In a country whose Constitution prohibits its legislature from making any law abridging freedom of speech, it might seem strange that one of those legislators would hold a public forum on "Indecency in the Media" – but this is America 2005, and Sen. Ted Stevens (R-Alaska), fresh from losing funding for his pork-barrel "bridge to nowhere," was ready to tackle this allegedly pressing issue today in the Dirksen Office Building.
The hearing began about 9:30 a.m. Eastern time, and was scheduled to last the entire day, but in fact concluded just before 4 p.m., with the afternoon session devoted to confrontations between the morning's speakers and members of the general public (which we'll report on tomorrow if anything worthwhile was said).
The morning, however, brought a docket of some 20 speakers that included several senators, plenty of religio-reactionaries, several broadcast and cable/satellite industry executives – but no one from a recognized free speech group, unless one counts actor Joe Pantoliano of the Creative Coalition or the representative from AFTRA, the television performers' guild, neither of whom called the hearing for what it was: An attempt to censor broadcast and cable/satellite speech even more than it already is, as well as an attempt to browbeat cable companies into allowing consumers to pick and choose just which cable channels they will pay for, rather than requiring them to buy packages of channels, some of which several of the speakers seemed to find offensive.
"We're not involved in this to bring about censorship," Stevens claimed in his opening remarks. "We're here to give an opportunity for those who represent the families of America to listen to those of you run the media, that they currently believe does not fulfill their wishes to have the kind of moral compass that our country should have for our young people."
One might have thought that providing a "moral compass" was something more properly the province of a family's church, synagogue, mosque, ashram, etc., or perhaps the children's parents ... but this is America 2005, and reinforcing Judeo-Christian morality is everyone's business, especially that of the people in charge of parents' favorite electronic babysitter, the television.
"I still have the same feeling that parents have the right to try to protect their children from some of the things they can run into in the media," Stevens said cautiously, "and with the tumbling technology we've got in this country now, it's hard for those of us in government to know what to do."
Stevens' lack of clarity was not shared by the next speaker, Sen. Jay Rockefeller (D-W.Va.).
"The entertainment broadcasting industry has proven itself unable, essentially, in my judgment, or unwilling, or both, to police yourselves," Rockefeller declared. "As a result, I have introduced, along with Sen. Hutchinson, the Indecent & Gratuituious & Excessively Violent Programming Control Act. The name I don't like, but the bill I do. It gives parents sets of tools and lays out some ground rules which are not available today."
One might have thought the "ground rules" might have been deduced from the Constitution's clear prohibition against the abridgement of free speech by Congress ... but this is America 2005.
"My bill is not intended to limit artistic expression nor is it my purpose to impose the will of Congress on decisions that properly belong to parents or to the FCC," Rockefeller claimed. "My legislation does require the FCC commissioner to begin a comprehensive review of existing technologies ... of the V-chips and other things that are out there, to see how they're doing what the technology, to make a study of them, get back to the Congress committee and then the FCC can begin a proceeding to find additional benefits should they feel it necessary to protect children from this content. That sounds rather mild; I don't intend it to be that way."
Actually, it sounds pretty severe, especially since both houses of Congress are already considering bills that would raise the maximum fine the FCC can impose for each instance of "indecent" programming from $27,500 to as much as half a million dollars. For instance, S. 193, introduced by Sen. Sam Brownback (R-Kan.), would raise the fine to $325,000 for every instance where a broadcaster has been "determined by the [Federal Communications] Commission ... to have broadcast obscene, indecent, or profane language."
"Profane," of course, means "showing disrespect for God, any deity or religion," and one might have thought that in a country whose Constitution prohibits its legislature from "establishing" any religion, showing disrespect for one would be something Congress would not be able to take notice of, much less fine someone for so doing ... but this is America 2005.
By the way, that $325,000 may be for a single violation, but the bill also authorizes that amount of fine for "each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $3,000,000 for any single act or failure to act.'"
But it took the third speaker, Sen. Mark Pryor (D-Ark.) to mention, finally, the "p" word.
"I don't only want to mention violence; I also want to mention pornography and sexually explicit things that people all across this great land can see on television, especially children, and that concerns me greatly," Pryor said. "I do think when it comes to pornography and sexually explicit material, the people around this table, they have a responsibility and I think it is a must that you own up to your responsibility, that you take responsibility for what is being shown not just on the airwaves but on cable. And of course, the Internet is another factor that's come on board in the last few years, but if I could just focus on cable just for a moment, my impression is that the cable industry is complicit in promoting pornography and sexually explicit material in our homes."
"Complicit in promoting pornography and sexually explicit material in our homes"? So now, making something available (for a price) for consumers to choose to watch in the privacy of their own living rooms, and maybe running commercials for same in the same medium, is "complicity in promoting"? This is through-the-looking-glass logic, where words mean whatever Humpty Dumpty wants them to mean.
