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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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« Where's the Profanity? | Main | FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree »

June 10, 2004

Michael Powell's FCC Star Chamber

Posted by Ernest Miller

As is widely reported, the FCC has settled all existing and ongoing investigations related to the possible broadcasting of obscene, profane or indecent language by radio oligopolist Clear Channel. Read Reuters' report (Clear Channel to Settle Indecency Cases) or the Washington Post (reg. req.) (Deal Erases Pending Charges Against Clear Channel). I've written on one aspect of the settlement (the lack of any mention of profane language in the compliance plan) here: Where's the Profanity?.

Rather than go through the actual order in this post, I'm going to look at what FCC Chairman Michael K. Powell has to say about it in his statement. You can read the order and consent decree yourself here: In the Matter of Clear Channel Communications, Inc. NAL/Acct. No. 200432080140 [PDF]. Or you can skip right to Powell's statement here: Statement of Chairman Michael K. Powell, Re: Clear Channel Communications, Inc. [PDF].

Read on for a line-by-line dissection...

Today’s consent decree marks a significant victory for the Commission and the American public.

A little bit celebratory, don't you think? I don't know about you, but I think Powell would do well to remember that the language that is being punished here is language that is protected by the First Amendment. So, isn't this "victory" a little bit mixed? Shouldn't there be some recognition that while we have successfully regulated the airwaves, we've also restricted speech to a certain extent? That this victory doesn't come without costs?

Through the consent decree, we have secured the highest enforcement concessions by a broadcaster in Commission history. Clear Channel has agreed to make the highest enforcement-related payment to the Treasury by a broadcaster in Commission history--$1.75 million.

Whoohoo! This "voluntary contribution to the United States Treasury," as the consent agreement puts it, is only $50,000 more than a fine issued in 1995. Gee, do you think they just came up with that number out of a hat? "Record fine" sure looks nice in the headlines though, don't it?

In addition, Clear Channel has now formally admitted that it violated the law and has made binding commitments to clean up its act, including preventive measures such as training for on-air personalities and employees that participate in programming decisions and the use of time delays in its broadcasts.

It's a funny admission, really. Clear Channel copped a plea that some of its broadcasts were indecent. We never find out which specific broadcasts though. "Mistakes were made, although we aren't quite sure exactly what." This is actually one of the scariest sentences in Powell's statement. These are the sort of government settlements one expects in dictatorships. The government gets people or organizations to admit some vague guilt, but how, exactly, they violated the law is never clearly demonstrated.

In a way, this is very similar to the secret trials of the Star Chamber. What else do you call it when the defendant steps into the judgement chamber accused of a multitude of crimes and then is found guilty of one or more of those crimes, which crimes not specified. Such a procedure has all the earmarks of a secret trial.

Whether the quislings at Clear Channel accept these effectively secret proceedings is besides the point. Public proceedings are not merely a safeguard for the defendant, but a safeguard for the public. Without knowing upon what basis guilt has been determined, the public can have no confidence in the decisions of the adminstrator. There is also a strong educational aspect as well. Without a public determination of guilt, the public remains in the dark as to what is illicit trespass upon children's gentle ears.

Such secrecy is especially abhorrent in cases involving freedom of expression itself - and precisely how the Star Chamber's secret trials were used to inhibit free discourse. Those dragged before the infamous magistrates would be found guilty of sedition, though which of their words were seditious was not revealed. Kept the public in better check that way.

A minor note. Those delays Powell mentions? They're five-minutes long. Think about that the next time you consider calling in to a radio show.

In addition, those accused of violating the Commission’s rules will be suspended and if ultimately found to violate our rules, will be terminated.

That's great. Accusations lead to suspension. And, one foul-up and you're fired. How many people could handle a situation where one accidental word that is commonly used could get you suspended and/or fired? That's something to be proud of. Too bad we can't get FCC Commissioners suspended and fired for truthfully accussing them of stupidity. Oh, yeah, and there is a loophole he doesn't mention See, Where's the Profanity?.

Notwithstanding these accomplishments, the government’s involvement in content regulation can be a dangerous game. Even where well intended, in our desire, for instance, to protect children from indecent broadcasts, encroachments on content can have adverse affects on the public interest. By its very nature, government action, or even mere threats, to quell protected speech can have the unintended consequence of depriving the public of a speaker’s artistic, literary, scientific or political viewpoint.

Nice words, but that is all they are - words. The Soviet Union's Constitution had nice words about freedom of expression, too:

In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.

You would think if Powell was all that concerned about chilling effects he would try harder to clear up what, exactly, Clear Channel is guilty of. Powell can talk the talk, but he doesn't walk the walk.

Grounded in the First Amendment is our forefathers’ concern that the policymaker could be tempted to misuse power for their own self-interest. They knew that the sword that wields the power to intentionally abridge speech and information is the most potent instrument of all. As the Commission is tasked with walking the delicate balance of protecting the interests of the First Amendment with the need to protect our children, it is incumbent upon us to make best efforts to avoid the realization of our forefathers’ concerns.

Yes, the founding father's were concerned with politicians silencing opposition. However, they were also concerned with the government silencing people for any reason whatsoever. Powell is trying to make it seem that the censorship in this case is to "protect our children" not to misuse power for his own self-interest. Yeah, right. Formerly free speech loving Powell realized that his job might be on the line, so he started to crackdown on broadcast indecency to keep the employment checks a-flowin'. Nope, no self-interest there.

Notice also that Powell never uses the word censorship. Seems a bit odd, doesn't it? Here's why: When is Indecency Regulation "Censorship"?.

This task is made easier when our licensees wrestle the difficult decisions away from the government and take the responsibility for what they broadcast over our nation’s airwaves.

