News that the powerful chairman of the House Judiciary Committee wants to move indecency enforcement out of the hands of the Federal Communications Commission and start arresting broadcasters on criminal charges for indecency infractions is just the latest example of the aggressive bipartisan one-upmanship that's unfolding in Washington as politicians jockey for position over who can crack down harder, and with more imagination, against indecency on radio and television.
Public and legislative discussion of the indecency issue used to be limited almost exclusively to election-year cycles, but that tradition has been broken as momentum builds to institute the most radical FCC reforms in U.S. broadcast history. And unlike the last headline-making FCC debate -- over the contentious issue of media consolidation -- the current commission seems unified in its pursuit of those reforms, worrying activists who fear they skirt too close to censorship and would give politicians unprecedented control over the content of our culture.
The latest battle over indecency, sparked by Janet Jackson's infamous 2004 Super Bowl performance and embraced by both political parties, will heat up in coming weeks as the Senate crafts its indecency bill, which will then be married in conference to the version the House passed easily last year.
Among the sweeping, get-tough reforms Congress is considering are increasing the fine for indecency infractions from $32,500 to as much as $500,000 per incident, revoking broadcast licenses, instructing the FCC to start policing violent content as an indecency infraction (something the commission has never done before), fining artists whose broadcast material is indecent, fining writers who create indecent material in advance (as opposed to lines ad-libbed over the air), extending the agency's reach to include cable television and satellite radio, and requiring cable companies to offer a greater variety of channel packages so viewers can avoid potentially objectionable programming. (Because cable television is a paid subscription service, rather than a free public broadcast, the FCC now has no jurisdiction over its programming.)
But it was the comment by Judiciary Committee chairman James Sensenbrenner, R-Wis., that moved the debate into a drastic new direction -- one that was unimaginable just 18 months ago. Last week he told industry executives attending the National Cable and Telecommunications Association trade show that criminal prosecution would be a more efficient way to enforce the indecency regulations. "I'd prefer using the criminal process rather than the regulatory process," Sensenbrenner said.
"This is crazy," says Jeffrey Chester, executive director of the Center for Digital Democracy, in reference to this Republican trial balloon on criminalizing content. "Regulating the creation of content is a very slippery slope. Today it's raunchy words. What is it tomorrow?"
"Based on what's happened so far" in the indecency debate, "I fear the worst," says Robert McChesney, a professor at the University of Illinois and the founder of the media reform group Free Press.
Analyzing some of the agency's recent indecency rulings, former FCC commissioner Gloria Tristani says, "I'm concerned the FCC has gone too far." Chester, McChesney and Tristani are veterans of the recent media consolidation campaign, in which a unique, bipartisan coalition rose up to successfully oppose the Bush administration's attempt to further relax ownership rules for companies such as News Corp., Viacom and the Tribune Co. During that battle, media activists enjoyed almost uniform support from Democrats as well as the backing of some renegade Republicans who broke with the party leadership.
In contrast, media activists scrambling to blunt the indecency momentum have few supporters on the Hill. In fact, key Democrats such as Sen. Jay Rockefeller, D-W.V., and Sen. Joseph Lieberman, D-Conn., have been out front in support of the proposed FCC reforms. Says Chester: "I think it's alarming how so-called liberal members of Congress are into indecency group-think. They are contributing to this chilling effort to curb speech." Although it may be disappointing to lose their support, it's not so surprising that Democrats as well as Republicans want to take such a stand in the indecency debate, which is regularly framed as an attempt to protect children from lewd and vulgar programming.
What is surprising for free-speech advocates such as McChesney and Chester, who fear the effects the indecency reforms could have, is that when they look across the newly formed battle lines they see some of their closest anti-media consolidation allies leading the charge for new enforcement of content.
The most glaring examples are FCC commissioners Michael Copps and, to a lesser degree, Jonathan Adelstein. The Democratic duo played a central role in rallying broad, grass-roots support against then FCC chairman Michael Powell's plans to OK further media consolidation. Yet they are now among the key communications officials inside the Beltway who, along with grass-roots conservative groups, have called out for an indecency crackdown.
"I have an enormous amount of respect for Michael Copps," notes Rep. Bernie Sanders, I-Vt., a congressional point person during the anti-consolidation battle. "He, more than any other person in the country, led the cry in explaining the danger of media consolidation. I have love and respect for him. On this issue, though, we disagree."
"Our two [primary] issues of concern are media concentration and censorship," explains Jonathan Rintels, a screenwriter and executive director of the Center for Creative Voices in Media, an artists advocacy group. "We think the world of commissioner Copps and commissioner Adelstein, but we're disappointed on their stand over censorship. Without Copps and Adelstein [the fight] has been difficult."
