Category: Free Speech

Every broadcast is indecent.

Free speech be damned darned:

The Federal Communications Commission has proposed a $1.4 million fine against 52 ABC Television Network stations over a 2003 broadcast of cop drama NYPD Blue.

The fine is for a scene where a boy surprises a woman as she prepares to take a shower. The scene depicted “multiple, close-up views” of the woman’s “nude buttocks” according to an agency order issued late Friday.

The FCC is only attempting to fine ABC stations in the Central and Mountain time zones because they aired the show before 10 p.m. Even that logic violates the First Amendment’s “Congress shall make no law”, but okay, fine, at least the FCC is following one rule limiting its reach. But allow me to play semantics for a moment.

The agency said the show was indecent because “it depicts sexual organs and excretory organs _ specifically an adult woman’s buttocks.”

Ahem:

Function of the skin

The skin has several important functions, including:
…

  • Waste disposal. The skin is a minor source of waste disposal. Sweat glands located in the skin excrete waste products such as urea (a byproduct of protein metabolism) therefore eliminating them from the body.

Every actor on television violates the letter of the law by revealing an excretory organ. And every athlete during the Super Bowl next Sunday will presumably cause Fox liability by sweating, thereby engaging in an excretory activity. I will be complaining.

I’m engaging in hyperbole, but I’m not joking.

In an obscene requirement, ABC defended the artistic merit of showing a woman’s buttock, generating this response:

“The law is simple,” FCC Commissioner Deborah Taylor Tate wrote in a statement yesterday. “If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

But it is an unconstitutional burden. Apparently “Congress shall make no law…” is difficult to understand. I’m not sure how, since it’s only five words, and only the first has more than one syllable. Perhaps that’s the trouble. Our leaders representatives do not understand the word Congress because it is too complicated. Idiots, every one of them.

Take joy until Congress and the FCC catch on. Any time you flip on your television, you’re being exposed to indecent material. Naughty, naughty.

“Bring it on down to Omeletteville!”

I have two angles on this story:

Two days after naming its mascot “PorkChop,” the Philadelphia Phillies’ new Triple-A affiliate abruptly dropped the moniker after receiving complaints from Hispanics that it was offensive.

The Lehigh Valley IronPigs, whose mascot is a large, furry pig, had selected PorkChop from more than 7,300 fan submissions. The team, which begins play in 2008, announced Monday that the mascot will be named “Ferrous” instead.

I had no idea of the derogatory implication. I don’t have an opinion on changing it in response to complaints, other than to say it’s probably the smartest business decision. I also think that Ferrous is a better, if not particularly original, name for a mascot. And it permits this kind of sticky-sweet blech:

Ferrous can be described as a portly, affable IronPig wearing the IronPigs home uniform and jersey number 26 – the atomic number for Iron (Fe).

How precious.

My second point is to remember how complaints about vegans typically accuse us of irrationally anthropomorphizing animals. Um, no. That’s what omnivores do.

But PorkChop? Seriously? Who looks at an animated pig, a walking, jersey-wearing mascot created to interact with children, and thinks “Mmmmmm, you’re so awesome, you remind me of dinner, your name shall be…PorkChop!”?

Post Script: I still love the name IronPigs.

Who dreams of being Rich Uncle Pennybags?

The National Association of Broadcasters issued a press release yesterday, quoting NAB Executive Vice President Dennis Wharton:

“XM and Sirius have spent upwards of $20 million trying to bamboozle the Beltway into believing that a monopoly is good for consumers. Yet when you cut through all the distortions displayed by XM and Sirius, you are left with one undisputable fact: Never in history has a monopoly served consumers better than competition.”

The NAB conveniently leaves out any facts to corroborate this bold statement. I’m not interested in challenging it directly, because the basic gist is fine if unrevealing. Competition is good. I believe that. I just wish the NAB believed it.

The existence of press releases and lobbying demonstrate that the NAB knows that it competes with satellite radio. If it didn’t, it wouldn’t spend millions to defeat this merger. It is not acting solely in the best interest of consumers. Incentives matter, and here the incentive is to reduce the strength of all providers of competing technology.

I rarely listen to terrestrial broadcast radio anymore. There is a sameness that is pre-packaged and unimaginative. It’s simply not interesting. I’d rather listen to the artists I enjoy and discover new artists through friends, blogs, and iTunes. Even the limited broadcast offerings I enjoy are available as podcasts, which demonstrates that terrestrial broadcasters agree with the Sirius-XM view of the radio industry’s competition model.

