Last week, TechFreedom filed comments in response to the Federal Communication Commission’s (FCC) Notice of Inquiry (NOI) on whether any changes can or should be made to the current ratings system. The Commission has no authority to ask such a question, let alone do anything about it. How lawful content is labeled is a matter for private actors to decide, not the government.

“The Commission has no authority for this inquiry,” said Berin Szóka, President of TechFreedom. “The Telecommunications Act of 1996 allowed the Commission to create TV ratings guidelines for sexual, violent, or other indecent material only if it found, within one year, that the television industry had failed to adopt an adequate voluntary ratings system—a finding it never made. While agencies can typically revisit past decisions, this law gave the Commission only a narrow, one-time authority to make a specific finding within a specific time window. If Congress had intended the Commission to have discretion to revisit this question, to trigger an amendment to the U.S. Code years or even decades later, it would have said so—expressly.”

“This inquiry is offensive to the First Amendment,” warned Szóka. “Parents have many tools to determine whether television content is appropriate for their children; such information is often freely available online. Parents have every right to make their own decisions about content for their own children. But the government has no right to make such choices; it does not get to slap warning labels on protected speech, even if some parents would prefer it to do so. This Notice is a thinly veiled coercive threat against speech disfavored by the Commission. The Commission should leave this area of fraught, complex, First Amendment protected speech alone.”

“That the Commission contemplates only labeling speech does not change the analysis,” concluded Szóka. “Labeling is a form of compelled speech, which the government has extremely limited ability to mandate. Even if the Commission never prescribes its own rating guidelines, this inquiry will chill speech about politically controversial topics around gender identity. Warning parents that ‘gender identity themes’ might be present in children’s programming implicitly suggests that the Commission considers some gender expressions inappropriate for children.”

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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