[IP] Cato's Adam Thierer on FCC and "return of the 7 dirty words"
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http://www.cato.org/tech/tk/031218-tk.html
"Return of the "Seven Dirty Words" Indecency Standard?"
Cato Institute
TechKnowledge Issue #68
December 18, 2003
by Adam Thierer
Nothing brings out the puritanical streak in American politicians more
than the utterance of a few dirty words on TV or radio. And so, in the wake
of two such utterances by celebrities during live TV awards ceremonies this
year, policymakers in Congress and at the Federal Communications Commission
(FCC) are once again vowing to do something to "clean up the airwaves."
We've been down this path before, of course, with the FCC occasionally
tossing out fines to warn the broadcast community not to follow the poor
example set mostly by a few foul-mouthed radio DJs. Consequently, a few
lucky FCC regulators get to sit around each day and listen to Howard
Stern's radio show, or review tapes of other programs in an effort to
unearth comedian George Carlin's famous "seven dirty words" that can't be
said on the air. In 2001, the FCC also took the unusual step of issuing
speech guidelines, known as the Indecency Guidelines Policy Statement, for
industry to follow. This titillating read provides the industry a series of
case studies on what FCC officials will deem indecent. The FCC's
Enforcement Bureau also keeps a running online record of all such fines on
its "Obscene and Indecent Broadcasts" page. Until recently, most fines
ranged from $6,000 to $8,000, but in 2002 and 2003, the levies jumped to
the $12,000-$55,000 range, and a record-high $357,500 fine was slapped on
Infinity Broadcasting in October for a radio stunt involving couples having
sex in public places.
Ironically, in order to put the broadcasting world on notice regarding
those words that must never be uttered in public, policymakers ultimately
must say a lot of filthy things in the bills and regulations they pen. So,
if you're easily offended, don't read through those FCC Indecency
Guidelines, and certainly don't let your eyes fall on the words listed in a
new bill just introduced by Rep. Doug Ose (R-CA) and Rep. Lamar Smith
(R-TX). Their bill, H.R. 3687, would clarify FCC indecency regulations by
noting that "the term 'profane,' used with respect to language, includes
the words 'shit', 'piss', 'fuck', 'cunt', 'asshole', and the phrases 'cock
sucker', 'mother fucker', and 'ass hole', compound use (including
hyphenated compounds) of such words and phrases with each other or with
other words or phrases, and other grammatical forms of such words and
phrases (including verb, adjective, gerund, participle, and infinitive
forms)." Thanks for the grammar lesson, Congress, but let's hope the youth
of America don't stumble across this bill when conducting research for
their civics classes!
Coming to Grips with Curse Words
Seriously, though, isn't it about time policymakers came to grips with
"dirty" words? After all, they've been around a long time, as Geoffrey
Hughes makes clear in his enlightening book, Swearing: A Social History of
Foul Language, Oaths and Profanity in English. And plenty of nasty words
show up in newspapers and magazines, as well as on the Internet, cable, and
satellite TV. But those media outlets are accorded full First Amendment
protection from government censorship efforts. By contrast, because
broadcast radio and television operators need FCC licenses to operate, they
have been relegated to second-class citizenship in terms of First Amendment
rights.
Regrettably, the Supreme Court has endorsed this illogical legal
distinction in famous cases such as FCC vs. Pacifica Foundation (1978),
which held that broadcasting could also be censored since it was more
intrusive or pervasive in our lives. It's questionable whether that
presumption is still valid, or if it was ever valid for that matter, but
television and radio are only "intrusive" in our homes or cars to the
extent that we put them there in the first place. While almost all
censorship proposals are made in the name of "protecting the children," if
parents voluntarily purchase these devices, they should assume
responsibility for guarding their children's eyes and ears from material
they might find potentially objectionable. We should not expect Uncle Sam
to play the role of surrogate parent.
Is Regulation Possible in the Post-Broadcast Age?
But here's a far more practical consideration: Will all this huffing and
puffing by policymakers about indecency really amount to much concrete
regulatory activity in the future, given the declining role broadcast TV
and radio play in our diverse modern media marketplace? For example, over
85 percent of American households currently subscribe to cable and
satellite television, and regulators can't censor those media providers.
As more Americans opt for media alternatives that receive stringent First
Amendment protection, it could mean the gradual withering away of almost
all federal censorship efforts. Alternatively, it could mean that
policymakers will merely shift their attention to those other outlets and
concoct new rationales for why "public interest" regulation must apply
there too. But they will be on very shaky legal footing in this pursuit,
given the unlicensed status of these carriers and technologies, as well as
the precedents established in recent court decisions rejecting almost all
efforts to regulate indecency on the Internet.
Shame on You!
And that's how it should be, of course. There are far more mature and
sensible ways of dealing with filthy words than resorting to censorship. In
some cases, choosing to ignore the troublemakers entirely might help. Many
radio "shock jocks" made a name for themselves by pushing the regulatory
limits and thrived on the regulatory attention it generated. FCC fines
became a veritable badge of honor among some in the industry, a small price
to pay for all the extra attention such "bad boy" behavior generated. It's
tough to know how much further the shock jock crowd can really push the
envelope anyway without losing either advertiser or listener support. In
other cases, social persuasion and disgust might play a role. What ever
happened to the good, old-fashioned grandmotherly approach of just saying
"Shame on you!" when confronted with potty-mouthed public speakers?
Still, there will always be those who believe that profanity has no place
on TV or radio, or anywhere children might be in the audience. They argue
that in our hectic age, it's difficult for parents to keep round-the-clock
tabs on junior's viewing and listening habits. As the parent of a young
daughter, I can sympathize. I suppose I could just give up, join the
censorship crusade, and say to hell with the First Amendment--oops, I mean
to heck with it--but I'm reminded of what author and poet Charles Bukowski
had to say on the matter: "Censorship is the tool of those who have the
need to hide actualities from themselves and others. Their fear is only
their inability to face what is real. Somewhere in their upbringing they
were shielded against the total facts of our experience. They were only
taught to look one way when many ways exist."
"The problem is the indecency standard is not a standard. It's basically a
test for what people find distasteful and that is entirely in the eyes and
ears of the beholder," argues Cato adjunct scholar Robert Corn-Revere, a
partner with the law firm Davis Wright Tremaine. In a free society,
different people will have different values and tolerance levels when it
comes to speech, and government should not impose the will of some on all.
And when it comes to minding the kids, I'll take responsibility for
teaching mine about the realities of this world, including the unsavory
bits. You worry about your own. Let's not call in the government to do this
job for all of us.
>> Adam Thierer (athierer@xxxxxxxx) is Director of Telecommunications
Studies at the Cato Institute in Washington, D.C. (www.cato.org/tech). To
subscribe, or see a list of all previous TechKnowledge articles, visit
http://www.cato.org/tech/tk-index.html.
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