Satellite radio didn’t turn me away from NAB’s clients. Sirius and XM existed when I went looking for an alternative. To be fair, I don’t listen to the music channels on Sirius that often. The repetition of a limited playlist exists there, as well. Maybe it’ll cost Sirius my subscription in the future. Maybe they’ll change. But for now, it has Howard Stern, which is what I want.

The NAB’s press release includes a list of groups and lawmakers opposing the proposed merger, which is its only support for the validity of its position. It takes a little more than that, unfortunately. Instead of putting out pointless press releases calling for competition with a list of politicians, it could actually query those politicians and ask why they abhor the Constitution’s First Amendment, as just one action in the interest of consumers. Or does the NAB not actually care about consumers as much as it cares about remaining partnered with politicians to limit its need to compete?

Witnessing Violence Against the Constitution

Here’s a reminder that politicians are the same, regardless of party affiliation. Politics is about power, to the exclusion of ethical statecraft.

The long-awaited Rockefeller TV-violence bill will be introduced before the August recess, says Steven Broderick, press secretary to Sen. Jay Rockefeller (D-W.Va.). The bill would give the FCC the power to regulate violence on cable and satellite, as well as on broadcast.

It will also likely require the FCC to define indecent violent content, a call the FCC punted to Congress in a report it issued several months ago.
…

He also is buoyed by the change in congressional leadership. A similar bill that Rockefeller introduced in 2005 did not go anywhere.

“Last time, Congress was under different management,” says Broderick. “Times have changed, and programming on TV has changed.”

Broadcast restrictions on cable and satellite will never hold up to court scrutiny, so it’s not worth discussing. It is useful as a reminder that politicians consider the Constitution a mere suggestion for legislating.

I’ll also be quite amused if the FCC can come up with rules for indecent violent content. It’s perpetually ignored such demands for verbal and sexual indecency, preferring the power option that allows it to threaten with unwritten rules. Also, it shouldn’t be the FCC’s job to set the rules. If Congress feels it should make such laws in the face of “Congress shall make no laws”, it should at least determine the specifics of its disregard. Eventually, that must fall to court review, as well.

With that out of the way, let’s look at broadcast schedules (remember, cable and satellite are irrelevant here) to examine Mr. Broderick’s statement that “programming on TV has changed.” The Fall 2005 broadcast television schedule:

  • 24
  • Prison Break
  • CSI
  • Law & Order
  • Bones
  • Ghost Whisperer
  • Criminal Minds
  • Lost
  • Alias

The Fall 2007 broadcast television schedule:

  • 24
  • Prison Break
  • CSI
  • Law & Order
  • Bones
  • Ghost Whisperer
  • Criminal Minds
  • Lost
  • Heroes
  • Jericho

If I’m reading that correctly, the only difference in the two schedules is the subtraction of Alias (boo!) and the addition of Heroes and Jericho. Comparing Alias and Heroes strikes me as an even trade on the violence scale, so Mr. Broderick is essentially saying that the addition of Jericho now justifies government regulation of television content. Does Sen. Rockefeller really want to hang this bill on that argument?

Link via Hit & Run

Free Speech Liberty: Possession vs. Use

Daniel Henninger, deputy editor of The Wall Street Journal’s editorial page, offers his take on the Second Circuit Court’s recent ruling against the FCC in today’s Opinion Journal. The gist:

After the decision, editorialists and columnists in newspapers everywhere mocked the FCC’s “moralists” and “language police” for its provably quixotic effort to suppress the most commonly used words–today–in our language. Nevertheless, virtually none of these newspapers could bring themselves to rearrange the famous four letters–k, f, c, u and h, t, s, i–into either word, instead publishing them as f*** and s*** or resorting to euphemisms: “highly pungent,” “oft-heard vulgar words” and “celebrity cursing at awards shows.”

There is tedium following, demonstrating allegedly contradictory views about what is and isn’t acceptable. Then he arrives at this:

Still, I come back to the otherwise uninhibited newspaper industry’s reticence. Perhaps they fear that most of the public, their readers, aren’t quite there yet with this practice. Or perhaps deep in the primeval corner of the editorial soul sits the sense that somehow there really is something not quite right with promoting verbal f’ng and s’ng in public. In other words, perhaps there are defensible reasons for separating “polite society” from what we’ve got now, which is Paulie Walnuts society.

