On February 16, the House passed the Broadcast Decency Enforcement Act of 2005 (H.R. 310) by a vote of 389 to 38. This legislation would impose vastly higher fines — up to $500,000 — on broadcasters who air so-called indecent material.
What it doesn’t do is provide any relief from the vague standard of indecency that the Federal Communications Commission can arbitrarily apply. That means broadcasters, particularly small broadcasters, will have no choice but to engage in a very dangerous cycle of self-censorship to avoid the threat of a fine that could drive some of them into bankruptcy.
If this legislation is enacted, the real victim will be free expression and Americans’ First Amendment rights. In a statement I entered into the Congressional Record, John King, president of Vermont Public Television, said, in part:
While many people assume the new sanctions [of H.R. 310] are aimed at commercial broadcasters, public broadcasters are feeling the effects every day. Public television’s educational programming for children has always provided a safe haven. The same public television stations that take such care of their young viewers also respect the intelligence and discretion of their adult viewers to make the best viewing choices themselves. … While there have always been prohibitions against gratuitous indecency, the FCC always took context into account. Now, it seems that context is no longer considered. Much as we might like to invoke our First Amendment rights, we dare not risk the large fine that could come with a single violation.
I am increasingly alarmed by the culture of censorship that is developing in this country. This censorship is being conducted by the corporations that own our increasingly consolidated, less diverse media. And it is being done by the government. The result is an insidious chill on free expression on our airwaves.
I am not a conservative. But on this issue I find myself in strong agreement with Adam Thierer, the director of telecommunications studies at the Cato Institute — a very conservative think tank. He puts forth a commonsense, pro-freedom position:
Censorship on an individual/parental level is a fundamental part of being a good parent. But censorship at a government level is an entirely different matter because it means a small handful of individuals get to decide what the whole nation is permitted to see, hear or think. I’ve always been particularly troubled by the fact that so many conservatives, who rightly preach the gospel of personal and parental responsibility about most economic issues, seemingly give up on this notion when it comes to cultural issues.
We have got to stand firmly in opposition to the specter of censorship growing in America. Here are some examples of increased censorship on the airwaves:
- In January 2004, CBS refused to air a political advertisement during the Super Bowl by MoveOn.org that was critical of President Bush’s role in creating the federal deficit.
- In November 2004, 66 ABC affiliates refused to air the World War II movie Saving Private Ryan for fear that they would be fined for airing programming containing profanity and graphic violence, even though ABC had aired the uncut movie in previous years. This, ironically, was a movie that showed the unbelievable sacrifices that American soldiers made on D‑Day fighting for freedom against Hitler, but ABC affiliates around the country didn’t feel free to show it.
- In November 2004, CBS and NBC refused to run a 30-second ad from the United Church of Christ because it suggested that gay couples were welcome to their church. The networks felt that it was “too controversial” to air.
- In January, many PBS stations refused to air an episode of the children’s show “Postcards with Buster” after Education Secretary Margaret Spellings objected to the show’s content, which included Buster, an 8‑year-old bunny rabbit, learning how to make maple syrup from a family with two mothers in Vermont.
- An episode of PBS’ “Antiques Roadshow” that included appraisal of an antique nude lithograph was edited so as not to offend.
A lot of people in Congress talk about freedom, but apparently they do not believe that Americans should have the “freedom” to make the choice about what they listen to on radio or watch on TV. There are a lot of people in Congress who talk about the intrusive role of “government regulators,” but today they want government regulators to tell radio and TV stations what they can air. That is wrong. Enacting the Broadcast Decency Enforcement Act of 2005 will make America a less free society.
What America is about is not necessarily liking what someone has to say, but defending their right to say it. Today, it is Janet Jackson’s wardrobe malfunction or Howard Stern’s vulgarity. What will it be tomorrow?