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First Amendment Violated by Fines on Indecent Broadcast

Column by Matt Neimark
Staff Reporter

Throughout the history of this country, there has been an effort on the part of our government to "protect" us from indecent and obscene entertainment. In fact, until the 1960s, movies were edited by censoring boards to remove indecent material. This was of course struck down as being unconstitutional.

Now, government has a much more subtle way of censoring broadcasted entertainment. Any radio or television station that broadcasts material which the Federal Communications Commission deems indecent or obscene is subject to severe fines. The Supreme Court has defined what is "obscene," but the rules for what is "indecent" are not defined with such clarity. Obscene material is banned even in printed media. It is supposedly not protected by the First Amendment. In fact, there are three rules, or guidelines, determined by the Supreme Court which separate what is obscene and what is not. On the other hand, it is up to the discretion of the FCC to determine what is or is not "indecent."

One of the arguments for the FCC's authority to fine for indecent material is that there is a limited amount of bandwidth to broadcast on and that prospective radio stations must compete among themselves to legally broadcast at certain frequencies and wattage levels. The FCC must also regulate the airwaves so that transmitters do not take too much bandwidth or broadcast at powers which would drown out other radio stations.

This is where the jurisdiction of the FCC should end. Content of the broadcasted material should not be regulated. Since the Supreme Court has determined obscene material to be beyond the limit of what is protected by the First Amendment, the FCC has no right to first decide what "indecent" actually means and then prohibit it from the airwaves. Such restrictions clearly infringe on the guarantee of free speech.

One may reason that the public owns the airwaves so the government should be allowed to regulate them. But I believe this argument is flawed. There has been no public referendum on what the public wants and does not want to hear. Therefore the Jeffersonian marketplace of ideas and the laissez-faire approach should be used to regulate what is heard on the airwaves. Companies, like Nielson and Arbitron, make estimates about how many people in the country listen to what radio shows. Clearly, if people find certain shows to be distasteful or disgusting, they will not listen to the shows, ratings will plummet and the show will be canceled by producers and broadcasters.

Some argue that they do not like the idea of children listening to or watching such shows. I believe that such parents should attempt to exert greater authority over their own children and attempt to find ways of their own to prohibit their children from listening or watching.

The FCC-imposed fines have the same effect as censorship. Although this is not censorship because it is not against the law for radio stations to broadcast indecent material and such broadcasters have no fears of criminal prosecution, it has the same malicious effect. In this day and age, economic considerations govern the actions of an enterprise like a radio station and heavy fines can cause the enterprise to put pressure on the artist to restrain some of his material. However, such limitations on the material also cause limitations on the material's actual artistic merit. This is of course antithetical to the very principle of free speech.

One problem with the FCC fines is the fact that they not only prohibit the broadcaster from exerting his creativity, but they infringe on the viewer's or listener's rights to enjoy such broadcasting. Do we really need any protection from shocking or "harmful" language? The only protection we need from such terrible broadcasting is a swift change of the dial or remote control.

The great majority of people in this country would probably rather have the power to choose between various alternatives in the broadcasting media than have the government select what they can and cannot see. The forces supporting and pushing for such fines are small in number, dogmatic in their beliefs, and perhaps religiously motivated. They would most likely support actual censorship of much material present in not just broadcasting, but also the printed media.

Our government should follow in the footsteps of our European neighbors and quit its policy of regulating the broadcasting media. It is an antiquated idea which has absolutely no place in today's society because it not only violates the principle of free speech but it also imposes on the public's right to choose what it wants to watch.