This morning’s Washington Post is reporting that the Federal Communications Commission is days away from proposing an unprecedented expansion of government regulation of entertainment broadcasting:

Federal regulators, concerned about the effect of television violence on children, will recommend that Congress enact legislation to give the government unprecedented powers to curb violence in entertainment programming, according to government and TV industry sources. The Federal Communications Commission has concluded that regulating TV violence is in the public interest, particularly during times when children are likely to be viewers — typically between 6 a.m. and 10 p.m., FCC sources say. The agency’s recommendations — which will be released in a report to Congress within the next week, agency officials say — could set up a legal battle between Washington and the television industry. For decades, the FCC has penalized over-the-air broadcasters for airing sexually suggestive, or “indecent,” speech and images, but it has never had the authority to fine TV stations and networks for violent programming. The report — commissioned by members of Congress in 2004 and based on hundreds of comments from parents, industry officials, academic experts and others — concludes that Congress has the authority to regulate “excessive violence” and to extend its reach for the first time into basic-cable TV channels that consumers pay to receive.

As the article goes on to point out there are several problems with what the FCC is proposing that should concern anyone who believes in freedom of speech and property rights.

First of all, just how do you define “excessive violence” ? Are we talking about Jack Bauer’s torture scenes on 24 ? What about the very life-like dead bodies we see on a regular basis on Law & Order and CSI ? For that matter, what about the autopsy scenes on shows like CSI ? Yes, these shows are excessive, but in each one of them, the violence isn’t gratuitous, it’s a part of the plot and often — as in the case of torture scenes on 24 that seldom yield useful information — make a point completely opposite from what you might initially think.

And even if you can come up with a constitutionally acceptable definition of violence, how do you objectively determine what’s excessive ? You can’t, of course, because the question of what is and isn’t excessive is entirely subjective. What I think is excessive will be different from what you think is excessive. In a way, it’s even worse than trying to define what is and isn’t obscene, which has led to an entire generation of Supreme Court litigation.

But there is another problem with what the FCC proposes. Essentially what the regulators of the FCC are saying is that you and I are incapable as parents, guardians, or family members from deciding what is appropriate for children (and apparently are also incapable of using the off button or channel changer on the remote control).

Adam D. Thierer, a senior fellow at the Progress & Freedom Foundation who writes extensively on government regulation of the media, said the answer to preventing children from seeing violent content is in the hands of the parents — literally. “There are more ways to control violent and objectionable content on cable and satellite television than ever before,” Thierer said. “Every single set-top-box technology on the market has some sort of parental-control mechanism embedded in it.”

Where is the evidence that the government can do a better job than parents at monitoring what children watch and limiting their access to inappropriate material, whether it’s violent or not ?

Fortunately, it doesn’t appear that anything on the scale of what the FCC is proposing would pass muster in the Courts:

Thierer said that if Congress were to pass laws that empower the FCC or another agency to regulate basic-cable channels for violent content, they likely would not stand legal challenges brought by the cable industry. He drew an analogy to local and federal attempts to regulate violent content in video games, which — like cable and satellite television — do not come into the home free over the airwaves. “Every single one of them was struck down as unconstitutional,” Thierer said. Further, in 2000 the Supreme Court struck down part of the Communications Decency Act that required cable operators to scramble or block the Playboy Channel, saying such methods are unconstitutional.

Of course, that’s the same thing people were saying about McCain-Feingold and looks what happened there.