First Amendment & Free Speech

[cross-posted from the PFF blog]

On February 28, the FCC released an important decision holding that the film Saving Private Ryan was not “indecent” and could be shown on primetime broadcast television without fear of fines.

The decision was handed down four months after 66 of ABC’s 225 affiliated stations – – covering roughly one-third of the country – – decided not to air the film fearing that they might be caught in the FCC’s growing indecency enforcement net. Several of these affiliates cited the uncertainty surrounding the agency’s stepped-up indecency “crackdown” in the wake of the Janet Jackson episode at last year’s Super Bowl.

The FCC was also compelled to issue a ruling in this case since it received an official complaint from the American Family Association (AFA) asking the agency to pursue sanctions against ABC stations that aired the film.

First, the good news: The FCC denied the AFA complaint and ruled that Saving Private Ryan was not indecent and that no ABC affiliate would be fined for airing the film. But how the FCC arrived at this conclusion is somewhat troubling, or it at least raises as many questions as it answers about how current indecency “standards” will be interpreted by the agency in the future.

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I think this is almost certainly a bad thing. As I’ve written before, the idea that a rumor about the general characteristics of an upcoming product is a “trade secret” borders on the absurd. And precedent would seem to show that you can’t be held responsible for the lawbreaking (or in this case, contract breaking) of your sources as long as you obtained the information legally.

On the other hand, I’m not sure I buy this business about giving journalists special exemptions for the confidentiality of their sources. With the explosion of new online media, it’s becoming increasingly unclear who counts as a “real” journalist. Instapundit doubtless gets more Internet traffic than many a small-town newspaper’s web site, and he offers more news than the average tabloid. So by what standard other than prejudice against a new form of media should he receive lesser protections than his print colleagues?

I don’t know enough about this area of law to have a good idea of how things should be changed. But any law attempting to draw sharp distinctions between journalists and everyone else is taking the wrong tack, and will find that position ever more untenable as the line between “the press” and “the people” continues to blur. The law needs to be changed to reflect that fact that nowadays, anyone can become a pseudo-journalist by signing up for a TypePad account.

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Ten years ago, when the GOP first took control of Congress, there was much excited talk about abolishing the FCC. Its days were numbered, many thought.

Ten years later, those numbers look pretty large. Rather than talk of shrinking the FCC, two key GOP leaders yesterday said they would expand it. Sen. Ted Stevens–chair of the Senate Commerce Committee–told a group of broadcasters that he wanted to extend the agency’s control over “indecent” speech to cable and satellite television. Rep. Joe Barton–his House counterpart, agreed.

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Is Steven Spielberg’s “Saving Private Ryan” too hot for broadcast television? That’s the question that ABC affiliates were asking themselves–and the FCC–back in November of last year as they readied to show the film on Veteran’s Day. The FCC was on an indecency-fine rampage–rhetorically, at least–and no broadcaster was interested in paying out fines or putting its broadcast license at risk.

You may remember the FCC’s response then to broadcasters’ inquiries. The agency said that it was barred from making a decision before the broadcast “because that would be censorship.” But said a spokesman, “If we get a complaint, we’ll act on it.”

No surprise, a number of ABC affiliates dropped the film despite having shown it, to great appreciation, on prior Veteran’s Days.

Well, those affiliates that did show “Private Ryan” last year can now breathe easier. Just yesterday, over three months after Veteran’s Day, the FCC has rendered its ruling:  “In light of the overall context in which this material is presented, the commission determined that it was not indecent or profane.”

So how is this any different, in terms of censorship, than if the FCC had said the same thing three or four months ago? Beats me. Of course, if the FCC had made its decision months ago, those affiliates that opted for tamer programming on Veteran’s Day could have shown “Private Ryan.”

The FCC seems to think that if it doesn’t rule beforehand what’s acceptable and what isn’t that it’s not really censoring. But this premise is a bit flimsy. Facing vague indecency standards and the real threat of fines or worse, broadcasters will do the censorship themselves and, as with “Private Ryan,” may misjudge the FCC and withold perfectly decent programming. This isn’t voluntary compliance; it’s a chilling effect.

So should the FCC just go ahead and censor? It’s an unattractive choice, but it might be more honest than status quo’s de facto censorship. Would the FCC be flooded with inquiries from the networks, which would want every show to be FCC-approved? Surely, but that comes with the territory of vague content standards. And anyway, would it really be so different regular floods of complains from special-interest groups, on both sides of the cultural divide, that require investigation and, sometimes, post-facto punishment?

All this should be food for thought for those who wish to make the FCC’s response to programming judged “indecent” even harsher. With greater fines, stations will become even more cautious, and while that may cut down on poor-taste programming, worthwhile shows, like “Private Ryan,” will be affected, too.

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Congress is voting this week on increasing penalties for indecency on the airwaves. Heritage has just released this paper on why its a bad idea.

The conclusion: “Ultimately, the solution to offensive programming lies not with policymakers but with individual consumers and families. Parents and others unhappy with what they see on the television have available to them weapons more powerful than has any congressman. Like other businesses, broadcasters respond to their customers. Complaints to broadcasters and to the advertisers that support them can be effective. But the most powerful weapons consumers wield are their own remote controls. As conservatives know well, the best regulation comes not from government but from individuals making choices for themselves. Rather than look to Washington for answers, we should look to our own thumbs.”

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FoxSports.com reports today that the FCC has once again received complaints about the Super Bowl. This time the complaints were about boredom. Seems some people were pretty disappointed with Paul McCartney (formerly of “Wings” and another band), compared to the excitement of Janet Jackson last year.

Of course, Fox goes on to disclose that only two such complaints were actually received. So it’s less than representative of the country as a whole. But then again, the same might be said for the thousands of FCC complaints ginned up by the Parent’s Television Council last year. Getting censorship right just isn’t as easy as it seems.

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I’ve agreed to be the science and technology editor for Brainwash, the online magazine of America’s Future Foundation.

Here is my inaugural column. In it I take on Apple Computer’s ridiculous lawsuit against Think Secret for printing rumors of upcoming Apple products.

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