S. 2056, a bill to increase the penalties for transmission of "obscene, indecent, and profane material" by TV and radio broadcasters to $275,000 for each violation (from 27,000) is currently on the Senate Legislative Calendar.
A similar bill (increasing penalties to $500,000) passed in the House of Representatives on March 11, 2004. That bill also allows the FCC to revoke broadcast licenses in cases where there are more three violations on record.
The current effort to regulate the content of the airwaves presents a serious threat to free speech.
The regulations focus on the use of individual words ñ regardless of the social value and artistic merit of the material as a whole ñ thus potentially excluding literary classics and important educational programs. A reading of James Joyce's Ulysses, some passages from The Bible, and a discussion of prison rape or of safe sexual practices could all be potentially deemed "indecent." In April 2004, PBS drastically edited a documentary about poet, writer and educator Piri Thomas, which included excerpts from his autobiographical novel, Down Those Mean Streets (1967). The book chronicles Thomas experience as a teen gang member, junkie and armed robber, and the years he spent in prison before becoming an activist and educator pioneering gang violence prevention and drug rehabilitation.
The regulations do not take into account social change and a culture much more diverse in its use of acceptable language than the culture existing in 1927, when the decency standard was first put into place. Back in 1977, Justice William Brennan disagreed with the majority opinion of the court, which upheld the present FCC decency standard, and criticized the plurality for its "depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities."
The regulations do not take into account technological change and the current discrepancy between the regulation of broadcast media on the one hand, and the freedom granted cable, the internet, DBS, and newspapers on the other hand. In 1998 the FCC's reluctance to address these issues led then Commissioner Michael Powell to comment that "the government has been engaged for too long in willful denial in order to subvert the Constitution so that it can impose its speech preferences to the public."
- The definition of what is decent is extremely vague leading to:
a. excessive caution on the part of broadcasters ñ in early 2004 an episode of ER was cancelled because an 80 year old woman with heart trouble had her chest exposed. The critically-acclaimed, Peabody Award-winning mini-series, The Singing Detective, was never broadcast again in the U.S. after a 1990 FCC investigation focusing on several short scenes with nudity, even though the FCC did not declare the program indecent. Unsure whether something might be deemed indecent and facing the threat of an extremely high penalty, an expensive defense, as well as the potential that their licenses are revoked, broadcasters prefer to self-censor. As a result, our viewing choices are narrowed.
b. self-censorship on the part of performers, producers, talk-show hosts and others unsure of whether what they are presenting is "indecent." The FCC itself changes its mind about what is indecent and what is not further confusing matters. (18 months after deciding Sarah Jones' rap song "Your Revolution" was indecent, the FCC reversed itself; soon after it reconsidered its decision concerning Eminem's The Real Slim Shady.) As a result, challenging and edgy creative content would be gone.
c. potential abuse on the part of the networks who might decide to cancel a show using "decency" as the pretext, but actually trying to suppress views critical of government. For instance, when Clear Channel cancelled the Howard Stern show, their action strangely coincided with a turning point in Stern's political views, i.e. his outspoken criticism of the President's views. As a result, critical speech would be squelched. (More and more, politics replaces free market imperatives in the media. We have recently how politically biased media corporations really are when CBS refused to air an ad criticizing George W. Bush's economic policies and Disney refused to distribute Michael Moore's film exposing the connections between the Bush family and Saudi oil interests.)
d. potential abuse on the part of the government. It is conceivable that the government decides that criticism of its policies is "indecent." As a result democratic dialogue would be crippled.
This recent action of Congress is, in part, a response to letter campaigns orchestrated by organizations who want to limit what we all see and hear to what they want to see and hear.
Congress, and the FCC, need to hear from a wide constituency reflecting the true diversity of the American public.