[Politech] Cato's Adam Thierer on FCC and "return of the 7 dirty words"

From: Declan McCullagh (declan@private)
Date: Thu Jan 15 2004 - 06:32:11 PST

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    Date: Wed, 14 Jan 2004 10:42:58 -0500
    From: "Adam Thierer" <athierer@private>
    To: "Declan McCullagh" <declan@private>
    
    Declan:
    	We recently published a Cato "TechKnowledge" newsletter on this issue. I 
    thought Politech readers might find it of interest.
    
    	Cheers - - Adam Thierer
    
    ________________________
    
    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@private) 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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