Different gunman, same gun

Just in case anyone is thinking that I’ve gone soft with all the tender posts lately, know that I haven’t completely thawed my soul. Politics still matter to me and within politics, I have a few pet issues that seem to never attract common sense from our elected representatives. Today’s lunacy is brought to us by Rep. James Sensenbrenner, who stated this about indecency and obscenity on our public airwaves:

“People who are in flagrant disregard should face a criminal process rather than a regulatory process,” the Wisconsin Republican said at the National Cable & Telecommunications Association annual convention.

“That way you aim the cannon specifically at the people who are committing the offenses,” and not at everyone, he said. “The people who are trying to do the right thing end up being penalized the same way the people who are doing the wrong thing.”

Good plan, Congressman. To be fair, he doesn’t support expanding current regulation to cable and satellite broadcasts, though I suspect he’d vote for it if it came up in Congress. And he does have a brief glimmer of rational thought about the easiest, least intrusive solution, which I will point out before analyzing his new idea. Consider:

“The first thing we need is education has got to get better, he said. “You can’t expect the government to replace parental responsibility.”

He said it was “far better” for consumers to press a button on their remote control to lock out programs or channels than for the government to set the standard.

This sounds remarkably like some other comments from the convention:

Glenn Britt, chairman of Time Warner Cable, agreed that the industry needs to do more to educate customers about parental controls but added that the industry can only do so much.

“What we can’t do is … make parents take responsibility,” Britt said. “But if parents do take the responsibility to be concerned about what their children are seeing, this industry provides all the tools they need.”

Imagine that. Technology is so good that parents can actually solve the problem. Let’s see, what can they do? They can sell their television. They can pick up the phone, dial between seven and ten numbers, speak with a representative of their cable company, and cancel their subscription. They can use the little buttons on the television/cable box/remote that reads “Power”. They can use the v-chip embedded in their television, assuming it’s there, of course. They can even set the parental lock on their cable box to block certain channels. No need to be a luddite, folks. Technology kicks ass buttocks.

But what about Rep. Sensenbrenner’s plan? Could it work? After all, indecency and obscenity are already criminal offenses; the government merely enforces them with a regulatory agency. It’s certainly possible that our government has made a mistake in the past and could reverse course and prosecute indecency and obscenity with criminal penalties. I wrote about this on another blog (hat tip: Jeff Jarvis for the story), but realized, I shouldn’t leave some of my better writing elsewhere. It’s mine, all mine, so I’m going to use it here, expanding and editing where necessary. Here is my simple thought experiment that began with a simple question: “Diminishing the FCC’s power is the goal of my protests, for Constitutional reasons. Is the solution to transfer the FCC’s power to a district attorney, and by extension, a jury of citizens?”

I agree that having it decided by citizens instead of the FCC is a good idea, but probably only in theory. The United States is a republic to legislate and lead through calm, rational reasoning, not the mass hysteria that seems to pass for democracy. The FCC is made up of lawyers who refuse to follow the Constitution, seemingly unable to understand that “Congress shall make no law…” isn’t a suggestion. Should we have confidence in lay people who don’t have a legal education? And it still doesn’t resolve the issue of the definition of obscenity. I don’t see legislatures defining it any time soon. So we’d have 12 citizens deciding the traditional “community standards” for everyone. Are we confident that that’s the best place to legislate for everyone?

Of course, if indecency/obscenity enforcement becomes a criminal matter instead of a regulatory action, that puts it in the hands of prosecutors and defense attorneys. I bet the defense attorneys will be better funded than the prosecution and able to convince the juries of what the Constitution means, right?

I don’t think so. In criminal cases, the facts are the facts. If someone commits murder, there are facts. There was a living person, now there is a dead person. The suspect’s fingerprints were on the gun. Simple. (I simplify for the purpose of my point.)

Ok, now apply that logic to indecency/obscenity. Let’s consider a hypothetical situation. The producer of Fox’s latest reality show airs a segment that contains the phrase “He’s an ass.” A TV viewer in Peoria, IL decides that she doesn’t like that and complains to her local district attorney. The local DA files criminal charges. The jury of twelve peers decides for the city of Peoria that “He’s an ass,” violates their standards. The jury deliberation is closed, so we don’t know how they specifically came to this conclusion. Either way, “He’s an ass,” is no longer acceptable on television in Peoria.

At the same time, a viewer in Clearwater, FL also disapproves of the phrase “He’s an ass.” He complains to his local DA and the case goes to trial. Now the producer must stand trial in two districts. Of course, in this case, the producer is acquitted, so the phrase “He’s an ass,” is still acceptable on television in Clearwater, FL.

See any problems yet? I count at least two. So what do we do? To (hopefully) eliminate the need to defend himself in every jurisdiction and to have conflicting standards for national broadcasts in local markets, Congress passes legislation that makes indecency/obscenity a federal offense. Community standards (Federalism?) are no longer relevant. It’s national standards now, but so as not to offend anyone, we set that standard at the lowest level possible rather than the reasonable person standard supposedly in place today. Sound familiar yet?

Of course, with this idea, federal prosecutors are now the clearing house for criminal complaints. The PTC continues to catalog every possible offense occurring on television. They send lists on a daily/weekly basis to the federal prosecutor’s office. There are too many requests, so the federal prosecutor hires more attorneys to handle the case load, to review what should and shouldn’t warrant criminal charges. Eventually Congress decides that the case load is too much and creates the, oh, I don’t know, the Federal Department of Homeland Decency to handle these cases. Problem solved.

That scenario seems plausible to me. Likely? Probably not, but nothing else about the last fifteen months of indecency nonsense was probable. Congress certainly seems gung-ho to deal with everything through an expansion of federal powers and control. Is my scenario really so far-fetched?

Our criminal system deals with complexities every day, but in
those cases, the crime is determined prior to the crime. With obscenity, the crime only occurs if the wrong person is watching or listening and the material offends his individual standards. Do we really want a jury to decide if someone has harmed nothing more than a community’s sensibilities? Criminalizing indecency/obscenity doesn’t change the situation; it just moves disregard for the Constitution from one location to another. The true solution is to understand that the Constitution is the law of the land and no amount of moralizing is going to change that. Personal responsibility still matters and is the easiest, most immediate solution.