This op-ed originally appeared in the Nashville Tennessean.
There’s trouble in National Nanny land.
Several networks are challenging the Federal Communication Commission’s indecency rules in the Supreme Court and in the lower federal courts. And Fox Broadcasting and the Sinclair Broadcast Group have recently refused to pay a $56,000 indecency fine levied against them by the agency. In an unusual move, the Justice Department has sued to collect the fines. To make matters more complex, the broadcast giant Clear Channel wants the FCC to force XM/Sirius to obey the agency’s indecency laws as a condition of approving the merger between the two satellite radio stations. Meanwhile, “on demand” still offers Tony Soprano and his criminal crew who continue to swear like sailors on HBO, which as a cable channel is immune from the FCC’s indecency rules.
It’s been 30 years since the Supreme Court last visited the indecency question. Now, the justices will consider the matter anew. Though the Fox case is a free-speech case, technically it’s not a First Amendment matter. That is, the Court will decide whether the FCC acted “arbitrarily and capriciously” when it re-crafted its indecency rules and then applied them to “fleeting expletives” (the F-word) uttered by Cher and later by Nicole Richie on the public airwaves. A lower court concluded that the agency’s actions were arbitrary and thus unlawful.
Are such fleeting F-words enough to bring down the heavy hand of the law? And what about fleeting buttocks shots, as depicted in a 2003 episode of "NYPD Blue"? The FCC fined ABC and its affiliates for airing that scene. Or what about reading Allen Ginsberg’s famous but colorful poem "Howl" on the airwaves? Last year Pacifica Radio censored itself for fear that FCC regulators would fine it out of existence. And "The Big Lebowski," a widely popular movie, can play on the airwaves only if much of its humorous dialogue is scrubbed Puritan-clean.
The FCC justifies such censorship in the name of enforcing “community standards.” Of course, how exactly that is determined is anyone’s guess. For example, if 200,000 people in the Los Angeles area watched the “objectionable” "NYPD Blue" episode, how many and what kind of complaints to the FCC would it take to bring an enforcement action? If 75 people complained, would that be enough even though 195,925 voiced no objection?
Broadcasters would not air such content if not for some mass appeal. Liberty-loving Americans vote with their remote controls, and when we do the vast majority of us want "NYPD Blue" and the like. (BTW: so-called “indecent” expression is not the same as hard-core porn, which is illegal.) One of the main reasons for regulating indecency is to protect children. If so, then there are many self-help aids readily available to parents. Moreover, what evidence is there that kids exposed to unregulated cable and satellite programming are less decent than kids in homes with only broadcast programming?
A half-century ago "Howl" was banned because it was deemed “harmful” to kids. Thankfully, a court declared that the First Amendment protects such printed matter. It’s high time that the same sober logic be applied to rein in our National Nanny.