When Howard Stern is the nation's leading defender of the First Amendment, you know something has gone horribly wrong. But with the FCC seemingly determined to wash his mouth out with soap, it's no wonder the King of All Media has added freedom of speech to his usual repertoire of pan-anal sex patter. During the summer, Stern and Clear Channel slapped each other with multimillion-dollar lawsuits over the $1.8 million in fines the radio empire has racked up on his behalf and its subsequent decision to drop him. At the same time, the Senate voted 99 to 1 to multiply the fines against errant broadcasters tenfold. Now Congress is trying to neuter the likes of Comedy Central and F/X by extending the rules against violence and indecency to cable channels.
Until now, the government's censorship powers have been limited to the airwaves, on the grounds that they alone use spectrum. But with politicians left and right in a mad scramble for "decency," the increasingly flimsy technological rationale that allows the government to intrude on broadcast content is being conveniently forgotten.
The theory dates from the 1920s: The airwaves are a scarce public resource, so Washington must license them and insure that they're used for the public interest. That means no f-bombs, no sphincter talk, and absolutely no nipples at the Super Bowl. When cable and the Internet came along, the Supreme Court held that the government can't regulate their content because scarcity isn't a problem. But how much longer will spectrum scarcity be something to worry about?
With digital broadcasting, the large swaths of spectrum required to carry a single analog channel can now handle five or more (or two in high-definition). Smart radio devices expand the available spectrum even more by enabling different users to share bandwidth. Spread-spectrum technology, for example, splits transmissions and sends them out over several frequencies. Ultrawideband runs on such low power that it can share the same frequency with other users and not cause interference. Experts are predicting that we're about to see a spectrum explosion, with television benefiting from the equivalent of hundreds of newly available channels.
Ironically, it's the FCC, under Michael Powell, that's bringing spectrum policy into the digital age. This spring, the commission even proposed letting unlicensed smart radio equipment (from wireless ISPs, say) operate in locations where the broadcast spectrum isn't being used by TV stations. This is a radical shift. From its inception in 1934, the FCC has treated spectrum as something to be fenced off and guarded against intruders. Yet the same commission, spurred on by Congress, is leading the campaign to rein in "indecency" on the airwaves.
If spectrum isn't scarce, why set aside the First Amendment as if it were? Politics. In January 2003, when Bono blurted out "Fucking brilliant!" before 20 million viewers while accepting a Golden Globe award, the FCC received fewer than 250 complaints. But Washington knows a crowd-pleaser when it sees one. In its latest annual survey of Americans, the First Amendment Center found that 65 percent thought the government should restrict sexual references on broadcast TV; 55 percent thought it ought to do the same with cable. After an FCC staff ruling that Bono's fleeting remark didn't warrant punishment, Congress rose up as one. Powell promised action. Then Janet Jackson's breast popped out amid the erection pill ads and the farting-horse beer commercial during the Super Bowl. Within weeks, the full commission ruled that Bono's award-show utterance had violated federal indecency standards, which bar profanity from the airwaves.
If any good comes of this, it's that the FCC has so overreached itself that the Supreme Court may stop the whole game. The court last upheld the government's authority to go after indecency perps in 1978, in a decision that cited the scarcity argument as well as the "uniquely pervasive presence" of broadcasting in American life. A quarter-century later, thanks to cable, satellite, and the Internet, broadcasting is hardly unique and not nearly so pervasive - as the commission itself has acknowledged. Of the 107 million American households that get TV, only 12 percent still rely on antennas to pick it up anyway; for everyone else, there's no practical difference between broadcast TV and cable or satellite-only channels.
Powell says he's philosophically opposed to government intrusion in broadcasting. "The notion that the First Amendment changes when you change channels is odd," he declared this summer at the AlwaysOn conference at Stanford, "and I'm troubled that it's more than odd, it's dangerous." Back in Washington, however, he seems all too enthusiastic about enforcing the law. Meanwhile, Congress is taking it even further. In June, the Senate unanimously voted to bar violence from cable and satellite before 10 pm - despite a 1994 Supreme Court ruling that regulation of cable content is unconstitutional. Many on the Hill are equally eager to extend the indecency rules across the dial.
A couple of months ago, Viacom - which aired the Super Bowl on CBS, produced the Janet Jackson halftime special through MTV, carries "The Howard Stern Show" on Infinity, and was expecting more than $2 million in fines - finally fired back. In a case that may well end up before the Supreme Court, Viacom joined Fox, the ACLU, the Recording Industry Association of America, Penn & Teller, and more than a dozen other groups in petitioning the FCC to reconsider its Bono ruling. Robert Corn-Revere, the First Amendment lawyer who's making the case, won a posthumous pardon for the foul-mouthed beat-era comedian Lenny Bruce. Let's hope Bono's still alive when this one is decided.
Contributing editor Frank Rose (rose@wiredmag.com) also writes about WiMax technology in this issue.
credit: Michael Gillette
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F*** the FCC!
The Amazing Adventures of 802.11
Keep Your Laws Off My Technology
