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.
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.