[IP] Mike Powell Op-Ed Contributor: Don't Expect the Government to Be a V-Chip
Op-Ed Contributor: Don't Expect the Government to Be a V-Chip
December 3, 2004
By MICHAEL K. POWELL
Washington - TIME to take a deep breath. The high pitch at
which many are discussing the enforcement of rules against
indecency on television and radio is enough to pop an
eardrum. It is no surprise that those who make a handsome
living by selling saucy fare rant the loudest - it drives
up the ratings. The news media further fan the flames,
obsessed with "culture war" stories that slot Americans
into blue-state and red-state camps.
Overheated words, however, obscure what should be an
important debate over two American values that are, at
times, in tension. As one deeply suspicious of government
involvement in the regulation of content, I understand and
often agree with those who stand up for the cherished value
of free speech. But as a parent, I respect the desire of
the American people for a minimum level of decency on the
public airwaves - particularly where their children are
concerned. The often unenviable task of striking a balance
between these two competing values falls to the Federal
Communications Commission.
Broadcasters have always had the responsibility of making
decisions about what programs are appropriate. The majority
have done well. In the history of broadcast television,
there have been only four indecency fines. Yet when certain
broadcasters trade responsible restraint for torrid
sensationalism in the relentless race for ratings, it
should come as no surprise that escalating calls for the
government to enforce indecency laws aggressively are the
result.
The F.C.C.'s job of regulating indecent content on the
airwaves is not optional; it has been required ever since
Congress first made the broadcast of obscene, indecent and
profane material illegal more than 70 years ago. The law
continues to enjoy strong bipartisan support.
Even so, there are important limits placed on the F.C.C.
Our rules do not ban indecent content entirely; they merely
restrict its broadcast during times in which children are
likely to be in the audience, namely from 6 a.m. to 10 p.m.
Courts have consistently held these rules constitutional,
accepting that the government has a compelling interest in
protecting children from inappropriate material.
For material to be indecent in the legal sense it must be
of a sexual or excretory nature and it must be patently
offensive. Mere bad taste is not actionable. Context
remains the critical factor in determining if content is
legally indecent. Words or actions might be acceptable as
part of a news program, or as an indispensable component of
a dramatic film, but be nothing more than sexual pandering
in another context. That context and the specific facts of
each program are reasons the government can't devise a book
of rules listing all the bad stuff. In 2001, however, the
agency issued policy guidelines summarizing the case law on
indecency, and each new ruling since then clarifies what is
prohibited.
But we are not the federal Bureau of Indecency. We do not
watch or listen to programs hoping to catch purveyors of
dirty broadcasts. Instead, we rely on public complaints to
point out potentially indecent shows. In recent years,
complaints about television and radio broadcasts have
skyrocketed, and the F.C.C. has stepped up its enforcement
in response. Advocacy groups do generate many complaints,
as our critics note, but that's not unusual in today's
Internet world. We are very familiar with organized
protests when it comes to media issues, but that fact does
not minimize the merits of the groups' concerns. Under the
law, we must independently evaluate whether a program
violates the standard, no matter whether the program in
question generates a single complaint or thousands.
When the commission makes the determination that a program
is indecent, we typically fine the licensee that broadcast
it. Although the commission has the authority to fine an
artist personally, we have never done so nor do I support
doing so. Over the years, fines had become trivial. A
routine violation generally received a paltry $7,000 fine,
with the maximum fine being $27,500. The agency has
increased penalties significantly, recognizing that they
must be large enough for billion-dollar media companies to
stop treating fines as a minor cost of doing business.
Some have also questioned why the commission is unwilling
to issue rulings before a broadcast, as was the case with
the recent network showing of "Saving Private Ryan," a film
the commission had previously held was not indecent. While
ABC and its affiliates understandably would have liked to
know the program was in bounds before proceeding, the
precedent of submitting programming or scripts for
government review borders dangerously on censorship. The
Communications Act expressly forbids the F.C.C. from
banning a program before broadcast, and any such effort
might very well run afoul of the First Amendment. This is a
step I do not want to take.
The commission's indecency rules apply to broadcast
television and radio but not to cable, newspapers or the
Internet because the Supreme Court interprets the First
Amendment in a way that affords stronger constitutional
protection to these sources than to broadcasting. The
argument goes that broadcasting is different because it is
uniquely pervasive, with children having easy access.
Government can limit content in the public interest because
broadcasters use a public resource, the airwaves. Yes, it
is strange that First Amendment protections are weaker or
stronger depending on what channel you are watching, but
under current Supreme Court precedent that's the way it is.
And I believe that any effort to extend regulation of
content to other media would be contrary to the
Constitution.
We take all these limitations seriously and believe we have
acted in a balanced manner. If one slices through the
rhetoric, you'll find that most opponents of the agency's
strong enforcement efforts believe that the government
simply should not impose any decency standard at all.
Berating citizens who believe in values and reasonable
limits is insulting and polarizing and distracts from the
legitimate issues of this policy debate. Critics of the law
should instead focus their efforts on changing the law, if
that's what they want. Until then, the American people have
a right to expect that the F.C.C. will continue to fulfill
its duty of upholding the law, while being fully cognizant
of the delicate First Amendment balance that must be
struck.
Michael K. Powell is the chairman of the Federal
Communications Commission.
http://www.nytimes.com/2004/12/03/opinion/03powell.html?
ex=1103070486&ei=1&en=233ed3e4632cdece
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