Mao Powell Speaketh
In an editorial published today in the New York Times, FCC Chairman Michael Powell weighs in on the recent furor over "indecency" on television: Don't Expect the Government to Be a V-Chip
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.
Look carefully at what he is saying: he is openly admitting the non-objective
nature of the FCC. There are no
fixed regulations or rules; each television program must be dealt with on a case by case basis. Writing 40 years ago on virtually the same topic, Ayn Rand noted the devastating power non-objective law brings to bear on an industry:
When men are caught in the trap of non-objective law, when their work, future and livelihood are at the mercy of a bureaucrat's whim, when they have no way of knowing what unknown "influence" will crack down on them for which unspecified offense, fear becomes their basic motive, if they remain in the industry at all-and compromise, conformity, staleness, dullness, the dismal grayness of the middle-of-the-road are all that can be expected of them. Independent thinking does not submit to bureaucratic edicts, originality does not follow "public policies," integrity does not petition for a license, heroism is not fostered by fear, creative genius is not summoned forth at the point of a gun.
Non-objective law is the most effective weapon of human enslavement: its vicitims become its enforcers and enslave themselves.
-from The Objectivist Newsletter July, 1963: Vast Quicksands
That last paragraph is especially relevant, in light of the many ABC affiliates who pulled the uncut "Saving Private Ryan", out of fear of FCC reprisals. Powell also notes the many ABC affiliates who chickened out, but believes the true tyranny would have been to rule on the movie beforehand.
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.
In other words, freedom of speech means being able to broadcast anything, unless it offends someone and/or is "patently offensive and obscene". Of course, you won't find out until after
you broadcast it. That is a more vicious and tyrannical means of censoring television than any explicit
law could ever be.
For those who think this isn't a major issue, because it only affects "public" television, think again. Powell himself inadvertently points to the road that will be taken when the FCC is eventually expanded to include the Internet and Cable.
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.
If the only thing stopping the extension of censorship to the Internet and cable television is their less "pervasive" nature relative to "public" TV, and the interpretation of the First Amendment by the Supreme Court, we are in trouble. The internet is becoming all the more "pervasive" every
day. With the proposals in many cities to socialize
the internet so that everyone has access, and the ever lowering cost of buying a PC, it won't be long before the vast majority of American children have access to the internet at home (if they don't already). And if you think the theocrats are pissed off about their kids seeing a woman's bare back
, wait till you see their outrage when their kids see what she looks like when she lies down
With President Bush slated to nominate "literalist", conservative justices for the Supreme Court, and the Senate's Republican majority, I am not too hopeful for the future of free speech. But rather than end on a negative note, I'll leave you with another gem from Ayn Rand, in the same article, which succinctly explains what's wrong with the FCC and all government regulation.
That which cannot be formulated into an objective law, cannot be made the subject of legislation-not in a free country, not if we are to have "a government of laws and not of men." An undefinable law is not a law, but merely a license for some men to rule others.
POSTED BY THE GENERAL AT 1:46 AM