TCS Daily

Regulating the Boob Tube

By James Pinkerton - February 4, 2004 12:00 AM

Let's consider for a moment what our federal government is doing to protect us from grave threats. Ricin, a deadly toxin, has been found in the US Senate, forcing the closure of three entire office buildings, and reminding us that danger from unknown terror has not abated. Speaking of terror, the father of Pakistan's nuclear program, Abdul Qadeer Khan, has admitted to selling atomic secrets to Iran, Libya, and North Korea; indeed, he has implicated two former chiefs of the Pakistani army as his co-conspirators. Speaking of still more terror, Americans are still dying in Iraq and Afghanistan, as Saddamists and Islamists step up their attacks. Finally, a horror of a different kind, the federal budget, is out of control. But not to worry, because Uncle Sam is guarding us against us Janet Jackson's right breast.

By now you've no doubt seen the implant-enhanced mammary that was exposed during the halftime show of Super Bowl XXXVIII -- destined to be known forever as the Boob Bowl. Strange as it may seem in light of the real perils this country confronts, Washington is making a federal case -- two federal cases, in fact -- over Jackson's bit of exhibitionism. Any investigation is farcical, of course, but the lasting damage it could do the First Amendment, and to free expression in general, is not something to laugh about.

Michael Powell, the beleaguered and at times tin-eared chairman of the Federal Communications Commission -- he's been on the defensive over his failures to secure support inside the FCC for proposed changes in the way the Baby Bells open their system to competition and also for his failure to understand the will of Congress in regard to media ownership rules -- has finally found a chance to get on the "right" side of public opinion. Powell declared himself to be "outraged at what I saw" on CBS on Sunday, and promised a "thorough and swift" investigation. And in the words of Washington Post TV columnist Lisa de Moraes, "He spent part of his busy day making TV appearances to let Americans see his outrage." Our tax dollars at work.

And make no mistake, the agency itself has teeth. If the commission determines that CBS violated indecency standards, each of the networks' 200 local stations could be fined $27,500. Moreover, FCC officials told the Post that they might also be pursuing additional penalties against Jackson and co-performer Justin Timberlake.

But wait, there's more. The feds might not be able to catch Osama Bin Laden, but they can nail the Eye Network -- which, admittedly, is easier to find. The Hill newspaper, which covers Congress, reports Tuesday that the chairmen of both the House and Senate subcommittees overseeing the FCC plan to hold hearings on this busting-all-over controversy. One must wonder, will officials of CBS and MTV (which produced the halftime show for its sister network) and the NFL, all of which have denied -- without any great degree of credibility -- any knowledge of the strip-stunt, be called to testify? Under oath? Is some headline-hungry prosecutor poised to seize upon contradictions in the testimony of potential witness? Could Timberlake, who called the incident a "wardrobe malfunction," make his implausible story stick in the face of withering cross-examination by mighty solons?

To be sure, a few bits of common sense did peep through. Cops in Houston, where the game was held, announced that they would not be pursuing charges. "Actions that may seem in poor taste do not necessarily rise to the level of violations of Texas law," said the Houston Police Department. And Howard Dean, speaking from the presidential campaign trail, dismissed the government's proposed probe of the halftime hijinks as "silly."

But silly or not, the government's teeth can grow into fangs -- fangs in the neck of free speech. Even before the Jackson, er, flap, Rep. Fred Upton (R-Mich.), chairman of the Subcommittee on Telecommunications and the Internet in the House Energy and Commerce Committee, had introduced the Broadcast Decency Enforcement Act of 2004, H.R. 3717, which would impose a 10-fold increase in the current penalty caps for indecency on television.

And in fact, the government is already doing a whole lot of investigating. Not with any great effect against Osama, but rather, against Bubba. That would be the dreaded malefactor, Bubba the Love Sponge.

On January 27, Powell's FCC voted 4:1 to fine radio giant Clear Channel Communications $755,000 for violations of its standards by Bubba, a Florida-based DJ who broadcasts on Clear Channel. The holdout commissioner, Michael Copps, voted against the sanction because, he said, it wasn't tough enough. His idea was to revoke stations' broadcast licenses.