This is the second scariest sentence of the statement. Apparently, self-censorship forced upon us by government is better than direct censorship. You see, when you've scared people enough that they modify and censor their own speech, that is preferable to a world in which the government has to actively stifle speech. Self-censorship is much more efficient from the government's point of view.

Of course, the only way to wrestle the difficult decisions away from government is by ensuring that you never get close to the difficult line where decisions have to be made. Civil libertarians and Supreme Court Justices call this a "chilling effect." You remember those nice things that nice Mr. Powell said about freedom of expression just a few paragraphs above? Words, just words.

In the case of Clear Channel Communications, they have done just that through the substantial commitments agreed to in this consent decree.

Good boy! Nice quisling.

Oddly enough, these actions are not sufficient for some on the Commission. In their zealousness, they would prefer to expend valuable Commission resources to fully investigate each complaint against Clear Channel only to inflict more punishment.

It never occurs to Powell that maybe the public might want an investigation ... that whole pesky secret trial thing. Moreover, neither of the dissenting statements of the other commissioners insist on inflicting more punishment: Dissenting Statement of Commissioner Michael J. Copps, Re: Clear Channel Communications, Inc. [PDF] and Statement of Commissioner Jonathan S. Adelstein, Approving in Part and Dissenting in Part, Re: Clear Channel Communications, Inc. [PDF]. Both statements believe that more investigation and determination is necessary in order to properly judge the extent of liability. What if few of the remaining complaints were found to be valid? Would that mean an increase or decrease in the fine?

Enforcement of our regulations is not, however, simply a matter of punishment for past behavior. More importantly, our enforcement regime is designed to deter future illegal behavior.

Indeed. And secret trials accomplish this, how? Through in terrorem populi?

Where, as here, the licensee has taken significant steps to guard against future violations, the benefits of entering into a consent decree for the government and the public are obvious.

Not to any rational observer, they're not. Sure, Clear Channel might be deterred from future violations (at the expense of chilling effects) but despite Powell's best efforts, Clear Channel is not yet a monopolist, and others must be deterred as well. Again, part of the benefits of a public system of justice is that you educate the public.

Not only will a substantial amount of money be submitted to the Treasury by the company, but we achieve significant commitments from the company that the fines are intended to produce.

Substantial? Snigger. From the Reuters article, "analysts who track Clear Channel shrugged off the settlement, saying it represented less than one cent per share in earnings." Yeah, and how far does $1.75 Million go in Iraq?

In addition, the government, and therefore the public, will save time and resources, which can be redeployed to focus on more egregious violators that are less willing to take preventive steps.

So, the FCC wasn't going after the most egregious violators in the first place? Don't they have their priorities straight? Anyway, doesn't look like we'll be saving any Treasury funds after all. There is a budget for indecency enforcement and it will be spent. Of course, I'm not sure what time and resources will be saved as the public has to spend more to figure out what the FCC is ruling on.

Finally, the government gains an admission of responsibility from the licensee without going to the laborious and expensive process of prosecuting these actions in court.

An admission of what, exactly? Could you clarify this for me? By the way, if, for some reason, the FCC terminates or breeches the agreement, the admission goes away like smoke in a breeze. Some admission. If it ever does end up in court it isn't an admission after all.

And what about those courts, huh? First off, the FCC can issue final orders and they are only contested if Clear Channel insists on contesting them. If the case is solid, it shouldn't take up too many resources to prosecute. In any case, given the potential size of the fines, court could actually be a profit center for the FCC. If the case is not solid, then the FCC can simply drop it (no harm, no foul).

It is, of course, in the Bush administration a terrible waste of resources anytime anybody tries to defend their rights against the government.

For one to toss aside these public benefits and demand another pound of flesh suggests that nothing short of economic ruin or license revocation will truly satisfy.

Um, no, that is not what the other commissioners were asking for. They were merely asking to figure out what the heck Clear Channel was actually guilty of before determining what the punishment should be.

I believe such stances are excessively chilling of protected speech in this country and fail to be respectful of the limits imposed upon us by the First Amendment.

Words, words, words. Imagine that, actually forcing a court to determine the justice of the indecency complaints is not respectful of the First Amendment. Now where have I heard that logic before? Hmmm...oh, yes, here:

'No, no!' said the Queen. 'Sentence first--verdict afterwards.'

Comments (2) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. moe on June 10, 2004 11:15 PM writes...

seems like things are only going to get worse because of this. Is this country going forward or backwards?

Permalink to Comment

2. Ralph on June 11, 2004 02:20 AM writes...

Howdy,
I wonder if the author is really confused over such simple concepts or is he just writing to raise alarm.

The first point of confusion is his repeated question of why the disputed words were not spelled out. I expect you have heard of a comedian named George Carlin. He used to be funny, before he decided to become a potty mouth in public. He kept repeating a string of seven word that were not appropriate for public discourse in an attempt to make fun of the government. Mr Powell just want to avoid a repeat of that kind of non-constructive response.

A second point of confusion seems to be that the FCC is attempting to outlaw common words. That is obvious nonsense. They are merely saying that language not suitable for public airing should not go over the public airwaves. Anyone who could not readily make their point without those words has nothing worth saying, anyway.

The agreement has very little to do with the First Amendmend. It is a stretch to say that it does. People who want to use such course language are free to do so. They just can't use the public airwaves and that seems quite appropriate to me.

Finally, you set up the straw dog of someone making an inadverdant slip. The behaviour being addressed by this agreement was not inadverdant. These were statements made to intentionally coursen public discourse. With a tape or digital delay, then accidental slips won't endanger anyone's career.
Good day,

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