Fisking our National Nanny

Fisking our National Nanny

: Michael Powell, our censor-in-chief, writes an op-ed in today’s New York Times defending himself — and that’s good news, for he clearly feels the need to defend his outrageous, unconstitutional, and above all hypocritical behavior against the heat of true public outrage that is beginning to rise in defense of our First Amendment.

But his attitude is horribly condescending, like a Continental airline clerk who abides a customer’s righteous anger over bad service and eight-hour delays and lies on a microphone and then, with pursed lips, says, “Are you done now, sir?” You want to just slap him. Powell’s self-defense begins:

Time to take a deep breath.

Don’t tell me what to do, Powell. Oh, that’s right, you relish telling us all what to do. Well, when it comes to free speech, this is not a time for any damned deep breath. This is a time to shout with outrage at your censorship. How presumptuous that you would start by telling us to take a deep breath. But it’s just like you.

The high pitch at which many are discussing the enforcement of rules against indecency on television and radio is enough to pop an eardrum.

And for good reason. You supposedly listen to the outrage of the public, well start hearing outrage from the other side, the side you don’t want to hear.

It is no surprise that those who make a handsome living by selling saucy fare rant the loudest – it drives up the ratings.

How dare you? There are plenty of citizens out here who are ranting loudly against your actions and it’s because we believe in the First Amendment and the Constitution — as you once did. How dare you impugn the motives and message of good citizens in such a way? You prove just how deaf you really are, Powell.

The news media further fan the flames, obsessed with “culture war” stories that slot Americans into blue-state and red-state camps.

Well, yes, the media fan those flames of politics. But that’s not the flame at issue. The flame I’m worried about is the match you put to the Constitution.

Overheated words, however, obscure what should be an important debate over two American values that are, at times, in tension. As one deeply suspicious of government involvement in the regulation of content, I understand and often agree with those who stand up for the cherished value of free speech. But as a parent, I respect the desire of the American people for a minimum level of decency on the public airwaves – particularly where their children are concerned. The often unenviable task of striking a balance between these two competing values falls to the Federal Communications Commission.

You often agree with those who stand up for free speech? Prove it, Powell.

Broadcasters have always had the responsibility of making decisions about what programs are appropriate. The majority have done well. In the history of broadcast television, there have been only four indecency fines.

You have levied far more fines than that but you have used the blackmail power of the FCC to bring those to settlement. Another of your lies.

Yet when certain broadcasters trade responsible restraint for torrid sensationalism in the relentless race for ratings, it should come as no surprise that escalating calls for the government to enforce indecency laws aggressively are the result.

Here is your big lie, Powell. You know damned well that these alleged “escalating calls” are the Xeroxes of the few. Milllions upon millions watch and listen the shows you censor. Yet, as I proved, only three prigs like you bothered to write letters complaining about a show that you found to be the most indecent in history, since you brought the biggest fine in history against it.

You are supposed to be judging all this according to community standards, according to the average citizen. I quote from your own rules:

The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant.

But, instead, you are censoring according to the dogma of the few, the three. You are no different in that respect, as the editorial below says, from an Iranian mullah.

The F.C.C.’s job of regulating indecent content on the airwaves is not optional; it has been required ever since Congress first made the broadcast of obscene, indecent and profane material illegal more than 70 years ago. The law continues to enjoy strong bipartisan support.

Yes, Democrat Commission Michael Copps is even scarier than you. He doesn’t know better. You at least once defended the First Amendment.

And as for saying this is “required…” Well, that makes it sound as if there is a clear rule and an absolute line you defend. You know damned well that you have inconsistent rules inconsistently enforced according to whim and politics.

Even so, there are important limits placed on the F.C.C. Our rules do not ban indecent content entirely; they merely restrict its broadcast during times in which children are likely to be in the audience, namely from 6 a.m. to 10 p.m. Courts have consistently held these rules constitutional, accepting that the government has a compelling interest in protecting children from inappropriate material.

And it is high time for a court test of that. But you won’t allow it, for you use your blackmail power to keep broadcasters from going to court by threatening their licenses and businesses.

For material to be indecent in the legal sense it must be of a sexual or excretory nature and it must be patently offensive. Mere bad taste is not actionable. Context remains the critical factor in determining if content is legally indecent. Words or actions might be acceptable as part of a news program, or as an indispensable component of a dramatic film, but be nothing more than sexual pandering in another context. That context and the specific facts of each program are reasons the government can’t devise a book of rules listing all the bad stuff. In 2001, however, the agency issued policy guidelines summarizing the case law on indecency, and each new ruling since then clarifies what is prohibited.

I have read those rules and will be commenting on them soon. It is a laughable document but, even so, you’re not following it.

But we are not the federal Bureau of Indecency. We do not watch or listen to programs hoping to catch purveyors of dirty broadcasts. Instead, we rely on public complaints to point out potentially indecent shows. In recent years, complaints about television and radio broadcasts have skyrocketed, and the F.C.C. has stepped up its enforcement in response.

You say that the number of complaints doesn’t matter, out of one side of your mouth, and then you justify your actions by those numbers out of the other side of your mouth. And you know damned well — your people have admitted it to me and I’ve proven it — that the numbers are a lie.

And where, sir, do you count the millions and millions of Americans who watch the shows you say we should not watch? If it is a matter of numbers, then how do the rest of us count? How does the vast majority count?

Advocacy groups do generate many complaints, as our critics note, but that’s not unusual in today’s Internet world. We are very familiar with organized protests when it comes to media issues, but that fact does not minimize the merits of the groups’ concerns.

