More Attacks on Free Speech Proposed

[Tony]

http://cnn.netscape.cnn.com/ns/news...3370002099374&dt=20050301133700&w=RTR&coview= ...full article

WASHINGTON (Reuters) - Senate Commerce Committee Chairman Ted Stevens said on Tuesday he would push for applying broadcast decency standards to cable television and subscription satellite TV and radio.

"Cable is a much greater violator in the indecency area," the Alaska Republican told the National Association of Broadcasters, which represents most local television and radio affiliates. "I think we have the same power to deal with cable as over-the-air" broadcasters.

"There has to be some standard of decency," he said. But he also cautioned that "No one wants censorship."

Stevens told reporters afterward that he would push legislation to apply the standards to cable TV and satellite radio and television. It could become part of a pending bill to boost fines on broadcasters who violate indecency restrictions or of an effort to overhaul U.S. communications laws.

 

[Darat]

Hmmm... when's he due for re-election? Or is this a normal display of insanity for this bloke?

 

[pgwenthold]

What jurisdiction does the FCC have over cable? I thought the reason the FCC is around is to regulate the free airways? IOW, with all these transmissions floating around that anyone with a TV and antenna can pick up, the feds feel justified in regulating that which is readily available to all.

However, cable channels are subscription services (do normal satellite dishes even work anymore?). People are specifically paying for the right to receive channel signals. Thus, the FCC would be moving away from regulation of the free airways and start infringing upon private contracts.

 

[Cleon]

I like that line about "No one wants censorship."

How exactly is this not censorship?

 

[DaChew]

What jurisdiction does the FCC have over cable?

None. Last year Powell stated that he did not support the extension of FCC rules to include satellite and pay services. Congress would have to pass new legislation specifically giving the FCC the responsibility of enforcing indecency rules for satellite and cable services.

 

[punchdrunk]

Hmmm... when's he due for re-election? Or is this a normal display of insanity for this bloke?

According to his website, he's been in the Senate for 36 years and has been there longer than any other Republican. Scary.

Term limits, anyone?

 

[Cleon]

According to his website, he's been in the Senate for 36 years and has been there longer than any other Republican. Scary.

Term limits, anyone?

I find it interesting that, while a lot of Republicans were trumpeting for congressional term limits in the mid-1990s, they're now pretty silent about the matter. I would suggest that maybe this has something to do with the GOP now having a majority in both houses, which they didn't have at the time, but that would be cynical of me.

 

[Elio]

What are those "decency standards" anyway ?

Are they laws or what ?

Elio.

 

[Darat]

According to his website, he's been in the Senate for 36 years and has been there longer than any other Republican. Scary.

Term limits, anyone?

Wow - I wonder if his dementia has been noticed by his constituents yet?

 

[hgc]

What are those "decency standards" anyway ?

Are they laws or what ?

Elio.

No. There is no standard that anyone can point to. There is an ad hoc, post hoc decision made after a complaint is filed. You have no way of knowing in advance if your content is actionable. Craziest kind of government regulation imaginable. Kafkaesque.

 

[Elio]

hgc,

No. There is no standard that anyone can point to. There is an ad hoc, post hoc decision made after a complaint is filed. You have no way of knowing in advance if your content is actionable. Craziest kind of government regulation imaginable. Kafkaesque.

OK. So what he's trying to do is totally illegal.

He speaks in his own name. He has no right, as an elected official, to impose those "decency standards" to other people.

Elio.

 

[DaChew]

No. There is no standard that anyone can point to. There is an ad hoc, post hoc decision made after a complaint is filed. You have no way of knowing in advance if your content is actionable. Craziest kind of government regulation imaginable. Kafkaesque.

That's not entirely or even mostly true. For instance, the most recent decision involving "Saving Private Ryan" has several references that you might find helpful.

. The Commission’s role in overseeing program content is very limited. The First Amendment to the United States Constitution and section 326 of the Act prohibit the Commission from censoring program material and from interfering with broadcasters’ freedom of expression. The Commission does, however, have the authority to enforce statutory and regulatory provisions restricting indecency. Specifically, it is a violation of federal law to broadcast obscene, indecent or profane programming. Title 18 of the United States Code, Section 1464 prohibits the utterance of “any obscene, indecent or profane language by means of radio communication.” In addition, section 73.3999 of the Commission’s rules, which was promulgated for the civil enforcement of that statute and section 16(a) of the Public Telecommunications Act of 1992, as modified by a subsequent court decision, provides that radio and television stations shall not broadcast obscene material at any time, and shall not broadcast indecent material during the period 6 a.m. through 10 p.m.

So Congress has clearly enacted code by which guides the FCC. Further in the ruling we find this:

The Commission defines indecent speech as language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.

If you go to FCC.gov and read the "Saving Private Ryan" decision dated 2/28/05, particularly the discussion, and read the footnotes which reference specific statutes, I think you might get a better understanding of the FCC guidelines.

 

[DaChew]

hgc,OK. So what he's trying to do is totally illegal.

He speaks in his own name. He has no right, as an elected official, to impose those "decency standards" to other people.

Elio.

