BOB GARFIELD: Ever since the Janet Jackson "boob incident," calls to rid TV of indecency have been getting more common, to the point that some lawmakers are even hinting at regulating cable. Programmers have rallied in response to the widening indecency crackdown. This week, a coalition of groups backed by NBC, Viacom and News Corp launched TV Watch, which opposes new content legislation. And the group has released a new poll suggesting that a vast majority of Americans favor personal responsibility over more government regulation. Adam Thierer is a member of TV Watch and director of the Center for Digital Media Freedom. Adam, welcome to the show.

ADAM THIERER: Thanks for having me.

BOB GARFIELD: I just want to begin by asking you to review the arguments for regulation, because they aren't necessarily un-compelling.

ADAM THIERER: The argument is that cable and satellite have essentially become more popular in our society, and because they are that popular, they are more pervasive, and once they become pervasive, it triggers a different type of constitutional analysis first found in the famous 1978 Pacifica case that governed broadcasting that said, because broadcasting was a uniquely pervasive influence in our lives, and uniquely accessible to children, that essentially the government could treat broadcasters differently than any other type of media outlet. And therefore, the argument would be, why not treat cable and satellite like that, in light of the fact that they are now just as popular, if not more popular than broadcast television, radio and the like.

BOB GARFIELD: You say there's a difference between popularity and pervasiveness. What do you mean?

ADAM THIERER: Well, the argument that popularity equals pervasiveness is a troubling one. In the specific case of cable and satellite, when 85 percent of American households decide to voluntarily bring these subscription-based services into the home, that should count for something. After all, these services aren't free. Once parents do that, they should bear a great deal of responsibility over what their children see or hear with that media, and that really is what this debate comes down to - a question of: is this pervasiveness rationale going to dominate, or is parental and personal responsibility going to dominate?

BOB GARFIELD: Everybody wants to protect children. Nobody can argue against that, but virtually all the well-meaning legislation passed to date to limit their exposure to smut on the internet has been overturned by the courts, has it not?

ADAM THIERER: That's correct. And that's because the courts have said - look, with these new technologies, parents have all new sorts of controls that empower them to screen or filter things that they don't want their children to see. And it's even more the case when it comes to cable and satellite television. Parents have various types of set-top boxes with password protections in them. They have the ability to use the V-chip, and then of course you have these new technologies like TiVos or personal video recorders which give you the ability, as I do with my children, to create your own personal library of programming that you think is appropriate for your kids, and then only let them watch that. So, these are sort of redundant sets of controls now available to parents that the courts would look at and say this is a quote/unquote "less restrictive means" of filtering programs than the more clunky, ham-handed types of government censorship we've seen for broadcasting.

BOB GARFIELD: All right. Well, let's talk about that ham-handed kind of censorship. Why has broadcast been exempted from First Amendment protection?

ADAM THIERER: One argument is that - is because it's licensed - the spectrum is doled out by the federal government, and only so many people get to use it. A second argument is, is that it's scarce, and therefore, because only so many people can use it, different standards should apply. And then third argument is the pervasiveness argument - the notion that it's so utterly ubiquitous and accessible to all Americans, especially children, that it should be regulated differently.

BOB GARFIELD: Well, given the fact that cable does not take place over the government-owned and controlled broadcast spectrum, even if some legislation is passed in Congress, is there a chance in hell that it will survive even the first court challenge?

ADAM THIERER: I think there's a very slim chance that cable would be found to be under the government's control in terms of censorship or indecency regulations. The best argument in favor of regulating broadcast differently has always been that, quote/unquote, "it's an invader into the home," the idea that broadcast signals come right through the walls of your house, and are played right over your television or radio set. Well, you know, even that argument's been a little fuzzy, cause those radios and televisions just didn't have legs and magically walk into our homes or cars. We put them there or accepted the fact that they were there. But you apply that logic - the "invader in the home" logic - to cable and satellite or any other new media technology, and it completely breaks down. Moreover, there are all these new technological controls that enable us to privately censor or filter what we don't want our children to see or hear. And that, I think the courts will say, is the end of the story. But here's the really interesting question. Would the courts go one step further and say that this entire indecency regime or all of the old standards that have applied to broadcasting now are gone as well, precisely because we live in a world of media convergence where we can get the same types of programming increasingly over cable, over satellite, over a cell phone, and over broadcast television and radio. The courts might look at this and say - we need to think about media comprehensively as a playing field that's been leveled, and we need to therefore level the law accordingly and treat all media equally in the eyes of the First Amendment.

BOB GARFIELD: Adam, thanks so much for joining us.

ADAM THIERER: Thanks for having me.

BOB GARFIELD: Adam Thierer is senior fellow at the Progress and Freedom Foundation and director of its Center for Digital Media Freedom.