Janet Jackson's pop-up
breast during Super Bowl halftime did not create the Broadcast Decency Enforcement
Act of 2004. But it will propel passage of that Act, the consequences of
which may be far worse than a bit of trashy exhibitionism on TV.
Independent television and radio stations may be silenced. This is especially
unfortunate as the application of law is not necessary to remedy the offense.
The BDEA would increase the penalties for "transmission of obscene, indecent,
and profane language." Currently, the highest fine is $27,500 per offense.
That maximum would be raised to $275,000 with an upper limit of $3 million
for repeat offenses. Last Thursday, the Act was passed unanimously by a House
of Representatives' subcommittee and moved on to the House Energy and Commerce
Committee. Increased fines are clearly in the air.
For some Federal Communication Commissioners, however, hiked fines are inadequate.
Commissioner Michael Copps has suggested that the FCC consider revoking the
licenses of violators because fines could be "easily absorbed as a 'cost
of doing business.'" The regulation of cable television has also been discussed.
Immediate policy changes will probably not regulate cable -- there is no
legal precedent. Nor is the extreme proposal of revoking broadcast licenses
likely to succeed. Not yet. But the next time there is a Janet Jackson incident,
pro-regulation voices will declare, "the fines were not enough." Then, talk
of license revocation, and of extending decency standards to cable or satellite
radio, will arise with fresh momentum.
For the moment, the policy change will basically increase fines. In doing
so, the FCC aims at broadcast giants, like Infinity. But the target hit is
likely to be quite a different one.
Jesse Walker, managing editor of Reason magazine and author of "Rebels
on the Air," explains, "What might be the cost of doing business for Infinity
Broadcasting could spell death for a college station that plays records with
edgy lyrics, or a low-power community station that airs serious discussions
about sex and health."
Radio is particularly vulnerable. There are more independent radio stations
than television ones; a high percentage of radio programming is live; the
FCC-targeted shock jocks are a radio phenomenon; and, there are few television
equivalents to freewheeling college radio stations. But both radio and television
are equally vulnerable to the vagueness of the FCC's definition of indecency.
For example, one standard of indecency is whether the material is "patently
offensive as measured by contemporary community standards for the broadcast
medium." Accused violations can be judged on a case-by-case basis, according
to this ill-defined measure.
In a letter to the House Subcommittee on Telecommunications and the Internet,
Laura Murphy -- Director of the ACLU Washington National Office wrote, "Because
of the vagueness, speakers must...[guess] what the FCC will determine to
be prohibited. Increasing fines merely exacerbates the problem, particularly
for small broadcasters. Rather than face a potentially ruinous fine, smaller
broadcasters are more likely to remain silent."
Murphy concludes, "The bottom line is that broadcasters enjoy First Amendment protection."
The FCC's recent and heightened focus on indecency has already caused a chilling
of free speech. For example, in 2001, a noncommercial community radio station
in Oregon was fined $7,000 for playing a feminist rap song that included
profanity. Although the fine was rescinded, the process took two years and
the investigating agency declared, "it was a very close case."
With the threat of the BDEA, even large broadcasters are chilling free speech
and self-censoring. The most publicized instance is NBC's decision to cut
the image of an elderly woman's breast from its popular medical drama "ER."
John Wells, "ER's" executive producer, argued that the audience was aware
of the show's adult themes and could adjust their viewing habits accordingly.
Wells' argument points to the best solution to the vulgarity of Jackson and
her ilk. It is not a shotgun policy that may be absorbed by media mega-corporations
while destroying community and alternative broadcasting. The solution is
for the audience to flex their buying and boycott power.
They did so with The Reagans, the anti-Reagan movie that posed as
historical drama. When consumers threatened to boycott companies that bought
commercial time during the movie's broadcast, CBS relegated it to a comparatively
small-time slot on Showtime.
Broadcasters are listening to audience feedback. When Nicole Richie uttered
profanity on the "Billboard Music Awards" that was carried by FOX, the network
immediately explored ways to prevent future embarrassment, including adding
a five-minute delay to live feeds.
Today, the first response to any controversy is, "there ought to be a law."
But in matters of morality and freedom of speech, it is best for law to be
the very last recourse society considers. The first resort is to let freedom
and the free market function.
Those concerned with the moral content of radio and television are being
provided with more control every day: rating systems, live-feed delays, constant
polls that serve as feedback to broadcasters, organized boycotts, and tools
of parental control such as cable locks or decoders. Passing a law has the
same appeal as drawing a gun: on the surface, it quickly stops an activity
that annoys you. But drawing a gun does not solve cultural issues: it only
introduces force into them.
We cannot allow the self-serving coarseness of some performers to damage freedom of speech and independent broadcasting.
Wendy McElroy is the editor of ifeminists.com
and a research fellow for The Independent Institute in Oakland, Calif. Her
new book is Liberty for Women: Freedom and Feminism in the 21st Century.
Reprinted with permission of ifeminists.com.