We are moving in the direction of undermining the First Amendment," said US Representative Ron Paul, the maverick Texan who was the only Republican member of the House to oppose the Broadcast Decency Enforcement Act of 2004. Paul, one of the least likely defenders of shock jocks like Howard Stern and Bubba the Love Sponge, is, of course, correct. The measure, which passed the House by a vote of 391-22 last week, was written with the intent of preventing broadcast personalities from engaging in certain forms of potentially offensive speech by threatening them -- and the stations on which they appear -- with financial ruin.
Under the legislation that passed the House, the fine for an on-air personality who violates the ill-defined decency standards applied by the Federal Communications Commission would rise from $11,000 to $500,000. The fine against the owner of the station on which the violation was heard and seen would rise from $27,500 to $500,000.
Before the vote, officials of the American Federation of Television and Radio Artists urged the measure's defeat, with union president John Connolly and executive director Greg Hessinger arguing in a letter to House members that, "Such legislation should be rejected on the grounds that it represents an unconstitutional threat to free speech and would have an unnecessary chilling effect on artistic freedom."
Representative Gary Ackerman, D-New York, was blunter. If implemented, the congressman said, the law would not have "a chilling effect." "It would have a freezing effect," he explained.
Marvin Johnson, an American Civil Liberties Union legislative counsel, said "the very notion (of the legislation) runs counter to everything prescribed in the First Amendment. The vagueness of the language will lead broadcasters and individuals to stifle their remarks and remain silent rather than run the risk of facing an FCC fine. Not only will our First Amendment rights suffer, but so will the national dialogue. In the end, we are left with no clear understanding of just what is ‘indecent' and worse yet, it seems we will only find out when huge fines are levied on broadcasters or speakers."
So how did so flawed a piece of legislation win such overwhelming bipartisan support in the House? The answer has a lot to do with those flaws. Even members who knew the proposal was bad policy figured it was safe to support it because the bill's prospects in the Senate seemed slim; and because, if it ever did become law, the measure would face a certain court challenge.
The push for the Broadcast Decency Enforcement Act of 2004, which ramped up after singer Janet Jackson's breast was exposed during the Super Bowl show, represents the worst sort of election-year showboating. It is directed only at over-the-air television and radio stations. No restrictions are placed on the nation's booming cable and satellite TV and satellite radio networks. And it does not begin to address one of the primary factors in the explosive growth of programming that Americans find offensive -- the concentration of control of radio stations in fewer and fewer hands after most limits on ownership were eliminated with the passage by Congress of the Telecommunications Act of 1996. As corporations such as Clear Channel have bought up local radio stations, they have swept out hometown programming that tended to reflect regional differences -- or that, at the least, responded to local complaints -- and imposed programming and personalities with no connection to the community.
"The fact is, higher fines are going to do nothing," argued Representative Dave Obey, D-Wisconsin. "If you want to do something to give communities the ability to stop this nonsense, you will take away from the FCC the ability to put broadcast power in the hands of a few corporations."
Representative Maurice Hinchey, D-New York, one of the most outspoken advocates for media reform in the Congress, explained that the House legislation dealt "only with the symptoms of the problem and not with the underlying cause" -- concentrated ownership.
Yet, when the votes were counted, even Obey and Hinchey voted for the measure. Only 22 members, including Paul and Ackerman, had the courage to actually vote "no," with most of them voicing free speech concerns. Another 20 members voted "present" or simply did not vote at all. Among those voting "no" were many of the House's most progressive members, including California Democrats Maxine Waters, Barbara Lee, Zoe Lofgren and Pete Stark, as well as New Yorkers Jerry Nadler and Jose Serrano. Congressional Progressive Caucus co-chair Dennis Kucinich, D-Ohio, also voted "no," as did Georgia Democrat John Lewis, the veteran civil rights activist. Michigan Democrat John Conyers, the ranking Democrat on the House Judiciary Committee, was among the members who did not vote.
While the House bill passed overwhelmingly, it still must clear some high hurdles before it become the law of the land. There appears to be less interest in the issue in the Senate than there was in the House. And, if the Senate does act, it will be on a significantly different piece of legislation. While the Senate bill would also raise fines to $500,000, it includes an amendment that addresses the media concentration concerns raised by Obey and Hinchey.
The Senate bill, if passed, would put on hold the media ownership rule changes endorsed by the FCC in a 3-2 vote last June. Under the provision, which was proposed by North Dakota Democrat Byron Dorgan and approved by the Senate Commerce Committee, the General Accounting Office would conduct a year-long study of the relationship between media consolidation and the growth in the number of indecency complaints.
The FCC's moves to ease ownership limits would then be reassessed on the basis of the GAO study.
Because Senate Majority Leader Bill Frist, R-Tennessee, is under pressure from the Bush administration to preserve the ownership rule changes -- which are popular with large media companies and campaign contributors associated with them -- it is unlikely that a vote will be scheduled anytime soon on legislation that includes the Dorgan amendment. Threats to freedom of speech may not be of much more concern to the Senate than they were to House, but threats to powerful corporations and campaign contributors are another matter altogether.
John Nichols is the co-author, with Robert W. McChesney, of 'Our Media, Not Theirs: The Democratic Struggle Against Corporate Media' [Seven Stories]. McChesney and Nichols are co-founders of Free Press, the media reform network.