by John M. Curtis
(310) 204-8700

Copyright March 13, 2004
All Rights Reserved.

aking another bite out the 1st Amendment, a bitterly partisan House of Representatives reaffirmed it puritanical roots voting overwhelming support for the Broadcast Decency Enforcement Act, authorizing the Federal Communications Commission to issue stiff new fines and penalties. Given the whopping federal budget deficits, Congress found new ways to augment revenues to the federal treasury. “American parents, Congress has finally heard you,” said Joseph R. Pitts (R-Pa.), touting the bill's intent of purifying the airwaves. Similar legislation wends through the Senate, though its fate is far less certain. Before Congress gets on its high horse, blames broadcasters and wastes countless tax dollars legislating morality, they should take an honest inventory of personal and business transactions. Call girls, strip clubs and frenetic lobbying speaks volumes about Washington's real morality.

      Exposing her breast on national TV Super Bowl Sunday, pop music star Janet Jackson had no clue she'd become the lightening rod in the latest smut wars, now fingering broadcasters. Booting shock-jock Howard Stern off the air in six cities, Clear Channel Communications signaled its new “zero tolerance” policy, realizing the 50-year-old broadcaster could cost the network dearly. Rep. Fred Upton (R-Mich.), chief sponsor of the House's new indecency bill, proposes upping fines from $27,500 to $500,00 per violation, leaving the ultimate discretion to the FCC. Fines would be determined by the size of the listening audience, company sponsoring the programming and apply to both broadcasters and on-air talent. New legislation sends “a firm message from the House to broadcasters and entertainers alike that we have had enough,” said Upton, the bill's chief advocate and sponsor.

      Stern echoed his own skepticism, blaming his ouster not on indecency but opposition to the war in Iraq—and the White House. Stern's radio broadcast hasn't changed appreciably since the program was first syndicated in 1985 at New York City's WXRK. His programs haven't changed one iota, always racy, irreverent and walking a fine line between outrageous humor and “indecency.” Clear Channel's surprising move reflects a defensive posture based to the FCC's recent crackdown. Clear Channel's standard didn't change—only the prospects of facing stiff fines. “There's a cultural war going on. The religious right is winning. We're losing,” said Stern, blaming Clear Channel's action on its relentless move to right wing programming. Instead of regulating pernicious propaganda, especially today's right wing radio, the FCC prefers to pick on innocuous obscenities.

      Current FCC rules prohibit radio and over-the-air obscene programming, though definitions remain murky. Pay per view satellite and cable services take liberties not accepted by public broadcasters. Indecent is defined by the FCC as “patently offensive sexual or excretory references that do not rise to the level of obscenity,” further complicating the picture giving ambiguous definitions of obscenity. Community standards can't be the only criteria used determine obscenity and indecency. Today's general consensus against gay marriage might prove unconstitutional by imposing the majority's tyrannical morality. Interracial marriage might also breach community standards yet, at the same time, violate the Constitution. If the Massachusetts' Supreme Judicial Court is correct, gay marriage is already protected by the 14th Amendment's equal protection clause.

      Calling the House's vote an “unconstitutional threat to free speech,” the American Federation of Television and Radio Artists agreed with the American Civil Liberties Union that new legislation turns back the clock of the 1st Amendment. Instead of dumping Howard Stern, the FCC should encourage disgruntled listeners to switch channels or turn off their radios. To many people, sexually explicit language, though classless, is far less objectionable than the graphic violence or ethnic stereotypes depicted on network television. Broadcasters are perfectly capable of policing on-air talent, without new legislation imposing “a chilling effect on artistic freedom.” Getting rid of Howard Stern or “Bubba the Love Sponge” should be a management decision based on internal standards and appropriate FCC guidelines. Before trashing the 1st Amendment, Congress should avoid a herd mentality.

      Rushing to judgment, the House once again displayed its lack of wisdom cracking down on broadcast “indecency.” Loose cannons should not be trusted with microphones or given radio talk shows. There's nothing wrong with setting federal standards but heavy-handed legislation compromises constitutional protections designed to safeguard important freedoms. Given reasonable guidelines, broadcast management is perfectly capable of regulating itself, without big brother threatening to lower the boom. Today it's a ban on “indecent” language, tomorrow it might be reasonable criticism of government policies. Excessive government intrusion stifles free expression, intimidates creative talent and invites cynical evasions of the law. “We're moving in the direction of further undermining the 1st Amendment,” said Rep. Ron Paul (R-Texas), concerned that morality fever has swept the Capitol.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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