FCC's O'Rielly Warns That Children's TV Rules Could Go Away

Federal Communications Commissioner Michael O'Rielly suggested the agency's children's video rules might be unconstitutional. He said a good case could, and had been, made that the rules are an abridgement of broadcasters' speech rights, and thus illegal. 

"It has been argued that the FCC's children's programming requirements imposed on our nation's broadcasters...raise legitimate First Amendment concerns," he said, adding that despite "tremendous" competition and options in children's programing, the commission still maintains extensive requirements that broadcasters must adhere to," including the three-hour requirement. He said many legal scholars have argued that the rules and perhaps even the underlying statute [the Children's Television Act of 1996] are content-based restrictions not narrowly tailored to further a compelling government interest and therefore fun afoul of the First Amendment," which is legal scholar speak for "they don't meet the high bar for carveouts from Free Speech protections."

He also warned that some government-run broadband networks impose speech codes in their terms of service agreements that constitute content-based restrictions that also do not pass muster under the "strict scrutiny" test for speech regulation.