Indeed, an assertive voice of caution -- the type of counterweight Powell had to fight over media ownership -- simply does not exist when it comes to the issue of indecency. "We don't have a clear anti-government, 'let's use some restraint here' voice at the FCC," says Rintels.
"Of course it would be helpful to have people on our side at the FCC," notes Sanders.
It's true that Adelstein recently sounded a cautionary note, warning that any effort by Congress to extend indecency regulation to cable and satellite television "would likely be held unconstitutional in the courts." Says former FCC commissioner Tristani hopefully, "Maybe commissioner Adelstein can be persuaded that the [indecency] regime has gone too far." "I am very concerned about the First Amendment implication of going after artists for indecency fines," Adelstein told Salon in an interview. In the House version of the legislation that passed recently, artists could be fined if their music were broadcast and found to be indecent. "It's not the artists' responsibility to adhere to FCC regulations about indecency. It's the broadcasters' responsibility not to air indecent content," says Adelstein, who warns that targeting artists would have a "chilling effect on free speech." Copps was unavailable for comment for this article.
Today Copps is marching arm-in-arm with the newly appointed FCC chairman, Republican Kevin Martin, against indecency, much to the delight of cultural conservatives. "We have a great deal of respect for chairman Martin and commissioner Copps," says Tim Winter, executive director of the Parents Television Council, which has led the charge in filing indecency complaints, often against the most popular shows on television. "Both of them have been beacons of light [on] this issue."
It was Copps and Martin who dissented on the FCC's $755,000 fine against Clear Channel Communications for 26 indecency violations by four of its radio stations last year, saying the punishment was not harsh enough. Copps wanted to hold hearings about revoking the stations' licenses, while Martin wanted to fine the radio giant more than $1 million.
And in January the same two objected to parts of an FCC ruling that dismissed 36 indecency complaints against TV shows such as "Friends" and "The Simpsons." Copps argued that the commission should have investigated the charges more thoroughly.
Martin, who has close working ties to the White House, is often seen (and portrayed in the press) as an eager warrior in the indecency battle, and his appointment as chairman was cheered by conservative groups that lobbied on his behalf. "If President Bush appoints a strong chairman and a public-minded second [FCC] commissioner, things will finally change," Tony Perkins, president of the pro-family Family Research Council, wrote to members this winter. "This is an historic opportunity and one that the FRC team won't let slip away. I have been working on this for some time, making calls and sending letters to key U.S. Senators and Congressmen urging them to let President Bush know we want appointments to the FCC who will enforce indecency law. I have weighed in at the White House also."
But in truth, Martin joined the indecency game much later than did Copps and Adelstein, who for years served as de facto indecency cops at the FCC as they relentlessly chided Powell for not being tough enough on enforcement. (Powell once famously said, pre-Janet Jackson, that when it came to policing content he did not think the government should serve as the nation's "nanny.") "Chairman Powell only came to this issue [of indecency] and to enforcing the law at the barrel of a gun," complains the PTC's Winter, referring to the political firestorm that followed the Super Bowl incident.
It was Copps who in 2002 suggested adding "excessive violence" as a definition of over-the-air indecency, arguing, "It's time for us to step up to the plate and tackle the wanton violence our kids are served up every day." It was Copps who in 2003, writing to the PTC, gave the FCC an "F" for indecency enforcement. And it was Copps who told the Washington Times last year that steamy daytime soap operas could become a potential target in an FCC indecency crackdown.
What may be additionally frustrating for activists who worked on the same side as Copps and Adelstein during the consolidation battle is that the two FCC commissioners first embraced the indecency issue via the media ownership debate. At the time, they argued that as fewer and fewer corporations bought up more and more programming outlets, there would be a race to the bottom in content, and that without hands-on local owners, radio and television stations would no longer have a sense of community standards, leading to an increase in indecent programming. Both Democratic commissioners urged Powell to order a study of that possibility. In a 2002 written statement to the press, Copps wondered, "Has consolidation led to an increase in the amount of indecent programming? When programming decisions are made on Wall Street or Madison Avenue, rather than by local broadcasters on Main Street, does indecency grow more pervasive? We must answer these questions before the Commission votes on whether to eliminate our media concentration protections this spring."
That rationale struck a chord with cultural conservatives, who were already protesting raunchy content and distrustful of allowing major media empires to expand. Even today, on the Parents Television Council home page, right next to the "Broadcast Indecency" banner, visitors can learn more about the issue of "Media Ownership/Localism."
