Indecent Proposal: Critics say Broadcast Decency Enforcement Act is an Overkill Attack on Free Speech

March 2, 2005

“Not fair. Not American. This will have a huge ‘chilling effect’ on free speech.”
That’s the opinion of Tom Griswold on the new Broadcast Decency Enforcement Act of 2005 which passed the U.S. House of Representatives on Feb. 16. Griswold is known to thousands of local listeners as the comic DJ who serves as half of the popular “Bob and Tom Show” on The Bear 98.1/105.1 FM in Northern Michigan.
“The Bob and Tom Show” has been voted the region’s most popular radio show on several occasions by the readers of Northern Express. It’s a popular morning drive-time show listened to by many teens on their way to school as well as adults.
But, with a blend of sexual innuendo, potty humor and social commentary, the show is also the kind of broadcast that’s threatened by the new Broadcast Decency Enforcement Act, which aims to radically expand the power of the Federal Communications Commission (FCC) to punish broadcasters for “indecent” material.
Under the Decency Act, which is on its way to the Senate and then to President Bush for slam-dunk approval, broadcasters and performing artists will face fines up to $500,000 for each incident of indecency on the public airways. The prior maximum was a $32,500 fine for broadcasters and $11,000 for artists.

WHAT’S INDECENT?
Griswold says the Act is unfair and un-American because it puts big government squarely in the role of censor -- a violation of our constitutional right to free speech under the First Amendment.
His “Bob and Tom Show” is in good company. On Veterans Day, more than 20 ABC affiliates around the country refused to air “Saving Private Ryan” out of fear that the FCC would levy fines because of the profanity uttered by World War II soldiers in the Academy Award-winning film.
“The big problem with this legislation is that “decency” is very poorly defined with respect to broadcasting,” Griswold stated in an email to the Express. “The FCC, with supreme arrogance, refuses to expand on their vague definition of ‘indecency’ and only levies fines after the fact.”
He notes that the FCC refused to rule in advance on the network airing “Saving Private Ryan.” “Then, after the fact and after an absurd complaint procedure, the FCC said it wasn’t going to fine those who aired it. So, tens of thousands of people didn’t see an important film.
“With huge penalties ahead, and with no ‘due process,’ broadcasters are going to live in fear... but of what? What’s ‘indecent’?”

UNDER ATTACK
It’s not just works of film art and scatological radio which are under attack. A Frontline documentary called “A Company of Soldiers” on Public Television has also run afoul of the FCC. The film, “an unvarnished, unsentimental look at the lives of the soldiers of the 8th Cavalry’s Dog Company in South Baghdad,” is a timely look at U.S. soldiers in battle.
The film shows war as it is, with enemy casualties and reactions by our troops. It captures American soldiers speaking under fire, using a wealth of profanities to express their frustration and fear. The language is an intrinsic part of the documentary and it’s clearly labeled as a show for adults only.
But because of FCC threats, a number of PBS stations aired edited versions of “A Company of Soldiers,” bleeping out profanity to provide a sanitized view of our troops.

NEEDLESS OVERKILL
Karole White, president of the Michigan Association of Broadcasters which includes 389 stations, feels that the new Act is needless overkill.
“Michigan has midwest values and you don’t see anything too awful here on the air,” she notes. “But with fines this big, it’s going to put such a chill through the industry that it’s going to step on the toes of the average American.”
White says U.S. lawmakers are being deluded by special interest groups that funnel kneejerk reactions to Washington via push-button websites. Plus, no lawmaker wants to be tarred as supporting indecency in the next election, so it’s easier to go with the flow than defend freedom of speech.
“We have a bunch of lawmakers in Washington who are getting up there in years, telling us what’s indecent,” White says. “But you put five people in a room and they’ll all have a different idea of what’s indecent.
“Personally, I’m a very strong First Amendment enthusiast, and I’m sitting here thinking, ‘what’s next’?” she adds. “I get so nervous.”
White also gets angry. She says that, like some advocacy groups, she too is a Christian in favor of decency in broadcasting, but the high fines going into effect are over the top.
“On-air personalities have been given edicts -- you will do this and you will do that,” she says. “It’s just absolutely outrageous.”

