Fulcrum Ruminations

Thursday, October 27, 2005

Free Speech

It's time to consider the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Mostly what I'm concerned about here is the freedom of speech and, to a lesser extent, freedom of the press. For convenience I'll refer only to freedom of speech, but keep in mind that I'm actually referring to both of them.

Now, contrary to some arguments I've heard, the Bill of Rights (the first ten amendments to the Constitution of the US, for those of you unfamiliar with such things) is about the rights of individuals, not states or other constructs. It was felt at the time the Constitution was adopted that it did not spell out the rights of the people with sufficient clarity, and so the Bill of Rights was appended.

Lately the freedom of speech has seen some rather impressive swings of the pendulum. You've got magazines like Penthouse publishing explicit sex photos, you've got Dennis Franz showing his ass on television, and you've got the big one - the explosion of the World Wide Web and its "anyone can publish anything at any time and anyone else anywhere in the world can see it" magic. No medium in history has the reach of the Web, because it's the first medium that anyone can use from the comfort of their own home for a trivial cost. Witness this very blog, and those linked over there at the right side of the page, and all the others out there in the vast (and rapidly expanding) blogosphere. Ordinary folks posting their thoughts and opinions for the whole world to see and, in many cases, comment upon - in real time.

What a time to be alive, eh?

But, as with all things, there is another side to the issue.

Our government, as governments are wont to do, is making efforts to restrict this freedom of expression. For one thing, it's long been my opinion that governments in general are scared to death of the idea of a free and open flow of information. It means their spinmeisters don't get a chance to massage things, remove "incorrect" ideas, and so forth. Given the nature of the web, it also means that as soon as one web-enabled person knows something, the rest of the world knows it too. Doesn't matter if it's true or not, any idea instantly has an audience on the web. Think up the goofiest conspiracy theory you can imagine and I bet you'll find at least one website (and now a bunch of blogs) dedicated to it. Pro and con, which also doesn't matter because the idea is already out there and everything else is Monday morning quarterbacking.

The point is, we here in America have this Constitutionally protected freedom to express ourselves as we see fit. This freedom is not absolute - hence our laws covering slander, libel, and the hoary "fire in a crowded theater" thing - but the Supreme Court has historically held this freedom to as wide an interpretation as practical.

Except, of course, on broadcast media. The argument as I understand it is that since the airwaves are a public asset, the government has a responsibility to regulate that asset for the good of all. Lately that "good of all" bit has come to mean "a few large conglomerates" as the television and radio industries have undergone a wave of consolidations. You've got radio in particular now dominated by a handful of major players. ClearChannel and Infinity and their ilk. Television is going the same way, with only a couple major providers and a handful of small fry in the cable market. In both industries the rules governing who can own how many broadcast outlets in any one market have been severely weakened under former Federal Communications Commission chairman Michael Powell (son of former Secretary of State Colin Powell, and don't think Daddy's position didn't have something to do with Junior's appointment).

Now here's where we get to the meat of my essay.

It can be argued that the biggest personality in radio is Howard Stern. Stern has been a major innovator of format and content and has been hugely successful. His daily radio show draws something in the neighborhood of twelve to twenty million listeners. The televised version of the show on cable's E! Entertainment channel has consistently been that channel's largest revenue engine and ratings hit. Stern generates hundreds of millions of dollars for Infinity Broadcasting and E! He's made more millions in the book and movie industries, and even more with the television shows he's produced. Mention his name anywhere in the country and you can be reasonably certain that the people around you will know who Stern is.

The problem is that Stern's show is . . . racy. Crude. Profane.

Stern talks about stuff that some people would prefer he didn't. That their radios all have on/off switches and tuning knobs never seems to enter the calculations, oddly enough. There's a small but vocal minority who have decided that Stern is EVIL and have campaigned for years to get him removed from the airwaves.

To very little effect, at least until recently.

Sure, there've been fines imposed by the FCC, but the monetary amount has been trivial compared to the revenue Stern brings to his corporate parents. In other words, he's had economic top cover.

Recently however Congress changed the rules. Fines once in the tens of thousands of dollars and directed against corporations are now in the millions of dollars and directed against individual broadcasters and on-air personalities. Like Stern. All in the name of "decency", a highly subjective and mutable standard. This trend really exploded following Janet Jackson's infamous "wardrobe malfunction" during the Superbowl in 2004.