What he's trying to do isn't illegal. He's decided to try to pass federal law that will extend FCC jurisdiction to cable and satellite providers. It won't pass but it's not illegal to try. Plus, I don't think the new law would get past the Supreme Court. I believe they've already ruled that the FCC, constitutionally, has no power to regulate cable and satellite content. I think that was in 2000 but I'd have to look it up.

 

[Tony]

It won't pass...

How do you know?

Plus, I don't think the new law would get past the Supreme Court. I believe they've already ruled that the FCC, constitutionally, has no power to regulate cable and satellite content. I think that was in 2000 but I'd have to look it up.

Please do, I'd be interested to read that.

 

[hgc]

That's not entirely or even mostly true. For instance, the most recent decision involving "Saving Private Ryan" has several references that you might find helpful.

. The Commission’s role in overseeing program content is very limited. The First Amendment to the United States Constitution and section 326 of the Act prohibit the Commission from censoring program material and from interfering with broadcasters’ freedom of expression. The Commission does, however, have the authority to enforce statutory and regulatory provisions restricting indecency. Specifically, it is a violation of federal law to broadcast obscene, indecent or profane programming. Title 18 of the United States Code, Section 1464 prohibits the utterance of “any obscene, indecent or profane language by means of radio communication.” In addition, section 73.3999 of the Commission’s rules, which was promulgated for the civil enforcement of that statute and section 16(a) of the Public Telecommunications Act of 1992, as modified by a subsequent court decision, provides that radio and television stations shall not broadcast obscene material at any time, and shall not broadcast indecent material during the period 6 a.m. through 10 p.m.

So Congress has clearly enacted code by which guides the FCC. Further in the ruling we find this:

The Commission defines indecent speech as language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.

If you go to FCC.gov and read the "Saving Private Ryan" decision dated 2/28/05, particularly the discussion, and read the footnotes which reference specific statutes, I think you might get a better understanding of the FCC guidelines.

I can appreciate that there are laws pertaining to the powers of the FCC, but your second cite above points to the heart of the problem. The law does not tell us what is patently offensive as measured by community standards. There is no provision in the law, and no way in practice, for a broadcaster to find out in advance if a particular item will fail the test. This is the so-called "chilling effect" that is such anathema to free speech.

It has also been the case, if Howard Stern is to be believed, that when Infinity Broadcasting tried to challenge indecency rulings in court in years past, that the FCC stopped all progress on their radio station licensing paperwork, stopping new acquisitions. That effectively cuts out any chance to challenge the law in court, since doing so would cripple the business operations.

 

[pgwenthold]

What he's trying to do isn't illegal. He's decided to try to pass federal law that will extend FCC jurisdiction to cable and satellite providers. It won't pass but it's not illegal to try. Plus, I don't think the new law would get past the Supreme Court. I believe they've already ruled that the FCC, constitutionally, has no power to regulate cable and satellite content. I think that was in 2000 but I'd have to look it up.

Wait a minute. He is trying to pass a law that the Supreme Court has already ruled can't be a law. It might be splitting hairs, but wouldn't that be considered illegal? Acting in defiance of a SC ruling?

 

[punchdrunk]

Wait a minute. He is trying to pass a law that the Supreme Court has already ruled can't be a law. It might be splitting hairs, but wouldn't that be considered illegal? Acting in defiance of a SC ruling?

Not illegal - after all, legislators make laws - but unconstitutional.

 

[DaChew]

I can appreciate that there are laws pertaining to the powers of the FCC, but your second cite above points to the heart of the problem. The law does not tell us what is patently offensive as measured by community standards. There is no provision in the law, and no way in practice, for a broadcaster to find out in advance if a particular item will fail the test. This is the so-called "chilling effect" that is such anathema to free speech.

I understand what you're referring to but FCC rules and regulations are like those of every other government commission. To make decisions on any specific issue a broadcaster needs to know not only the specific regulations but also the case law and letters of understanding which set precedents. Since the airwaves are a public resource, it is the responsibility of broadcasters to know that body of law or hire someone that does. That's why I suggested the reading of the entire "Saving Private Ryan" decision. The footnotes reference that case law and precedents.

It has also been the case, if Howard Stern is to be believed, that when Infinity Broadcasting tried to challenge indecency rulings in court in years past, that the FCC stopped all progress on their radio station licensing paperwork, stopping new acquisitions. That effectively cuts out any chance to challenge the law in court, since doing so would cripple the business operations.

"if Howard Stern is to be believed". Well, I don't know what to say to that. I do know that new frequency allocations take a long time to approve. It's not like Infinity is hurting for spectrum space they are one of the largest broadcasting companies in the country. Were they ulitmately denied licensing without reason? I don't know what evidence Stern could provide that would support his claim.

 

[TragicMonkey]

Funny how the more we trumpet "freedom" to the world, the more control over everything the government acquires.

Why can they control content on television and not in books? It's not like kids can't get their hands on books containing "language, suggestive dialogue, sexual situations" etc. Is it because people just don't read, or because it sounds really, really bad to want to censor books?

 

[DaChew]

How do you know?

Because of cable and satellite penetration in American households. Legislators know that the American public won't go for the editing of something they pay to see. In short, I have faith in the broad ranging public demand for smut.

Please do, I'd be interested to read that.

Might take some time.