Subjective Indecency Rules Burden Industry, Coddle Viewers

Published June 1, 2005

Broadcasters have a legal duty to operate according to the “public interest, convenience, and necessity.” This standard, the basis for laws against broadcast indecency, was on the agenda of the National Association of Broadcasters conference in April in Las Vegas. Attendees heard from Rep. F. James Sensenbrenner III (R-WI), who in the past has said indecent speech should be criminally prosecuted. Federal Communications Commission Chairman Kevin Martin also spoke, warning satellite and cable operators to avoid greater government scrutiny by self-policing their content.

In the face of such chiding, broadcasters tend to nod their heads and presume they understand the public interest requirement. But what does the “public interest” duty really mean? It depends–and that’s the problem for free speech and for the future of new communications technologies.

Vague principles, even civic-minded ones, are a recipe for fiasco in the hands of concentrated political power. The late Henry Friendly, a long-time judge of the Second Circuit Court of Appeals, wrote in 1962 about the need for more definite standards in communications law. He compared the job Congress gave the FCC to asking the Board of the Metropolitan Opera “to decide, after public hearing and with a reasoned opinion, whether the public convenience, interest, or necessity would be better served by having the prima donna role on opening night sung by … Tebaldi, Sutherland, or one of several winners of high American awards.”

Friendly’s analogy looks all the more prescient in light of the FCC’s current role in reviewing broadcast indecency complaints. Recently the FCC held that the unedited broadcast of Saving Private Ryan was not against the law, despite the horrific violence and continuous use of adult language. But Howard Stern’s use of similar language would result in million-dollar fines.

Now, we can–and do–argue endlessly about what type of programs are more important than others. But we shouldn’t be burdening the FCC and Martin with the role of deciding speech issues that distract from the FCC’s broader regulatory role.

Public Interest or Special Interest?

When an interest group cites the public interest when arguing against indecent programming, the myth is that there is a single “public” definable by an objective “interest.” But our diverse population means we have many subjective interests that no group can competently represent under a single public interest standard.

A subjective public interest requirement encourages an even worse scenario–tyranny by a vocal minority. Last year, a single organization–the Parents Television Council–filed an overwhelming majority of the complaints at the FCC. Sen. Ted Stevens (R-AK), chair of the powerful Senate Commerce Committee, wants legislation that extends indecency laws from traditional over-the-air broadcasting to cable and satellite programs.

Moreover, targeting “indecency” requires little political capital. “Concern” for broadcast content has united Democrats and Republicans–divided on almost every other issue other than steroids in baseball–to pass the Broadcast Decency Enforcement Act of 2005 (HR 310), a bill that sharply increases indecency fines. It is a remarkable show of unity, given the subjectivity in defining indecency. Members of Congress, such as Sen. Bob Goodlatte (R-VA), who have expressed reservations about increasing the scope of the indecency law to cable and satellite, have been too few.

Congress is expected to hold hearings about telecommunications reform this year. Debate over new telecom legislation is an opportunity to address the “public interest” language of existing law. Removing it would force regulators to come up with more specific reasons for passing communications legislation. And new technologies empower consumers and communications markets in ways that don’t require political oversight of the public interest.

However, referencing this ambiguous mandate is a powerful rhetorical device that extends well beyond broadcast indecency. The demise of the “public interest” as a means for regulation would be an admission by pro-regulatory politicians that consumers and the market can responsibly act according to their own interests. Some advocacy groups primarily use the indecency debate as a platform to attack large corporate media ownership or a lack of “a la carte” cable programming. Perhaps that is why many liberals–who would normally be expected to rail against right-wing conservative efforts to impose content censorship–are for more broadcast indecency legislation.

The public interest standard is a tax. Broadcasters face fines and perhaps even criminal penalties. Consumers must pay to hear certain content via cable or satellite instead of by over-the-air. Politicians waste their valuable time discussing broadcast content instead of pursuing more important issues.

Using government to enforce the public interest on communications is a costly arrangement for the public, which is why this legal standard is not in the “public interest”–however defined.

Braden Cox ([email protected]) is technology counsel at the Competitive Enterprise Institute.