DEFENDING DECENCY
U.S. Rep. Dave Camp, a Republican who represents a broad swath of Northern Michigan in the 4th Congressional District, takes an opposite view.
“Parents shouldn’t have to worry about what is going to pop out during a half-time show and they shouldn’t have to worry about what is going to be said on the radio when they pick up and drop off their kids at school,” said Camp in a news release. “For far too long the fines for indecency were a joke to broadcasters and performers alike, but now there is some muscle behind the FCC’s ability to keep our public airwaves clean. These are serious fines and they will make performers and broadcasters think twice before crossing the line. It’s about time parents weren’t the only ones wincing at the sights and sounds coming over the public airwaves.”
Camp doesn’t believe the new Act is a threat to free speech, and he has a professional background in the law, having served as a private attorney before going into public service.
“I don’t think it threatens the First Amend-ment,” he says in a telephone interview. “Broadcasters must obtain a federal license to use the airwaves and some of that speech doesn’t receive protection under the First Amendment.”
He notes that obscenity and pornography is not protected under the First Amendment. But what about mere “indecency,” which in some peoples’ minds includes ads for Viagra?
“They don’t have to broadcast that material; they make a choice,” Camp responds. “The FCC regulations will be issued to further define indecency so that no one is caught off guard.”

FOR CHILDREN ONLY
But what about a patriotic film like “Saving Private Ryan”? Camp responds that the film’s language is unsuitable for children and those who wish to watch it can still see it on cable or video.
That would seem to leave the prime-time airwaves dumbed down to content suitable only for children. But children of what age?
For answers, consider the FCC’s guidelines. Profanity is banned from public airwaves between the hours of 6 a.m. and 10 p.m. The FCC defines profanity as language that is “so grossly offensive to members of the public who actually hear it as to amount to a nuisance,” or cusswords that “provoke violent resentment.”
The irony over protecting young ears from bad language such as that used in “Saving Private Ryan” can best be relished by eavesdropping at any fast food restaurant in the land during a high school lunch rush. Words such as f*ck, which are sprinkled like salt on popcorn throughout all of rap and heavy metal music have the same shock factor for teens today as did terms such as heck, crap and hell to young people 50 years ago.

GRANDSTANDING
Yet senators and congressmen on both sides of the aisle are rushing to embrace the Broadcasting Decency Enforcement Act, which passed the House last week by a vote of 389-38 with barely a concern for freedom of speech.
Rep. Camp says he’s heard from his own constituents on the matter, urging him to vote for more decency on the airwaves. But many broadcasters and media critics claim that the real force behind the push for the Act is that of a few computer-savvy groups such as the Parents Television Council (PTC).
Mediaweek magazine reports that the Parents Television Council generated up to 99.9% of all complaints regarding indecency to the FCC in 2004. Frank Rich, the Pulitzer Prize-winning television critic of the New York Times, calls the PTC an “email factory” which gets Americans to fire off messages to Congress at the push of a website button.
“This Act is in response to the number of complaints the FCC is getting,” says White of the Michigan Broadcasters Association. “But we want to know how many are coming from organizations saying ‘me too’ rather than the average person. These organizations have hired people to generate these complaints and to determine what’s indecent to the average person.”

WHAT DO WE WANT?
In his column in the Times, Rich noted that two Christian groups have taken a swipe at SpongeBob SquarePants, claiming that the funny sponge and other cartoon characters are promoting “the homosexual lifestyle” to kids. And, since Janet Jackson’s “wardrobe malfunction” at last year’s Superbowl, membership in the PTC has risen from 850,000 to more than one million.
But there’s also evidence that Americans like to proclaim that they’re all in favor of decency on the airwaves while switching channels to HBO and cable where anything goes.
Rich notes that this year’s Super Bowl hit an all-time low with viewers ages 18-to-49 because of warnings that the halftime show would be a squeaky clean bore, thanks to the FCC.
He also claims that the upcoming Oscars have purposely installed Chris Rock as master of ceremonies to reassure viewers that it won’t be a deadly dull broadcast free of spice.
“An award show sanitized of vulgarity and encased in the prophylactic of tape delay is an oxymoron,” Rich writes. “And so the Golden Globes lost 40 percent of its audience in January on NBC, the Grammys lost 28 percent of its audience this month on CBS. The viewers turned up instead at the competing ‘Desperate Housewives’ on ABC, where S-and-M is the latest item on the carnal menu.”
Rich believes that the Decency Act will eventually be challenged in the Supreme Court where it will go down in flames as an attack on the First Amendment.
His beliefs are echoed by those of Griswold of “The Bob and Tom Show.”
“The government is not a national baby- sitter,” Griswold says. “This will all end up in court and it will never survive. Free speech is free speech, it shouldn’t only belong to those who can afford HBO.”