MayerBlog: The Web Log of
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Abolish the F*CCing FCC!
The Federal Communications Commission (FCC), created by the Communications Act of 1934, is a relic of FDR’s “New Deal” program of the 1930s. Like other New Deal-era relics – Social Security, the federal minimum-wage law, the Davis- Bacon Act, the Robinson-Patman Act, and many, many other government programs – the FCC has long outlived the circumstances that justified its creation, if it was ever justified. From its inception the FCC’s very existence violated the clear mandate of the First Amendment, which provides: “Congress shall make no law . . . abridging the freedom of speech.” As Jim Powell points out in his splendid book FDR’s Folly: How Roosevelt and His New Deal Prolonged the Great Depression (2003), the FCC “ . . . granted monopolies to a comparatively few broadcasters, while retaining the power to control speech. Broadcasting monopolies were granted via broadcast licenses and the FCC’s licensing decisions were based not just on a broadcaster’s resources, but also on the FCC’s approval of a broadcaster’s programming. In 1940, for instance, the FCC issued a ruling, known as the `Mayflower Doctrine,’ against editorializing. It said `the broadcaster cannot be an advocate.’ This policy prevailed until 1949 when the FCC adopted the `Fariness Doctrine.’”
(FDR’s Folly, pp. 233-34.) Today – in a world that is vastly different from 1930s, in which technological change has rendered obsolete all the circumstances cited in justification of the FCC’s regulatory power – the Commission continues to censor speech and thereby abridge Americans’ First Amendment rights. One of the chief ways in which the FCC censors speech today is through its enforcement of federal law and regulations banning so-called “indecency” from the airwaves. It’s ironic that at the very time we’ve been reminded of the FCC’s censorship of “indecent” speech – the two-year anniversary of Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl – the news also has been full of stories reminding us how little free speech is valued by radical Islamists, our enemy in the war against terrorism. The reaction of radical Islamists outraged over the publication in Danish newspapers of cartoons depicting the prophet Muhammed – which recently sparked violent protests across the Muslim world – offers an opportunity to consider what ought to be a clear difference between our public policy and that of the radical Islamic theocracies. The cartoons depicting Muhammad that some radical Islamists find so offensive are, in fact, classic examples of material that, in the legal systems of the United States and most Western nations, is constitutionally-protected free speech. Robert Bidinotto notes this in his excellent commentary on “Islam and those `offensive’ cartoons,” where he distinguishes mere iconoclasm, or “gratuitous insults against the religious,” from the genuinely serious message that the Muhammed cartoons convey: radical Islam’s assault on human liberty, or what Bidinotto aptly calls “the Islamofascist war against freedom of speech.” Although there are profound differences between the Islamofascists and America’s would-be “decency” police (FCC bureaucrats, members of Congress, and special-interest groups like the Parents Television Council) who would have the U.S. government, through the FCC, censor “indecent” speech, one might argue that the difference is only in degree, not in kind. Both types of fascists would censor speech they consider offensive; both would deny to others their freedom of expression. It’s not just in its regulation of “indecent” speech that the FCC abridges free expression, however. The Commission’s “structural” regulations of the telecommunications industry – again, based on theories of private “monopoly” that have no relevance to market conditions today – also have had adverse effects on the quantity, quality, and diversity of programming and have, in the opinion of many industry experts, virtually “killed” the telecommunications industry. The FCC is obsolete and ought to be abolished. And yet Congress, remarkably, is considering legislation that would expand its powers – which is still more evidence of how far members of Congress, of both major political parties, are out of touch with reality.
The FCC’s War on “Indecent” Speech
Two years ago, during the halftime show at the 2004 Super Bowl, Janet Jackson’s infamous “wardrobe malfunction” ignited a national debate on so-called “indecency” in the media. That debate, in turn, has resulted in a crackdown by the FCC on what can be shown and heard on television and radio, as well as Congressional legislation increasing the fines that the FCC can impose on broadcasters of “indecent” programming. In case you’ve forgotten, on Feb. 1, 2004, near the end of the halftime show of Super Bowl XXXVIII, after pop singers Janet Jackson and Justin Timberlake had strutted their stuff, the performance ended with Timberlake ripping off the right side of Jackson’s latex bustier, briefly exposing her breast, pierced with an elaborate nipple ring. Among the people who were appalled was Greg Turner, a 36-year-old married man with two young children, of West Bloomfield, Michigan. According to a feature story last January in the Detroit News, Turner said, “I was quite disgusted.” His wife, Deborah, “broke into prayer,” the men at his Super Bowl party grabbed cell phones to call friends, and his children stared blankly at the TV while Turner launched into a speech about morals directed at his kids. “They’re at that age when they quickly dismiss whatever an adult has to say, but I kept talking anyway, telling them that what Justin and Janet did was very inappropriate.” Some 540,000 other people, who filed complaints with the FCC, apparently agreed. (“TV decency debate tests America’s moral limits,” Detroit News, Jan. 16, 2005.) How “disgusting” the incident was – whether it was an intentionally provocative act or, as Jackson later claimed, a “wardrobe malfunction” – of course, depends on the eye of the beholder. Although thousands of viewers, like Mr. and Mrs. Turner, were disgusted and appalled, no doubt other viewers – at least as many, if not more, I’d suggest – were amused or perhaps even delighted. (One might even say “titillated,” if you’d pardon the pun.) If I were the parent of young children, I’d