| Straws, camels
and regulators - has the US lost its marbles over a breast?
The current row over a brief flash
of a Janet Jackson breast on US television may well be a case of
the straw that broke the camel's back but it certainly isn't a case
of much sound thinking amongst most of America's "leaders",
a word we use in quotes partly in despair and partly in contempt
of the intellectual qualities that many of them have displayed so
Central to our thoughts are the issues of freedom of speech, which
we think would not be seriously affected by regulators insisting
that warnings be given and using newer technology to enhance ways
of doing this, that would benefit from clear guidelines on what
is and is not permitted on free-to-air services where tougher regulation
applies and shifting the burden of record keeping to the broadcaster
with subsequent firm enforcement. We also believe in trusting people
to act themselves when warnings are given.
It's not as if the matters at issue are new- they've been debated
for millennia in one way or another and we among others have had
bites at the issues over the past four years. So first to our hindsight
*July 2000 Comment (Standards
or censorship) in which we quoted US federal law on
the matter of indecency and obscenity
The basics, and currently on the Federal Communications Commission
web site (link is here),
Obscene speech is not protected by the First Amendment and
cannot be broadcast at any time. To be obscene, material must
meet a three-prong test:
* An average person, applying contemporary community standards,
must find that the material, as a whole, appeals to the prurient
*The material must depict or describe, in a patently offensive
way, sexual conduct specifically defined by applicable law;
*The material, taken as a whole, must lack serious literary,
artistic, political, or scientific value.
On Indecency, the broadcast of which is restricted during
the day but not after defined watershed times, the definition
is "language or material that, in context, depicts or
describes, in terms patently offensive as measured by contemporary
community broadcast standards for the broadcast medium, sexual
or excretory organs or activities."
Concerning the relationship between this and First Amendment
rights the FCC notes, "The Communications Act prohibits
the FCC from censoring broadcast material, in most cases,
and from making any regulation that would interfere with freedom
of speech. According to an FCC opinion on this subject, "the
public interest is best served by permitting free expression
of views." This principle ensures that the most diverse
and opposing opinions will be expressed, even though some
may be highly offensive. The Courts have said that indecent
material is protected by the First Amendment to the Constitution
and cannot be banned entirely."
We do not take that as a prohibition on "labelling"
but on censorship and the prohibition of particular broadcasts
and in our March 2001
comment (Do we need regulators?),
we wrote, "Maybe looking at some US examples, some stations
should have carry regular disclaimers telling the audience
that it may contain material generally considered bigoted,
offensive, indecent, inaccurate and so on. Indeed maybe it
would even be fair to declare the hosts of some shows legally
"beyond libel" thus allowing unfettered right of
reply to some of their victims.
What we would not favour is a narrow-minded curbing of freedoms;
far rather enforcing an accurate description and then removing
In our April 2001 Comment
(Making regulation effective),
we noted, "US Federal Communications Chairman Michael
Powell has made some valid points about having the powers
to make regulations effective if there are to be regulations"
and later added, "We don't think it possible to have
simple solutions but we would like to see some widespread
public debate being stimulated to arrive at a regime of minimal
regulation firmly and fairly applied with a fairly standard
route map of consequences for actions.
For persistent offenders, we think the obvious solution is
to pose broadcasters with the same problem that individuals
face as motorists -- you build up too many points within a
particular period and you're off the road." Not
so far from the current three strikes proposal?
Looking at cases with relation
to current regulations.
Looking at the above, the first thing we conclude is that the
Bono comment on NBC at the Golden Globes that were ruled by FCC
officials as not being in breach of rules clearly weren't, however
much Powell and many politicians want them to have been.
Unless the US is going to go in for retrospective legislation
the Bono comment breaches none of the above rules. Our view is
that Powell should have the courage to say the rules have to be
changed if anything is to be done although it may be that for
the sake of a quiet life NBC would pay a penalty.
That would in our view be cowardice and a dereliction of duty.
