What's really indecent is government censorship

February 13, 2004|By Steve Chapman

CHICAGO - Censorship in America has a history that is long, voluminous and mortifying.

In the 20th century, government agencies banned novels by everyone from Theodore Dreiser to James Joyce. Filmmakers were effectively discouraged from showing anything remotely erotic. Journalist H. L. Mencken was arrested after his magazine, American Mercury, published an article declaring that sex was no longer "a grim, serious and ominous business."

But censorship is now a relic of our puritanical past. Well, except on the airwaves.

Following Janet Jackson's fleeting display during the Super Bowl halftime show, the Federal Communications Commission erupted in outrage, with Chairman Michael Powell vowing a "thorough and swift" investigation and threatening heavy fines against CBS stations for violating its rules against "indecency." Four members of the commission called for stiffer sanctions than the ones now on the books.

The uproar gave new life to legislation that would raise the maximum fines tenfold. Some members also favor a "three strikes" policy that could strip the licenses of repeat violators.

If you own a TV set, you may be saying to yourself: There are rules against indecency? Yes, there are. The FCC bans the broadcast of obscenity (which means hard-core pornography) at all hours and forbids "indecency" - a broader and vaguer category - except between the hours of 10 p.m. and 6 a.m. But anyone who has caught a few minutes of The Maury Povich Show can see that the regulation has about as much influence as the Russian monarchy.

Anyone reading the U.S. Constitution can spot another problem as well. The First Amendment forbids government action "abridging the freedom of speech, or of the press." In other media, the Supreme Court has reached the conclusion that those words actually mean what they say. The government may not forbid indecency in movies, magazines, books, Internet sites, live theaters or telephone communications. For that matter, the FCC may not censor it on cable TV.

That's right. Station A can provide a momentary glimpse of Janet Jackson's exposed breast only at the risk of losing its license. But Station B can air it from dawn to dusk for weeks on end with no fear of the feds. At least for now - Mr. Powell is demanding cable companies also clean up their programs, though it's doubtful the Supreme Court will allow penalties for those that don't.

When radio made its appearance, federal regulation was seen as necessary to prevent multiple stations from using the same slice of the broadcast spectrum, and regulators soon turned that role into a way to supervise what people could hear. The same approach was adopted when television arrived.

Two basic rationales were offered for letting the government dictate content. The first was that since the airwaves were scarce public property, the "public" had a right to control their use. The second was that because radio and TV came into your house uninvited and frequently reached children, they presented a unique danger that only federal regulation could guard against.

Neither one ever made much sense. A newspaper operating in a space rented from the government wouldn't lose its First Amendment rights. Anyone who didn't want their kids exposed to offensive TV shows could either turn off the set or not buy one in the first place.

But the excuses are especially preposterous today, when some 85 percent of households get their broadcast channels through cable or satellite systems that also offer hundreds of other viewing options. The rise of satellite radio further undermines the theory. Today, the different treatment makes about as much sense as saying that odd-numbered stations may air indecency but even-numbered ones may not. Even the Supreme Court has given hints it might not uphold the old approach. There is no reason it should. Providers should be able to offer whatever they choose, and consumers should be free to accept it or reject it.

If you don't like James Joyce, don't buy his books. If you don't want to see raunchy dancing or juvenile commercials on the Super Bowl telecast, you can change channels. But the NFL and the networks that air the game want to hold on to the maximum audience, which means they will undoubtedly clean things up - keeping the sex quotient high enough but not too high.

Freedom includes the freedom to be offensive, but in other media, we'd much rather make our own choices than let the government choose for us. The only TV Michael Powell should have the power to regulate is the one in his living room.

Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.

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