be more concerned about their viewing the violent physical play of the game itself than the brief flash of a female breast – which, considering how Jackson’s nipple ring obscured it, was actually less revealing than the costumes of a couple actresses who played Cleopatra in Hollywood films in the 1920s and 1930s (as I mentioned in my previous posts on this topic, “Indecent Regulations,” Feb. 3, 2004, and “More Indecency,” Feb. 10, 2004). Yet this harmless flash of partial nudity set into motion a series of events, involving this and other controversial radio and prime-time TV broadcasts and repercussions, including the FCC’s crackdown on so-called “indecency.” As a direct result of the outcry following the Super Bowl “wardrobe malfunction,” the commercial TV broadcast networks instituted tape delays of live broadcasts: CBS used a five-minute delay for the Grammy Awards in February 2004, while ABC imposed a five-second delay of the Academy Awards the same month; ABC continued using a five-second delay during last Sunday night’s broadcast of Super Bowl XL (including the Rolling Stones’ halftime show). For the Janet Jackson incident, the FCC eventually slapped CBS and Viacom-owned affiliates with a $550,000 fine, at that time the largest penalty brought against a broadcaster. In October 2004 the FCC levied a $1.2 million fine – the highest fine ever (so far) against a broadcaster – against Fox, for what the Commission considered graphic lewd material on the network’s reality show “Married by America.” (The show included scenes from Las Vegas bachelor and bachelorette parties featuring strippers and sexual situations.) In April 2004 Clear Channel Communications, the nation’s largest radio broadcasting company, yanked radio “shock jock” Howard Stern from six of its stations for “vulgar and offensive” language, including use of the “N-word,” for which the FCC fined Clear Channel $495,000. Clear Channel later dumped Stern, who has since made a well-publicized (and financially lucrative) switch to Sirius Satellite Radio (which is not regulated by the FCC). Clear Channel also fired a Howard Stern wannabe, Todd Clem (known as “Bubba the Love Sponge”), for “indecent” sexual material aired on his show in St. Petersburg, Florida, after he cost the company more than $750,000 in fines. (One interesting additional development resulting directly from the FCC crackdown on indecency ought to be noted: It has helped make Howard Stern one of the wealthiest radio talk show hosts in the U.S. When Stern decided to move to Sirius Satellite Radio, his five-year deal included 34 million shares of stock in the satellite broadcast company that were originally projected to be worth about $100 million per year starting in 2006. But Stern’s popularity has enabled Sirius to exceed its targets for new subscribers; and all those new subscriptions to Sirius have doubled the value of Stern’s stock, now estimated to be worth nearly $220 million. As the old saying goes, “Money speaks louder than words.” The huge windfall to Stern and to Sirius Satellite Radio eloquently speaks to the value of Stern’s show to his listeners – people who obviously like his frank talk, however “indecent” some people might regard it. Just as the laws of other states that criminalize gambling have made Nevada casinos lucratively profitable, the FCC’s power to fine “indecent” speech on the airwaves has helped launch what some observers call a “radio revolution”: the rise of satellite radio, unshackled by FCC regulations.) The FCC crackdown has had, arguably, an even greater indirect effect: the “chilling effect” it has had on nervous broadcasters who, fearful of hefty FCC fines, have pulled controversial material off the airwaves. For example, one month after the FCC’s record $1.2 million fine on Fox for “Married by America,” 65 out of 225 ABC stations refused to air a Veteran’s Day presentation of the World War II epic Saving Private Ryan, fearing that the soldiers’ language (including use of the “F-word” and other swear words) in the movie might prompt FCC fines. (Interestingly, there were relatively few complaints filed with the FCC after the movie’s broadcast: most Americans, apparently, understood the appropriateness of the language in the context of the movie.) At last year’s Super Bowl XXXIX, viewers didn’t see veteran actor Mickey Rooney in a TV commercial, because Fox’s censors rejected a cold-tablet ad in which Rooney, 84, bared his butt. In a mid-November 2004 skit that aired before ABC’s “Monday Night Football,” “Desperate Housewives” co-star Nicollette Sheridan dropped a towel and exposed what seemed to be her nude body to Philadelphia Eagles wide receiver Terrell Owens; the ensuing controversy – which involved 50,000 complaints to the FCC over not only the sexuality but also apparently “offensive” or “stereotypical” racial and gender taboos – led to an apology by both Owens and ABC, which (needless to say) never repeated the skit. In early 2005 Fox even blurred an image of a cartoon baby’s behind on repeats of “Family Guy,” even though the scene aired unaltered and without complaint four years previously. And among the ads which did not air during last Sunday night’s Super Bowl XL were several versions of a commercial by GoDaddy.com (an Internet domain licensing site) which sponsors feared might be too sexually provocative. (The ad, which followed up on a controversial ad that did air during last year’s Super Bowl, showed a busty young woman in a tank top being grilled at “Broadcast Censorship Hearings,” when her strap snaps and nearly exposes her breast. Last year, Fox aired the ad during the first half of the game but pulled its rerun, scheduled for the fourth quarter, when the NFL voiced some concerns. As one of the spot’s creators noted, “We poked fun at censorship and guess what? We were censored. It’s kind of scary.”) Meanwhile, Congress is considering legislation (legislation, incidently, that has bipartisan support) that would give the FCC even more draconian powers to punish “indecent” speech. About a year ago, the U.S. House of Representatives, by an overwhelming 389-38 vote, approved legislation that would allow the FCC to fine broadcast companies and individual entertainers as much as $500,000 per incident for violating decency standards, a substantial hike in the then-existing ceilings ($32,000 for a company and $11,000 for an individual). The House bill also would require regulators to consider revoking a broadcaster’s license after three violations of indecency rules within eight years – the so-called “three strikes” provision. On the Senate side, the companion bill sponsored by Sen. Sam Brownback (R.