The editor’s opinion from Marketplace, Northeast Wisconsin’s business magazine. (Obligatory disclaimer: Most hyperlinks go to outside sites, and we’re not responsible for their content. And like fresh watermelon, peaches, pineapple, grapefruit, tomatoes and sweet corn, hyperlinks can go bad after a while.)

June 17, 2008

This column has a seven-second delay

No, I did not wake up on the wrong side of the bed this morning. I am writing, however, about obscenity, specifically obscenity in the broadcast media.

Obscenity in the broadcast media has been a favorite subject of the Federal Communications Commission during George W. Bush’s stay in the White House. The FCC has spent much of the 2000s going after things that, according to the Federal Communications Act of 1934 (which stipulates regulating the airwaves to the standard of “the public interest, convenience and necessity”) and FCC policy, shouldn’t be on the air — to wit, Cher’s disagreeing with negative reviews of her recent work in 2002, the witty repartée between “The Simple Life” stars Paris Hilton and Nicole Richie in 2003, U2 lead singer Bono’s expression of happiness at receiving a Golden Globe award in 2003, Janet Jackson’s exposure during the Super Bowl in 2004, and race car driver Dale Earnhardt Jr.’s reference to barnyard products after a NASCAR race that same year.

The FCC’s Web site has a primer on how obscene, indecent or profane one can be on the public airwaves. Those terms were created by Congress but defined by the FCC, which also is responsible for enforcing the law and prosecuting violations of that law.

This first demonstrates the problem with the FCC’s being ruled by political appointees. The FCC is run by five presidentially appointed commissioners, three of whom presently are Republicans. The next president will get to appoint an FCC commissioner almost immediately, and that could swing the commission’s view on naughty words on the air within the next year. The FCC became interested in obscenity issues while Ronald Reagan was president in the 1980s, became less interested when Bill Clinton was president in the 1990s, and then became interested again since Bush became president in 2001 — specifically, a $775,000 fine against Clear Channel over one of its employees, “Bubba the Love Sponge.”

A 2007 U.S. Court of Appeals decision invalidated the FCC’s tighter focus on obscenity, and of course the whole mess has ended up in the hands of the U.S. Supreme Court. As the Christian Science Monitor described it, the case “addresses a concern among some observers about a coarsening of American culture via greater use of crude and offensive language on television and radio. At the same time, it raises fundamental questions about the nation’s commitment to the First Amendment principle of free speech.”

Now that I’m a parent of school-age children, I feel the need to make sure that what’s on the radio when they’re in the car isn’t something they shouldn’t be hearing at their age. (Because, of course, kids never hear anything they shouldn’t hear at school, right?) So between our house and school, there’s no “Bob and Tom,” or Rick and Len, because one can’t tell if Bob and Tom might play “Prisoner of Love,” something I really don’t want to have to explain to my kids. And I can’t say I particularly appreciate the TV networks’ playing shows that parents might think are inappropriate for their kids to watch, say, before 9 p.m. Central time. (Tonight, for instance, Fox has “Moment of Truth,” rated TV-14, CW has “Beauty and the Geek,” rated TV-14, and E! has two episodes of “The Girls Next Door” at 7 p.m. TBS has four episodes of “Family Guy,” whose TV-14 rating may be inconsistent with its title.)

It is not, however, Bob and Tom’s responsibility to censor their content for those of more delicate sensibilities than mine. (For that matter, it’s not the job of a radio station to censor the lyrics of Van Morrison’s “Brown-Eyed Girl” or the Ozark Mountain Daredevils’ “Jackie Blue” because those songs’ lyrics includes the words “making love.”) It’s my responsibility as a parent, given the ages of our children, to make the decision on whether my kids should listen to it, and if I think they shouldn’t, the radio moves on to a different station. (Also, CDs are helpful, as long as you don’t play The Who’s “Who Are You” or Alanis Morissette’s “You Oughta Know.”) Clear Channel, who got the aforementioned $775,000 fine, created a company-wide Responsible Broadcasting Initiative while waiting for the FCC to decide on a definition of obscenity. Bubba the Love Sponge, the target of that fine, and the infamous Howard Stern now do their thing on satellite radio, which, as of now, is not regulated by the FCC.

