February 15, 2005 | WebMemo on Regulation
The halftime show at the Super Bowl game earlier this month went off without a hitch. Despite the nervous fears of network executives, there was no replay of the Janet Jackson "wardrobe malfunction" that shocked so many viewers last year. Nevertheless, the nationwide debate over on-air indecency continued unabated: two days after the Super Bowl, the House Commerce Committee overwhelmingly approved legislation enhancing penalties for broadcast indecency. A vote by the full House is expected soon.
Lawmakers are responding to a genuine concern, shared by many Americans, that television and radio broadcasts are becoming more offensive. However, the proposed solution, increased government restrictions on speech, is fundamentally misguided. Conservatives - who have long been the targets of politically correct speech codes on college campuses and elsewhere - should be particularly wary of this approach.
In the year since the Super Bowl shocker, the Federal Communications Commission (FCC) has undertaken a well-publicized campaign against indecency on the airwaves. For Jackson's revealing performance, the Commission slapped 20 stations owned by CBS with fines totaling $550,000. Last October, the FCC fined 169 Fox Broadcasting affiliates a whopping $1.2 million, in total, for certain scenes on its short-lived "Married by America" show. In November, Viacom agreed to a $3.5 million settlement with the FCC for a number of broadcasts by radio "shock jocks."
The House legislation, H.R. 310, sponsored by Rep. Fred Upton (R-MI), would raise the maximum fine for indecent broadcasts to as much as $500,000 per violation. (The limit under FCC guidelines today is $32,500.) It also would expand the FCC's authority to fine individuals responsible for on-air indecency, regardless of whether they hold licenses; allow the FCC to require broadcasters to air "educational" and "informational" programming (presumably approved by regulators) as a penalty for violations; and require the FCC to begin license revocation proceedings when a broadcaster has been fined three times or more.
H.R. 310 is expected to move quickly to the full House of Representative for a final vote. (The House approved similar legislation in 2004.)
Indecency legislation is also pending in the Senate: S. 193, sponsored by Sam Brownback (R-KS), would increase per-incident fines to $325,000, with a maximum fine for indecency of $3,000,000.
Such proposals have broad support in Congress. Millions of Americans were outraged by the Janet Jackson incident, and lawmakers are looking for some way to express their own concern about diminishing standards of propriety on radio and television. And of course, no politician wants to be seen as soft on indecency.
Considered more carefully, however, this regulatory approach is flawed and perhaps even dangerous. "Indecency" is a notoriously hard term to define. Content need not be obscene to be indecent, but it must be more that merely offensive or inappropriate. The FCC defines indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." This definition is as clear as mud.
In practice, the FCC determines whether particular content is indecent on a case-by-case basis. In the Super Bowl case, Janet Jackson's nudity made the cut. But what about the Monday Night Football ad for Fox's "Desperate Housewives" program, in which a woman dropped her towel to reveal her bare back, implying more than actually shown? Certain obscene words would seem clearly off-limits. But does it depend on context? Recently, a number of TV stations refused to show the movie "Saving Private Ryan" for fear that the FCC would take action due to the language used in the film. The FCC even received complaints about nudity during the opening of the Olympic games in Athens.
These fears may
seem far-fetched but are very real to broadcasters who want to
avoid fines and stand to lose their licenses. The chilling effect
that results is very real, keeping much non-offensive-and
valuable-material off the air.
Even more dangerously, the push for restrictions on indecency will, almost inevitably, lead to calls for restrictions on other types of content. Who could, for instance, oppose restrictions on "hate speech"-as, of course, defined by regulators. And what about content deemed "insensitive" to others in society? The path to politically correct speech codes is a clear one. Even controls on political speech are possible. There is already talk of re-imposing the "fairness doctrine," which required broadcasters to air both sides of controversial issues. The doctrine's effect was to discourage controversial issue-oriented programming. It was not until this rule was repealed in the 1980s that talk show hosts like Rush Limbaugh found a place on the radio dial.
The good-or bad-news is that any restrictions are likely to be ineffective. The FCC's restrictions apply only to television and radio stations that have licenses to broadcast over the airwaves. They do not apply, however, to TV or radio signals transmitted via cable or satellite. This means a majority of television programming and - with the advent of satellite radio - an increasing share of radio programming is out of regulators' reach. Increased broadcast restrictions would only accelerate the growth of these non-controlled media at the expense of the regulated ones: witness, for example, Howard Stern's jump to the Sirius satellite radio network.
Recognizing this, some propose extending the FCC's rules to non-broadcast media. But such a move would almost certainly be unconstitutional. The current rules are made possible only by the presumed scarcity of broadcast frequencies, which courts have ruled justifies more extensive government involvement in content that otherwise would be allowed. Cable and satellite providers face no such scarcity. And if these providers were to be regulated, why wouldn't traditional print media such as newspapers and magazines be vulnerable, as well? What about the Internet, over which audio and video are already "broadcast" today? Such comprehensive government control of the media would likely be too much for the courts-or even lawmakers-to contemplate.
Rather than impose ever-stricter limits on media content, lawmakers concerned about the quality of programming should instead promote policies that would expand the choices available to consumers. Already, cable programmers such as the Family Channel and Disney Channel offer family-oriented television. Many more are available on satellite television. And Sirius-despite its Howard Stern deal-recently announced it would offer several channels of children's radio on its satellite network.
By reducing governmental barriers to new outlets, policymakers could further increase the number of choices available. Such steps could include freeing up underused radio spectrum, reducing regulations that discourage investment in new telecommunications systems, and reducing taxes on providers.
Ultimately, the solution to offensive programming lies not with policymakers but with individual consumers and families. Parents and others unhappy with what they see on the television have available to them weapons more powerful than has any congressman. Like other businesses, broadcasters respond to their customers. Complaints to broadcasters and to the advertisers that support them can be effective. But the most powerful weapons consumers wield are their own remote controls. As conservatives know well, the best regulation comes not from government but from individuals making choices for themselves. Rather than look to Washington for answers, we should look to our own thumbs.
James L. Gattuso is Research Fellow in Regulatory Policy in the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation.