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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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April 01, 2004

FCC Commissioners - No Free Speech Please, We're Americans

Posted by Ernest Miller

I wish this were an April Fools joke, like Howard Stern's. Yesterday, the Chairman of the FCC, Michael Powell, and Commissioner Michael Copps addressed (behind closed doors) the National Association of Broadcasters on the subject of broadcast indecency. The content of their speeches should be chilling to any advocate of the freedom of expression. For example, Copps is calling to regulate satellite and cable indecency in addition to broadcast as well as insinuating that the depiction of violence is profane (and thus subject to FCC regulation). The speeches are available at the FCC's website and I highly recommend reading both of them, all of them:

Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF]

Remarks of FCC Commissioner Michael J. Copps, NAB Indecency Summit, Washington, DC, March 31, 2004 [PDF]

My annotated version of these travesties is below. I found it extremely difficult to excerpt particularly egregious examples of attacks on freedom of speech since the entire content of both speeches (with one small exception) is incredibly hostile to the very idea that speech that offends should be defended. Please see Jeff Jarvis' take on Powell's speech as well (The Daily Stern: Life without Howard).

Commissioner Copps

I'll start with the worst of the two, Commissioner Copps' remarks:

Let’s begin with why we are here today. We are here because millions of Americans have made it convincingly clear that they no longer will tolerate media’s race to the bottom when it comes to indecency on the people’s airwaves. We are here because it is no longer possible for your industry or the Federal Communications Commission to duck the issue with impunity. And we are here because people are demanding action— action now.

Would these be the same Americans who are the target audience for this "race to the bottom"? Would these be the same Americans who are bringing ratings to these controversial, titillating shows? Millions of people demand action for lots of things. Luckily, we have a Constitution and political process that prevents many of their demands from being met. Millions of people demand to have evolution removed from school curriculums. Wisely, we resist that.

Another refrain I had been hearing was: “Let the V-Chip handle it.” Don’t get me wrong, I like the V-Chip. But it was irrelevant that Sunday night.

I'm probably going to write a longer post about this, but the fact of the matter is that the V-Chip is irrelevant because the FCC has made it irrelevant. Sure, the V-Chip might not have mattered that Sunday night, but we're not only talking about that Sunday night, are we? One of the reasons that the V-Chip is irrelevant is that the FCC doesn't even bother to take it into consideration. For example, the V-Chip isn't mentioned at all in the Commission's Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency. It isn't even part of the test the FCC uses when it determines whether something is indecent or not. So, of course it was irrelevant that Sunday night. Apparently, it is always irrelevant.

What if the Superbowl had been rated TV-14? Would that have made a difference? If a TV show, broadcast between the hours of 6am and 10pm, has the word "fuck" in it but is rated TV-MA, does that make a difference? Apparently not, even though and all television sets 13 inches or larger manufactured after January 1, 2000 must have V-Chip technology.

How do you warn against half-time shows or slimy ads or sensation-seeking previews of coming movie and television attractions?

I don't know. How do you warn against sensation-seeking articles in the New York Times? I mean, every morning when I look at the NY Times, who knows what I'll get? They might just decide to publish words like "fuck" without warning, and no one can stop them! Who knows, maybe the NY Times will start publishing racy "page 3 girl" pictures without warning. Generally, a publisher of information gets a particular reputation for what they publish. I expect little, if any, nudity in the NY Times, I expect it on Page 3. If a publisher is inconsistent, then they get a reputation for that.

And who is to blame here? It isn't as if the advertisers are sneaking their content past the networks, they have to accept the advertising for their shows. If I can't trust CBS to keep nudity off their shows then I stop watching CBS. Works the same way as in regular publishing.

Copps asks, what are the reasons for more indecency?

One is that some chose to push the envelope too far. Particularly in this age of huge media conglomerates, the unforgiving expectations of the marketplace have more influence than they once did in driving media behavior.

And who made the conglomerates possible? Hmmmm? Maybe Satan the FCC? What a strange complaint. Moreover, once again, the American public is at fault because they are the marketplace that drives media behavior. Why does Copps call it "the marketplace" instead of calling it "the degenerate members of the American public who desire such disgusting content?"

I am supposed to take it [the statutory obligation to protect children from indecent, profane and obscene programming] with utmost seriousness—whether I agree with it or not—because it’s the law.

Well, does Copps agree with the obscene/indecent/profane law or not? Why does he use this cowardly way of framing the argument? Doesn't he have the guts to say, "I disagree with this, but will enforce the law to the best of my ability," or say, "and I agree with and support this law." This entire speech seems to show strong support for the law, why not make your position clear here? Or will this result in fewer dinner invitations in Washington?