Just because any group Xeroxes complaints, you have to listen? What happens, Mr. Powell, when an Islamic society of America objects to showing women’s faces? Under their beliefs, they have a legitimate concern. They would say displays of flesh are all sexual. Will you hand out the burkahs then? This logic falls apart an inch away from your lips.

Under the law, we must independently evaluate whether a program violates the standard, no matter whether the program in question generates a single complaint or thousands.

But, again, you are required by law to judge that against community standards, by the average person, not the fringee. But you pander to the fringe.

When the commission makes the determination that a program is indecent, we typically fine the licensee that broadcast it. Although the commission has the authority to fine an artist personally, we have never done so nor do I support doing so.

I didn’t hear you objecting to the indecent indecency law that will allow you to bankrupt anyone who appears on the airwaves. Show me the testimony before congress airing this objection, please.

Over the years, fines had become trivial. A routine violation generally received a paltry $7,000 fine, with the maximum fine being $27,500. The agency has increased penalties significantly, recognizing that they must be large enough for billion-dollar media companies to stop treating fines as a minor cost of doing business.

And, again, Congress is raising those fines to $500k per incident and up to $3 million per day on both broadcasters and individuals. The Vice President, had he uttered his F word on broadcast, could be fined $500k. Oh, but he’s one of the few who wouldn’t be bankrupted by that.

Some have also questioned why the commission is unwilling to issue rulings before a broadcast, as was the case with the recent network showing of “Saving Private Ryan,” a film the commission had previously held was not indecent. While ABC and its affiliates understandably would have liked to know the program was in bounds before proceeding, the precedent of submitting programming or scripts for government review borders dangerously on censorship. The Communications Act expressly forbids the F.C.C. from banning a program before broadcast, and any such effort might very well run afoul of the First Amendment. This is a step I do not want to take.

Utter crap, sir. They asked for a clarification of your very fuzzy rule. Yes, Private Ryan was aired before without fine — but that was before you, sir, decreed that the F word — uttered under any circumstances — was profane and illegal. And you know that damned well. Another lie.

The commission’s indecency rules apply to broadcast television and radio but not to cable, newspapers or the Internet because the Supreme Court interprets the First Amendment in a way that affords stronger constitutional protection to these sources than to broadcasting. The argument goes that broadcasting is different because it is uniquely pervasive, with children having easy access.

Broadcast is no longer “unique pervasive.” Only 11 percent of America, as you well know, gets TV from rabbit ears (and they’re probably mostly old people without children or the desire for cable). That rationale is outdated and moot.

Government can limit content in the public interest because broadcasters use a public resource, the airwaves.

And they are my airwaves, too. They do not belong just the the tyranny of the few. They belong to everyone.

Yes, it is strange that First Amendment protections are weaker or stronger depending on what channel you are watching, but under current Supreme Court precedent that’s the way it is.

That’s still current because you have prevented court challenges by your blackmail.

And I believe that any effort to extend regulation of content to other media would be contrary to the Constitution.

Well, thank heaven for small favors. I am grateful for that. Unfortunately, though, it’s not up to you. There are those in Congress who have tried to extend censorship to cable; there is a petition before the FCC to extend it to satellite; I am sure the internet will be the next target. The horrid Mr. Copps has also said he wants to extend this to cable. You can stand there and act pure and others will try to do the dirty work.

We take all these limitations seriously and believe we have acted in a balanced manner.

Ha.

If one slices through the rhetoric, you’ll find that most opponents of the agency’s strong enforcement efforts believe that the government simply should not impose any decency standard at all.

Shall we read the First Amendment together? Congress shall make now law… abridging freedom of speech. Yes, I do not want government — you — abridging speech in any way. Neither did our founding fathers. I trust the marketplace, the citizenry, the people. So did our founders. You do not.

Berating citizens who believe in values and reasonable limits is insulting and polarizing and distracts from the legitimate issues of this policy debate.

And ignoring and condescending to those who are criticizing you is no better.

Critics of the law should instead focus their efforts on changing the law, if that’s what they want.

I am eager to see the day that happens in court…. if you let it happen.

Until then, the American people have a right to expect that the F.C.C. will continue to fulfill its duty of upholding the law, while being fully cognizant of the delicate First Amendment balance that must be struck.

Until then, expect more and more American people to rise up against your censorship.

The First Amendment is not delicate, sir. The First Amendment is bedrock, firm and solid, the very foundation of our nation and everything it holds holy. The First Amendment is “delicate” only in the minds of those who want it to be, those who would attack it.

  • http://opinionpaper.blogspot.com Brett

    Powell mentions children several times and views this from the perspective of a parent. I guarantee that more than 3 of us are watching TV and have children in elementary school.
    You haven’t addressed this in the past, and you barely touch on it here by saying that rabbit-eared folks are old and probably have no children.
    But you fail to address the issue of PG-13 sideshow content during a G-rated main event. (Football Desperate Housewives promos…)
    You keep missing a huge point in this, Jeff. What say you?

  • http://www.masslive.com/weblogs/blogbeat/ Scott Brodeur

    You are getting it in just under the wire, Jeff, but this is quite probably the Fisk of the Year for 2004!

  • http://www.buzzmachine.com Jeff Jarvis

    Brett:
    First, I trust the marketplace. I do not trust government regulating speech; neither did the creators of the Constitution. That is the real issue with Powell.
    As for the general issue of children and sports: I do believe that the networks will respond to pressure from the audience.
    As for the specific matter of that promo: I saw absolutely nothing wrong with it. We all have lines but they’re in different places.
    As for other more general issues, I’m hoping to write another post this weekend, time permitting.

