What First Amendment?
"Censorship is not a solution for trashy TV," writes Wendy McElroy about the Broadcast Decency Enforcement Act of 2004. "Nipplegate by Janet" wasn't the impetus for the Act, she observes, but it may propel its passage:
Radio is particularly vulnerable. There are more independent radio stations than television ones; a high percentage of radio programming is live; the FCC-targeted shock jocks are a radio phenomenon; and, there are few television equivalents to freewheeling college radio stations. But both radio and television are equally vulnerable to the vagueness of the FCC's definition of indecency.For example, one standard of indecency is whether the material is "patently offensive as measured by contemporary community standards for the broadcast medium." Accused violations can be judged on a case-by-case basis according to this ill-defined measure.
In a letter to the House Subcommittee on Telecommunications and the Internet, Laura Murphy -- Director of the ACLU Washington National Office wrote, "Because of the vagueness, speakers must...[guess] what the FCC will determine to be prohibited. Increasing fines merely exacerbates the problem, particularly for small broadcasters. Rather than face a potentially ruinous fine, smaller broadcasters are more likely to remain silent."
Murphy concludes, "The bottom line is that broadcasters enjoy First Amendment protection."
The FCC's recent and heightened focus on indecency has already caused a chilling of free speech. For example, in 2001, a noncommercial community radio station in Oregon was fined $7,000 for playing a feminist rap song that included profanity. Although the fine was rescinded, the process took two years and the investigating agency declared, "it was a very close case."
With the threat of the BDEA, even large broadcasters are chilling free speech and self-censoring. The most publicized instance is NBC's decision to cut the image of an elderly woman's breast from its popular medical drama "ER." John Wells, "ER's" executive producer, argued that the audience was aware of the show's adult themes and could adjust their viewing habits accordingly.
Wells' argument points to the best solution to the vulgarity of Jackson and her ilk. It is not a shotgun policy that may be absorbed by media mega-corporations while destroying community and alternative broadcasting. The solution is for audience to flex their buying and boycott power.
They did so with "The Reagans," the anti-Reagan movie that posed as historical drama. When consumers threatened to boycott companies that bought commercial time during the movie's broadcast, CBS relegated it to a comparatively small-time slot on Showtime.
Broadcasters are listening to audience feedback. When Nicole Richie uttered profanity on the "Billboard Music Awards" that was carried by FOX, the network immediately explored ways to prevent future embarrassment, including adding a five-minute delay to live feeds.
Today, the first response to any controversy is, "there ought to be a law." But in matters of morality and freedom of speech, it is best for law to be the very last recourse society considers. The first resort is to let freedom and the free market function.