In recent Congressional testimony, I laid out some steps we could take at the Commission to carry out our statutory obligations. These include using our full authority, including license revocation hearings, to punish those who violate the statute; reforming the complaint process to make it consumer-friendly and also to make decisions more quickly; tackling the depiction of graphic violence that has become such a pervasive problem, something we should have done long ago; making certain that affiliated stations have the right to preempt programming that is on their stations; and refusing to renew the licenses of those who wantonly disserve the public interest.

Violent programming? That isn't covered by indecency and obscenity. Could the newly revived doctrine of prohibiting the "profane" mean violent programming? After all, what is "profane"?

Many of you remember the old Codes of Broadcaster Conduct. Through enlightened self-regulation, the industry clamped restrictions on the presentations of sexual material, violence, liquor, drug addiction, even on excessive advertising. The Codes also affirmed broadcaster responsibilities toward children, community issues, and public affairs. It didn’t always work perfectly; I’m not saying it was some golden age; but it was at least a serious effort premised on the idea that we can be well entertained at levels several cuts above the lowest common denominator that now dictates so much programming. It is time for a tough new code. And the code I’d like to see is not some bland statement of general principles, but something explicit and including incentives to encourage compliance.

Great. Put into place a "voluntary" code and maybe we will go easier on you. We can't go after people who say things like, "Jumping Jesus Christ on a pogo stick," but we expect you will.

I believe the industry could come together and craft a new code, perfectly able to pass court muster, and one that would serve the needs of businesses as well as those of concerned families. Some other ideas: broadcasters could commit to family hours during prime time. More diversity in program-development and program-sourcing could also help—that means more independently-produced programs. And you need to include in your deliberations what public interest standards you think appropriate for the new world of multi-casting that digital television is already beginning to bring us. These are just a few suggestions; I am certain you can come up with many more.

Wow. The chilling hand of Thomas Bowdler is all over this paragraph. Of course, these are just a few "suggestions," you can certainly "come up with many more." And I'm sure they will pass court muster because they will be "voluntary." Copps is essentially saying that, as much I would love to personally censor the heck out of you, the courts and Constitution stand in my way, so I will content myself, for now, with vague threats to encourage "voluntary" compliance. Cue maniacal laughter.

Successful resolution of the indecency issues must in the end include cable and satellite. Eighty-five percent of homes get their television signals from cable or satellite. Most viewers, particularly children, don’t recognize the difference as they flip channels between broadcast stations and cable channels. Because cable and satellite are so pervasive, there is a compelling government interest in addressing indecency when children are watching. Indeed, the courts have already applied this to cable. And let’s not forget that cable and DBS make liberal use of the people’s spectrum too and this incurs an obligation to serve the public interest. Cable could also explore such options as offering a family tier so that families don’t need to receive channels like MTV in order to get the Disney Channel. Commissioner Martin has made positive suggestions on this. Cable could also make sure that family channels offer all family-friendly programming.

Wow. Seriously, wow. Copps, I am sure, is familiar with the legal justifications for regulating indecency on broadcast and why those arguments don't apply to cable and satellite. Still, here he is trying to extend his reach to satellite and cable. Could the internet be far behind, especially as convergence makes the distinction between broadcast, cable and the internet disappear? Of course, I'm not sure what spectrum cable uses, but Copps is the smart Commissioner.

Cable could offer a family tier. They could also offer ala carte program selection (but that would be truly offensive to the powers that be). Cable does offer something called a "lockbox" that parents can use to block particular channels. There are even more sophisticated versions that can block particular channels during particular hours (How TV Allowance Works).

I know many of you personally, and as I meet and talk with you, I am impressed so often to see the flame of the public interest still burning. Sometimes it flickers for want of oxygen, particularly in the new media environment in which we live. That new environment explains a lot, but it excuses nothing. And I am here today to ask you to breathe the clean fresh air of citizen concern and common sense on that flickering flame. Passing our airwaves on to the next generation in better shape than we found them is your job and my job, and how you and I, in our individual ways, handle the matter before us today will provide ample opportunity for people to judge the success of our stewardship. They are watching and they are judging right now.

As usual, the censorious Puritan couches his speech in terms of the "public interest." Apparently, Copps doesn't recognize that the flame of public interest burns brightest in corrosive, but free oxygen, not the dead vacuum of the censor.

