Don't Expect the Government to Be a V-Chip

The New York Times
December 3, 2004

Don't Expect the Government to Be a V-Chip
By MICHAEL K. POWELL

Washington — TIME to take a deep breath. The high pitch at which many are discussing the enforcement of rules against indecency on television and radio is enough to pop an eardrum. It is no surprise that those who make a handsome living by selling saucy fare rant the loudest - it drives up the ratings. The news media further fan the flames, obsessed with "culture war" stories that slot Americans into blue-state and red-state camps.

Overheated words, however, obscure what should be an important debate over two American values that are, at times, in tension. As one deeply suspicious of government involvement in the regulation of content, I understand and often agree with those who stand up for the cherished value of free speech. But as a parent, I respect the desire of the American people for a minimum level of decency on the public airwaves - particularly where their children are concerned. The often unenviable task of striking a balance between these two competing values falls to the Federal Communications Commission.

Broadcasters have always had the responsibility of making decisions about what programs are appropriate. The majority have done well. In the history of broadcast television, there have been only four indecency fines. Yet when certain broadcasters trade responsible restraint for torrid sensationalism in the relentless race for ratings, it should come as no surprise that escalating calls for the government to enforce indecency laws aggressively are the result.

The F.C.C.'s job of regulating indecent content on the airwaves is not optional; it has been required ever since Congress first made the broadcast of obscene, indecent and profane material illegal more than 70 years ago. The law continues to enjoy strong bipartisan support.

Even so, there are important limits placed on the F.C.C. Our rules do not ban indecent content entirely; they merely restrict its broadcast during times in which children are likely to be in the audience, namely from 6 a.m. to 10 p.m. Courts have consistently held these rules constitutional, accepting that the government has a compelling interest in protecting children from inappropriate material.

For material to be indecent in the legal sense it must be of a sexual or excretory nature and it must be patently offensive. Mere bad taste is not actionable. Context remains the critical factor in determining if content is legally indecent. Words or actions might be acceptable as part of a news program, or as an indispensable component of a dramatic film, but be nothing more than sexual pandering in another context. That context and the specific facts of each program are reasons the government can't devise a book of rules listing all the bad stuff. In 2001, however, the agency issued policy guidelines summarizing the case law on indecency, and each new ruling since then clarifies what is prohibited.

But we are not the federal Bureau of Indecency. We do not watch or listen to programs hoping to catch purveyors of dirty broadcasts. Instead, we rely on public complaints to point out potentially indecent shows. In recent years, complaints about television and radio broadcasts have skyrocketed, and the F.C.C. has stepped up its enforcement in response. Advocacy groups do generate many complaints, as our critics note, but that's not unusual in today's Internet world. We are very familiar with organized protests when it comes to media issues, but that fact does not minimize the merits of the groups' concerns. Under the law, we must independently evaluate whether a program violates the standard, no matter whether the program in question generates a single complaint or thousands.

When the commission makes the determination that a program is indecent, we typically fine the licensee that broadcast it. Although the commission has the authority to fine an artist personally, we have never done so nor do I support doing so. Over the years, fines had become trivial. A routine violation generally received a paltry $7,000 fine, with the maximum fine being $27,500. The agency has increased penalties significantly, recognizing that they must be large enough for billion-dollar media companies to stop treating fines as a minor cost of doing business.

Some have also questioned why the commission is unwilling to issue rulings before a broadcast, as was the case with the recent network showing of "Saving Private Ryan," a film the commission had previously held was not indecent. While ABC and its affiliates understandably would have liked to know the program was in bounds before proceeding, the precedent of submitting programming or scripts for government review borders dangerously on censorship. The Communications Act expressly forbids the F.C.C. from banning a program before broadcast, and any such effort might very well run afoul of the First Amendment. This is a step I do not want to take.

The commission's indecency rules apply to broadcast television and radio but not to cable, newspapers or the Internet because the Supreme Court interprets the First Amendment in a way that affords stronger constitutional protection to these sources than to broadcasting. The argument goes that broadcasting is different because it is uniquely pervasive, with children having easy access. Government can limit content in the public interest because broadcasters use a public resource, the airwaves. Yes, it is strange that First Amendment protections are weaker or stronger depending on what channel you are watching, but under current Supreme Court precedent that's the way it is. And I believe that any effort to extend regulation of content to other media would be contrary to the Constitution.

We take all these limitations seriously and believe we have acted in a balanced manner. If one slices through the rhetoric, you'll find that most opponents of the agency's strong enforcement efforts believe that the government simply should not impose any decency standard at all. Berating citizens who believe in values and reasonable limits is insulting and polarizing and distracts from the legitimate issues of this policy debate. Critics of the law should instead focus their efforts on changing the law, if that's what they want. Until then, the American people have a right to expect that the F.C.C. will continue to fulfill its duty of upholding the law, while being fully cognizant of the delicate First Amendment balance that must be struck.

Michael K. Powell is the chairman of the Federal Communications Commission.