The Triumvirate Bites Back

FCC Chairman Michael K. Powell responds to his critics:

The New York Times > Opinion > Op-Ed Contributor: Don't Expect the Government to Be a V-Chip [reg. req.]

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.

...

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.

Related posts:
The Triumvirate of Morality
The Triumvirate Strikes Again