Take out the prudish last sentence and you end up with what we have where Constitutional protections are noted: a free market solution where “dirty” words don’t regularly appear. I know, it’s difficult to believe that can come about without government interference and restriction, but it happens.

Mr. Henninger offers some more prudish drivel about discipline and not giving in to the “slovenly, unrestrained ethos” of “dirty” words before arriving at this:

Judges Pooler and Hall are probably right that “they” didn’t create this F&S problem and besides, it’s everywhere now. But it’s disheartening to see a primary U.S. institution nominally associated with utilitarian rigor now throwing in the towel. And yes, it’s pathetic and hopeless to imagine that the FCC can ever get this right. But to wake up one morning to discover that of all the socially organizing institutions in American life, the only one slightly disturbed if a Nicole Ritchie speaks to the nation about her Prada handbag in terms of F&S is the Federal Communications Commission, well, that’s pathetic. And some day, it may be more than that.

That’s the issue, isn’t it. Mr. Henninger would rather have “utilitarian rigor” than Constitutional rights. He believes that “socially organizing institutions” should care enough to protect us. And, without such protections, we’re on a slippery slope to God-knows-what kind of national verbal nightmare. Ignore that the free market, devoid of government restrictions, works in print. And on cable. So, despite evidence contradicting what he fears, he laments the loss of one form of paternalism.

In related news, Supreme Court Justice Samuel Alito offered useful analysis of free speech restrictions.

“I’m a very strong believer in the First Amendment and the right of people to speak and to write,” Alito said in response to a question of “where’s the line” on what can be posted on the Internet. “I would be reluctant to support restrictions on what people could say.”

The newest justice, who was protective of speech rights as an appellate judge, added that “some restrictions have been held to be consistent with the First Amendment, but it’s very dangerous for the government to restrict speech.”

Free speech is never about what is socially acceptable in the public sphere. Despite the Constitution’s protections, every American has the option to be offended and to avoid that which offends him. He does not have the option to seek government action to stop what offends him. If Joe Reader is offended by profanity in his newspaper, he might cancel his subscription if he encounters it. Incentives matter, and work to restrain. Only the small, fearful mind thinks otherwise and demands government coercion.

“Congress shall make no law…”

The NCAA kicked a reporter out of the press box for liveblogging a game at the baseball super-regional yesterday. I find that absurd, but the NCAA can set whatever restrictions it wants. What’s amusing is the inevitable reaction from the reporter’s newspaper:

Courier-Journal executive editor Bennie L. Ivory challenged the NCAA’s action last night and said the newspaper would consider an official response.

“It’s clearly a First Amendment issue,” Ivory said. “This is part of the evolution of how we present the news to our readers. It’s what we did during the Orange Bowl. It’s what we did during the NCAA basketball tournament. It’s what we do.”

It’s clearly not a First Amendment issue. The government has played no part in this. This is a dispute between two private parties who agreed to a set of rules. Obviously one party is either misunderstanding or ignoring the rules. But the government didn’t violate any free speech right.

Convoluted hat tip required. Link found at Instapundit, via KnoxNews, which linked from Poynter Online.

Perhaps in a surprise, I don’t swear in this entry.

I’m behind on commenting on this, but I was quite pleased at the smackdown handed to the FCC in its indecency ruling against Fox. It’s nice to see that fighting back against Constitutional abuses can succeed. (I’m assuming the Supreme Court won’t reverse the decision.) The court’s arguments throughout the last thirty years have been absurd, despite the limited and “public” nature of broadcasting at the time of Pacifica. With the rise of cable and the Internet, among other sources of entertainment, government meddling in content is simply unacceptable. The First Amendment says what it says.

What’s most useful to read into the decision is the reaction.

“I’m disappointed in the court’s ruling,” FCC Chairman Kevin J. Martin said in an interview. “I think the commission had done the right thing in trying to protect families from that kind of language, and I think it’s unfortunate that the court in New York has said that this kind of language is appropriate on TV.”

It’s his job to “protect families”. The government should not be in the nannying business. And notice his obfuscation of the ruling. The court did not rule that swear words are “appropriate” on television, only that the FCC went too far in the way it applied it its vague, unclear rules in the case at hand. It said the FCC’s behavior was inappropriate. The decision of what’s “appropriate” on television is up to broadcasters and viewers. The free market can decide, as it’s already doing on cable. There are more than enough channels offering a wide-range of programming, along with the technology to block anything unwanted.

