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cyberbarf
EXAMINE THE NET WAY OF LIFE
Danger Zones
The old phrase that you should leave sleeping dogs lay is meant to warn an individual against the possible bad consequences of awaking a mad animal. The FCC's campaign against shock-jock obscenity has awoken a national media star into an Internet web site portal for Free Speech. The FCC commissioners have become the five person arbitrator of good taste in America; it has levied huge fines against radio stations for broadcasting obscene comments, jokes or rude remarks made by shock jocks. The FCC has the authority to make $500,000 fines. The government agency's main target appears to be Howard Stern.
As a result of record fines, Clear Channel Communications, the largest owner and operator of radio stations in America, pulled Stern's syndicated show from its airwaves. Instead of silencing Stern, it has empowered him to become the spokesmen for the Free Speech Movement.
Last year, Stern's web page was merely a domain parking space. It contained his name and maybe a picture from the show-cam. But since the perceived vendetta by the government, Stern's website has transformed itself into an information portal on the FCC, free speech and commentary on the issue of government censorship of broadcasters.
The issue is a fundamental concept. What is the role of the Federal Communications Commission as it relates to broadcast programming? In the beginning, broadcasters were self-regulating professionals who were licensed to serve the public trust as the airwaves and bandwidth were deemed to be public property. Station licenses, frequency allocation, and engineering signal patterns were to nullify the chaos if individuals could set up their own towers and blast each other off the air or overlap signals into harsh static.
The principle of a public trust is a long tradition. It came to America from Europe, and was first embodied with the early settlors use of a common pasture or field by all the villagers. The “commons” were not owned by any one person, but was set aside for the benefit of all. As the concept of property grew with the increase in invention and technology, the commons practice was adopted to regulate the new broadcasting industries against private nuisance and trespass suits.
The other principle as old as the commons was the concept of free speech. The First Amendment to the US Constitution provides that Americans have a right of free speech and expression against government intrusion or censorship. Our founding fathers used the concept to print their revolutionary pamphlets to sow the seeds of independence. The early publishers used harsh political cartoons to make their ideas clear to the uneducated masses. It created the call of change. Once independence was attained from England, the drafters of the Constitution knew that one of the key planks in their revolutionary platform had to be preserved against their own new government -- the individual's right to protest, question and speak up against their government's activities.
Just like the Constitution mandates that the federal government cannot create a state-sponsored religion, the government is not entitled to create a state-controlled information monopoly. Most people do not realize the magnitude of this right. Everytime one speaks to a friend, makes an opinion in a bar or party, in casual conversation on the news of the day, a governmental issue like the war, taxes or marriage, that person is publishing their views. A single person's ideas and views are just as protected as the major media corporations' magazines, daily newspapers, radio and television stations. There is no distinction in the Constitution between individual and corporate speech.
Under Soviet communism, all speech was regulated and monitored conduct. The communist party controlled the national media. Spies and special police wandered the streets to monitor private conversations to seek and destroy the radicals who dared to challenge the current seven-year plan. The fear of a government informant in the shadows chilled any speech in the Soviet world. It quelled creativity, new ideas; it created a status quo of the powerbrokers and the powerless. And even if there was an opportunity to tell the story, government censors reviewed the copy before it was published. Even foreign correspondents were under the pressures of being accused as enemy spies, so their reports were tempered by a the possibility of a cold jail cell in Siberia.
In the Land of Opportunity in America, Siberia is unemployment. Only one generation ago, there was a cold war fear that the Communists were out to destroy the United States. The core foundation of their citizenship, economy and values were at odds. It was under the defensive need to fight communism that the government turned upon anyone it deemed a possible threat. In the 1950s, Congressional hearings lead to blacklisting writers, educators and union leaders as communists. Many lost their jobs and professional standing. No one could afford to be labeled a communist. There was no recourse against a government witch-hunt because there was no popular support against the early actions of investigators. It was only when Senator McCarthy went too far, and the general public turned, did the witch-hunt ended.
The danger is to dilute individual rights under the guise of fighting a known enemy.
After September 11th, the War on Terrorism has been central focus of the Bush administration. The US has committed troops to seek justice against the terrorists who committed an act of war against innocent civilians. There was massive, bipartisan support for the sending of troops to the Middle East to ferret out the evil masterminds and kill the terror cells before they could attack again.
When the Iraqi War was televised live through embedded reporters, the American people's resolve was reinforced that the campaign against terrorists was needed and just. The media reflected the American mood of being pro-war, pro-Military and pro-Bush administration on this issue. Even Stern was supportive of this campaign. The only negative commentators came from sportswriters and editorial cartoonists.
But as a year passed, the Democrats needed an issue to run a campaign to vote out Bush. The candidates began to focus on the casualties. The candidates began to use rhetoric that the administration was bogged down in the reconstruction effort. The debate shifted from the value of the toppling of Saddam and fighting terrorism to the US involvement in nation building in an area of the globe that has been historically anti-American. No one questioned the right of the opponents to this political free speech. Most of the points raised were dismissed by the majority of the public. But the primaries were for the Democrats to energize their liberal base, the anti-War crowd, and gain donations from the critics.