  • john

    Hmmmm… I think Jeff addresses this, but doesn’t come right out and say it in the words you’re looking for. I think the point is that “community standards” do not mean your standards or my standards. Yes, a parent has a right to *feel* that content is indecent, but that doesn’t make it legally indecent. As far as I know, there is no specific legal definition of indecent content. The law leaves the interpretation of indecent up to the community (and rightly so, would you want the decency of nationally broadcast content be determined by the Amish?).
    If the FCC is going to enforce “community standards” on national broadcasts, then the “community” would have to be the nation. Not 3 or 20, or 156 people who complain.

  • Hampton Stephens

    Though I lean toward agreeing with you that the FCC has gone to far, your argument assumes a definition of free speech which I’m not sure is in the constitution or established by precedent.
    Perhaps I’m confused, but I still don’t understand how federal imposition of standards on broadcasting violates the first amendment, even if one concedes those standards are not in line with the community.
    Even if Congress made a law that ditched the amorphous “community standard” and just flatly included a list a prohibited vulgar words, and the FCC levied a fine each time such a word was uttered on broadcast television, it’s not clear to me that this would be a violation of the first amdendment.
    Please explain why you believe the first amendment protects everything broadcast over television.
    Hampton Stephens

  • zuma

    Jeff, Is there anything at all in Michael Powell’s oped that you agreed with, that you’d like to acknowledge and support? His mention of not pursuing cable and satellite, for example?

  • http://opinionpaper.blogspot.com Brett

    Jeff,
    Like you, I’d like to see the FCC die, or at least restricted to purely technical regulation. I’m a small-government, libertarian-leaning guy, and I don’t want speech regulated.
    Part of the issue here is that the bigwigs at the networks are very disconnected from us, the viewing public. How can they listen to any pressure from us, as you suggest? I think you had a problem the other day even finding a contact for one of the networks to voice your disapproval for the banning of the church ad.
    If the networks don’t like the FCC and want it to go away, then they ought to BOLDLY and PROMINENTLY list feedback numbers/email on their websites. Like the trucker rolling down the road, they ought to ask us, “How are we driving? Call 1-800-TELL-CBS. Don’t go through the FCC – call us directly.” But they’re not interested in that, and any time that a corporation does not listen to its customers or the public it invites regulation. The networks need to give Americans an avenue to apply pressure, or else people will, by nature, reach for someone with greater authority and voice to roll in and fix it. Hence, content regulation at the FCC – which is wrong, but citizens don’t know another avenue and they’ll use what they have.

  • http://www.buzzmachine.com Jeff Jarvis

    Zuma:
    I did say I was grateful for that support.
    I can’t wait for him to testify to the effect before Congress when it tries again to extend the FCC’s censorship jurisdiction to cable.

  • James

    Mr. Jarvis, one question: Do you believe it would be permissible for the FCC to act against a broadcast network that showed hard-core pornography at 4pm? You certainly imply that your answer is “no,” with your literalist reading of the First Amendment (“Congress shall make now [sic] law… abridging freedom of speech….”). But courts have NEVER read the First Amendment so literally, and they have routinely upheld regulation of broadcast content. (Hell, they recently upheld the McCain-Feingold law, which contains numerous restrictions on *political* speech on TV.)
    If, however, you concede that broadcasting hard-core porn at 4pm is properly subject to regulation, then we are having a different argument: one about *where* the line should be drawn, rather than one about *whether* a line should be drawn at all.
    I happen to agree with you that the fines that the FCC has recently imposed are silly — I would draw the line much, much further in favor of keeping the government out of speech regulation. But even I, someone deeply skeptical of regulation in this area, concede that *some* regulation is constitutionally permissible, and probably even a good idea. And in a democracy where the vast majority of people would celebrate *some* limit on what can be shown on TV, it’s virtually inevitable.

  • http://donatacom.com/blog.shtml Terry Heaton

    Even in your anger you do an excellent job of deconstructing the chairman. I’d have said something like…
    “Well, oh yeah?”
    (May a sick yak nest in the bedsheets that warm your body at night!)

  • http://opinionpaper.blogspot.com Brett

    James,
    Isn’t that the same argument that would bring regulation to the Internet?

  • James

    Brett, I certainly do not support decency-based regulation of the Internet. But for various cultural and historical reasons (some of which admittedly do not stand up upon close scrutiny), broadcast TV has been treated differently.

  • MWB

    Here’s a question for Jeff, or anyone else who takes a “let the market decide” position about media:
    Isn’t media in the business of *shaping* markets?
    I mean, who does the molding here? Does the culture shape the media, or does media shape the culture?

  • Little John

    Is there any way we can make this article required reading? Sort of an inverted censorship? Fisk them, Jeff! Fisk like the wind!
    Or, more memorably, a quote from Harry Truman: “I never give them hell. I just tell the truth and they think it’s hell.”

