The FCC v. Free Speech
M. Harrison

What's in a profane epithet? Most citizens undoubtedly find it a necessary evil in the modern free world. My brilliant colleague J. Treece recently outlined the history of profanity, demonstrating that it's an ancient linguistic tradition dating from before the time of Christ. But if you're a Republican parent in 2007, apparently it's the end of your child's social development.

The FCC, under the Bush administration, has embarked on a remarkably ambitious crackdown of profane content in broadcast media since Janet Jackson's infamous Super Bowl incident in 2004. Soon after her wardrobe malfunction began to threaten the moral fabric of America, the FCC got serious, reversed an earlier staff decision and ruled that the fleeting use of an expletive by Bono during a 2003 broadcast was indecent. Yes, thank God for the FCC.

On a moral roll, the FCC's crusaders recently went after two other unscripted obscenities uttered during live prime-time TV during 2006 - one from Nicole Ritchie and another from Bono. The FCC indicted NBC for its role in the sinfulness, and NBC appealed the ruling. In defense of its policy, the FCC had argued that even one (accidental) utterance can violate their decency standard, perhaps confusing indecency with natural human imperfection. Surprisingly, the U.S. Court of Appeals in New York was not convinced by the FCC's argument, invalidating their policy on "fleeting expletives" as "arbitrary and capricious".

After the setback, (Republican) FCC Chairman Kevin Martin was found scratching his head in righteous indignation, opining that he finds it "hard to believe that the New York court would tell American families that cuss words are fine to say on broadcast television during the hours when children are most likely to be in the audience."

Personally, I find it hard to believe that American families rely on the U.S. Court of Appeals of the Second Circuit to tell them what television is suitable for their children. But Mr. Martin apparently disagrees.

"If we can't restrict the use (of these two obscenities) during prime time," Mr. Martin thundered in a homiletic statement, "Hollywood will be able to say anything they want, whenever they want." Oh, the humanity!

But isn't that the point? Free speech, by definition, is the saying of anything one wants, whenever one wants. Mr. Martin's objection might be more effectively translated, "If we can't restrict the use of these two obscenities, the First Amendment might be alive and well in America, and we can't have that."

As for the accidental utterance of expletives, our fearless Vice President proved that even the Ruler of the Free World can let a curse word slip on the Senate floor. Any parent who has taken a child to a public sporting event has undoubtedly experienced the same. Most of us call this phenomenon Reality. Would Mr. Martin really have us believe that Dick Cheney and the New York Yankees really pose a clear and present danger to America?

Not only does the FCC's profanity policy violate the First Amendment, in my view, but it also represents an unequal protection of the laws, in violation of the Fourteenth Amendment.

The putative purpose of the FCC's regulation is that television airwaves are "public domain", and thus require government regulation to make sure they're safe and available for all citizens. But the current regulation doesn't do that - it is simply censorship by a vocal and out-of-touch minority.

Most Americans who watch television are not children, and most of those who are do not require government censorship to aid in their moral upbringing. Parents who are incapable of screening their child's entertainment are the last people who should ask the government to play Mommy for them, leaving millions of independent adults bereft of entertainment in the process. The desire to avoid watching certain television shows, in a free society, is achieved by changing the channel - not by the government fining the TV station.

Besides, a child's exposure to the indecent world is hardly fatal. When I was in fifth grade, my friends and I used to surreptitiously listen to Dexter Holland of the band The Offspring call a fellow driver a colorful array of explitives and we thought it was the greatest thing ever. Like the fictionalized third-grade children of South Park and most of my real-life peers in the Modern Era of NWA and Eminem, we were undoubtedly attracted to profanity and other forms of adult entertainment - yet somehow found a way retain our ethical mores and to avoid spiraling into devil-worship. Proof: Despite my voluntary exposure to profanity, a phenomenon called Good Parenting managed to allow me to later graduate college in three years and go on to law school. Really, I'm not sure if the FCC would view me as an aberration or the Antichrist.

But hey, maybe not everyone is as morally capable as I am. Perhaps the FCC is right, and public immorality really should be illegal in the United States. In that case, I say America should get serious about Sin and ban it right. For starters, we should revert to criminalizing adultery. I mean, isn't the law supposed to be defending the sanctity of marriage? Why should adulterers be allowed to freely debase such a bedrock societal institution, especially when children might find out about their godless infidelities?

Imagine even if the adulterer were in a public park, discussing his impending divorce, where children are likely to be within ear shot. God forbid they hear a person audibly disparage the sanctity of marriage - the children probably will immediately ride their tricycles directly to the nearest brothel and sell their bodies to Beelzebub. (I won't even entertain the Satanic implication of someone publicly discussing a divorce AND using profanity while doing so...gosh, that's just too indecent a thought for even this libertarian heathen to imagine.)

The Parents Television Council, obviously incensed at the court's restriction of their intended TV theocracy, urged the FCC to appeal the ruling. Because the FCC always does what the PTC says, the case likely will find its way to the Supreme Court.

There, the Supreme Court will apply what's called Rational Basis Review to decide whether the FCC's policy has a "reasonable" relation to a "legitimate" government purpose. Another proxy for this analysis is whether the Supreme Court finds the policy "arbitrary and capricious", which the Appeals Court expressly found that it was. The impending Constitutional battle, in other words, will comprise Ivy League-educated Supreme Court Justices basically analyzing whether a fifth-grader fresh out of Social Studies class would think the policy makes any sense whatsoever. If the Supreme Court somehow thinks it does, reverses the Appeals Court, and upholds the clearly arbitrary and capricious FCC policy, then I guess we'll really know that even the Supreme Court isn't Smarter Than A Fifth Grader.

Amazingly, Tube Czar Martin may have the solution to the whole problem. He actually argued, alternatively, for subscription television services to give customers the option of blocking channels they find offensive. "Permitting parents to have more choice in the channels they receive may prove to be the best solution to content concerns," he observed, in an unexpected moment of enlightenment.

In other words, free choice and free expression may be superior to censorship, and I agree that their free exercise would definitely solve this contentious issue. Too bad their free exercise will also put Mr. Martin out of a job.

The above work is the opinion of the author, and not necessarily that of the Prometheus Institute

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written by diane, October 03, 2008

The author of this article is the one who is the minority and out-of-touch. Majority of Americans are Christians and even if they aren't they are decent people who want to live a positive, moral life and bring their children up in the still strong American dream of a happy marriage, a good job, respected in their community, children and a house with a white picket fence. Public decency is still expected.

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