The Parents Television Council, which has sent hundreds of thousands of indecency complaints to the FCC in recent years [ed. note: many of them form letter duplicates from people who never saw what they complained about], criticized the ruling. The group’s president, Tim Winter, said in a statement that “a court in New York City has cleared the way for television networks to use the f-word and s-word in front of children at any time of the day.”

A court in New York City didn’t do that. “Blame” the framers of our Constitution. It also bears repeating here that, while the way is allegedly cleared, market demands will still restrain what shows up on television. Maybe the Parents Television Council could divert some of its attention from bombarding the government with pleas for force to networks with declarations that “indecent” programming will be met with the “Off” button on the television.

Saving the best for last, Commissioner Copps goes further in threatening his dream of censorship because he is never one to be outdone (see here and here):

FCC Commissioner Michael J. Copps warned in a statement, “any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake.”

I would love to come up with something witty, but I’ll point to Jesse Walker’s reaction:

In real life, Michael Copps has five children. In his mind, he has 83 million.

I might even up that fantasy to 300 million.

“Actually, gingervitus is the medical term.”

This story requires the obligatory link to “Ginger Kids“, the greatest episode of South Park:

A shaken family told how they have been hounded out of three homes — for having ginger hair.

Kevin and Barbara Chapman and their four children have been targeted by thugs for three terrifying years.

The youngsters have been verbally abused and beaten up, while vandals have regularly smashed the family’s windows and sprayed hate-filled graffiti on the walls of their council homes.

Only this week, the slogan “Gingers are gay” was daubed across one wall.

I find it hard to believe something like this could happen, so my crap detector is going off. It just seems too ridiculous. But small-minded people will find anything to taunt someone different. That’s not going away.

Wondering whether there’s a disconnect to the typical sort of nonsense directed at redheads in America and a taunt that includes “gingers are gay”, I researched the ramifications of the British slang for ginger. I found this dictionary:

  1. Homosexual. Rhyming slang, from Ginger beer – ‘queer’.
  2. A ginger or red haired person. Pronounced with hard g’s as in goggles.
  3. Carbonated drink, such as cola. [Scottish use]

Who knew? And I didn’t realize that it’s pronounced with a hard “g”. Overall a banged-up mental process to arrive at such a derogatory term, but still fascinating.

For an example, consider this story from December in the UK:

The BBC has upheld a complaint against Jeremy Clarkson, the Top Gear presenter, after he described a car as a “bit gay”.
…

He provoked the ire of the gay community when he asked a member of the show’s audience if he would buy a two-seater Daihatsu Copen, retailing at £13,495. The man said, “No, it’s a bit gay”, to which Clarkson added: “A bit gay, yes, very ginger beer.”

Story link via Fark. “Ginger beer” link via Citizen Crain, where you’ll find good commentary on the free speech implications of this example. Daihatsu Copen here. A better image here.

Catching Up: Virginia Tech Edition

I don’t have any desire to delve into the political issues arising from the shootings at Virginia Tech beyond the issues I already discuss here. With that in mind, two issues are driving me nuts from the fallout.

Because the murderer at Virginia Tech wrote violent stories, violent stories must now become criminal, regardless of the First Amendment:

Told to express emotion for a creative-writing class, high school senior Allen Lee penned an essay so disturbing to his teacher, school administrators and police that he was charged with disorderly conduct, officials said Wednesday.

Lee, 18, a straight-A student at Cary-Grove High School, was arrested Tuesday near his home and charged with the misdemeanor for an essay police described as violently disturbing but not directed toward any specific person or location.

Such a story might signal a problem that will lead to mass murder. Ban it. Are people really this stupid and oblivious to the evidence that violence in literature and movies and television and theater overwhelmingly does not lead to acting out that violence? The answer appears to be yes, which is a reflection of our desire to ban anything and everything that might be bad, no matter how small the risk actually is. We’re only two weeks beyond the tragedy, yet we’ve already learned the wrong lessons. Brilliant.

I know what happened at Virginia Tech will always follow the school, no matter how much good happened before or happens in the future. It’s human nature to remember the awful more than the good. I realize that my years of happiness with Virginia Tech and being a Hokie are personal, not national. I accept that and won’t try to fight human nature. But I’m not ready to idle away as pontificators misuse language for their agenda.

