Janet Jackson, Democracy, and the Broadcast Flag
Lauren Gelman has written an excellent essay, at FindLaw, looking at the implications of the broadcast flag for innovation and for democracy. She uses the example of the Janet Jackson superbowl brouhaha. After the infamous wardrobe malfunction, many people uploaded the image to the Internet, blogs, etc., and this likely played a role in generating much of the controversy and debate over the incident. This debate then, in turn, led to a broader national debate on broadcasting and decency, which then has led to policy changes. In other words, democracy in action (even if it's not quite around the issue of media reform that she or I would personally have rallied behind). With a sufficiently strong broadcast flag regulation, in a few years time this might not be possible.

I really appreciate Gelman's essay for clearly and concisely laying out much of what is at stake here.

I'm no fan of increased regulation of speech, but the controversy had at least a small silver lining: It served as a demonstration of the power of innovation to promote the democratic process. In this case, the innovators were the entrepreneurial companies that harnessed the open nature of the Internet to enable users to easily capture, transfer, upload, post, and search for the TV clip.

Even those who missed the game could, because of these companies, easily watch and talk about the incident that was about to be a catalyst for major policy changes at the FCC. Their technologies thus enlarged the marketplace of ideas and influenced public debate.

Shouldn't government be doing all it can to support technologies and companies that enhance democracy like this? I believe the answer is yes.

But to the contrary, the Federal Communication Commission (FCC) is currently considering new technology regulations that would halt innovation in technologies that capture, manipulate and transfer digital television.

FindLaw's Writ - Gelman: The Silver Lining of the Janet Jackson Incident