To be sure, Bubba is truly disgusting; his on-air commentaries include, for example, graphic descriptions of people having sex with cartoon characters. No doubt the FCC was right when it concluded that his Bubba's words were "designed to pander to, titillate and shock listeners." In fact, the FCC provided chapter and verse, literally. The following paragraph is from the FCC's own website,

Segment 1 (aired July 19, 2001 between 6:30 and 8:30 a.m.):28 In this segment,29 skits in which the voices of purported cartoon characters talk about drugs and sex are inserted between advertisements for Cartoon Network's Friday night cartoons that are identified as ``provocative adult cartoons to help you get your freak on.'' The first skit begins when Shaggy tells Scooby Doo that he needs crack cocaine but has no money to buy it. Scooby Doo responds that Shaggy could ``su(bleep)ck d(bleep)ick'' to pay for the drugs. In the next skit, Fat Albert, a/k/a Phat Diddy Daddy, gets killed in a drive-by shooting after bragging that Jennifer Lopez had been ``s(bleep)ing Diddy Daddy's (bleep)ck the previous night. The third skit begins with the theme music from ``The Jetsons'' cartoon show. George Jetson then begins telling Jane that he no longer needs Viagra because he got a ``Spacely Sprocket (bleep)ck ring.'' After George flips a switch to activate the device, sound effects indicate that the device malfunctions, and the skit ends with George calling for Jane to turn off the device. Next, Alvin the Chipmunk complains that he hasn't ``been laid in almost six weeks.'' Another chipmunk responds that his problem is due to the ``f(bleep)cking pussy music we play'' and begins to sing a more ``kick ass'' song directing a ``filthy chipmunk-whore'' to ``[s]uck on my (inaudible) Chipmunk (bleep)s,'' ``[p]ut `em in your mouth and (bleep)uck `em.'' He continues by singing ``They taste like pistachios. They're warm and fuzzy. Suck my (bleep).'' The song is interrupted by a final advertisement for ``Cartoons with Balls.''

Given the feds credit for thoroughness; the document goes on for many pages more. But do we really want government lawyers sitting around and transcribing trashy radio broadcasts? At a time when airline flights are being cancelled because of terror threats, is such Bubba-monitoring really a good use of investigative resources?

Seventy five years ago, Supreme Court Justice Oliver Wendell Holmes Jr. wrote, "The prevailing notion of free speech seems to be that you may say what you choose if you don't shock me." Yet, Holmes continued, the essence of the First Amendment is "not free thought for those who agree with us but freedom for the thought that we hate." Admittedly, Holmes was talking about political radicalism back then, but one would hope that today, the principle of free speech for all would hold true, even for the hardest cases, such as Bubba.

But instead, FCC gumshoes are investigating an incident on the Fox broadcast network in December in which Nicole Richie, co-star of "The Simple Life," uttered two profanities. Now there's a mission for gallant G-Men.

To be sure, many support this crackdown. The Family Research Council (FRC) issued a press release averring, "It's a sad day when parents can't even let their children watch the Super Bowl without having to worry about nudity creeping into their living rooms." But of course, it's really a sad day when a fundamentalist group with an anti-freedom agenda -- advocating, as it does, restrictions on gay rights, reproductive freedom, and stem cell research -- gets to help set the national agenda.

But one might ask: what should the government do about salacious content in the media? The Federal Communication Commission has been tracking decency for some 70 years now -- should it just stop? After all, one needn't sign on the whole repressive FRC agenda to think that maybe it's not a great idea to have nudity popping out at the Super Bowl.

Four answers suggest themselves:

First, broadcast television, available to anyone with a TV set for free, is an obvious candidate for some kind of regulation. But the problem is that such regulation has had the effect of driving "hot" content -- and viewers -- over to cable. Today, 86 percent of homes have cable; how long will people settle for bland fare such as "Everybody Love Raymond" when they can click over to "Sex in the City"?

In fact, according to 2003 data from Nielsen Media Research, 51 percent of Americans watched cable during prime time, compared to 49 percent watching broadcast. If the feds start slapping the broadcast networks around, that out-migration of viewers will likely accelerate. And then, just as the Interstate Commerce Commission regulated the railroads almost out of business in the last century, so, too, the FCC won't have much in the way of broadcasting to regulate. In fact, a similar process might be taking place in regard to radio; it's hard to say anything nice about Bubba the Love Sponge, but if he is chased off the airwaves, he might migrate to satellite or internet radio, and thus beyond the government's reach.