"And I think if you look back at the track record of the pay-per-view world, the premium channels, late night cable – I mean, you can go through a long list of ways that it's happened," Pryor continued, "but I think the bottom line is for the cable industry and for satellite TV and to a lesser extent broadcast, but I think the bottom line is that this is a profitable business; that pornography and sexually explicit material is profitable. I think we need to acknowledge that; we need to be open about that, and I think we in Congress want to do something, not about the profitability of it, but about making sure that our children and people who should not be exposed to this are not exposed to it. Like Sen. Rockefeller, I'm not talking about censorship, but I'm talking about sitting down in this room in a forum here in the United States Senate and the Congress as a government working to clean up our act. We all bear responsibility, including members of congress, with this."
In a forum where everyone acknowledges that the V-chip exists, that almost all TV sets have one, as well as on/off switches and channel changers, and that no one is forced to subscribe to cable or satellite providers at all, it's not easy to understand exactly what "act" Pryor wants the program providers to "clean up" that doesn't involve "censorship" and doesn't affect "the profitability of it" ... but this is America 2005.
"I hear from some in the industry," Pryor continued, "whether it be the so-called Hollywood industry or cable or broadcast or whatever it may be – I hear people say that this is legal, and it is; it is legal. But I also have in mind what the tobacco industry said years ago. They came to this body, came to the U.S. Senate, came to the Congress and said, 'What we're doing is legal.' Well, what you do as 'legal' is not always the best thing for the country, is not always right, and I think that all your industries, everyone seated at the table here, I hope will sit down in good faith and talk about these issues with members of the Senate, members of the House, members of the administration, and try to clean up your act."
It's interesting that Sen. Pryor doesn't seem to understand that providing television programming is a First Amendment-protected activity and selling cigarettes isn't ... but this is America 2005.
But whatever problems may exist with television programming, it fell to FCC chairman Kevin Martin to first enunciate what the Bush/Rove administration sees as a solution.
"Most consumers today can choose among hundreds of television channels, including some of the best programming ever produced, but television today also contains some of the coarsest programming ever aired," Martin claimed. "Indeed, the networks appear to be increasing the amount of program designed to push the envelope and too often the bounds of decency. ... As the broadcast networks have become edgier to compete with cable, prime time on broadcast television has become less family-friendly; cable and satellite television offer some great family-oriented choices, but parents cannot subscribe to these channels alone. Rather, they are forced to buy the channels they do not want their families to view in order to obtain the family-friendly channels they desire."
Ah, the answer to everyone's concerns: Don't sell cable programming packages; sell individual channels "à la carte," so each household can watch only the channels it thinks it can be comfortable with. No longer, as depicted in a recent commercial touting the V-chip, where mom had blocked a particular channel so the kids wouldn't look at it, will dad have to ask, "Honey, can I please have the unlock code?" In the commercial, mom gives a flat "No" – but now she won't have to; the government will arrange it so that she won't even have to subscribe to that channel – undoubtedly, much to dad's chagrin.
And such a system isn't just a good idea; it's absolutely necessary, claimed L. Brent Bozell, president of the ultraconservative Parents Television Council.
"We hear a lot about freedom of speech, and that's a sacred thing," Bozell said, "except we know what the Supreme Court has said about this, and we know what we're talking about here. We're talking about the hours from 6 in the morning till 10 o'clock at night. We're talking about a safe haven for families. We're talking about providing a freedom that parents have, that families have as well, and the Supreme Court has upheld it."
And besides, who's it going to affect?
"Look at the number 1 show on television last year; it was watched by less than 10% of America, so where's the grand market demand for this type of programming?" Bozell asked. "Every single market study shows overwhelmingly, the market wants less raunch, less violence, less filth, so why not give the market what it wants?"
He might ask 19th century philosopher/economist John Stuart Mill that question. In "On Liberty," Mill noted that, "If all of mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind."
But in fact, Kyle McSlarrow, president of the National Cable and Telecommunications Assn., had a more practical answer.
"If you're talking about mandatory à la carte [cable channel sales], I think this is a very dangerous idea," McSlarrow opined. "It would be very strange and I would think unthinkable if somebody went to the newspapers and said, 'You know what? I like the sports section; I don't really read the business section that much, so I'm going to tell you that you need to sell sports sections and business sections separately.' That is no different than what we're talking about with à la carte if it's mandatory in terms of the cable industry... The reason we have all these cartoon networks, the reason we have the family networks, is because the cable industry invented diversity of programming, and the reason those networks survive is because they are bundled together, allowing them an opportunity to be offered, to gain new subscribers and new viewerships so they can survive and thrive, and if you take that away with an à la carte system, you end up in our view not only violating the First Amendment but hurting the very customers you want to help."
Sadly, there's no easy way – in fact, they may be no way whatsoever – for consumers to determine which particular cable channels are profitable and which channels are not but are being supported, essentially, because they're sold in packages with more profitable ones. We already know that the major cable suppliers are adamantly silent about what portions of their profits are derived from sexually-oriented programming; it's not too much of a stretch to understand that they might be equally silent about how profitable other channels are, if for no other reason than that a diligent researcher who knew how much profit the non-sexual channels make could deduce what profit percentage the sexual channels account for.
