:54pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/30 "2012-01-11T15:54:12Z")
> [@Musicat](#): > > Which is what I would envision for over-the-air broadcast, if the FCC stepped aside. Something for everyone; Roberts can watch the ones intended for 5 year-olds if he wishes, and Beavis can watch TBC (The Boobie Channel). This is a perfectly reasonable thing to envision. It’s also the job of Congress to decide, not the Supreme Court. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 12, 2012, 6:42pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/31 "2012-01-12T18:42:37Z")
> [@Musicat](#): > > Which is what I would envision for over-the-air broadcast, if the FCC stepped aside. Something for everyone; Roberts can watch the ones intended for 5 year-olds if he wishes, and Beavis can watch TBC (The Boobie Channel). The Supreme Court is not deciding whether the government restricting content is a good thing. They are deciding whether the government _may, without violating the Constitution_, restrict such content. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 12, 2012, 6:57pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/32 "2012-01-12T18:57:03Z")
> [@Bricker](#): > > They are deciding whether the government _may, without violating the Constitution_, restrict such content. Agreed. What I find troubling is the use of content judgements during oral arguments. If they are narrowly focused on constitutionality, why speculate on the desirability of profanity free channels? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 12, 2012, 7:09pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/33 "2012-01-12T19:09:16Z")
Only Roberts did that. ---
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [January 12, 2012, 7:33pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/34 "2012-01-12T19:33:11Z")
> [@Fear\_Itself](#): > > It seems to me these are the same arguments conservatives make against liberals … 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? [septimus’ underlining] > > Or, are they just hypocrites, who use one argument for things they favor, and the opposite against things they oppose? Just hypocrites. Unless one argues that their job is to vote for what they favor. > [@Musicat](#): > > The “public owns the airwaves” theory was brought forward years ago as a derivative of scarcity. Incidentally, a tariff on the use of airwaves would be a convenient and very fairish way to raise revenue. > [@smiling\_bandit](#): > > 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. A question is: Does the Congress even have the right to regulate airwaves? Cite from constitution? ---
**Author:** ![smiling\_bandit](https://avatars.discourse-cdn.com/v4/letter/s/e9a140/32.png) [@smiling\_bandit](https://boards.straightdope.com/u/smiling_bandit)\ **Post date:** [January 12, 2012, 7:37pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/35 "2012-01-12T19:37:46Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Only Roberts did that. Although the Court usually does question the ultimate impact. Although it does focus on the Constitutionality, it’s commonly accepted as legitimate for the Court to consider the actual result as well. While that doesn’t necessarily override legal issues, the court always asks. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 12, 2012, 8:07pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/36 "2012-01-12T20:07:04Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Only Roberts did that. OK, so let’s talk about Roberts. It seems as if he thinks the need for profanity free channels justifies federal intervention. Is that a constitutional argument? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 12, 2012, 8:15pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/37 "2012-01-12T20:15:44Z")
> [@Fear\_Itself](#): > > OK, so let’s talk about Roberts. It seems as if he thinks the need for profanity free channels justifies federal intervention. Is that a constitutional argument? It’s a public policy argument. As **smiling bandit** notes, the Court often has to consider public policy in reaching its decisions. It’s in the reasoning behind Brown v. Board of Education, for example; there was nothing inherently unequal about segregated schools, but _in practice_ schools for colored children were always shitty. The court won’t decide something solely based on public policy, but when they’re balancing competing constitutional provisions - like most of the time - it can add weight. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 12, 2012, 8:33pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/38 "2012-01-12T20:33:45Z")
> [@Fear\_Itself](#): > > OK, so let’s talk about Roberts. It seems as if he thinks the need for profanity free channels justifies federal intervention. Is that a constitutional argument? There is nothing unconstitutional about Roberts offering opinions about public policy in rendering a decision based on constitutional principles. These are the top American judges, who create precedent and whose decisions are used across the country by the inferior courts. These aren’t paper stamping magistrates operating in Podunk County Municipal Court, they aren’t expected or required to follow any rigid rules of behavior or prohibited from interjecting personal observations. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [January 12, 2012, 8:37pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/39 "2012-01-12T20:37:18Z")
> [@septimus](#): > > A question is: Does the Congress even have the right to regulate airwaves? Cite from constitution? Yes: > [@Article I](#): > > To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; The law that establishes the FCC elaborates: > [@47 U.S.C. § 151](#): > > For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter. This was passed in 1934 so you can assume it has withstood some testing. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [January 12, 2012, 8:38pm UTC](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113/40 "2012-01-12T20:38:47Z")
> [@Martin\_Hyde](#): > > There is nothing unconstitutional about Roberts offering opinions about public policy in rendering a decision based on constitutional principles. I did not mean to suggest his argument was unconstitutional; only that it did not address the constitutionality of the law in question. [Previous page](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113.md?page=1) [Next page](https://boards.straightdope.com/t/roberts-scalia-oppose-the-invisible-hand-of-the-market/609113.md?page=3)