Those who think the media cause our (by their definition) coarse culture are missing the point: The media more reflects the culture than creates the culture. Our culture has increasingly coarsened since the do-your-own-thing 1960s, and if anything, the media was behind the curve of the culture promoted by the Baby Boomers. One does not improve the culture through laws, regulations and mandates; the culture improves (however you define that) through individual acts, such as not watching dreck like, well, name your favorite "reality" show. The media is about money, first and foremost, and if people didn't watch "American Idol," "Survivor," "The Simple Life" or whatever other barnyard product, the media wouldn't produce those shows.

This demonstrates why I feel more libertarian than conservative most days. I don’t appreciate the government telling me what I can and cannot watch because what I might want to watch might offend others. And, as usually happens in situations like this, ridiculous lengths usually ensue, such as TV stations putting sporting events on seven-second delays just in case those great sideline microphones might catch a player or coach saying something others might not want to hear. (For instance, NFL referee Gerry Austin was caught during Super Bowl XXX telling someone — I thought it was another official, although it could have been a team official on the sidelines — to, “Goddammit, shut up!”)

All of this is likely to become an issue again, but in a different direction, should Barack Obama be elected president. Liberals with a weak commitment to the First Amendment have been itching to bring back the “Fairness Doctrine,” which held that, because the radio and TV airwaves are publicly owned, broadcasters were obligated to cover controversial issues and carry opposing viewpoints of those issues. The Reagan Administration created a “Fairness Report” in 1985 arguing that the Fairness Doctrine was a violation of the First Amendment and contrary to the public interest. Congress passed a law writing the Fairness Doctrine (which was an FCC policy, not law) into the federal statute books, but Reagan vetoed it, and it’s not been enforced since a U.S. Supreme Court decision in 1989.

It’s pretty transparent as to why liberals want to revive the “Fairness Doctrine.” Conservative or libertarian talk radio, such as Rush Limbaugh, Sean Hannity, and Journal Communications’ Charlie Sykes, is a financial and ratings success, which is why there is so much conservative talk radio. In contrast, liberal talk has been a financial and ratings flop on commercial radio, as demonstrated by the great financial difficulties of Air America and the death of the liberal talk shows of Mario Cuomo and Jim Hightower.

The “Fairness Doctrine” may have been a defensible idea in the infancy of television — in the days when, in the Green Bay TV market, TV viewers got only channels 2, 5, 11 and 38 — but as time has gone on, the concept of a “Fairness Doctrine” has become increasingly outmoded. The Reagan Administration’s argument in the 1980s was that, with the growth of cable TV, one could not say that the public airwaves were really scarce anymore. If that was the case in the 1980s, it is overwhelmingly the case today, with broadcast content coming from over-the-air radio, over-the-air TV, satellite radio, cable TV and the Internet.

One wonders why broadcast TV and radio should now be held to a different standard than satellite radio or cable — or, for that matter, newspapers, which have never been held to a fairness standard because that would be clearly contrary to the First Amendment. In the e-age, it’s about content, and if newspapers or magazines are allowed to print whatever they wish (subject to libel laws, which are enforced in civil courts), why should broadcast outlets not be able to say whatever they wish? How are restrictions or requirements about content not antithetical to the First Amendment?

In the portions of communications where there is scarcity (that is, the broadcast spectrum), it is reasonable to expect the FCC to regulate physical issues, such as making sure that one radio station doesn’t crank up its signal to blot out every other station in the area. Content should not be within the purview of the FCC, and it’s inconsistent to say that, for instance, you like the opportunity to listen to conservative talk radio, but you don’t like the opportunity to listen to Bob and Tom. Content is for the media outlet to create, and content is for the listener or viewer to decide to keep listening or watching or not.

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