-Kan.) would cap fines at $325,000 per broadcast incident, with a ceiling of $3 million for repeat offenders. The bill, known as the Broadcast Decency Enforcement Act of 2004, died when Senator Fritz Hollings (D.-S.C.) attempted to add violence to the list of proscribed material. However, both the House and Senate bills were reintroduced in the 109th Congress, along with even more far-reaching proposals. Senator Jay Rockefeller (D.-W.Va.) is the sponsor of a Senate bill that would boost the top fine to $500,000, extend indecency rules to cable and satellite, and allow the government to regulate television violence for the first time. And last spring, Rep. Joe Barton (R.-Tex.) and Sen. Ten Stevens (R.-Alaska) announced they would support legislation to extend indecency regulations from broadcast to cable and satellite channels, including premium channels such as HBO, while Senators Jay Rockefeller and Kay Bailey Hutchison introduced the “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005,” which would cover violence and indecent speech on nonbroadcast media as well. Opponents have warned that such legislation would chill constitutionally-protected speech and lead to more self-censorship by broadcasters, such as the Saving Private Ryan incident. As the socialist congressman from Vermont, Rep. Bernie Sanders (with whom I seldom agree), noted, “Free expression and Americans’ First Amendment rights are the real target of this legislation.” He added, “Ironically, we already have television stations refusing to air a film about the sacrifice of America’s `Greatest Generation’ to preserve freedom because of the danger of the arbitrary fines that the FCC imposes under its overly vague so-called indecency standards.” One result of the FCC crackdown has been that Americans, who already have a world-wide reputation for being uptight prudes, have seemed to become even more prudish – which is to say, even more repressive, and repressed, when it comes to frank expressions of nudity, sexuality, or bodily functions – when compared to other Western societies, especially in Europe. (Anyone who has viewed European television – even the programming of the relatively staid British – knows how bland American television is, in comparison. The irony is that we have constitutional protections for freedom of expression, while many European countries do not. Nevertheless, our broadcast television and radio programming, in many respects, is less free.) For example, many U.S. viewers of the Athens Olympics’ opening ceremonies in August 2004 complained about a parade of actors, in tight-fitting body suits, portraying nude statues. The FCC said it would investigate; meanwhile, the Games’ chief, Gianna Angeleopoulos-Daskalaki, wrote an angry commentary in the Los Angeles Times, angrily warning U.S. regulators to back off from policing Greek culture. “As Americans surely are aware, there is great hostility in the world today to cultural domination in which a single value system created elsewhere diminishes and degrades local cultures,” she wrote. I can assure Ms. Angelopoulos-Daskalaki that many Americans, myself included, are equally hostile to “cultural domination” by the kind of prudes who complain to the FCC – as I discuss below. Prior to the 2004 Super Bowl incident, the FCC, under its former chairman, Michael Powell (son of former Secretary of State Colin Powell), had been emphasizing deregulation. As one expert quoted in the 2005 Detroit News feature story noted, “Before Janet [Jackson] and her breast, [former FCC chairman] Michael Powell repeatedly said the radio market should regulate himself. After the breast, Michael Powell did a 180 and fines started flying.” Indeed, many communications lawyers have perceived erratic enforcement by the FCC of indecency standards, especially during Powell’s watch. For example, in October 2003 the FCC’s enforcement bureau determined that an expletive spoken by rock star Bono during NBC’s January 2003 broadcast of the Golden Globe awards was not indecent. However, in March 2004, the agency reversed itself, finding the comment to be indecent, even though it declined to fine NBC, ruling that the network had not been put on notice that airing profanity violated federal indecency standards. And in late January 2005, shortly before Powell announced his resignation, the FCC rejected 36 complaints, all generated by the Parents Television Council, a conservative advocacy group that has led the fight against indecency. (Its Web site allows visitors to file complaints with the FCC via e-mail, which is cited as a prime reason for the surge in indecency complaints from 202,000 in 2003 to 1.1 million in 2004.) In rejecting the complaints – which concerned language used on episodes of “NYPD Blue,” “Dawson’s Creek,” and “Boston Public,” as well as characters talking about sexual situations in episodes of “Friends,” “Will & Grace,” and “scrubs” – the Commission issued a statement that the incidents cited, in context, were not “patently offensive under contemporary community standards for the broadcast medium, and thus not indecent.” Not surprising, a Parents Television Council spokeswoman responded that it was “outrageous” that the FCC did not act on the complaints, citing the Commission’s 3-2 split decision as evidence of Mr. Powell’s “poor leadership,” in the organization’s view. When Powell submitted his resignation to President Bush in late January 2005, he said in an interview with The Washington Times that he was uncomfortable waging war on indecency because regulating television and radio content clashed with his belief in free speech. Powell’s successor, Kevin J. Martin, is a conservative Republican who apparently does not share these scruples. Martin, a lawyer who worked on the Bush-Cheney transition team, was appointed by President Bush to the FCC in 2001. He was endorsed to succeed Powell by the Parents Television Council, the conservative watchdog group (he was one of the two Commissioners who dissented from the FCC’s January 2005 dismissal of the PTC’s complaints), and he has consistently voted for the indecency fines the FCC has proposed in recent years, often issuing statements that called for even higher penalties. Martin supports legislation (including a bill sponsored by Senator Ron Wyden (D.