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Flashpoint: Janet Jackson and government regulation of TV
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director
02.06.04

Free speech? It wasn’t Janet Jackson’s speech that broke free at the Super Bowl.

Viewers outraged by Jackson’s breast-baring, Nelly’s crotch-grabbing and Kid Rock’s irreverent draping of the American flag may be a little mystified by all the talk of free expression and limits on how the Federal Communications Commission can respond.

After all, these images were broadcast into our homes on CBS affiliate stations, all operating under licenses issued by the federal government. Doesn’t that give the government the clout to impose some standards?

The answer is yes – and no. Despite FCC Chairman Michael Powell’s assertions of outrage, there’s relatively little the government can do. Years of deregulation and the enormous political clout derived from media mergers have defanged the FCC. Yes, fines can be imposed on the stations, but that’s just another operating expense for major media.

Janet Jackson’s exposure also lays bare the unique nature of America’s broadcasters – media companies that are licensed by the government, but also enjoy First Amendment protection.

The government can regulate indecent programming – essentially references to “sexual or excretory activities or organs” – between 6 a.m. and 10 p.m., when children are most likely to be watching or listening. Beyond that, the government generally has to keep its hands off programming unless it meets the very narrow legal definition of obscenity.

That leaves broadcast media with considerable content latitude, inevitably leading to some distasteful and unpalatable programming and the occasional Janet Jackson firestorm.

Yet the system is fundamentally sound. In a nation in which our most immediate and powerful medium is television, we can’t turn content regulation over to a handful of political appointees in Washington. Nor can we deny the importance of protecting programs with mature themes and content.

The kind of outrage generated by the Jackson incident inevitably leads to calls for greater regulation. One bill in Congress would increase the current maximum penalty of $27,500 tenfold. Public pressure on Congress has increased dramatically, and hearings on indecent programming continue on Capitol Hill.

The answer can’t be found in legislation or regulation. Even if Congress and the FCC were able to impose greater limits on the content of broadcast television, they wouldn’t be able to address the far more provocative landscape of cable television.

Courts have long distinguished between broadcast programs – distributed free of charge over the airwaves – and cable programs – delivered by private companies only to paying subscribers. The government and the FCC have no more control over what is delivered via your cable system than they do over the magazines sent to your mailbox.

Of course, the distinction between broadcast and cable programs is blurred in a nation in which both services are largely delivered by either cable or satellite. Parents concerned about their kids seeing potentially disturbing programs are not going to be mollified by an explanation of delivery systems.

In the end, the solution is not a government regulatory scheme. It’s a mistake to undermine free expression because of the crassness of a Super Bowl halftime show. The real answer lies with:

  • An unbundling of channels by America’s cable television systems. Cable systems now essentially give subscribers a “take it or leave it” package, bundling family programming with more-mature channels some would rather not have in their households. An a la carte system would allow parents to tailor television delivery to their standards.
  • The use of technology. Every television set in America is equipped with a V-chip system that permits parents to block programming through the rating system. It’s a flawed and underused system, but is nonetheless a tool for parents. In addition, most television owners can program their sets to skip over certain channels entirely, avoiding unpleasant surprises while channel surfing.
  • Free speech. Those who are concerned about indecent programming shouldn’t write to Congress. They should be writing to cable companies, networks, program producers and sponsors. In America, the real pressure is on the pocketbook.
  • Underlying all of this is a business reality. Broadcasters and cable programmers alike are producing more violent, sexual and provocative content because it attracts viewers. The First Amendment makes possible the marketplace of ideas, but doesn’t require us to buy.


    Related

    FCC launches probe into Super Bowl halftime show

    Chief regulator calls performance in which Janet Jackson's breast was exposed 'a classless, crass and deplorable stunt,' says investigation will be 'thorough and swift.' 02.02.04

    Woman files suit over Super Bowl halftime show
    Tennessean Terri Carlin alleges that she and others who watched performance were injured by musicians' lewd actions. 02.06.04

    FCC chairman to Congress: TV, radio must clean up act
    Spurred by Super Bowl halftime show, House and Senate hold hearings on broadcast indecency. 02.11.04

    Clear Channel chief tells House panel he's 'ashamed' of program
    Earlier this week, radio station chain fired 'Bubba the Love Sponge' DJ, suspended broadcasts of Howard Stern's show. 02.26.04

    'Monday Night Football' intro not indecent, FCC rules
    Terrell Owens-Nicollette Sheridan skit was racy, agency says, but didn't violate indecency standards. 03.15.05

    NFL edits out explicit Rolling Stones lyrics
    Officials excise two sexually explicit lyrics from rock legends' performance during Super Bowl halftime. 02.06.06

    Super Bowl antics prompt debate about broadcast decency
    Janet Jackson incident could have 'galvanizing effect' on the move to toughen standards, says FCC commissioner. 02.06.04

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