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[IP] more on House Passes Bill to Raise Indecency

Title:   more on House Passes Bill to Raise Indecency
[ note not all USG organiztions follow the laws as passed by the Congress djf]

------ Forwarded Message
From: Gerry Faulhaber <gerry-faulhaber@xxxxxxxxx>
Date: Thu, 17 Feb 2005 00:11:07 -0500
To: <dave@xxxxxxxxxx>
Subject: Re: [IP] more on House Passes Bill to Raise Indecency

Dave [for IP, if you wish]--
The thread on this issue passes understanding.  The Congressional indecency bill and the fines associated with it enjoy huge public support.  Congress has directed the FCC to enforce the law; Powell really has no choice (as he made abundantly clear at the Silicon Flatirons conference and elsewhere).  He is the cop; he doesn't make the laws, he simply enforces them and he doesn't get a choice as to what laws to enforce.  Blaming Powell for indecency fines is like blaming the cop for giving you a speeding ticket based on your belief that the speed limit should have been higher.  Not the cop's decision; he just enforces the law.
Those who have been lambasting Powell for enforcing a law they don't like have missed the blindingly obvious: if you don't like the law, organize a political effort to get it changed.  Or else challenge its constitutionality through an actual case.  But if you aren't willing to do this, then quit whining about Powell doing the job he was hired to do.  I know he isn't thrilled with this part of his job; but it is his job.
Incidentally, Chris is correct (below) about "Red Lion"; anyone who knows the slightest thing about electronic speech and its regulation (even a business school professor;-) knows about Red Lion, not "red lining".  Do your homework, guys.
Professor Gerald R. Faulhaber
Business and Public Policy Dept.
Wharton School, University of Pennsylvania
currently on leave @ Penn Law
Philadelphia, PA 19104

----- Original Message -----
 
From:  David Farber <mailto:dave@xxxxxxxxxx>  
 
To: Ip <mailto:ip@xxxxxxxxxxxxxx>  
 
Sent: Wednesday, February 16, 2005 7:55  PM
 
Subject: [IP] more on House Passes Bill  to Raise Indecency
 


------ Forwarded Message
From: Chris  Savage <chris.savage@xxxxxxxxxx>
Date:  Wed, 16 Feb 2005 19:21:16 -0500
To: <dave@xxxxxxxxxx>
Subject: RE:  [IP] House Passes Bill to Raise Indecency
 


From:  owner-ip@xxxxxxxxxxxxxx [mailto:owner-ip@xxxxxxxxxxxxxx]  On Behalf Of David Farber
Sent: Wednesday, February 16, 2005  7:14 PM
To: Ip
Subject: [IP] House Passes Bill to Raise  Indecency


------  Forwarded Message
From: Bob Frankston  <Bob19-0501@xxxxxxxxxxxxxxxxxx>
Date: Wed, 16 Feb 2005  18:48:10 -0500
To: Dave Farber <dave@xxxxxxxxxx>
Cc:  David Isenberg <isen@xxxxxxxx>
Subject: House Passes Bill  to Raise Indecency

<snip>
>>On one of the panels a speaker said  that Supreme Court had "red lined" the principle that the FCC trumped the  first amendment. I tried to look up the term but couldn't find a definition (I  presume that all words are in legalese and not English). Is it similar to  Black Letter Law -- something that is just assumed without there being a  doubt?<<
Bob,
What Powell was talking about  was a case from the ‘60s known as the “Red Lion” case.  (One of the  parties was “Red Lion Broadcasting”). That case basically held that the degree  of 1st Amendment protection applicable to a given medium depended on the  technical and other characteristics of the medium.  Over-the-air  broadcasting is traditionally subject to less 1st Amendment protection because  of (a) its pervasiveness and (b) the supposedly limited amount of spectrum  available, imposing greater “public interest” obligations on those who hold  it.
We can (and probably should) debate the continuing validity of this  line of cases, but I think Powell is correct that the “law” of decency  applicable to unencrypted, free, over-the-air broadcasting is different from  that which applies to cable, or print, or the ‘net, or  whatever.
Chris S.  
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