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Censoring Indecency is a Diversion

By Marjorie Heins

Cries of outrage over broadcast "indecency" have occupied political center stage ever since Janet Jackson's wardrobe famously malfunctioned at last year's Super Bowl. It has been fun to joke about this "tempest in a C cup," but now Alaska Senator Ted Stevens, with a host of supporters, is pushing through legislation that would extend the federal government's dubious power of censorship over the airwaves to cable television as well. Only an occasional maverick, like Vermont's Congressman Bernie Sanders, has dared to oppose this ill-considered idea.

On the simplest level, Stevens's plan would be unconstitutional, because very different First Amendment rules apply to broadcasting and cable. Since the airwaves belong to the people and there are not enough frequencies to go around, those few who get broadcast licenses are expected to serve the public interest, and over the years, Congress and the Federal Communications Commission have defined this to include everything from limiting the number of radio and TV stations one company can own to allowing equal time for political candidates. Cable, which does not use the public airwaves, has never been subject to this level of government regulation.

"Indecent" speech - whatever that term may mean to the FCC at any particular time - is constitutionally protected, so ordinarily the government has no business censoring it. Disagreement with dominant ideologies and moral codes is exactly what the principle of free expression is designed to protect. We don't need the First Amendment to protect speech that offends nobody and agrees with conventional norms.

There has been a lot of criticism of the so-called "scarcity" rationale for regulating broadcasting differently from other media, and it's true that when it comes to suppressing speech on grounds of indecency or anything else, the standard should probably be the same - no government censorship in any medium. But this doesn't mean hands off broadcasting for purposes that expand free expression rather than shrink it. Instead of debating whether it threatens the republic for cable channels to show bare breasts, indulge in bathroom humor, or bleep out vulgar language in a war movie, policymakers should be focusing on the ways in which both cable and broadcast are dominated by large corporations that distract us with car crashes, reality TV, and celebrity newsbites while ignoring serious journalism. With a majority of Americans still believing that Iraq had weapons of mass destruction, we know that the media - both broadcast and cable - are not doing their job.

The industry argues that the First Amendment bars the government from regulating how big companies can get, how much content they can control, and whether they should be required to allow others to speak on their networks and cable systems. The industry is mistaken, though, because these are forms of structural regulation that advance free speech. When the government isn't censoring, but acting to expand the diversity of outlets, ideas, and information that's available, it is serving the First Amendment rather than subverting it. As the Supreme Court has recognized: "the people as a whole retain their interest in free speech" and their right to have broadcasting function "consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."1

Although media corporations don't like to acknowledge it when they are arguing against structural reform, "de-regulation" is itself a form of regulation. Policymakers decide how to divvy up broadcast licenses and structure cable franchises. The very idea of creating a corporate form of organization to do business is a government policy. Government is always making choices. It has ample power to structure economic arrangements in a way that advances competition and keeps prices reasonable. When it comes to assuring the diverse information sources that are so important to democracy, it also has the power to establish policies that promote competition in the "marketplace of ideas."

This mean breaking up media monopolies - or better yet, not allowing them to form in the first place - and, where they are entrenched, requiring them to allow others to use their valuable cable networks and broadcast frequencies. Public access cable - forced on reluctant cable companies as a condition of their franchises - may not be the best-produced or most scintillating fare on the cable dial, but this is because nonprofit alternatives to commercial mass media have not been seriously supported in this country. Good journalism - indeed, any good programming - requires resources. Media policymakers in America have not yet been willing to make that investment.

Americans will never get the communications system we need - one that gives us information to make informed political choices, journalistic questioning of the claims of government officials, a diversity of viewpoints, and, yes, a culture that's not dominated by stupid or vulgar entertainment - by censoring bare nipples, curse words, or anything else that offends Senator Stevens and a coterie of vocal pressure groups. If we truly want a "decent" media system in this country, it's time to stop being distracted by censorship crusades and get serious about breaking up media conglomerates and subsidizing nonprofit alternatives.

March 16, 2005

This article was first published in Commons Dreams,

1. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390-91 (1969).

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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