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.
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
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
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.)
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.
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.
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
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
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.
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
Gattuso is Research Fellow in Regulatory Policy in the Thomas A.
Roe Institute for Economic Policy Studies at the Heritage