As I mentioned the other day in response to an article by Reason's Jesse Walker, I think it's right and appropriate that we have broadcast content rules, and believe it's the FCC's job to develop and enforce them.

Jesse's key philosophical statement is this:

Now as far as I'm concerned all this is an open-and-shut issue of free speech, disturbing not just because it puts a Washington agency in charge of what you're allowed to say and show on radio and television but because it has an obvious chilling effect on material that isn't nearly as pathetic as Bubba the Love Sponge's sophomoric jokes or Justin Timberlake's dance routines.

....And so we're stuck with an FCC increasingly obsessed with controlling who can use the airwaves and what they're allowed to say. If that sounds unobjectionable to you, just wait until it's your ox that's getting gored.

very specific rules about what can be said and done when, would clarify this. Radio is different from TV, and there should be wide variation on what is permissible depending upon the time of day and the basic nature of the programming: no one expects NYPD Blue to be Sesame Street, but set the rules and penalties sufficient to ensure maximum compliance so that the public does not feel violated. That's the issue here, and there is no one else to protect the public from said violation than the FCC. Walker's Libertarianism does him a disservice here.

To which he replied by email:

it's not my libertarianism that's serving me poorly here: I was opposed to indecency regs even when I was a junior high school liberal. But you don't explain just *why* you think there should be a public-airwaves exception to the First Amendment. Bubba the Love Sponge is a cultural low point, but how does it hurt anyone (except that pig he killed) to let him do his schtick behind a microphone? (And aren't kids supposed to be in school at 10:30 anyway?)

I'd love for there to be more alternatives to witless shock jocks, but I'm not interested in driving them off the airwaves. And even if I were, I don't think it would do much good. They're a product of the culture, not a cause of it.

We have a clear philosophical difference here. Walker believes the First Amendment should be absolute, even as applied to the public airwaves. I disagree: the First Amendment is never absolute anyway, given its broadest reading as applied to political speech and religious expression, but there are all kinds of restrictions on speech depending upon the arena, intent, and nature of the speech. Most school kids know that yelling "fire" in a crowded theater - the cliche case - is not protected speech: the dangers outweigh the right in this and many other similar cases.

The airwaves are a special case for several reasons: 1) they are finite and limited. The campaign to greatly open up the electromagnetic spectrum to "public licensing that acknowledges emergent and non-interfering technologies" notwithstanding, there are a limited number of "spots" available on the spectrum, and those spots should best serve the needs of the general public.