FCC, Meet the Constitution

I bring up the FCC because of this good news; Obama just named Susan Crawford, a strong advocate for the internet and net neutrality, his administration's co-lead on the FCC transition. Apparently, Crawford believes that internet access should be considered a "utility" - under which circumstances telecom companies would be held responsible for providing it faithfully, just as gas and electric companies are currently. I actually think a friend of mine made remarks very much to this effect this some months ago, remarks I dismissed as foolish - maybe he's prescient.

Mentioning the FCC, though, always makes me want to ask: how have the FCC's market-oriented policies never been labelled unconstitutional?

Now, just to be clear, I am absolutely not asking how a body like the FCC came to have the powers it does. I know how that happened: we're a puritanical nation run by anxious, busybody mothers who can't stand the idea that their children might be exposed to a four-letter word before they turn 18. I'm also not asking what practical purpose is served by the FCC; I guess you probably do need a body to regulate, you know, unlawful use of closed frequencies or unauthorized access to flux capacitors or something (it may be clear, in retrospect, that I don't really get what the FCC does). What I'm asking is how none of their "indecency" fines have ever been challenged and brought before the Supreme Court.

I mean, let's put this into perspective. Under the current censorship law (I can't think of anything else to call it), 2005's Broadcast Decency Enforcement Act, the FCC is empowered to impose something like a $325,000 fine on every "indecent" act or speech in a public broadcast - that includes anything from a "wardrobe malfunction" to an f-bomb. In what possible way is that not a violation of free speech and free press? Isn't the very purpose of the Bill of Rights to ensure that Dan Rather can get on the evening news and tell me to fuck my mother without getting anything but fired?

You know what, this point seems so self-evident, I'm hard-pressed even to elaborate further. How has censorship not been seriously challenged in a country that claims it has anything like free speech?