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Surrendering our choices to a sense of decency
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
04.10.05

For 14 years, Channel 7 in Buffalo, N.Y., provided an invaluable service for its audience. The station allowed volunteers for the Niagara Frontier Radio Reading Service for the Blind to read periodicals and books for the blind over its secondary audio feed.

That was until earlier this year when one listener complained about a word heard during the reading of Tom Wolfe’s new novel, I Am Charlotte Simmons.

Even though such fare was read only after 10 p.m., Channel 7 officials — fearing the prospect, the expense, the ordeal or the uncertainty of an FCC indecency investigation — dropped the service. Several weeks later, according to The Buffalo News, limited service returned — but no programming at all between 10 p.m. and 5 a.m.

It is the censor’s perfect formula: One word plus one complaint plus one calculation equals millions of words for an audience of thousands wiped from existence.

Broadcasters have good reason to censor themselves preemptively, of course. Ever since that momentary glimpse of a part of a breast at a Super Bowl halftime show, the champions of decency have grown more bold, unmindful of the effect on Americans’ freedom of speech and freedom of choice.

Members of Congress, the Federal Communications Commission and citizen groups have lashed together a raft of misery for those who provide programming for the rest of us: ever-broader definitions of indecency, higher fines against more people, a la carte and family-friendly options that drive up costs for cable subscribers, threatened extension of FCC authority to regulate cable and satellite.

It was inevitable that someone would propose sending people to jail for speaking indecently. That happened on April 5, when Rep. James Sensenbrenner, R-Wis., the powerful chairman of the House Judiciary Committee, told cable executives, “I’d prefer using the criminal process rather than the regulatory process.”

Ironically, none of this regulatory ferment seems necessary. As evidenced by the Channel 7 incident and the growing list of broadcasters and even advertisers who have voluntarily censored themselves, current penalties and authority are more than enough to lead broadcasters to scuttle even clearly protected programming.

Invariably, the argument advanced for further regulation of TV is 1) “indecency” has increased, and 2) parents are helpless in the face of this onslaught. No. 1 is arguable at best. No. 2 is demonstrably false.

Once tantamount to obscenity in the minds of regulators, “indecency” has been dramatically defined downward to embrace nearly everything anyone anywhere doesn’t like. Some would even include homosexuality, divorce, feminism, violence, “hate speech” and commercial pitches to children.

As for helpless parents, they certainly have a lot more options for “decent” fare on TV these days with family, religious, news and sports programming at an all-time high. And those who wish to protect themselves and their children from indecency have access to a wide range of tools:

  • For broadcast: safe-harbor time, the rating system, and the V-chip to block unwanted programming.

  • For cable: channel and program blocking.

  • For digital cable: restrictions on viewing based on content rating, title, time or date in addition to blocking programs or channels.

  • For satellite: parental-control technology.

Not to mention the remote control and the on-off button for everything.

Yet the decency crusade persists, ensnaring the rights of many Americans other than broadcasters, not the least of whom are those in the audience. Their rights to freedom of choice, to receive information without discrimination, to due process and to privacy all are engaged by this debate.

In a just-published analysis, First Amendment attorney Robert Corn-Revere carefully lays out the barriers the Supreme Court has erected against vague and overbroad definitions of indecency and to the expansion of FCC authority to regulate cable and satellite content.

“Courts consistently have invalidated indecency regulations when applied to cable television,” Corn-Revere writes, “and the reasons supporting these rulings have only gotten stronger as time and technology have transformed the media landscape. In these circumstances, any effort to extend indecency regulation to cable television or other non-broadcast media would be almost certain to fail a constitutional challenge.”

Most certainly, those pushing for a broader definition of indecency and an extension of government authority of cable and satellite know they are on shaky constitutional ground.  But they push forward with legislation anyway, because it forces the TV industry into an expensive battle, into self-censorship, into a craven effort to reduce First Amendment protections to the lowest common denominator, and in the end to accept more regulation as a compromise.

It is left to the rest of us, watching from the sidelines, to ask: Just how much power are we willing to allow those in power to grant to citizen groups that are on a mission to confine our choices to their tastes?

As we are already seeing in too many instances, how quickly and easily a whiff of regulation can turn into the stench of censorship.


Related

Move to raise indecency fines fails

Measure scuttled after House, Senate negotiators can't agree on plans to block media-ownership rules, require FCC to study V-chip, TV ratings. 10.11.04

Republicans urge satellite, cable indecency rules
National Association of Broadcasters, representing over-the-air TV, also wants same restrictions extended to all television programming. 03.02.05

Indecency complaint leads to limit on blind broadcast service
Single call about nighttime reading from Tom Wolfe novel prompts TV station's pullback out of fear of hefty fine. 03.04.05

Broadcasters vow to draft voluntary decency code
But industry officials say they doubt guidelines will dissuade lawmakers from crafting measures to tackle indecency, say they're ready to challenge any such law on First Amendment grounds. 04.21.05

Battling TV indecency is latest rage; is censorship next?
Public may be looking for more choices — that would include cleaner fare — rather than more regulation. 04.28.05

FCC proposes $3.9 million in fines for indecent TV programming
Record fine would punish CBS for episode of 'Without a Trace' crime drama depicting teen orgy. 03.16.06

Indecency regulation: beyond broadcast?
By David L. Hudson Jr. Currently FCC can't restrict indecent content on cable or satellite services — but some would like to change that. 12.05.07

Censorship by any other name is so much easier
By Paul K. McMasters If we think expression is indecent, the easy way is to get government to ban it or regulate it; the hard way is to engage it, decry it, discourage it, present a better alternative. 08.14.05

The Indecency Battles

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