But starting in the 1960s, as the media, like the rest of the culture, began to test previously accepted limits, the FCC began to push back. In 1978 the US Supreme Court upheld the FCC’s ruling that George Carlin’s famous "seven dirty words" monologue violated the agency’s indecency regulations — marking the first time, as Heins observes, that the government had the power "to ban constitutionally protected, socially valuable speech." Over time, those guidelines became more vague, and thus more pernicious, as the FCC began cracking down on radio personalities ranging from Howard Stern to Bubba the Love Sponge. (Despite the recent focus on television, the FCC has historically intervened more with radio, which has tended to feature more-outrageous programming.)
The problem with this, Heins notes, is that there is no scientific evidence that suggests indecent content is harmful to minors. In Not in Front of the Children, she writes that indecent content may interfere with how parents wish their children to be socialized, which, she says, is a legitimate concern. But that’s quite different from asserting that indecency actually harms kids, and it calls for an entirely different governmental approach.
Reached late last month at the New York University School of Law’s Brennan Center for Justice, where she is coordinator of the Free Expression Policy Project, Heins pronounced herself mystified by the continuing public controversy over indecency — a controversy that any family can end, she noted, simply by changing the channel. "I’m cynical, but it seems to me like it’s a wonderful distraction. Everyone can wax indignant about our falling cultural standards, and meanwhile the real responsibilities of government get ignored," she says.
Heins doesn’t disagree that much of what passes for entertainment on television and radio today is crude and vacuous. But she says the real solution is not to regulate content, but to come up with real alternatives in the form of nonprofit broadcasting and cable ventures, separate and apart from PBS. "You need noncommercial sources of information" that would be "insulated from political censorship pressures," she says, adding somewhat ruefully: "This may be utopian."
In fact, as more than a few media critics have noted, conservatives in recent years have pushed simultaneously for less regulation of ownership and more regulation of content. The opposite approach would lead to more choices, more diversity, and possibly higher quality. There might still be plenty of indecency. But the chances would be much greater than they are today that if you changed the channel, you’d find something worth watching.
SCOTT ALLEN MILLER has been working in radio for 10 years, doing stints as a disc jockey, a producer, and a talk-show host in such places as Kansas City, Tulsa, Los Angeles, and Albany, New York. Currently he’s one-half of Blute & Scotto, the morning-drive-time talk show on WRKO Radio (AM 680) in Boston. Miller sees the indecency crusade now under way as an effort by the government to reassert its authority at a moment when technologies such as satellite and the Internet are rendering its attempts to regulate irrelevant. But that doesn’t mean it’s not something he has to worry about every day.
"Nobody knows, and nobody ever really knew, what was and what was not allowed by the FCC. No one knows. To this day, we’re still guessing," says Miller. "When they announce a crackdown on indecency without defining what indecency is specifically, it doesn’t help the problem at all. It just creates fear and loathing."
With broadcasters under assault from the indecency crusaders, and with cable and satellite on the horizon, First Amendment advocates might assume that the Internet will remain the last bastion of free expression. But that’s not necessarily true, either. For instance, Jonathan Rintels, a screenwriter who is the executive director of the Center for Creative Voices in Media, in Washington, DC, observes that if content on cable TV can be regulated, it only makes sense that government will claim the right to regulate Internet content delivered over those same cable lines. Indeed, Rintels imagines the cable operators themselves would be willing collaborators in cracking down on the Internet. "Are they going to allow programming to come over their pipe on broadband that competes with their cable offering?" he asks. "I don’t think so." Nor would the emerging wireless Internet be much of a safe haven, given that government could claim the right to regulate it on the basis of its heavy use of the public airwaves.
Then there is the very fact that the Internet has become such a crucial part of our lives. Jonathan Zittrain, a lawyer and faculty co-director at the Berkman Center for Internet and Society, at Harvard Law School, predicts that, someday in the not-too-distant future, the Net will be taken down by a catastrophic virus, disrupting air travel, financial transactions, and just about every other facet of modern life. Such an event, he says, will make people far more willing to accept strict regulation of the Internet than they are now. And that, inevitably, would pave the way for a crackdown on online indecency.
"Supply creates demand," Zittrain says. "As soon as it’s easy to regulate, the temptation to find all kinds of other things to regulate becomes hard to resist."
LAST WEEK, in a rare display of backbone, the CBS, NBC, and Fox networks announced a lobbying campaign called TV Watch to oppose increased government regulation of indecency on both broadcast and cable. It remains to be seen whether the effort is serious — or if we’ll never hear about it again. But at least it’s a step in the right direction. By contrast, the National Association of Broadcasters, a trade group for over-the-air television and radio stations, has actually called for indecency regulations to be extended to cable in order to level the playing field — a "craven" proposal, says Paul McMasters, First Amendment ombudsman for the Arlington, Virginia–based Freedom Forum. "Why," McMasters asks, "should all television viewing be reduced to what’s acceptable to a six-year-old?"
Meanwhile, the urge to censor continues unabated. In a recent appearance before a gathering of cable-television executives in San Francisco, FCC chairman Kevin Martin sounded a familiar theme: that he opposes new indecency regulations for cable — unless, of course, the industry fails to clean up its act.
"We’re hearing increasingly from consumers and a lot of parents about what is appropriate and what is inappropriate to be on television," the Dow Jones news service quoted Martin as saying. "That is a serious and significant issue that the commission needs to continue to be focused on."
Apparently it never occurred to Martin that parents can always change the channel. Or turn off the TV altogether. Of course, such a radical step would put Brent Bozell out of business, leave Kevin Martin with little to do, and strike terror into the hearts of media executives.
Come to think of it, that sounds like the best solution of all.
Dan Kennedy can be reached at email@example.com. Read his Media Log at BostonPhoenix.compage 1 page 2 page 3
Issue Date: May 13 - 19, 2005
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