-Ore.)) that would require cable companies to offer a so-called “family-friendly” tier of channels, suitable for children to watch, that consumers could choose in lieu of other cable tiers. He also supports a mandatory “a la carte” pricing system, under which consumers who subscribe to a basic tier, which would include broadcast stations and news channels such as CNN, would pay only for channels they want – so parents could reject “racy” channels such as MTV or Comedy Central. Not only would such a mandate give the FCC unprecedented power to dictate how businesses market their products to consumers, it also would imperil cable channels (including entertainment and educational channels like A&E or the History Channel) that depend on widespread carriage by cable systems for advertising revenue. “A la carte” pricing would be the death knell for many small cable channels that are now bundled with other channels. The government controls that FCC Chairman Martin supports would result not only in less freedom in broadcasting but also less diversity in programming. What makes his brand of fascism so disgusting is that it’s totally unnecessary. Parents who want to bar their children from viewing channels that they do not regard as “family-friendly” already have a number of ways they can do so without interfering with the freedom of other viewers: they can program their televisions to filter out channels with content they regard as offensive or, better yet, they can simply use the “off” button. Parents who want to police their children’s television can do so already themselves, without asking government to play the part of their nanny – at the price of their neighbors’ freedom. As economic historian Lawrence H. White noted recently on a blogsite, “The power of dictating what TV other adults should watch is never so dangerous as in the hands of those who presume themselves qualified to exercise it.” (White, “Don’t $#@! with my cable TV,” posted 11/30/05 on the “Division of Labour” blog.)
Censoring “Indecency”: A Subjective Standard
The word censorship is derived from the Latin censor, the name for the magistrate in ancient Rome who kept the register, or census, of the republic’s citizens. Steven Saylor, the author of a series of novels set in ancient Rome, has one of his characters – the patrician Senator Lucius Claudius -- describe the office: “The censors don’t just say who’s a citizen and who’s not; they also say what a citizen should be. The privilege of citizenship implies certain moral standards, even in these dissolute days. If the censors put a black mark for immoral conduct by a man’s name in the rolls, it’s serious business.” A Senate member could be expelled. An ordinary citizen could lose his voting rights, have his contracts with the state canceled, or have his license to keep a shop in the city revoked. “That could ruin a man, drive him into poverty.” (Saylor, A Gladiator Dies Only Once: The Further Investigations of Gordianus the Finder (2005), pp. 190-91.) Like their predecessors in ancient Rome, the censors at the Federal Communications Commission are trying to police the nation’s morals, through more rigorous enforcement of “indecency” standards, particularly since 2004. Unfortunately, modern America isn’t the same as ancient Rome: among the essential differences, the United States has no established religion and is a society that is culturally diverse, with limited government and constitutional protections for individuals’ freedom of thought and expression. It is simply not the business of our government whether citizens are or are not “immoral”; neither should it be the business of our government whether certain forms of expression are or are not “indecent.” The FCC defines broadcast indecency as material that depicts “sexual or excretory organs or activities” or that is “patently offensive as measured by contemporary community standards.” The rules are enforced on programs airing when children are more likely to be watching or listening, barring radio stations and over-the-air television channels from airing “indecent” material between 6 p.m. and 10 p.m. (“Obscene” material cannot be aired at any time.) These standards are no less troublesome than the quasi-standards that the U.S. Supreme Court has struggle to create in defining “obscene” materials, thanks to its decisions that “obscenity” isn’t protected by the First Amendment guarantee. (“Indecency,” in contrast, is protected, but the Court has deemed that it may be subjected to time, place, or manner restrictions, as discussed below.) These definitions are inherently subjective – which is to say, they are inherently incapable of having an objective meaning. To subject anyone to criminal penalties for an offense that has no objective definition in the law is to violate not only the First Amendment’s protections for free expression but also fundamental constitutional protections of due process of law. (For more on the inherent subjectivity of “obscenity,” see my previous entry on “The Right to `Pornography,’” in “Supreme Nonsense, Part II,” March 14, 2005.) Former Supreme Court justice Potter Stewart best summed up the subjectivity of taste, albeit inadvertently, when he famously defined pornography by saying, “I know it when I see it.” Of course, it’s not anywhere near that clear – a fact to which the would-be “indecency” police (both the regulators at the FCC, like Chairman Martin, or the special-interest advocacy groups like the Parents Television Council) are apparently oblivious. Zealots, blinded by their own zeal, don’t realize the inherent problem with government censorship of something as subjective as “indecency”: that it institutionalizes what First Amendment scholars call “the hecklers’ veto” – the ability of a minority of offended persons (in this case, those who hold a prudish, Victorian attitude about nudity, language, or sexuality in general) to impose their peculiar views on everyone else, including the majority of people in society who hold more liberal views. As the old saying goes, “The squeaky wheel gets the grease”; and similarly, the prudes who bitch the loudest – like those busybodies at the Parents Television Council – apparently