  • http://www.somethingtobedesired.com Justin Kownacki

    Not sure if that’s a trick question or not, but I’d say the culture and the media each evolve in tandem but on their own terms. Once you decide that one is subservient to the other, you’ve enforced a concept of sociological evolution, and I’m pretty sure the “e” word has fallen out of favor in most textbooks…
    If the culture as a whole (or in majority) decides that Nicollette Sheridan is a bigger threat to America than al-Qaeda, ABC and the NFL will feel the heat. My guess is that the culture is a lot more open and accepting than we tend to hear, if the proliferation of widely-reported complaints by a tiny number of people is any indication. As much as the media influences our cultural identity, the growing number of dark TV screens in living rooms across America most definitely influences the media.
    Viva l’internet. (Until Michael Powell notices it…)

  • http://dremic.typepad.com/drew Drew

    Brett: Contrary to what Jeff says in his post, TV -is- uniquely pervasive, and the internet is not (TV is push, internet is pull). That’s the difference, and that’s why what James suggests for TV would not be so applicable to the internet.
    And yeah, I know Jeff was talking about “broadcasting” not being pervasive, not TV in general. But I believe broadcast stations, even if delivered over cable or satellite, still fall under the jurisdiction of the FCC. Anyone can feel free to correct me on that one though.
    Otherwise, Jeff your occasionally bullying tone is probably counterproductive to producing real debate, but I pretty much agree with everything you say anyway. :)

  • Dexter Westbrook

    Mr. Jarvis,
    I can see now why Michael Powell doesn’t listen to you. Nor is he ever likely to.
    Every so often, as part of my job, I get letters from lunatics. Your post reminds me of one I got just the other week. It is around the bend. Few people listen to the ravings of a lunatic, even if he/she might have some points worth listening to. There’s too much noise, not enough signal.
    It comes down to this: Do you believe there should be broadcast standards on the public airwaves? Should a network be able to broadcast pornography, beheadings, etc. whenever it pleases? If you don’t believe there should be any standards, that’s fine, but it isn’t a political position that most people would agree with. The debate is mostly about what standards there should be, and how they are enforced. This is what Powell is doing. You don’t agree with how he’s doing it, and that’s fine, but instead of reasoned argument, you portray Powell as some sort of fascist and hurl a lot of insults. You don’t advance the debate one iota. Compared to you, the Swift Boat Veterans for Truth look measured and reasonable.
    On the other hand, I’m sure your over-the-top commentary does help you get bookings on television shout shows.
    Merry Christmas.

  • Jaybird

    I might question the assumption that if a complaint letter is xeroxed, it shouldn’t be counted.
    I’m thinking of, for example, the stereotypical grandmother. This theoretical lady might have well been offended by a thing she saw on the Superbowl Halftime show and wanted to write a letter of complaint but slipped and tripped over the words and found a fairly well-written letter of complaint that she was able to copy/paste and send to the FCC.
    Is it really your assumption that this letter did not represent the opinion of Grangran?
    Yeah, it’s possible that the Evangelical Christians out there are so very organized that they can just get the little women out there to send off a letter of outrage without even reading it first but…
    I’m not sure that dismissing “xeroxed” complaints as not representing the opinions of the senders is fair…
    Though, surely, not all can be claimed to represent the opinions of the sender either.
    Can we agree that maybe a xeroxed letter counts as 3/5ths of a complaint?

  • MWB

    Justin,
    RE: Media shaping markets and vice versa
    Not a trick question at all, and thanks for your thoughtful response (I’d be happy to see one from you too, Jeff).
    I’m just trying to get at a side of this debate that I haven’t seen here. We’ve heard a lot about the “heavy hammer” of government regulation, but little to none about the power of media to shape sensibilities.
    More thoughts later, as time allows.

  • john

    Dexter,
    According to your definition, a lunatic seems to be someone who disagrees with you… loudly. Or I can’t really tell if you’re disagreeing with Jeff or not… but anyway, I can’t really see even Michael Powell calling Jeff a lunatic. Mr. Powell seems to be much more capable of defending himself using completely illogical statements (which would be closer to my definition of a lunatic).
    If over-the-top commentary brands someone as a lunatic, then why aren’t Sean Hannity, Bill O’Reilly, Rush Limbaugh, and Anne Coulter being carted off by men in white jackets now?
    Sometimes you have to shout a little to be heard. But quite frankly, I don’t really think Jeff is shouting. He’s presenting a reasonable counter point to a completely irrational administration. If a little hyperbole gets Jeff noticed and more people talking about this… then so be it.
    Do you think Michael Powell would even have submitted an op-ed piece if he didn’t think he was being heavily and reasonably criticized?

  • http://donatacom.com/blog.shtml Terry Heaton

    Dexter,
    Don’t confuse passion with lunacy. If the New York Times were to give Jeff an equal opportunity to reframe the discussion, it would still be biting but likely less caustic. This is, afterall, Jeff’s blog. We don’t want or expect him to hold back.
    Keep coming back,
    Terry

  • http://www.vectorsphere.com/weblog V-Man

    >Do you believe it would be permissible for the FCC to act against a broadcast network that showed hard-core pornography at 4pm?

  • http://www.vectorsphere.com/weblog V-Man

    Hmmm, the site seems to have burped before I could send my (lengthy) reply.
    The short form is, a network that shows porn on regular hours would immediately be closed by protests and lawsuits. It would definitely be closed by the flight of its advertisers. No need for extensive regulations.
    Trust the market, not the government.

  • http://d2brutallyhonest.blogspot.com David 2

    Well said, Jeff. Keep it up!

  • Rich

    Brilliant! Let the bastard have it!

  • http://www.petetheelder.com pete the elder

    “Critics of the law should instead focus their efforts on changing the law, if that’s what they want.
    I am eager to see the day that happens in court…. if you let it happen.”
    The traditional way to change laws is through acts of congress. As part of the executive branch of government Mr. Powell’s job is to enforce the law as it is written and how it has been interpreted through the courts (which he is doing), not to change the law. Jeff have you written to or called your congressman and senators about changing the law?
    James, don’t hold your breath waiting for Jeff to answer your question.