It seems that all national issues get fed into a political meat grinder. Any excuse can be the trigger to an overblown response. At the Super Bowl, the Janet Jackson flash so enraged Michael Powell, the FCC chairman, that he started an anti-obscenity campaign against broadcast indecency. The FCC regulates the television airwaves so it put pressure on the big three broadcasters. However, the broadcasters have an integrated big media monopoly political power in Washington DC to deflect most of the FCC ire. So Powell went after the perceived smut factories of shock jock radio personalities. Each listener complaint was magnified under this new FCC crusade.
For years, Stern's brand of radio show contained sophomoric bathroom humor. Just about every radio market has a program that borders on crude. The reason is simple; radio programmers are not the most creative lot; they plug in showmen who can drive ratings and bring in ad dollars. In the vast forum of ideas, there are good and there are bad programming shows. Each person has the freedom to choose to listen or not listen to a radio program. It is called the on-off switch or the radio tuner dial.
The US Supreme Court has defined obscenity as material to which an average person, applying contemporary community standards, finds the dominant theme taken as a whole appeals to prurient interest. All ideas having even the slightest redeeming social importance, unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion, have the full protection of the constitution unless they encroach upon the limited area of more important interests. Roth v. United States, 77 S.Ct 1304 (1957). Obscenity is not protected speech but any regulation of free speech has to be carefully limited. One guideline is whether the work (or speech), taken as a whole, lacks serious literary, artistic, political or scientific value. Miller v. California, 93 S.Ct. 2607 (1973).
Historically, obscenity cases were prosecutions under local or state laws. The courts were the venue for deciding constitutional claims of free speech against the criminal law standards of obscene material. However, the FCC is not a court. It is an administrative agency which creates its own complaints against broadcasters and then makes its final judgments. In the background is the fact that the FCC also holds a broadcaster license for renewal. A broadcaster is in a procedural quandary. So there is no real opportunity to appeal an FCC decision. The FCC commissioners have found an unchecked power through massive fines to regulate free speech. The threat of license revocation is a form of back-door censorship.
One of the principles in American justice is that one person (or agency) is not prosecutor, judge, jury and executioner. The system is based upon due process where a defendant can raise facts, witnesses, and legal argument to rebut the government's case against him. Puppet trials or star chambers have been rejected as being un-American. As in Stern's case, what business is it of the government to attempt to regulate entertainment (including crude, bathroom humor)?
The serious issue is whether the FCC can rule broadcasts as obscene without a trial on the merits as required under constitutional principles and Supreme Court precedent. If the commissioners use their position to mold “acceptable behavior” then the First Amendment will be significantly damaged.
One should always fear politicians on a power trip. With the FCC headlines on regulating broadcast radio, the commissioners have floated the idea of regulating the content on cable television channels. Cable television is outside its jurisdiction because it is not broadcast over the free, public airwaves. Cable television is private communication that a person pays in order to receive the programming channels. Cable channels developed as an alternative to the plain vanilla packaged programming by the three broadcast networks. Cable channels have developed on-the-edge to over-the-edge programs. There is no national outcry against cable television programs for the very reason that market forces have created its content.
If that was not enough, the FCC is also investigating the possibility of drafting rules and regulations on the Internet. The Internet is the nation's pure peer-to-peer private communication channel. Its creators created the network to allow unregulated free speech and exchange of ideas. There is no need for the FCC to claim any jurisdiction to regulate the Internet.
It can attempt to stretch logic so broadly to regulate anything. Telephone access is a regulated activity. If it can be taxed at a federal, state or local level, then government agencies are regulating it already. If government is regulating it already, then it can regulate it some more. What's the difference? What's the difference between taxing toll calls and regulating what you can say in a private telephone conversation? If you curse an obscenity in a casual telephone conversation with a friend, you could be charged with obscenity. It defies common sense. It is an intrusion into your private life.
The Federal Trade Commission is another agency bent on regulating Internet content. People hate spam emails. Email is like postal junk mail. It is also commercial speech. Unwanted unsolicited email clogs the system. Instead of taking a minute to delete unwanted emails, the legislators created an anti-spam law. And once that regulatory law is in place, others will follow. Like the proposition that illicit material has to be labeled so spam filters will auto-delete the unwanted email.
The FTC is looking into spyware regulations to limit ISPs and websites from data mining information from web surfers, thorough cookies, page saves or click-throughs. If the agency is allowed to begin to regulate the means and mode of communication on the Internet, then the type of content will be the next to be filtered through the eyes of the federal government agency.
In a politically charged environment fueled by special interests, the potential of governmental restrictions on free speech increases as the constitutional individual liberties are eroded through regulation. If entertainment can be regulated through undefined obscenity rules, then when does dissent and opinion become fair game to the regulators? Will a crusade against radio broadcasters empower government agencies to regulate cable television and Internet content? The unchecked expansion of government regulation of traditional free speech areas is a significant issue which needs to be recognized and checked before the horse bolts the barn.
Updates
Leo Laporte of TechTV was rehired after two weeks of contract limbo. Comcast, which agreed to purchase TechTV to merge the channel into Comcast's game channel, G4, must have realized that it needed to transition programming in order to preserve TechTV's coveted viewership numbers.
Comcast also made news by taking its unsolicited bid for Disney off the table. Michael Eisner keeps his own magical kingdom to himself. Roy Disney continues his assault against the current management. Pixar, the engine of Disney's animation movie success, is a free agent in the movie business. Disney closed its hand-drawn animation cell studios ending the tradition that Walt Disney created and fostered into an international entertainment empire.
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