Chairman Powell

Of particular significance, and concern, is that the debate re-energized the previously fading debate about the role of government in content—whether it be restricting offensive content, or promoting favored content and viewpoints. This increased comfort with content intrusion is part of what is on display in the furious debate about broadcast indecency and excessive violence.

Increased comfort with content intrusion? Restricting offensive content and promoting favored content and viewpoints? Since when was it the job of the FCC to promote favored viewpoints? I've read 18 USC 1464 a few times and I don't recall anything about promoting favored content and viewpoints. Now the government is permitted to promote its own viewpoints, for example, through government owned publications, such as brochures from the FTC. When did broadcast become government owned?

Some of the transcripts I have been forced to read reveal content that is pure trash, plain and simple, and few, other than staunch libertarians, could possibly stand up and defend it publicly.

Yeah, all those people who believe in free speech even for highly offensive speech are just nutters. Can you imagine a government one of whose fundamental principles was the defense of offensive speech? Ridiculous!

It is not Janet’s nudity that is decried. It is the fact that “by god it was the Superbowl!” the largest prime television event of the year. An event for friends and family. People do not want to feel that they can be struck by lightning, or hit by a truck at any moment. Similarly, they do not like the sense they have no safe expectation of what they might see or hear during a given program—precisely the formula some are using to grab headlines.

Yeah, they don't. But what is the proper response? If the NY Times suddenly had a nude centerfold tomorrow, what would happen? People would be surprised and shocked, and they would respond by cancelling NY Times subscriptions en masse. Same goes for Sports Illustrated, though likely people would be less shocked. What if it were a printing accident? People would still be upset with the NY Times and the newspaper would have to make some effort to redeem itself with its readership. Would millions of people be calling for regulation of the NY Times? Yes, but the government couldn't do a thing.

Why is the Super Bowl different?

A station broadcasts a variety of fare during the day, and is limited by day parts. Consumers expect to arrange their choices around programming at certain times—the morning shows, afternoon soaps and talk shows, primetime, and late night have special meaning in broadcasting, unlike in other media.

Increasingly, consumers expect to arrange their choices around programming when they want to watch it. It's called TiVo. I know you've heard of it Chairman. Why not encourage a change in the way we view broadcasting, rather than try to shore up an increasingly obsolescent view? "Morning," "primetime" and "afternoon" may have special meanings now, but they won't soon. Perhaps you could encourage people to take a little more responsibility for their own viewing habits? Most people find the power of TiVo quite liberating. Bonus: TiVo encorporates sophisticated parental controls!

Given the free over the air nature of the medium, consumers do not express any prior consent to receive certain sounds and images—at least not to the extent they do with cable or rented videos, for example.

You don't have prior consent when a guy with a "Fuck the Draft" jacket walks into the courthouse, either. The government expects you to avert your offended eyes instead. This is called personal responsibility, Chairman. There are many, many options for controlling how a television works, from the V-Chip to some rather sophisticated aftermarket products. At some point, if you aren't taking advantage of these additional products you are in fact as responsible as someone who gets cable or rents videos. Speaking of which, I note you don't mention anything about not regulating cable and video rental, perhaps you might discuss that with Commissioner Copps.

In this vein, I want to strongly encourage you to develop and adopt a new voluntary code to guide your actions in the same spirit you have in years past. I believe you can create such best practices and guidelines, consistent with the law. It would be in your interest to do so.

"It would be in your interest to do so." Man, these guys can't stay away from the melodramatic enforcer language. Clearly, Powell is speaking with the best interests of the broadcasters at heart. I bet he'll regret it when he has to punish them too.

Finally, I have heard some of you call for an FCC rulemaking to create more “clarity” as to what is prohibited. I want to warn you that this is unwise. You do not want to ask the government to write a “Red Book” of Dos and Don’ts. I understand the complaint about knowing where the line is, but heavier government entanglement through a “Dirty Conduct Code” will not only chill speech, it may deep freeze it. It might be an ice age that would last a very long time.

Yeah, right. Actually, it is the government that doesn't want to write a "Red Book" of Dos and Don'ts. First, such a book will please no one. The more conservative will complain that the "Don'ts" don't go far enough. Liberals will be outraged that they go too far. Either way, both sides will be able to ridicule the government parsing such important distinctions as to why "kick butt" is okay, but "kick ass" goes too far. Additionally, Powell probably doesn't relish having to defend the darn thing in court. Publishing such a book would be an invitation to First Amendment facial challenges that would keep FCC lawyers busy for a decade, at least.