  • http://www.buzzmachine.com Jeff Jarvis

    Pete:
    Yes, I have written Sen. Corzine and my rep. I’ll write them again when the bill come back in January because, you’re right, that is the first line of defense. But the courts are also the best line of defense for the Constitution.
    MWB:
    No, I firmly believe that media reflects culture. Media doesn’t lead; chicken-hearted media executives certainly do not lead. I watched and studied that question and came to that conclusion when I was a critic and I’ve seen nothing to dissuade me. When media is out of step, it loses money.
    V-man:
    Exactly! The question about whether it’s ok to put on hardcore at 4p (isn’t that Oprah’s time and didn’t she describe sex acts in pornographic detail and hasn’t the FCC ignored that… oh, but I digress) is the best example of how the marketplace works and government doesn’t. Oh, sure, Larry Flynt could buy a station and put porn on it (just as the NRA has bought a station to put propaganda on it). But he would get no advertising whatsoever. He would soon lose every penny and for nothing but the thrill of thrilling housewives. And he would go bankrupt. The marketplace would reject that move. If you don’t believe it would, then you don’t have much faith in your fellow man and you probably shouldn’t be advocating democracy either. But I do have faith in the wisdom of the people. This is, in the end, all about democracy, about having faith in the marketplace — in the free market of speech and ideas, our most fundamental shared belief.
    As for the value of xeroxed complaint letters: I’m not saying it is valueless but it has less value. I could not even confirm that the 20 people who copied that complaint about Married by America were, in fact, 20 different people because the FCC redacated their identities; I would have liked to have tracked them down and seen how many even bothered to Xerox. In any case, the number is relevant because the FCC is managing to a “community standard” of three or 23 who don’t even care enough to write their own complaint. They follow the orders of their cult leaders. I put little value in that.
    As for the tone and those who don’t like it: I didn’t like Michael Powell’s condescending tone, either. I chose to rant. This deserves a rant. I’m angry about attacks on the First Amendment. And I’ll show it. And, by the way, this is a blog; it’s about immediacy and not about turning views into tapioca. I believe what I say strongly and I say it strongly.

  • http://www.buzzmachine.com Jeff Jarvis

    Oh, and Pete… Please tell James to breath now. He’s turning blue.

  • Jaybird

    “Who don’t care enough to write their own complaint”, what about those who aren’t eloquent enough to write their own?
    I’ve received letters from my step-grandmother that kinda made me feel a little ashamed because the writing was absolutely horrible (though the penmanship was excellent). The language fumbled and didn’t parse well at all.
    This is a woman who would have been offended by most of the stuff we’re talking about (even the Oprah stuff) and if she sent a letter of her own to complain, we could all enjoy mocking how little education she must have received (she didn’t receive much) and how a good chunk of those who complained obviously didn’t even graduate high school.
    Eh.
    I’m down with saying that a xeroxed complaint shouldn’t be worth as much as one written originally.
    I’m not down with saying that they can be dismissed because we don’t know if only one person sent all of them from a bunch of faked addresses.
    It’s easier for me to believe that people who aren’t very eloquent sent the letters in good faith than to imply a conspiracy.

  • http://thefatguy.com Scott Chaffin

    BS, Jeff. Larry Flynt, by proxy, already has a porn channel. The NRA has their channel. They’re both on satellite/cable systems. Both are labelled as what they are, and both are making money they need to make to stay in business. You know this.
    The discussion that needs to happen is “broadcast over public airwaves” — ABC, NBC, CBS, Fox. Correct me if I’m wrong, but I don’t think you want to open the doors to your nemesii by conflating the broadcast industry and the sat/cable industry.

  • Rootbeer

    The problem with the FCC as I see it is not that they are regulating broadcast content. There’s a persuasive argument to be made that a government agency legitimately serves the public interest by, to borrow an extreme example, keeping hardcore pornography off kids’ TV sets at 4PM.
    The problem is that the FCC doesn’t understand what the public actually considers to be acceptable content, and doesn’t care. A silent majority of 10 million unoffended viewers can be overruled by a vocal minority of thirty letter-writers. Alternately, a thousand offended people could write letters and be ignored entirely. Enforcement is entirely at the FCC’s discretion — if they’re not offended by the same things you are, you’re out of luck. Your voice doesn’t count.
    Let’s see the FCC act like a democracy instead of an oligarchy. Decisions on what is and isn’t obscene need to be handed down by the public at large, not by a comittee of political appointees and unenlightened despots. Let’s see them do some market research, maybe even opinion polls, before handing out the next seven-figure fine for suggesting female nudiry in prime time.

  • wally

    In a related, but not FCC-specific note, the chilling effect of official prudery is spreading.

  • http://www.parentstv.org Kimberly

    I was actually the first to create an online FCC complaint form (even before the FCC). The form allows the complainant to change the body of the email. Also, the contact information for each person goes at the top of the email thus no two complaints are the same. 4,073 Parents Television Council members filed complaints on “Married by America”. The fact is the FCC hasn’t been good at keeping track of complaints and is even suspected of deleting complaints that they have labeled as “spam”. I have copies of the complaints in case anyone wants proof of this.
    It is irresponsible to go around saying that only 3 people filed complaints because it’s simply not true. Maybe you should get more than one side of the story before go around spreading lies. Yes, the FCC started this lie due to their utter incompetence but you, Jeff, are proliferating it.
    The FCC now sends receipts when someone emails in a complaint thus they won’t be able to deflate the numbers in the future. Over 30K PTC members filed a complaint when the f word slipped into a broadcast of “Big Brother”.
    -Kimberly PTC Webmaster/Editor (Not a prig or a prude)
    “Evil triumphs when good (wo)men do nothing.”
    http://www.parentstv.org/PTC/publications/lbbcolumns/2004/1202.asp

  • http://www.buzzmachine.com Jeff Jarvis

    Kimberly:
    I salute you for venturing into this, the devil’s cave.
    I only reported what the FCC gave to me under the FOIA.
    And everything I say still holds if there were 4,000 hits of a send button. There were still millions more who disagree.
    I’m a parent and I’m no member of your alleged organization. You do not speak for me. In fact, you scare me.
    I’ll respond to Bozell’s bile in a post later.