"I sat two chairs away from [PTC's] Brent Bozell and testified alongside him" at congressional hearings on media consolidation," recalls Rintels. "I could've written his comments and he could've written mine. We see a link between ownership and indecency," he says.
In the end, Copps and Adelstein were not able to get Powell to look into the "consolidation equals indecency" angle of the ownership debate. And Martin himself quietly sided with Powell in voting for relaxing the ownership rules. (It will be interesting to see if Martin, as Powell did before him, tries to keep separate the issues of consolidation and indecency.)
The bipartisan flavor of the effort, however, proved to be critical in getting Congress to rebuke the FCC's new media ownership rules. "It was very important and something we worked on incessantly," says McChesney. "For Republicans to go against leadership in the House or Senate on media consolidation, that required a tremendous amount of courage, and that backbone came from hundreds of thousands of conservatives around this country saying this is important to us."
Now that indecency has moved to front and center, some media activists are concerned that the issue of consolidation will get lost in the stampede to crack down on indecency. "I made the case to Copps that the solution to indecency wasn't censorship and fines, it's breaking up the media monopolies," says McChesney. "My sense is he's well aware that censorship is not the way out of this. He gets that. He's basically a progressive guy. He's very concerned about vulgarity issues and he's talked about fines, but he's not on the side of full-throttled censorship."
Copps is not the only key anti-consolidation player who has teamed up with the indecency activists. Consumers Union, which played a central role in rallying opposition to the new ownership rules, is also pitching in. The pro-consumer group has for years pushed the idea of a la carte choices for subscribers, demanding that cable television providers allow customers to pick and choose the specific channels they want to watch and pay for. Cable companies, though, have balked at the idea.
Now Sen. Ted Stevens, R-Alaska, the powerful chairman of the Senate Commerce Committee, has embraced cable choice as a possible way to deal with indecency. The idea is that if parents were offended by a potty-mouthed sitcom on Comedy Central (such as "South Park"), for instance, they would have the option of not paying for it. (Cable channels don't have to adhere to the same definitions of indecency as broadcast networks do, and only an act of Congress could change that.)
"Too much of the indecency debate centers on censorship. We think a la carte could be a salvation and would mean more choices for consumers," says Susanna Montezemolo, a policy analyst for Consumers Union, who stresses that the group does not share conservatives' larger concerns about cracking down on indecency. "We've been working with some strange bedfellows on this sliver of the indecency debate, such as the Parents Research Council, Concerned Women of America and other conservative groups. But we're very careful in where we're going with this and what we advocate for: cable channel choice." She adds, "Creative coalition building is critical right now in Washington."
The Center for Digital Democracy's Chester warns, however, that "working with groups that want to censor speech is always dangerous." He and others recall that last Veterans Day weekend, more than 20 ABC affiliates refused to air the Academy Award-winning film "Saving Private Ryan" because of concerns station owners had about the gritty movie's profanity, and whether the get-tough FCC might even issue fines for the broadcast of a World War II drama. There's a tremendous amount of self-censorship going on already, agrees Rintels.
But in the light of the FCC's recent dismissal of several indecency claims, is the fear of widespread censorship overblown? The rejected claims were filed against Nielsen-rating staples like "Friends," "The Simpsons" and "CSI," as well as a couple of newsmaking incidents. One incident involved a sultry promo for ABC's "Monday Night Football" that featured "Desperate Housewives'" Nicollette Sheridan dropping her towel in the locker room while trying to seduce NFL star Terrell Owens. The other incident concerned a CNN producer who inadvertently screamed some profanities when balloons at the Democratic National Convention failed to drop on cue following Sen. John Kerry's prime-time address.
"In context, none of the segments were patently offensive under contemporary community standards for the broadcast medium, and thus not indecent," the agency said in a statement. The FCC also ruled that "the material was not profane, in context."
Observers on both sides of the debate doubt that those rulings serve as a good barometer of where the FCC and Congress are heading on indecency. "Chairman Powell left office frustrated by his legacy of indecency enforcer," suggests Winter at the PTC. "That really embarrassed him. So on his way out the door he dismissed a whole bunch of complaints."
Meanwhile, Rep. Sanders finds no comfort in the FCC's dismissal of complaints against "Friends" and "The Simpsons," suggesting the pendulum has swung so far to the right that hugely popular, family-friendly shows are already being scrutinized for content infractions. "Let's take a deep breath. I don't pay all that much attention to television ratings, but wasn't 'Friends' one of the most popular shows on television? And the FCC ruled it wasn't indecent? Look at where this debate about indecency is already," says Sanders.
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