What Counts As “Criminal” Speech?

According to this Reuters / Hollywood Reporter story, during an address Monday before the National Cable & Telecommunications Association annual conference in San Francisco, Rep. James Sensenbrenner (R-Wisconsin) told cable industry officials that criminal prosecution would be a more efficient way to enforce the indecency regulations. “I’d prefer using the criminal process rather than the regulatory process,” Sensenbrenner told the crowd.

Sensenbrenner apparently said he believes the FCC’s current regulatory process casts too wide a net and that criminal enforcement provides a more efficient solution. “People who are in flagrant disregard should face a criminal process rather than a regulator process,” he said. “That is the way to go. Aim the cannon specifically at the people committing the offenses, rather than the blunderbuss approach that gets the good actors.” He continued, “The people who are trying to do the right thing end up being penalized the same way as the people who are doing the wrong thing.”

Hmmm… that last line really explains why I’m more than a little uneasy with the idea of criminally prosecuting “indecency” violations. What is “the right thing” versus “the wrong thing”? After all, if we’re going to start prosecuting “criminals” and sending people to jail for what they say, we better be able to give citizens a clear idea of how to stay within the confines of the law.

Apparently, Rep. Sensenbrenner was short on specifics in his speech, not only regarding what constituted “the right thing” versus “the wrong thing,” but also regarding how he would go about criminalizing violations of the indecency statutes.

As much as I dislike the current FCC regulatory process, which is equally open to hopelessly subjective determinations of what constitutes “indecent” speech, the agency at least notifies the alleged offender that an investigation is underway and gives them plenty of time to respond and appeal. More importantly, the worst that typically occurs in this process is that fines are imposed on parties in violation of the indecency “standards.” No one ever goes to jail for these violations.

When Rep. Sensenbrenner speaks of “aim[ing] the cannon specifically at the people committing the offenses,” he makes this entire process sound so scientific and precise. (It reminds me of when Pentagon officials use my favorite military term of art: “surgical strike.” Even in our modern military age, bombings are rarely so precise, and usually “surgery” is conducted to save lives, not take them!)

The point is, “aiming the cannon” in the case of indecency regulation is messy business that usually ends up claiming more casualties than originally intended. Speech is not like murder; you can’t easily tell who is harmed by the activity in question. Heck, you can’t even tell if people are “harmed” at all by most forms of speech. That’s what makes the notion of criminalizing speech so troubling. It will likely cast just as wide and arbitrary of an enforcement net as the FCC’s current regulatory process. Worse yet, people could go to jail if the get caught in that net. I would just hope that we, as a society, would think twice before incarcerating individuals for what they say, no matter how stupid or offensive.

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