can try to capture the FCC and use it to advance their own agenda. To illustrate the inherent problem of subjectivity – “indecency,” like beauty, being in the proverbial “eye of the beholder” – consider the personal views of Brent Bozell, the bearded “fifth-fighter” and “smut-smasher” who’s president of the Parents Television Council. In an interview with a reporter from Knight-Ridder Newspapers, Bozell admitted that he’s a fan of The Simpsons, the Fox cartoon show that Bozell demanded the FCC bust in 2004 for an episode in which a character, protesting a cut in school-arts funding, held a sign that read: “Don’t cut off my pianissimo.” “I think The Simpsons is hilarious,” Bozell said somewhat sheepishly, “I love The Simpsons. But every once in a while, it just hits you right in the face. . . . It would be a hilarious show without it [the “pianissimo” comment], so why do you do it?” Similarly, Bozell said he liked NBC’s Friends, which he called “a very terrific, extremely high-quality show,” and yet he filed an FCC complaint over an episode about a birthday cake decorated with a frosted penis. Apparently Bozell has a problem with penis references. One wonders how he’d survive in ancient Rome, with its abundant – and entirely socially-acceptable – phallic imagery, due to the worship of the god Priapus. (Then, again, I wouldn’t be surprised to learn that Bozell or his organization has filed a complaint with the FCC against HBO for its Rome miniseries, notwithstanding the Commission’s lack of jurisdiction – thus far – over cable TV.) As I wrote in my February 3, 2004 post on “Indecent Regulations,” “Thankfully, however, prevailing social mores evolve, and American society has become less prudish in recent years. The objectionable “dirty” words, in fact, have a long history in the English language; originating in Anglo-Saxon, for centuries they and their euphemisms have been in common use. (Indeed, many slang words now deemed universally acceptable in common discourse – such as “shucks” or “shoot,” or “fiddlesticks” – originated as euphemisms for shit or fuck centuries ago. See, for example, Geoffrey Hughes’ fascinating book Swearing: A Social History of Foul Language, Oaths, and Profanity in English (1991).) Sometimes, when one wants to fully express oneself, no words are better than these good old, 4-letter Anglo-Saxon words. These words also can be abused through overuse, which was the point of a “South Park” episode featuring a record number of utterances of the word shit. As with so many other matters involving social mores or tastes, the only proper way to “regulate” such speech is through the marketplace of ideas itself; in other words, by leaving speech free to regulate itself.” “Those who want to ban such language from the airwaves today are trapped in the mindset of the late 19th-century, the Victorian era, when “polite” persons were so uptight about frank discussion of bodily functions (or even of body parts) and/or human sexuality (or even sensuality) that they even wrapped cloth “skirts” around piano legs! Modern-day Victorians, including such prudish organizations as the Parents Television Council, want to use the coercive power of government to dictate their tastes to everyone else. Persons offended at “dirty” words, including parents who wish to insulate their children from such frank language, have a remedy that doesn’t abridge the freedom of the rest of us: they can simply turn to a different channel, or just turn off the TV set.” As noted above, words like shit, piss, or fuck are fine Anglo-Saxon words that, in the right context, can be wonderfully expressive. Consider, for example, the ending of the movie The 40-Year-Old Virgin, when Steve Carrell’s title character, eager finally to have sex with his new bride, takes her to their honeymoon suite, only to find a hotel worker buffing the room’s polished floor. When the worker informs the anxious bridegroom that it will be “a half hour” before the room is ready, the groom responds – quite aptly – “Dude, get the fuck out of here!” Or consider the famous (perhaps I should say “infamous”) episode of South Park mentioned above, the episode that uses the word shit nearly 200 times – with a counter in one corner of the screen documenting each use of the word – the gimmickry of which effectively makes the point of the show’s producers: which is not only a broadside against censorship, but also that over-use of such a word diminishes its effectiveness. In a free society like the United States, it is the “marketplace of ideas,” however – and not governmental censorship – that ought to determine whether such words are misused or abused. Bruce Fein, a limited-government conservative attorney in Washington, D.C., nicely summed up the case against FCC regulation of “indecency” in a letter published in the February 2006 issue of Washington Lawyer magazine, in response to a feature article that appeared in a previous issue (“Can They Say That on the Air?” November). Fein noted: “The FCC’s paternalistic experiment with banning indecency . . . has been a monumental failure, akin to Savonarola’s burning of the vanities and the fig-leaf campaign of the Counter-Reformation. Artistic genius has been chilled. The public has been denied unknown opportunities to view entertaining dramatic compositions. Due process has been lacerated by a denial of fair warning to broadcasters and performers, and freakish and politicized enforcement.
“Further, nothing good has been accomplished in diminishing vulgarities or coarseness in American culture or discourse. There may be better cases of wrongheaded regulation, but if there are, they do not readily come to mind.”
Fein’s reference to Savonarola reminds us of an episode in Western history, when prudes had the power to act as censors, that has some disquieting parallels to present-day America. Travel writer Rick Steves tells the story this way: “During the Florentine Renaissance, the monk Savonarola turned his city into a theocracy. His moral vigilantes burst into people’s homes. Anything considered too fleshy was gathered up and tossed onto a huge `bonfire of the vanities’ in the city square. Eventually Savonarola’s political base – those so afraid of immorality running rampant – saw the harm they were doing to their own society. The Florentines did a dramatic flip-flop, built another bonfire . . . and burned Savanorola.”
