Patrick Trueman, president of Morality in Media,

thinks my column
mocking his demand that the Federal Communications Commission
protect his “right to decency” was “hysterical”—and not in a good
way. Trueman argues that “liberty simply does not, and cannot,
exist without moral restraint,” which in turn requires government
restraint on liberty, such as the FCC’s rules about the content of
broadcast programming. More liberty, in other words, requires less
liberty.

In case you don’t buy that counterintuitive claim, Trueman also
compares airing things that offend him to burglary. He says hearing
Cher curse on a music awards show or catching a glimpse of
Charlotte Ross’ butt on NYPD Blue is like finding an
intruder “standing in our living rooms when we get home, shouting
the f-word or taking their clothes off.” I perceive an important
distinction here that seems to elude Trueman: While the noisy or
naked stranger in the living room has violated someone’s property
rights by entering his home without permission, Cher and Charlotte
Ross appear only by invitation. That is, you will not hear or see
them unless you 1) buy a television set, 2) turn it on, and 3) tune
in to a particular program at a particular time. Neither
the Billboard Music Awards nor NYPD
Blue is forcibly thrust upon anyone.

Because TV viewers can be offended by what they hear or see only
after they voluntarily assume that risk, the Supreme Court’s
invocation of “the right to be left alone” in
FCC v. Pacifica Foundation, the 1978 decision that upheld
the ban on broadcast indecency, never made much sense. It makes
even less sense now that people commonly face exactly the same risk
from other media (cable, satellite, Internet) that, according to
the Court, could not be subject to similar content regulation
without violating the First Amendment. Trueman offers no
justification for this puzzling constitutional distinction. Instead
he doubles down on the notion that the government is protecting our
“right to be left alone” when it punishes broadcasters for
“patently offensive” references to “sexual or excretory activities
or organs.” To firm up that argument, he quotes Justice Louis
Brandeis’ famous dissent from the Court’s 1928 decision
in Olmstead
v. U.S., which rejected a Fourth Amendment challenge to
warrantless wiretapping. Brandeis observed that the Fourth and
Fifth amendments “conferred, as against the government,
the right to be let alone—the most comprehensive of rights and the
right most valued by civilized men” (emphasis added). Somehow
Trueman reads this plea for freedom from government intrusion as a
justification for government restrictions on what people are
permitted to watch in the privacy of their living rooms.

For Trueman, the bottom line is that “some television content
should be available and acceptable to all, including
families, but if the government cannot regulate indecent content on
broadcast television, it will not be.” As the father of three
girls, two of whom are young enough that my wife and I still
restrict their TV consumption, I am sympathetic to the first part
of that statement, but I know the second part is simply not true.
Most of the programs that we let our daughters watch do not come
from broadcast channels, and in deciding what is appropriate for
our kids, we do not rely at all on the FCC’s regulations;
we do the regulating. Our daughters are not allowed
to watch the FCC-approved Family Guy, for
instance, but they are allowed to watch Phineas and
Ferb, which appears on a cable channel that is not subject to
the FCC’s rules. As long as there is a demand for kid-friendly
entertainment, there will be a supply, and there are more such
options today than ever before, no thanks to the FCC. So why abuse
logic, freedom, and the Constitution to maintain an arbitrary
distinction that serves no useful purpose?