What the FCC is Happening to Free Speech - a Troubling Update

Recently, The Thomas Jefferson Center for the Protection of Free Expression awarded the Federal Communications Commission a "Muzzle Award" for its censorship of free speech and expression over our nation's publicly-owned airwaves, explaining that the Commission's reasoning as to what it chose to censor "amounted to little more than 'because we said so.'" Some might think that such an un-coveted "honor," from such a prestigious organization, might persuade responsible public officials to reflect, reconsider, and once again act with appropriate restraint before imposing their own subjective tastes upon what hundreds of millions of Americans view on television.

But, in fact, in addition to censoring "indecent" content, the FCC may soon start censoring "violent" and "graphic" programming, however the Commission might define those extremely subjective terms. Should Congress enact the necessary legislation, which will no doubt be signed by the president, the result will be an exponential and unprecedented increase in the power of the federal government to restrict free speech and expression over the public airwaves.

A recent survey shows 75 percent of Americans think that parents, not the government, should decide what their kids see on TV. Nevertheless, many observers believe politicians will find it tough to vote against "protecting America's children," as the proponents of increased censorship falsely frame the issue. As the Center for Creative Voices in Media documented in its report, Big Chill: How the FCC's Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America's Children, the practical effect of the FCC's inconsistent and confusing indecency enforcement has been that broadcasters censor, delay, or drop prestigious, award-winning shows like Eyes on the Prize, Saving Private Ryan, 9/11, and so many others. Peggy Charren, who won the Presidential Medal of Freedom for her longtime efforts to improve the quality of children's television, says, "Many parents want to watch this programming together with their children. By causing quality television to disappear, the FCC has taken a powerful tool out of the hands of parents who use television to open up a dialogue with their kids about controversial topics like violence, poverty, racial disparity, and cultural diversity. Consider how many parents watched Roots with their children and then engaged in a dialogue with them about the issues raised by that provocative program. For the FCC to deny them that opportunity - that's not helping kids, it's harming kids."

Proponents of giving the government the power to censor "violent" and "graphic" content say it is a public health issue; violence in media causes violence in society. But after exhaustively examining the evidence, Professor Craig R. Smith of the First Amendment Center at CSU-Long Beach writes, "the most recent evidence does not support the thesis." And it's interesting to note that from 1996-2005, a time when the Parents Television Council claims the number of violent incidents on TV was up 75 percent, the FBI's crime statistics show violent crime in America was down over 17 percent.

In December, the U.S. Second Circuit Court of Appeals heard the broadcast networks, along with Creative Voices as an Intervening Party, argue that the FCC's recent indecency decisions are illegal and unconstitutional. In the opinion of most legal experts, the question was not if the Second Circuit judges would overturn the FCC, but how quickly. Unfortunately, justice has not been swift; the Court still has not decided the case. Which is a shame. Because a Court of Appeals decision that finds that the FCC has acted "arbitrarily and capriciously" in regulating "indecency" might help derail this wrong-headed and ill-considered expansion of the federal government's power to censor.

At Creative Voices, in addition to speaking and writing about the perils of government censorship, we frequently debate its advocates, most recently in a half hour debate televised on C-SPAN, and earlier on CNBC. Like nearly all parents, we have concerns about television programming that is not appropriate for children. The question is what to do about it? Private enterprise and the free market have given concerned parents numerous useful tools to help them avoid objectionable content on TV. Onscreen ratings, the V Chip, channel blocking, and many others have now been supplemented by new tools such as TiVo's "Kid Zone" digital video recorder and Apple TV.

Together, these tools effectively give families the power to program their own television "network." Nevertheless, extremists are pressing to have Congress turn over to a few unknown, unelected, politically appointed government officials the power to decide behind closed doors, often without judicial review, on the basis of "because we said so," what over 300 million Americans will be able to see and hear on the publicly-owned airwaves. To us, that's more than just bad public policy - it's flat out dangerous.