  • James

    Jeff, you did not answer my question: “Do you believe it would be permissible for the FCC to act against a broadcast network that showed hard-core pornography [we're talking Vivid Video, not Oprah] at 4pm?” Maybe the market would support such a show, maybe not; I don’t know. But that’s a different issue from whether regulating such porn is consistutionally permissible, or good policy.
    If I wasn’t clear before, my point is that it’s not quite fair to separate the world into “censors” like Powell and freedom fighters like yourself. Nearly everybody supports some form of speech regulation; the issue is where to draw the line. (On the first day of my First Amendment class in law school, the professor had a great time ripping to shreds those students who righteously claimed to be “absolutists” on free-speech issues.) Like you, I think that the fines the FCC has recently imposed are ridiculous. But I don’t think that makes Powell a liar, hypocrite, etc.
    And as for “Please tell James to breath now. He’s turning blue.”: I’m not sure what this means. I’m breathing just fine.

  • DJ Jazzy Chad

    Jeff,
    Great post!
    What the hell happened to this country that interpreting “Congress shall make no law” to mean that Congress shall make no law became an extremist view?

  • http://www.modempool.com/nucleardann/blogspace/blog.htm Dann

    Jeff-
    Once again, I find Mr. Powell’s commentary to be reasoned and reasonable. I don’t fault you for disliking the existence of the FCC. I do fault you for implying that Mr. Powell is some sort of horned demon instead of his being a reasonable individual attempting to perform the job that Congress has asked him to do in a thoughtful and professional manner.
    You may want to recheck your azmith and elevation, because you have the wrong target firmly in your sights.
    Regards,

  • http://www.parentstv.org Kimberly McGovern

    Thank you for the welcome Jeff. I’m always up for a good debate.
    I’m sure you know that any good journalist gets both sides of the story. Just because the FCC told you something doesn’t make it fact. All your story proves is that the FCC isn’t doing their job correctly. This is something we all knew already.
    When I send an email in outlook I hit a “send” button. Does that make all of my emails invalid? They don’t just hit a button. They have to fill in all of their information and they can choose to edit the complaint (Howard Stern’s people took advantage of that when they came to my site to file complaints on Oprah). Even the FCC’s own online complaint form is very similar to mine thus if they try to say that mine is not valid than neither is their own.
    What makes a valid complaint in my opinion? When you have a complainants name and valid mailing address. I have all 4,073 of them in a database.
    Scared of me? I’m honored but you shouldn’t be since my one vote is no stronger than yours. I’m not scared of you. Actually this would be a very boring world if everyone agreed with me. I respect your opinion but I do pity people who proliferate lies and who can’t see (nor are willing to see) two sides of a story.
    Open up your mind and let some air in.
    -Kimberly
    “Never chase a lie. Let it alone, and it will run itself to death.” –Lyman Beecher

  • http://thefatguy.com Scott Chaffin

    James, now it’s just “conspiratorial gasping”, if you’re breathing. Join me, Eileen, Kat, Brett and a few others on the sidelins here to watch Jeff do his famous weave down the field, avoiding that question.
    To Jeff’s credit, he has committed to answering our questions about what I’ve taken to calling “the bright line” regarding acceptability on public broadcast networks.

  • http://www.gringoman.us gringoman

    Look, I don’t need a nanny, but I don’t like the Howard Stern-like toileting of American culture either. Jeff can score his anti-nanny points, but I do think he doth protest too much. His shrillness is another symptom of the Liberalism that’s gotten so tired. We want freedom in this country, without turning it into a smelly cesspool. If liberals can’t grasp that, and can only see it as a “wingnut conspiracy,” why shouldn’t we sig Ann Coulter on them?

  • http://wematter.com Mike Liveright

    The V chip is the answer
    It seems to me that Powell was completely wrong… I want to be able to control my viwing but still let others not view “surprising” content. I don’t think anyone in the government should prevent material from being broadcast, but it also seems to me that broadcast content could be “safe harbored” by them.
    We do have the V chip for people to control what is shown to them and their children. My thought would be that a broadcast (or broadcast part) could be “V chipped” at “X” and safe from FCC review, or the FCC could rate it at a lower level (based on clear standards) and it would be safe. Then the V-Chip would available for a parent, etc. to prevent objectional material from being viewed, and others could view it if they felt like it.
    Un-reated (or creator regulated) shows would be libel for after-the-fact review by the FCC.
    Thus the FCC could/would not be acting with prior restraint, while still allowing all material to be broadcast and providing a way for broadcasters to be safe from after the fact penelties.

  • http://www.unclemikey.blogspot.com Uncle Mikey

    I’m still unclear as to what has been lost. What is it that you want to do that you can’t because of Mike Powell? I don’t believe in slippery slope arguments about this kind of thing because they don’t play out that way in reality. What is it you fear?

  • Bill B.

    The same people that interpret “shall make no law” in regards to free speech interpret “the right of the people to keep and bear arms shall not be infringed.” I’d like ‘em both as written, myself.