Wait. Let me boil that down for you.

The country went into apoplexy because someone saw a blurred booby on television for a couple seconds.

Yeah . . . ooooookay . . .

Not to get distracted from my main argument, but that's a pretty sorry response to such a trivial thing, isn't it? We really need to get over this prudish tendency in America . . . but maybe that's a topic for a future posting.

Back on topic, the amazing thing about the situation is the way the broadcast industry has rolled over and accepted the restrictions. The standards for what constitutes "indecent" content are not just blurry, but almost completely undefined. It's the "I know it when I see it" argument, which is no kind of standard to base laws upon. In some cases, stations that didn't buckle right away were threatened with not having their broadcast licenses renewed. In effect, broadcasters like Stern are being forced to exercise prior restraint to keep the FCC at bay.

That should not be how we do things in America.

As I noted above, all radios and televisions have on/off switches and tuners. If you don't like what you're getting, you can turn it off or switch to a different program. No-one is forcing you to watch or listen. And, thanks to the magic of the market, if enough people decide not to watch or listen, that program will go away. In the case of television, it will go away very quickly - within weeks.

The FCC, which after all was created simply to apportion the public airwaves so that you didn't wind up with multiple broadcasters operating on the same frequency in the same area, does not need to regulate content. Market forces will do that. And the First Amendment basically says that the government needs to keep its nose out of such things in any event, as a free press is necessary to the health of the country.

What's really scary is that certain elements both within and outside of the government are now attempting to extend this already-unconstitutional regulation to pay services such as cable television and satellite radio. In other words, these people want to dictate the content of something we make a conscious choice to purchase. Something that requires not only a positive action to access, but also requires us to spend our own hard-earned money to receive.

Imagine if someone was following you around a library and telling you that you couldn't read certain books because they thought the content was objectionable. How long would you tolerate that? Or worse, suppose they were leaning over your shoulder as you read your book, running a black marker across words, sentences, paragraphs, or whole pages so that you wouldn't see them?

This is sheer lunacy.

Many people who should know better have gone along with this. "It's only Howard Stern. I never liked him anyway" is a common sentiment. Well, what happens when the next target is someone you do like? Suppose the FCC decides that Rush Limbaugh or Al Franken are too incendiary for the public airwaves? What if some faceless government stooge decides that words like "hell" and "eternal damnation" are too caustic to our oh-so-delicate sensibilities and levies fines against your favorite television evangelist?

What if they pull the license of a television station that airs a news item about something the government would prefer to keep quiet?

At some point the public must take a stand and let the government know that we have, in fact, read the First Amendment and we know that what they're doing is unconstitutional. Frankly, I find it astonishing that prominent broadcasters have mostly ignored this story up until now. This is their bread and butter. Take away their ability to comment freely and their livelihood is destroyed.

The television news program Sixty Minutes is currently working on a piece about Howard Stern and his move from terrestrial to satellite radio. Hopefully they'll cover this angle of the story. This should be an issue that both left and right can agree upon . . . it's one of the fundamental rights enshrined in the Constitution, after all.

It's been said that the Second Amendment is the one that guarantees the rest of the Constitution. But the First Amendment is the ultimate balance point of the entire American experiment. Without the personal freedoms enumerated in the First Amendment, the character of America would be radically different . . . we'd hardly be a democracy at all. Whatever your political alignment, opinion, or point of view, this is the fulcrum upon which it balances.

2 Comments:

Blogger danno49 said...

Good post.

It would be nice to let Congress know that we have read and understood the Bill Of Rights, in particular the First Amendment but I think most people don't really care. Some of us do and some of us are trying to do something about it but I fear those voices will be lost amongst the choir of folks who are screaming louder about other issues. And the sad thing about that is that if they DID pay more attention to the First Amendment guarantee, it is possible that what they are screaming about would not fall upon the apathetic ears of a government machine that has become so bloated it no longer knows what type of government it is SUPPOSED to be.

9:35 AM  
Anonymous polarslam said...

Too long

IMHO!

3:43 PM  

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