The courts, we would be fairly sure, would rule for the broadcaster
in this case.
Let us then look at the Opie and Anthony sex in
St Patrick's cathedral case, where Viacom is also contending that
it didn't break the rules. Offensive it was to many but by the
definitions above as we commented in October 2003 (see
RNW Oct 24,
2003) we would think Viacom have a good case for saying
they didn't break the rules.
The same in our true is true of Janet Jackson's mammary
exposure but on the other hand the Deminski and Doyle Show
penalty that Viacom is also questioning (RNW
Dec 12, 2003) and Bubba the Love Sponge
broadcasts that led to heavy fine on Clear Channel
(RNW Jan 28, 2004) would
seem to fall fair and square into the definitions.
Looking at all the cases above then, it would seem that Chairman
Powell and a number of other commissioners should be sent away
for remedial language training before they open their mouths again;
we may agree about the offensiveness to many people of all the
incidents but a reading of the rules would seem to indicate that
as drafted the actions in the Bono, Jackson and Opie and Anthony
cases did not breach them.
Free to air and subscription
There would also seem to be some difficulty
for a number of US politicians and pressure groups in recognising
that there is a difference between free-to-air services and
subscription services as well as ignorance in some quarters
of US Supreme Court First Amendment decisions.
As a result, we think the letters written last week by FCC
chairman Powell to various and broadcasting organizations
broadcasters may well be a reasonable appeal to them to set
up their own standards but would have little standing should
those supplying subscription services choose to ignore them.
What can - and should be done.
We believe that the first
essential to us in any case is to gather the facts
and the suggestion put forward by Illinois Democrat Congressman
Bobby Rush that said broadcasting stations should
archive all material for 180 days as potential evidence
deserves serious consideration; we would, however, reckon
90 days ought to be plenty to allow for a complaint to
be made and recordings requested.
(RNW note - The idea was immediately
opposed by Oregon Republican Greg Walden - whose family
owns radio stations in the state - on the basis of the
burden: After joking that maths wasn't his strong point
he asked who knew of a hard drive that could store 4,320
broadcast hours From our checks, assuming the record was
for evidence and need not be of broadcast quality, an
hour programme saved as a low quality - 24kbps - MP3 that
still enables all speech to be heard is some 10Mb. 500
GB USB2 external discs are now stock items and would store
around 5000 hours. A good quality MP3 - 96kbps - would
need around four times the storage -- two discs for 90
We would also note here that
advertising as well as programming comes under the regulators
remit in most countries and in our view ought to be included
in all cases.)
The second thing is to set down the
rules as clearly as possible and we recognise
here that concepts such as "contemporary community
standards" are appropriate and can only be defined
up to a point. It should not, however, be beyond the capabilities
of FCC officials to draw up an annual report of the essentials
of complaints made from which annual additional guidance
can be produced and, after due debate, approved and published.
The third is to take due cognisance of the
fact that the First Amendment does differentiate
between free to air and subscription services and
that this may give the latter a degree of unfair advantage.
We don't accept the argument that many Americans are just
too dumb to not realise that a bundled cable or subscription
package may have a range of material of which part strays
into objectionable territory for many of them but we do
take the point that controlling what children may watch
is not a simple process.
The solution to this seems to be primarily a question
of developing suitable technology to label then group
channels so that people can easily make their own decision
on what to bar rather than trying to censor the sources.
The fourth is not to overreact to a latest incident and
then rush to correct things. That, we fear is what may
happen in the current situation with a subsequent messy
correction process through the courts.
And finally maybe people should be trusted more
with the off switch without the politicians getting involved
once the basic rules are set. Once digital technology
is widespread maybe some additional visual ,as opposed
to spoken, warning system could be enforced so people
know what is coming up (digital
technology can allow a textual warning just as superimposed
information can for TV).
This could be enforced for cable and subscription services
as well as free-to-air without infringing First Amendment
rights in our views since it is not prohibiting, merely
insisting on adequate information.
What you think? Please E-mail