Noting that his own travel shows – which feature timeless classics of art such as Michelangelo’s David and Titian’s Venus (both nude) – are being broadcast on some PBS stations with the disclaimer, “For mature audiences only,” Steves notes the implications of the current trend toward more FCC censorship: “I don’t know whether to laugh or to be outraged. As a tour guide for 25 years, I always laughed with my American tourists at the puritan fig leaves Victorians retrofitted onto great art. But today we live in a country in which some people apparently wish David’s marble penis had a fig leaf and Venus wore a sports bra. . . . Those of us who produce broadcast material on a shoestring will continue to expose Americans to other cultures and fine art. But we must proceed gingerly. Should we crop Venus? Bleep Boccaccio’s bawdy language? Will Raphael’s randy cupids be labeled child pron and Bernini’s Rape of Proserpine as S&M? Can I film the Three Graces only from the waist up? And if I do, is that indecency fine of $500,000 per painting . . . or per nipple?”
(“Prudishness is one thing; censorship quite another,” USA Today, Aug. 25, 2005.) As Bruce Fein added in the conclusion of his letter, the fact that Congress is considering extending FCC regulation to cable and direct satellite service shows that “like the French Bourbons, the members learn nothing and forget nothing.” It’s now up to the American people – including the many consumers “who have shifted from broadcasting fare to cable and satellite TV unsaddled with an indecency prohibition” – to convince Congress “to cease acting like a surrogate prim schoolmarm.” It’s also telling that hard-line President Mahmoud Ahmadinejad has banned all Western music, including classical music, from Iran’s state radio and TV stations. Reporting this story in late December, many American newspapers noted that it was “an eerie reminder of the 1979 Islamic revolutions when popular music was outlawed as `un-Islamic’ under Ayatollah Ruhollah Khomeini.” “Blocking indecent and Western music from the Islamic Republic of Iran Broadcasting is required,” said the statement on the country’s official Web site. (“Iran’s president bans Western music on radio, TV,” AP story, Dec. 20, 2005.) Essentially, America’s would-be “indecency” police – men like the Parents Television Council’s Brent Bozell or FCC Chairman Kevin Martin – are not much different from the theocratic “indecency” police of Iran.
More Subjectivity: The FCC as Antitrust Enforcer
Another important way in which the Federal Communications Commission exercises – and abuses – its powers is its authority to impose antitrust and other “structural” regulations on the telecommunications industry. Although the FCC’s direct regulation of media content, such as its ability to restrict “indecency” and other forms of disfavored speech, raise obvious First Amendment concerns, the Commission’s powers to impose structural regulation – “such as efforts to foster free television over pay television, rate regulation of cable television, restrictions on the number of outlets one entity can own in any media market, and regulations limiting vertical integration in television and radio” – also have a dramatic impact on program content. Indeed, in an insightful article last year in the Cato Institute’s Regulation magazine, Professor Christopher S. Yoo (of Vanderbilt University Law School) calls such regulation “architectural censorship.” As Professor Yoo has shown, the FCC engages in such architectural censorship in various ways. The FCC has followed a policy favoring “free” (i.e., advertising-supported) radio and television over pay (fee-based, or subscription) services. That policy has resulted in the FCC’s “must-carry” regulations, requiring local cable operators to provide free carriage to broadcast stations operating in their service area; it also has resulted in systematic under-financing of media programming and strengthened the influence of advertisers, resulting in less diversity in programming (and what many perceive as lower-quality programming). The imposition of rate regulation on the cable television industry, like the imposition of price controls throughout history, has adversely affected the product: in this case, it has degraded the quality of existing product offerings and foreclosed the emergence of higher-quality channel packages despite viewers’ willingness to pay for them. In the name of promoting competition, the FCC long has restricted the number of media outlets that one entity can own in a given local market (banning, for example, ownership of two TV or radio stations in the same market or cross-ownership of a newspaper and broadcasting station or cable system in the same market). Such restrictions on horizontal concentration have prevented entities from achieving the benefits of multiple-outlet ownership -- to economize on costs and invest more revenues in programming – resulting in reductions in both the quality and diversity of media content, as well as making outlets less responsive to the needs and interests of their local communities. Similarly, the FCC has long been concerned about vertical integration in the radio and television industry, for example, limiting the number of television stations and cable operators that any one entity can own nationwide. These restrictions on vertical integration, too, have prevented companies from realizing economic efficiencies, resulting again in a decline in the quantity, quality, and diversity of programming. (Yoo, “Architectural Censorship and the FCC,” Regulation, Spring 2005.) A recent Cato Institute study reveals yet another adverse consequence of FCC structural regulation. Cato senior fellow Lawrence Gasman, president of Communications Industry Researches, Inc., argues that FCC regulation under the 1996 Telecom Act “killed” the telecommunications industry. The FCC’s policy to promote competition by “unbundling” – forcing established businesses like Bell to share their networks with upstart companies – removed the incentives to develop new technology and to expand infrastructure. “As the unbundling scheme took effect, Bell share prices fell, forcing the company to take on more debt and making them think twice about investing in their network at all,” Gasman writes. “It was not just a matter of capital expenditures in a general sense. When Bell companies came up with an innovative new service, they were often compelled to help their rivals get into precisely the same service.” The FCC policy not only killed incentives for Bell, but it also discouraged serious entrepreneurs from starting their own networks. Further, “it even discouraged the Bells from investing in the future.” Looking ahead, Gasman believes that new technologies, such as wireless phones and voice-over-Internet Protocol, eventually may rescue the telecommunications industry from the 1990s