Beyond the question of packaging versus individual channel sales, some witnesses actually dealt with the subject of the hearing: Indecency. And for several of the witnesses, it wasn't enough that the FCC decency standards apply only to broadcast TV and radio; they wanted it to apply universally to all content providers, whether over-the-air or subscription – and it quickly became clear that the motivation of "free TV" providers to have cable offerings regulated for decency was a very old one: Profits.
"Indecency is not just a radio or TV, or cable or satellite problem," claimed Jessica Marventano, senior vice president of Clear Channel Communications. "It is an industry-wide challenge and we all must take responsibility to see that it is addressed in a fair and consistent basis. Otherwise, two bad things happen. One is, children are insufficiently protected. To a 9-year-old, whether indecent programming is on broadcast cable or satellite is really a distinction without a difference. Second is that edgier, more popular programming migrates to cable and satellite and our free over-the-air broadcasting system becomes less accessed by the audience and more endangered. Neither outcome is good public policy."
Hmmm – fewer people looking at over-the-air channels because cable programming is sexier means lower ratings for the broadcasters, which means lower advertising rates, which means ... lower profits!
And indeed, the excessive fines for indecency proposed by Sen. Brownback and others aren't bad because they trample of citizens' free speech rights; they're bad because ...
"The worst thing Congress could do would be to impose draconian station-shutting penalties on over-the-air broadcasters while at the same time placing a flashing neon sign above their cable and satellite competitors proclaiming that indecency on these platforms is permissible," Marventano argued. "Not only would such a course put at risk the only media outlets that are truly focused on and responsive to local communities; ultimately, it would put children at greater risk of exposure to indecent content."
That same point was hammered home by Preston Padden, representing the Walt Disney Company and ABC Television.
There is no longer in our view a constitutionally sustainable basis to distinguish between broadcast and expanded basic cable and satellite TV with regard to indecency," Padden announced. "If you go to the Playboy case, I'd like to read a single sentence from that Supreme Court decision. The Court said, 'The key difference between cable television and the broadcasting media, which is the point on which this case turns, is that cable systems have the capacity to block unwanted channels on a household-by-household basis.'"
"Well, as you've heard over and over this morning, today, V-chip technology and set-top boxes provide parents with the opportunity to block unwanted programs whether they originated on broadcast, cable, satellite, or ... the new telephone systems," Padden continued. "So the same reason that the court invalidated the regulation of cable in the Playboy case is now equally applicable to broadcast; namely, technology now provides a less restrictive means for parents to protect children. None of the other alleged distinctions between broadcast and basic cable and satellite justify continuing to regulate indecency on only broadcast TV. A kid with a remote control and 50 channels to click through has absolutely no idea where any of those channels originate. Regulation of only a handful of those channels only the broadcast channels is not only constitutionally suspect but also plainly ineffective."
Of course, Padden's comments could be read as a condemnation of the attempt to regulate indecency in either broadcast or cable TV, but it seems more likely that the Disney position is that indecency should be regulated in both types of media.
John Kasora, of the religious Trinity Broadcasting Network, made the basis of the argument about indecency on cable even more clear.
"Applying indecency regulations to cable would also serve to eliminate the competitive imbalance between cable and broadcasting," Kasora warned. "It would do this by granting parents effective control over the content of the cable industry which liberally exposes their children to some of this questionable programming."
One of the few executives to voice a real understanding of the problem with indecency laws was NBC's Alan Wurtzel.
"I'd like to offer just one point about the broadcast indecency bill that was recently passed by the House," he said at the close of his remarks. "That bill contains several provisions that would put station licenses at risk for a few seconds of indecent programming. Indeed, one indecency violation may be used by the FCC to preclude an application for a license, a license transfer or a renewal. Three violations trigger a license revocation proceeding. We believe that these penalties are completely out of proportion to the offense, especially where the First Amendment is so clearly and directly implicated. Enactment of any such provision would not only have an enormous chilling effect on broadcast programming, but would also have a depressing effect on the entire broadcast industry."
Unless, of course, the fines could be levied against subscription cable offerings as well!
The penultimate witness, Jim Dyke, of the newly formed liberal group TV Watch, summed up the anti-censorship position fairly well.
"Mr. Chairman, look at almost any survey of public opinion and you will find at least 80 percent of Americans who see something on television that they don't like," Dyke noted. "It is the statistic most often cited in a call to government action. Mr. Chairman, I am here to tell you that I am one of those Americans, but I am not calling for government action because I am also one of the 92 percent of Americans who want to make their own content decisions rather than the government making those decisions."
Today's "forum" was simply a prelude for more formal hearings on television indecency scheduled for Jan. 19 before Sen. Stevens' committee. In the meantime, however, both houses of Congress will be considering several different pieces of legislation proposing media censorship of one level or another, and with conservatives in control of both the legislative and executive branches of the federal government, and a majority of the FCC commissioners now apparently amenable to foisting "decency" standards on subscription cable and satellite channels, the outlook for free speech in 2006 and beyond doesn't look good.
