The Broadcast Indecency Playground

Sticks and stones may break my bones but words will never hurt me—we’ve all heard that phrase before.  It’s often said by children who are picked on in the schoolyard. But adults can derive some wisdom from this seemingly simple expression and apply it to the current brouhaha over broadcast radio and television content.

Bully pulpit

Just like that tattletale in school who always ran to the teacher, certain interest groups are pushing Congress to “clean up” the airwaves.  More than just increasing the fines on broadcast licensees, the pending bills propose to extend liability to announcers and entertainers personally. The House bill pulls the plug on a licensee after three indecency violations—a “three strikes” mandate much like California’s criminal law regime.  The thrust of the pending legislation is to further centralize who decides “good” from “bad” content, and makes government—not consumers—the ultimate arbiter of programming content.

When it comes to censoring broadcast “indecency,” government regulation is a rudimentary filter.  Laws preventing certain speech are black type on white paper, but the context in which words appear are utterly gray.  Language that is crude in one context is clinical in another.  Politicians are only good at making black-and-white decisions.  When it comes to “obscenity” or “indecency,” even the U.S. Supreme Court avoids specific definition and instead proclaims, “I know it when I see it.”

Ironically, George Carlin’s famous monologue on the “seven dirty words” was a satire on censorship.  Some people consider him to be lewd and crude while others consider Carlin to be a comedic genius and master of manipulating the English language.  The same could be said of Howard Stern and his show today.

Deciding whether Stern’s broadcast is indecent shouldn’t be a political debate, but it is.  Until we get away from the belief that spectrum is a scarce natural resource owned by the public, broadcast standards will be dictated by the political process.

The FCC is moving toward a property-based spectrum allocation process—as proposed in its 2002 Spectrum Policy Task Force report—and this should be applied to the broadcast world.  After all, private bookstores are very good at satisfying diverse tastes, keeping the more titillating magazines away from the windowed storefront on a crowded sidewalk.  Broadcast ownership should be no different.

Autonomy before censorship

The natural reaction of many people today is to ignore private means of persuasion and influence in favor of the idea that “there ought to be a law.”  But what would a strengthened broadcast censorship law achieve?

Congress should weigh costs and benefits before it passes any law.  In this case, what measurable benefit can come from the regulation of speech, arguably the most precious of our constitutional rights?  Will crime go down?  Will children retain their innocence a little bit longer? To be sure, there are plenty of less intrusive mechanisms that exist in society today short of government censorship.

As we have seen in the response to recent indecency scandals, customers are perfectly able to be their own regulators by registering their displeasure with programmers and advertisers. Parents have a powerful weapon of their own; it’s called the off button. Truly offensive content, as opposed to occasional crudeness or political incorrectness, will be met with vanishing audiences and no advertisers.

Americans should worry about the federal government having the power to determine what they may to listen to and watch. Particularly disturbing are proposals to expand FCC censorship powers beyond traditional broadcast networks into the arena of cable and satellite content. It’s this rabid desire of regulators to ignore the First Amendment that Americans should regard as truly offensive – not controversial programming that can be readily turned off.

In the future, perhaps technologies will be built into digital video recorders that would allow a consumer to set up a screening system. Enabling individual control of content in a free market is welcomed because no law or set of laws can increase morality. As Rep. Ron Paul recently stated on the House floor, “If a moral society could be created by law, we would have had one a long time ago. The religious fundamentalists in control of other countries would have led the way. Instead, authoritarian violence reigns in those countries.”

Voltaire is attributed with saying, “I may disagree with what you have to say, but I shall defend to the death your right to say it.”  So go grab your sticks and stones.  Our free speech rights are under attack and it’s time to take a principled stand.