February 2004

Straws, camels and regulators - has the US lost its marbles over a breast?

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 far.

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…

Our past comments.

These included:

*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), are:

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 interest;
*The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
*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 the regulator."

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 media.

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 days
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 your comments.

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