- Last Updated: 12:15 AM, June 27, 2012
- Posted: 11:08 PM, June 26, 2012
Pity the poor speech regulators at the Federal Communications Commission, who are charged with sifting through complaints about TV and radio programs in a farcical attempt to determine which references to “sexual or excretory organs or activities” are “patently offensive as measured by contemporary community standards for the broadcast medium.”
Last week, the Supreme Court declined to rule on the constitutionality of this charade, thereby forcing the FCC’s butt-coverers and word-bleepers to contemplate a backlog of 1.5 million or so complaints.
‘‘The FCC must now enforce our right to decency on the public airwaves,” declared Morality in Media President Patrick Trueman. Unpacking that statement reveals the intellectual and constitutional bankruptcy of this whole censorious enterprise.
Trueman’s “right to decency” is, in essence, a right not to be offended, which sits rather uneasily with the right to freedom of speech. And what about the right to indecency? Profit-driven broadcasters don’t air things that offend Trueman out of a perverse desire to upset him; they’re trying to attract viewers, who evidently have different tastes. Why should Trueman’s idea of good TV trump theirs?
Here is where the concept of “the public airwaves” comes in: The government graciously allows broadcasters to use a precious public resource and therefore has a right to impose conditions on them. That was the Obama administration’s position in the case decided last week, where the Supreme Court overturned three FCC indecency actions but dodged the broader issue.
Unlike broadcasting, other media aren’t monitored by the government for naughty words and images, and the court has made it clear that any attempt to do so would violate the First Amendment. Yet there is no constitutional basis for this distinction, no matter how many times professional puritans like Trueman call the airwaves “public.”
Satellite TV, cellphones and the Internet also use “the public airwaves,” but that doesn’t subject them to content regulation. Coaxial and fiber-optic cables follow public rights of way, periodicals are delivered via public roads, and every speaker’s voice is both powered and transmitted by the public air. Does Trueman have a right to decency in these media, as well?
True, the government treats broadcasting as a privilege with strings attached, but that decision doesn’t justify itself. If the government has the authority to regulate broadcast content because it controls the airwaves and licenses TV stations, why can’t it regulate newspaper content by nationalizing printing presses and licensing journalists?
The ban on broadcast indecency also undermines the rule of law because it is so hard to predict what will offend the FCC. A glimpse of bare buttocks may be deemed indecent in a cop show but not in a war movie. Four-letter words that can trigger multimillion-dollar fines may be tolerated if the FCC deems them artistically or journalistically justified. Such subjective, unjustly arbitrary and unconstitutionally speech-chilling judgments are unavoidable as long as the government insists on protecting the mythical right to decency.
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