regulations that killed it. “Technological change may eventually mean that many of the most cherished assumptions of the 1996 act will follow those of the 1934 act [which created the FCC] into the dustbin of telecom history,” he concludes. (Lawrence Gasman, “Who Killed Telecom? Why the Official Story Is Wrong,” Policy Analysis No. 533 (February 7, 2005). It should be noted and emphasized that the FCC’s structural regulatory powers – its powers to impose “architectural censorship” – like its powers to directly regulate media content, are based on a theory of “monopoly” that has no relationship either to sound economic theory or to reality. Critics of antitrust policy (such as Dominick Armentano, author of the classic book Antitrust Policy: The Case for Repeal (1986), and contributors to the recent book The Abolition of Antitrust (Gary Hull, ed., 2005)) have argued, persuasively, that the theory of private “monopoly” on which antitrust law – and the justification for government regulation of particular industries -- relies is inherently flawed. Put simply, monopolies cannot exist in the absence of legal barriers to entry in a given market. What true monopolies that once existed in the telecommunications industry – for example, the exclusive franchises that local governments once gave to particular telephone or cable companies – have gone by the wayside, because of deregulation and technological advances that have increased competition. Technological advances and the free market (notwithstanding existing FCC regulatory controls) have given American consumers a wide range of alternative sources for information and entertainment. The era for which the FCC was created – the mid-20th century, when there were a limited number of radio and television stations broadcasting over the airwaves in each local market and virtually no other alternatives, an era in which three broadcast television networks dictated Americans’ viewing options – ceased to exist long ago. Today, listeners and viewers can opt for a wide array (literally hundreds) of channels available on cable systems, satellite radio and television, pay per view, on-demand movies, audio and video downloads from the Internet, and more. The FCC has become obsolete. It’s time, not to reform, but to abolish it.
Obsolete: The Flawed Basis of FCC Authority
The U.S. Supreme Court has upheld the Commission’s authority in a series of flawed decisions. Two of these decisions deserve particular attention. In Red Lion Broadcasting v. FCC (1969), the Court (in a 7-0 decision, opinion by Justice White, with Justice Douglas not participating and Justice Fortas having resigned) upheld an FCC order and regulations promulgated under the so-called “fairness” doctrine. (The challenged regulations required radio and TV stations to provide time for a response whenever “during the presentation of views on a controversial issue of public importance, an attack is made on the honesty, character or integrity of an identified person or group”; they also required stations to provide “reasonable opportunity” for political candidates to respond whenever stations editorialized in favor or against candidates. The challenged regulations, which really amounted to “equal time for politicians” mandates, wisely were abandoned by the FCC when it discarded the fairness doctrine in the 1980s.) The Court rejected the broadcasters’ constitutional challenge to the regulations under the First Amendment – the broadcasters argued essentially that the Amendment protects their freedom to broadcast whatever they chose and to exclude whomever they chose – by maintaining there was no “unabridgeable First Amendment right to broadcast comparable to the right of every person to speak, write, or publish” because of the finite nature of the broadcast spectrum. Because “there are substantially more individuals who want to broadcast than there are frequencies to allocate,” Government legitimately may require licenses to broadcast and to limit the number of licenses so as not to overcrowd the spectrum.” Moreover, the Court maintained that “the people as a whole” have a “collective right” to have the radio and TV media “function consistently with the ends and purposes of the First Amendment,” and that “the right of the viewers and listeners, not the right of broadcasters,” is paramount. The Red Lion decision is quite Orwellian in its implication that, in order to have a “free” marketplace of ideas, government must regulate freedom of speech. Not only is it based on a flawed view of the First Amendment – freedom of speech, is no “collective” right; like other genuine freedoms, is fundamentally a right of individuals, their right to be free of government restrictions on what they say – but it is also based on an obsolete understanding of technology. The very existence of the FCC was premised on the assumption that the broadcast spectrum is limited and that, therefore, government must intervene both to limit the number of stations and to allocate their places on the spectrum (the frequencies at which they operate, etc.). Once that rationale was accepted – once a government agency was given the power to license radio and TV stations – that licensing power, not surprisingly, led to even greater power, allowing the Commission to set the conditions for broadcasters to obtain and maintain their licenses. In broadcasting, as in all other forms of business where government licenses restrict entry into the market, licensing becomes a powerful tool for governmental control. And the entire regime was premised on the assumption – a faulty assumption – that the broadcast spectrum is a limited resource and therefore is a kind of “public good” necessarily subject to government allocation and regulation. There are many good reasons to reject that assumption. For one, it distorts history. The early history of radio in the United States was of an unregulated industry, in which stations voluntarily agreed with their competitors to operate at different frequencies in the same market, for their mutual interest. It was a workable free-market system. There was no need for a government regulatory agency to assign spaces on the broadcast spectrum, for the broadcasters did it themselves, by voluntary agreement. It was, in fact, Herbert Hoover, as President Warren G. Harding’s Secretary of Commerce in the 1920s, who first proposed a federal radio commission – the forerunner of the “New Deal”-era FCC – to take over this self-regulating function of the broadcast industry. Even if, at one time, the assumption that regulation was necessary because of the finite physical limits of the broadcast spectrum, that assumption has been rendered obsolete by new technologies. By the late 1970s, the time when I as a law student first read Red Lion, the decision already was obsolete because of the invention of cable: with cable, stations no