  • http://www.buzzmachine.com Jeff Jarvis

    Kimberly:
    Don’t give me that line about reporting.
    The letters did not make clear that they were from a “Parents Television Council” complaint factory. They only reference a tape being on file there. But I could not find out where they came from and so I could not call… you were trying to hide that, I suspect.
    It was only when Jake Tapper of ABC News confirmed the PTC involvement and gave me the address that I could see they all came from you.
    Further, I find it suspicious that I hear this spin only now. If you had such a huge complaint with the FCC, why didn’t I see your cult leader screaching about it on CNN when the original complaint was filed against Fox? Sorry, but this doesn’t smell good.
    I reported what I found out from the FCC. And you may be surprised to know that I trust the FCC more than I trust you.

  • http://www.buzzmachine.com Jeff Jarvis

    James: I did, indeed, answer your question. I want the marketplace to deal with that 4p Porn show you dream about, not the government, for I believe in the Constitution, which says that Congress shall make NO LAW … abriding freedom of speech. That’s pretty clear, eh?

  • James

    As a bell. But to be clear: your position is not the law, and has never been the law. Go into court and say, “The First Amendment says, ‘Congress shall make no law’ — so therefore I win” will get you absolutely nowhere. See, e.g., FCC v. Pacifica Foundation 438 U.S. 726 (1978) (“The words of the Carlin monologue are unquestionably ‘speech’ within
    the meaning of the First Amendment. It is equally clear that the
    Commission’s objections to the broadcast were based in part on its
    content. The order must therefore fall if, as Pacifica argues, the
    First Amendment prohibits all governmental regulation that depends on
    the content of speech. Our past cases demonstrate, however, that no
    such absolute rule is mandated by the Constitution.”).

  • http://dougkenline.blogspot.com Doug Kenline

    right on jeff jarvis.

  • http://www.buzzmachine.com Jeff Jarvis

    James:
    But as I said in the post, what I want is the court test the FCC won’t allow because times have changed since the seven dirty words. Broadcast TV is no longer uniquely pervasive.
    And, in any case, if we look at the enforcement that has happened, the FCC under its own rules is supposed to judge indecency according to the typical person but instead they judge it according to the fringe of the few.
    And, in any case, I still (a) do not believe the carve-out of the First Amendment was or is proper and want a court test of that and (b) trust the marketplace — that is, the citizenry — over government not matter what.

  • Eileen

    James,
    You can cite the law all day long until you’re (double dead, twice over) blue and I promise it will continue to fall upon deaf ears. JJ will always know more about 1st amendment law, FCC enforcement issues, Commissioners’ duties, etc. than any trained lawyer with a doctoral degree on the subject.
    Obviously it’s impossible to correct all the sweeping misstatements in a few posts, or cite all the relevant authority to counter each of his false claims. He clearly could care less what the Supreme Court, Congress, or a Federal agency have collectively established to be the existing law on these topics.
    The misstatements will only continue. For example, stating the FCC is enforcing indecency standards “according to the fringe of the few” is ridiculous. Stating the FCC won’t allow anyone to test their fines in court is hooey. Stating Michael Powell is a liar regarding the number of Indecency fines he indicated had been assessed is absurd. [He was not including those related to
    obscenity or profanity.]
    I could go on, but what’s the point? No amount of reasonable or accurate arguments you proffer will make one dent. None of those Powell offered did either.
    I can only hope that if JJ ever needs brain surgery (hope not), he doesn’t try to instruct his neurosurgeon on the practice of medicine while simultaneously abolishing the AMA.

  • http://www.buzzmachine.com Jeff Jarvis

    Eileen: Give it up. The FCC is enforcing, indeed, to the standards of the fringe. What do you call three complaints vs. millions who watched and did not complain? The FCC has used its blackmail power over licenses to prevent cases going to court; the head of Viacom said it. The FCC has filed countless indecency fines. I’d go on but, as you say, what’s the point?

  • Eileen

    Jeff,
    If you’re so sure about that fringe, why don’t the media icons out there conduct a few national polls related to each of the incidents fined? [They rely on them for every other issue.] Yes, Let the People Speak.
    If the FCC is actually ‘blackmailing’, that would be actionable, along with an appeal to the FCC related to the fine itself. Don’t you think it was in these giants’ best interests to settle and avoid further negative publicity?
    As for the number of indecency (specific) fines, what is Your authority that there have been more than he stated (as opposed to those levied related to the other areas of law)? Was he referring to each Incident, even if affiliates were also fined related to the same event?

  • MWB

    Jeff,
    If the millions who watch and don’t complain count as supporters of your position, AND
    You tell objectors they can best send the networks their message by not tuning in, THEN
    How come the tens of millions who *aren’t* watching shouldn’t count alongside the “3 complainers” as expressing dissatisfaction with the content?
    I mean if we’re going to assume everyone who watches and doesn’t file a complaint with the FCC is completely satisfied with the content, it seems to me we ought to consider anyone who doesn’t tune in as a vote against.
    I am one, among many people I know, who actually did long ago what you have advised: I and my family watch very, very, little television, mainly because almost everything broadcast has so little value compared to other things we can do. So, why don’t I count?

  • http://www.buzzmachine.com Jeff Jarvis

    MWB: What in any case gives you or Powell or Bozell the right to tell me what I cannot watch. If enough want to watch it and it pays, let them. Watch something else. Live and let live. Leave me alone. If you don’t like it, that doesn’t mean you should stop me from watching. That means you shouldn’t watch. Simple.