And what is more chilling? Bright line rules saying what is and what is not acceptable, or amorphous rules that leave broadcasters fearing that relatively innocuous words might put them across the line? For shame, Powell, for shame for your twisted words.

I will conclude, as I once concluded a speech on the First Amendment several years ago: “We should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom.”

These last words are actually a beautiful reminder of one reason why government regulation of speech is a bad idea, which is also why it is grossly offensive that they are part of this disgusting speech. The words actually come from a speech Powell made in 1999: Remarks by Michael K. Powell, Commissioner, Federal Communications Commission, Before the Media Institute, Acceptance Speech for the Freedom of Speech Award. That's right, Powell said those words while accepting a "Freedom of Speech Award."

Read the 1999 speech. Compare and contrast, especially this paragraph:

This state of affairs is not all the Government's doing. The industry has regularly traded its First Amendment rights to obtain favors from the government. However, I submit, the Framers did not mint the First Amendment to serve as currency. To offer it as such is to trade away one's moral right to cry victim when the bargain is accepted.

Comments (4) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. rick! on April 1, 2004 10:57 PM writes...

i like your analysis here and earlier.

it's unsurprising that copps' rhetoric faults media consolidation and "the marketplace" for what he views as craven and disgusting programming. during the most recent round of fcc deregulation copps was the voice in the wilderness who organized town hall meetings across the country to protest the rules changes. many of his supporting constituents were right-winger family value types. jesse helms, if you remember, opposed the rules change.

also recall that copps was one of the two commissioners who dissented, in part, to the bono decision. he protested the commission's decision to withold fines against the broadcasters because he "disagree[d]that we need to give notice before we apply the law of the land."

and to think that his anti-consolidation speech before an unmoved FCC commission nearly made me cry. the fucker.

Permalink to Comment

2. Skip Oliva on April 2, 2004 04:36 PM writes...

Last year copps opposed a merger between two Spanish-language broadcasting companies in part because he disapproved of the political views of the companies' officers. Copps said that Hispanic viewers demanded a certain level of "diversity" in their Spanish-language programming.

Copps's suggestion that we need more "independently produced" programming demonstrates his lack of business experience. Television programming is not like blogging. There's an enormous expense involved in just getting a new series onto the air. Networks that own their programming are often in a better position to incur the financial risk because they know the eventual payout--syndication--will make up for it. An "independent" programmer may not be able to afford waiting to see if his show makes it to 100 episodes for syndication.

Permalink to Comment

3. Steve Teeter on April 2, 2004 09:27 PM writes...

FWIW, I actually have seen the word "fuck" in the NY Times. Recall when the Soviet old guard Communists tried to restore the Good Old Days with an abortive coup against M. Gorbachev. He was cut off at his vacation dacha when they made their move, and he was offered the usual deal: resign due to "health reasons," go into internal exile, keep your mouth shut, and we let you live. His reply, in front of witnesses, was, "Fuck off!!"

As this was a reliable quote by a major public figure at a crucial moment in history, the Times ran it verbatim, with neither warning nor apology.

Permalink to Comment

4. Cypherpunk on April 3, 2004 07:54 PM writes...

I think you're being too rough on Powell. I would paraphrase his speech as saying, "Look, I don't believe in government content regulation either, but we're coming under enormous pressure to do something after that Super Bowl thing, so if you guys would just adopt some 'voluntary guidelines' to give us political cover, this whole issue will go away."

That's why he expresses "concern" in his 3rd paragraph about the re-emergence of the issue of government content regulation. That's why he comments that the Supreme Court weakens First Amendment protection for broadcasters, "rightly or wrongly". This addendum emphasizes his personal opposition to the idea. And that's why he doesn't want to see the government making the rules, because this would be taking an irrevocable step into a regulatory realm that he has no desire to enter.

What did you think he meant in that last paragraph about the King taking his ransom? That's obviously an expression of opposition to government regulation. There's no other way to read it.

So you might ask, if this is what Powell believes, why doesn't he either (A) resign his position, or (B) staunchly defend the rights of broadcasters to show whatever raunchy material they like, whenever they want to? Well, this is such a naive and clueless question that it does not deserve an answer, and I apologize for offering up such a strawman. But it mimics the tone of your article.

Powell is as good as we are going to get in a position like this. If free speech advocates can't see a distinction between Powell and Copps on this issue, they're not going to have any influence in a political forum. Given the current situation, Powell's advice makes sense. Voluntary codes will calm the waters and let the whole thing blow over.

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