For example, last week, the editors of the Wall Street Journal analyzed “Blacksburg’s Silver Lining”:

In the wake of an event such as Virginia Tech, our system moves heaven and earth to figure out what went wrong and how to make sure it doesn’t happen again. This of course is what we did after September 11 and after the botched response to Hurricane Katrina.

Here’s what’s really unnerving about this inevitable “process”: In June 2000, the Bremer Report of the National Commission on Terrorism described virtually everything we needed to know about preparing for the kind of attack that occurred in September 2001. Similarly–and you can guess what you’re about to read–in 2002 the Final Report and Findings of the Safe School Initiative, conducted by the Secret Service and the Department of Education, told us virtually everything we need to know to prevent a Virginia Tech.
…

…for the purposes of stopping another Virginia Tech…

After Blacksburg,…

Virginia Tech is a school, not an event. Blacksburg is a town, not an event. The murders at Virginia Tech, in Blacksburg, were the event. If you can’t get this right, I won’t listen to anything else you have to say. (Not that the editors provided anything worth adopting, choosing instead for the expected dismissal of rights in favor of the appearance of safety.)

Kip mocks such language and the results of such abuse here, then here and here.

Once a regulator, always a regulator.

I’ve been mostly away from my computer and the Internets over the last few days as I take advantage of some of the better freedoms from being unemployed between contracts. I expect to post regularly in the coming weeks, but finding a new contract is obviously my first priority. Just so you know.

In the meantime, I have a two related items clogging my aggregator, so now is a good time to clean them out. First, the call for regulation is never too far from any success.

But now, precisely because of its success, it’s fair to ask if Google should be barred from furthering its dominance through acquisitions or collaborations. At issue are the recent purchases of YouTube, the leader in online video sharing, and DoubleClick, the leading broker of online advertising; in both instances Google used its gusher of profits to outbid rivals. There are also new joint ventures with Clear Channel, the giant radio broadcaster, and EchoStar, the satellite television operator.

Consider this: There may never have been a Google without the government’s antitrust suit that prevented Microsoft from crushing upstart rivals. By the same principle, isn’t it time to begin restraining Google to increase the odds another Google will come along?

It’s easy enough to look at the first paragraph and point out that YouTube doesn’t make any money. No one is certain how, or if, Google will make money from YouTube. There are theories, but theories don’t equal revenue without creativity, work, and luck. It’s a little premature to assume that this acquisition will result in further revenue growth. We could also simply look at the reality that Google is buying Internet successes rather than creating them.

The second paragraph, though, is more instructive. The phrase “may never have been” is hardly persuasive. Maybe the government’s antitrust suit helped, but we can’t know. That’s hardly a principle, unless we’re looking to some system outside of capitalism.

Nor do we have any proof that Microsoft’s dominance in its earlier markets translates into future dominance. Microsoft dominated the web browser market by the late ’90s, but its dominance in even that is waning as Mozilla builds Firefox as a product and a brand. More instructive, the web browser market is not the Internet.

Microsoft’s largest foray into the actual market Google now leads was MSN. Microsoft tried creating a closed system so that it could act as a gatekeeper to the Internets. Like AOL, this strategy was brilliant in the early days of the Internet’s public growth. As customers became better accustomed to technology, and technology got easier, the flaws in this strategy became clear. That left searching, which Google is simply better at. When Google stops being the best, customers will go elsewhere. This is the only principle at work.

Next, to demonstrate why we shouldn’t give government regulators more power than absolutely necessary, the FCC wants Congress to further violate the Constitution by giving it the power to censor violence on television.

The Federal Communications Commission has concluded that regulating TV violence is in the public interest, particularly during times when children are likely to be viewers — typically between 6 a.m. and 10 p.m., FCC sources say.
…

“Parents are always the first and last line of defense in protecting their children, but legislation could give parents more tools,” FCC Chairman Kevin Martin said yesterday regarding the report. “I think it would be better if the industry addressed this on its own, but we can also give parents” help through regulation.

Beyond the obvious arguments that “Congress shall make no law…”, legislation to allow the FCC to regulate violence – including basic television, if the FCC gets its wish – would do nothing to give parents more tools. This is little more than a disguised version of the “for the children” argument used to excuse away most new intrusions on the rights of American adults. I expect the Congress to act on the FCC’s request because Democrats don’t love rights any more than Republicans have the last 200 6+ years. Unfortunately, I don’t have much faith in the courts, although if this finally pushes big television networks to finally fight back, I trust that we could finally see a change. Here’s hoping.