  • Eileen

    Jeff, YOU, specifically, have the ability to watch anything you want on television all day long, right? There are a kazillion channels out there, many with pay per view options….which ALREADY offer a host of ‘fringe’/Sternesque/porn content for your viewing pleasure.
    ‘Only 11 million!!!!’, (kind of a few more than 3, eh?) according to you, have rabbit ears and are left with the non-cable/satellite public airwaves. How many more millions!!!! cannot afford new televisions with V-chips?
    You say you have children. How old are they? They are probably adults by now, in their 30’s I’d guess? So it’s been a Very Long Time since you’ve been the least bit concerned about protecting your children as they developed. In the days when YOUR children were young, the networks really DID do a fine job of offering family oriented content; brilliant, Fabulous, really. No FCC police force was yipping at their heals. They were doing a good job. No need, for there was No violation of the law.
    Now thirty years later you wish to impose Your Current World View upon many many MANY millions of Americans who don’t – and never WILL have – Your economic choices or viewing options. I listen to you as you have to try and decide between plasma or – whatever other new age – TV for your Christmas present to yourself. Hello????
    And you’re not even SATISFIED with your elite status. You MUST impose it on the rest of us!!! JJ’s Model for Free Speech. You think it’s just fine for those millions to be left with the option of ‘turning off the tv’, so Jeff can watch what HE wants, on EVERY SINGLE CHANNEL THAT EXISTS.
    Mighty big of you. Now THAT’s the essence of free speech, for All the People Everywhere.

  • http://thefatguy.com Scott Chaffin

    Well, except for that small matter of the public owning the airwaves (thanks to decisions made decades ago, blah-blah-blah.) Sorry, Jeff, it’s not just you and your media buddies that get to decide what goes out over them. It’s all of America. That might chap your hide, but that’s the way it is for that free spectrum yall are hogging up. You want to give that up, I can line up 20 people willing to buy it tomorrow. Built-in infrastructure, guaranteed delivery, highest bidder wins? Piece of cake.
    Answer MWB’s question. Why shouldn’t the non-respondents count both ways? Further, why should we accept your numbers about those who allegedly watched but didn’t complain? Neilsen isn’t terribly transparent to Joe Schmoes like me. They could be in the pocket of the networks, and who would know?
    You’re basically a monopolist hiding behind the First Amendment. It’s now officially a game to see which way you swerve and how many times you run into yourself.

  • http://www.buzzmachine.com Jeff Jarvis

    Eileen: You’re way wrong. Or let me say it your way: WAY WRONG. Cut out the shouting, please. It’s the weekend. Go out for a walk. Relax. Or as Michael Powell would say, take a deep breath.

  • http://brian.carnell.com/ Brian Carnell

    Jeff wrote:
    “James: I did, indeed, answer your question. I want the marketplace to deal with that 4p Porn show you dream about, not the government, for I believe in the Constitution, which says that Congress shall make NO LAW … abriding freedom of speech. That’s pretty clear, eh?”
    I agree, but you’re deluding yourself if you belive — as you strongly imply in your anti-Powell rant — that this is a majority view or even a substantively minority position. I’d love to see the poll results on “Should broadcast networks be allowed to air pornography in the daytime?” I’d imagine this would be 90 percent minimum opposing this view.

  • http://www.schoolof.info/infoblog/ Marsha

    Absolutely brilliant! I wish there were a million more Jeff Jarvises out there pointing out the arrogance and stupidity of the FCC.

  • http://www.gregpiper.com Greg Piper

    I agree with Dexter Westbrooks’ comment above. I respect you immensely, Jeff, but you let yourself go off the deep end occasionally in your criticism. “Big lie”? You think you’ll broaden your support by comparing Powell to Hitler? Or saying broadcast indecency rules are tantamount to Islamic dress police? You’ll never get anywhere by classifying your enemies this way. It’s exactly what MoveOn.org and Michael Moore did to Bush and look where it got them. As far as I know, the only person in a high position of power who read the First Amendment absolutely as you do was Justice Hugo Black. So please don’t be angry when people disagree with you. Michael Powell is far from alone, although his (and the rest of the FCC’s) interpretation of indecency has been laughable at times. You might as well call for a Department of Peace if you really think you can build a politically potent coalition of anti-broadcast regulation supporters. Try emphasizing parental responsibility for children instead of an anarcho-utopian view of all broadcast.

  • http://www.buzzmachine.com Jeff Jarvis

    Greg: If instead of calling it his big lie I called it his whopper, God knows what I’d be accused of. I mean it quite literally as I said it: That is his big lie.
    And as for the analogy to an Islamic society, it is relevant: When a religous group tries to impose its views of morality on the rest of us, when you manage to the few, that is what you get. It was the best analogy I could come up with. Jews and circumcision just wouldn’t have worked.
    I’m not really trying to build a coalition with this (though now that you mention it…). I am, instead, only trying to express my views of what Powell et al are doing to our precious First Amendment.
    And, yes, I’m pissed about it. Sorry. But he only pissed me off more with his condescending tone.

  • Eileen

    Yes, I was pissed, too. Sorry, too. But Jeff, if you’re not trying to build a coalition, why are you going on all those television and radio shows?

  • Kat

    In islamic society they strip all Christian symbols from the land, and then the pedophilic mullahs rule the land. Sorta like the looney left are trying to do in America–they want to control the universities, the schools, and broadcast their immoral crap till we all get desensitized and believe it. Thank God the majority of people do have values that don’t cater to promoting porn, gay sex, and adultery.

  • Karen
  • Mark