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Commentary

A NEW USE FOR "INDECENCY"?

By Marjorie Heins

Does the giant size of media corporations lead to more raunchy shows on radio and television? A study released last week reported a strong correlation between increasingly consolidated media ownership and increased "indecency" findings by the Federal Communications Commission. In fact, the study found that the FCC levied 90% of all indecency fines against three of the four biggest companies in the business - Clear Channel, Viacom, and Entercom.

It sounds like one more piece of evidence that allowing control over information and culture to reside in a few big corporations is a bad idea. But we should be careful about relying on a censorship system for anything, including research findings. And that's just what the FCC's "indecency" regime is - a censorship system.

Censorship is about suppressing information, ideas, or just plain entertainment because someone in power thinks it is offensive or "un-American." Nothing could be more foreign to our democracy. And as the authors of this study point out, "indecency" is constitutionally protected speech. (The agency's standard for indecency in broadcasting is whether the program deals with sex or excretion in a manner that it deems "patently offensive.")

There is a big difference between basing public policy on censoring speech that those in power find offensive, and basing policy on the need to encourage more speech, by diversifying media ownership and preventing any company from getting too big and powerful. The best argument for structural regulation of the media is that we need better journalism, more informed debate on public issues, and more diverse cultural offerings, so that our democracy can flourish. Tapping into the natural but dangerous impulse to censor may have political appeal, but it is a problematic rationale for any public policy, especially one as important as media reform.

Indeed, the authors of the report, which was published by the Center for Creative Voices in Media, Fordham University, and the advocacy group Free Press, acknowledge that the FCC's indecency findings are anything but consistent. For example, the agency ruled that any use of the word "fuck" was indecent in a case involving the rock star Bono's exclamation, "this is fucking brilliant," at the 2003 Golden Globe awards; yet a year later, it found that the same words in "Saving Private Ryan" were not indecent. In fact, the FCC initially ruled that Bono's exclamation was non-sexual and thus not indecent, and only reversed itself under political pressure.

In a case several years earlier, the FCC also changed its mind - about the feminist rap artist Sarah Jones's poem, "Your Revolution." The commissioners at first totally missed the point of Jones's politically and artistically valuable work. Her case is a good illustration of how dangerous it is to give government officials the power to decide what's offensive or otherwise not appropriate for Americans to hear. The FCC's indecency police have historically targeted small radio stations airing controversial content, such as the famous George Carlin "Filthy Words" monolog that led to the Supreme Court's 1978 decision upholding the agency's power to censor the airwaves.

The new report may be correct in suggesting a link between big media, with its relentless drive for maximum profits, and vulgar programming. The authors point out that for advertisers, appeal to the 18-34 age group is all-important, and that these young listeners and viewers tend to like raunchy entertainment. But if this stuff is so appealing to a major portion of the population, why do the researchers assume that the FCC's indecency findings against such admittedly unedifying spectacles as Janet Jackson's "wardrobe malfunction" at the Superbowl, or the frat boy humor of "Bubba the Love Sponge," represent any kind of public consensus about what should be permitted in broadcasting?

There are also questions about their statistical analysis. Yes, the FCC imposed a lot of indecency fines in the last few years, but the number was so big because a single program, broadcast on multiple radio stations, then became the subject of multiple fines. And was the programming really raunchier, or was the FCC simply pushed by politics to get more censorious? After all, former FCC chair Michael Powell initially announced that he didn't want to be an indecency czar, and only changed his tune after post-Superbowl political pressures forced him to do so.

The authors of the new study rightly argue that the FCC's indecency penalties and restrictive settlement agreements will have a chilling effect on valuable programming that might use an occasional curse word or touch on the subject of sex. They rightly say that trying to reduce our exposure to gross entertainment through diversifying the media is better than allowing the FCC to continue censoring radio and TV through its vague and politically driven indecency regime. But FCC censorship should be scrapped regardless of any relationship it might have to big media, because it is fundamentally at odds with democracy and free expression.

Meanwhile, the FCC and Congress should reform the structure of the media business - not in order to suppress "offensive" programming but in order to facilitate more creativity, more diverse viewpoints, and better information for all Americans.

September 15, 2005

For more on the FCC and indecency, see:
America's Culture Czars
Censoring Indecency is a Diversion and
What is the Fuss About Janet Jackson's Breast
?.


The Free Expression Policy Project began in 2000 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. The FEPP website is now hosted by the National Coalition Against Censorship. 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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