Happily, some reasonable solutions are available. In the wake of the Nicole Richie outburst, the Fox broadcast network is now considering imposing a five-minute delay on all its live broadcasts. That's a non-coercive compromise, one that protects the public from nasty language and also protects the broadcasters from a nasty government.

And in that same spirit, broadcasters might expand the current TV show rating system, TV-Y, TV-G, etc. That is, they could rate all their broadcast content -- even Super Bowl halftime shows -- for age suitability. Such rating systems, also seen in movies and music, seem to work well enough. Then, with such a system in place, the FCC could detail its listeners and lawyers over to some other agency that confronts clear and present dangers.

Second, cable television should be left alone, as it is now. That will annoy the puritanical blue-nosers and prosecutorial Bible Belters, but that's just too bad. Freedom is freedom -- deal with it. And of course, hands off the Internet.

Third, all content-providers -- broadcast, cable and, soon, broadband -- have an incentive to "brand" themselves in the minds of viewers. Everybody knows that the Disney Channel, for example, is not going to offer up sex or violence. Neither will Nickelodeon. There will always be some portals that pitch themselves as "on the edge" and at the same time, others that offer "shelter from the storm." In their pure greed, providers will not fail to "cover" any segment of the market, from Teletubbies to XXX. At the same time, viewers are under some obligation to seek out what's right for them -- and once again, technology can help, in the form of channel-blockers.

Fourth, and most importantly, people should remember that there is such a thing as consumer sovereignty, including boycotts. Gotta problem with what you see? Fine. Tell it to the broadcasters and advertisers. Everyone involved will get the message. Bill Cosby, who never said or did a bad thing to anyone on the air, has carted home a lot more endorsement money than, say, Marilyn Manson. To be sure, not every boycott succeeds, but again, that's freedom in action.

These points won't satisfy the Repressive Right, but even the FRC and other right-tilting authoritarians ought to remember that its Republican/conservative friends won't always be running Washington. Someday, maybe sooner than we know, it will the Politically Correct Left that is reviewing all shows. And when the political/ideological wheel turns, the same state machinery that the FRC wants to use to wallop its foes will be used instead to wallop the FRC and its friends. As Ronald Reagan said many times, "A government big enough to give you everything you want is big enough to take it all away."

In fact, liberal activists are already playing the media-rules manipulation game. At the same time that CBS was in trouble over showing Jackson's breast, it was also coming under fire from two liberal/left groups for not showing their advertisements on the same show. blasted the network for refusing to run an ad showed children working, all to pay off, allegedly, President Bush's deficit spending. And CBS also rejected an ad from People for the Ethical Treatment of Animals argued that men who eat meat might become impotent. In a truly free country, CBS, as a private company, would be within its rights to reject any ads for any reason. That is, it would be free to run ads of doubtful taste -- Super Sunday saw ads featuring flatulence, a dog biting a guy in the crotch, and an elderly couple beating each other up in an attempt to grab a bag of potato chips -- or not, at its own discretion. And yes, CBS would be free to flash a breast. The overall repose of the Republic would survive all these TV tempests.

But if the Right wishes to supervise content, then it should come as no surprise that the Left will seek the same power for its side. Twenty-six Members of Congress, led by Bernard Sanders (Soc-Vt.) and Maurice Hinchey (D-NY), have taken up the cause of Moveon and PETA, as part of their effort to restore the "Fairness Doctrine." That dubious doctrine -- a friend to litigators and foe to free speechers -- was finally abolished in 1987, but if present interventionist trends continue, that heavy-handed rule, too, will make a comeback.

To be sure, cable TV, and, of course, the Internet, provide freedom for all the speech we love, and all the speech we hate. But as another friend of freedom, Barry Goldwater, reminded us, "There are no final victories." If Uncle Sam can stifle free speech on the airwaves, it will only be a matter of time before he seeks to stymie expression on cable and then cyberspace, too.

Shepard Smith, the wise-guy anchor on the Fox News Channel, showed a great deal of wisdom on Monday, when he said of the Jackson case, "Hey, nobody got hurt." If the federal government were to confine itself to protecting us from threats in which people really do get hurt, then this country would be not only freer, but safer.


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