Roberts, Scalia oppose the invisible hand of the market

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.

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.

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.

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.

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).

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.

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.

Ah. Thanks.

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.

This is a perfectly reasonable thing to envision. It’s also the job of Congress to decide, not the Supreme Court.

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.

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?

Only Roberts did that.

Just hypocrites. Unless one argues that their job is to vote for what they favor.

Incidentally, a tariff on the use of airwaves would be a convenient and very fairish way to raise revenue.

A question is: Does the Congress even have the right to regulate airwaves? Cite from constitution?

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.

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.

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.


The law that establishes the FCC elaborates:

This was passed in 1934 so you can assume it has withstood some testing.

I did not mean to suggest his argument was unconstitutional; only that it did not address the constitutionality of the law in question.