longer were limited to the broadcast spectrum. If Red Lion was an anachronism in the late 1980s, it’s even more of an anachronism today, with newer digital cable and satellite technologies, which have broadened the opportunities for free competition considerably. (Consider the literally hundreds of channels that most home viewers with either digital cable or satellite TV service can access.) Indeed, with current technology, it’s not the broadcast media that seem to have the public good problem; rather, it’s the print media – particularly newspapers – where economic forces seem to have limited entry into the market far more effectively than in broadcasting. Imagine how newspaper editors would howl if someone in Washington proposed regulating newspapers because the reading public has a “collective right” to dictate their content, in the name of keeping alive a “marketplace of ideas”! Yet that’s the spurious rationale we’ve been accepting for radio and TV regulation these past 80 years. The second key case, another one I remember studying in law school in the late 1970s, was the Court’s decision in FCC v. Pacifica Foundation (1978), the famous case involving George Carlin’s famous “Filthy Words” monologue. A Pacifica radio station in New York had aired the 12-minute segment from one of Carlin’s comedy albums (in which Carlin identified seven “words you couldn’t say on the public airwaves” -- shit, piss, fuck, motherfucker, cocksucker, cunt, and tits – and repeated them over and over in a variety of colloquialisms. Immediately prior to the broadcast of the Carlin monologue (which was in the early afternoon), the station warned listeners that it included language which some might regard as offensive and advised those who might be offended to change the station and return in fifteen minutes. Nevertheless, the FCC received a complaint from a man in New York who stated that he had heard the broadcast while driving in his car with his young son. In response, the FCC issued an order that the complaint would be put in the station’s license file; it also threatened the station with sanctions if subsequent complaints were received. The Commission characterized the language used in the Carlin monologue as “patently offensive,” though not necessarily obscene; it analogized such language to nuisances, which the law could control by “channeling” – that is, by restricting it at times of day when there were reasonable risks that children may be in the audience and exposed to it -- rather than actually prohibiting it. Concluding that the words “depicted sexual and excretory activities in a patently offensive manner” and that they were broadcast “at a time when children were undoubtedly in the audience,” the Commission held the language to be “indecent” and prohibited by a federal statute that forbade the use of “any obscene, indecent, or profane language” by radio communications. In upholding the FCC order, the Supreme Court added to the nonsense of its “obscenity” decisions (see my previous blog entry on this subject, “The Right to `Pornography,’” in “Supreme Nonsense, Part II,” March 14, 2005), by creating a new category of speech that falls outside of the protections of the First Amendment: so-called “indecent” speech. “Obscene” materials, the Court reiterated, were denied the protection of the Amendment altogether “because their content is so offensive to contemporary moral standards.” (Whose standards, and offensive in what way? As I noted in my previous entry, any attempt to define a meaningful standard for obscenity is hopeless; it’s inherently subjective and therefore unconstitutionally vague, although the majority of the justices have failed thus far to recognize this reality.) “Indecent” materials, on the other hand, while by definition within the range of expression protected by the First Amendment, may “offend for the same reasons that obscenity offends” – because they deal frankly with sexual or excretory aspects of human nature – and thus may be subject to government regulation, to confine it to certain “contexts.” (Needless to say, the definition of indecency is just as subjective and vague as the definition of obscenity; even the Court’s justices recognized that it may vary from person to person and from circumstance to circumstance – “one occasion’s lyric is another’s vulgarity.”) In addition to the “protecting the children” rationale, the Court again relied on the Red Lion assumption, that broadcast frequencies are scarce resources. Thus, the Court held, the FCC could regulate “indecent” speech – which, following the nuisance analogy, the Court said may be “merely a right thing in the wrong place” and likened to “a pig in the parlor instead of the barnyard”: “We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on the proof that the pig is obscene.” To that sophisticated observation, I can add only: My, how the “pig” has grown over the past two years, since the 2004 Super Bowl! The obvious problem with this 28-year-old decision is that the technology on which it was premised – the limited broadcast spectrum, with the “pervasiveness” of the big commercial TV networks – is now obsolete, irrelevant in a world of 300-channel cable TV, in which cable (with all those hundreds of available channels) is itself just one of many alternative media available to consumers. Meanwhile, as noted above, some members of Congress – chiefly, Senator Ted Stevens (R-Alaska), and his House counterpart, Commerce Committee chairman Joe Barton (R-Texas) – would like to extend FCC regulatory authority to satellite radio and cable TV. “It’s not fair to subject over-the-air broadcasters to one set of rules and not subject cable and satellite to [any] rules,” Barton has said. As economic historian Lawrence White has pointed out: “By that logic, it’s also `not fair’ to have a different set of rules – no FCC oversight – for Blockbuster and NetFlix and Mike’s Video down the street.
“By all means let’s level the playing field. Let’s give over-the air robust property rights in the spectrum they’ve been using, and subject them to the same FCC indecency regulation to which satellite and cable TV, satellite radio, and dvd rentals are subject – namely none. Blockbuster voluntarily chooses not to stock hardcore porn, so as not to offend its core clientele. We can be pretty sure that the major broadcast TV networks will do likewise.”
(White, “Indecency,” on "Division of Labour” blogsite, March 2, 2005.) I wholeheartedly agree. A free market in broadcasting – a market with no legal barriers to entry, no “monopolies” that need government regulation, a market that needs no agency like the FCC to work – is all the protection against “indecency” that a free society needs, or ought to have.
| Link to this Entry | Posted Wednesday, February 8, 2006 | Copyright © David N. Mayer |
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