Should Free Speech Over the Airwaves Be Absolute?

As I mentioned the other day in response to an article by Reason’s Jesse Walker, I think it’s right and appropriate that we have broadcast content rules, and believe it’s the FCC’s job to develop and enforce them.

Jesse’s key philosophical statement is this:

Now as far as I’m concerned all this is an open-and-shut issue of free speech, disturbing not just because it puts a Washington agency in charge of what you’re allowed to say and show on radio and television but because it has an obvious chilling effect on material that isn’t nearly as pathetic as Bubba the Love Sponge’s sophomoric jokes or Justin Timberlake’s dance routines.

….And so we’re stuck with an FCC increasingly obsessed with controlling who can use the airwaves and what they’re allowed to say. If that sounds unobjectionable to you, just wait until it’s your ox that’s getting gored.

My philosophy on the matter is basically:

very specific rules about what can be said and done when, would clarify this. Radio is different from TV, and there should be wide variation on what is permissible depending upon the time of day and the basic nature of the programming: no one expects NYPD Blue to be Sesame Street, but set the rules and penalties sufficient to ensure maximum compliance so that the public does not feel violated. That’s the issue here, and there is no one else to protect the public from said violation than the FCC. Walker’s Libertarianism does him a disservice here.

To which he replied by email:

it’s not my libertarianism that’s serving me poorly here: I was opposed to indecency regs even when I was a junior high school liberal. But you don’t explain just *why* you think there should be a public-airwaves exception to the First Amendment. Bubba the Love Sponge is a cultural low point, but how does it hurt anyone (except that pig he killed) to let him do his schtick behind a microphone? (And aren’t kids supposed to be in school at 10:30 anyway?)

I’d love for there to be more alternatives to witless shock jocks, but I’m not interested in driving them off the airwaves. And even if I were, I don’t think it would do much good. They’re a product of the culture, not a cause of it.

We have a clear philosophical difference here. Walker believes the First Amendment should be absolute, even as applied to the public airwaves. I disagree: the First Amendment is never absolute anyway, given its broadest reading as applied to political speech and religious expression, but there are all kinds of restrictions on speech depending upon the arena, intent, and nature of the speech. Most school kids know that yelling “fire” in a crowded theater – the cliche case – is not protected speech: the dangers outweigh the right in this and many other similar cases.

The airwaves are a special case for several reasons: 1) they are finite and limited. The campaign to greatly open up the electromagnetic spectrum to “public licensing that acknowledges emergent and non-interfering technologies” notwithstanding, there are a limited number of “spots” available on the spectrum, and those spots should best serve the needs of the general public.

Within those needs is the right to not be driven away from radio altogether due to violations of norms listeners have for themselves and their children. Why? In times of emergency, bad weather, natural disaster – especially in smaller communities – radio may be the only source of critical information, in particular for those outside their homes, and the public good is not served if a substantial portion of the population refuse to listen to radio due to its offensiveness. Hence the justification for SOME kind of normative content rules.

The key to making this work for everyone is to give the public and broadcasters unambiguous rules about what can be done and said when on radio and broadcast television – the modes where the spectrum is limited and controlled in the public interest by the government – so that the public can watch and listen with the confidence that their standards (in the broadest community sense) will not be violated.

This sense of violation is behind the public outrage over the Janet Jackson affair and Bubba the Love Sponge’s vulgar inanity, and why free speech regarding the public airwaves should not be absolute, and who other than the public, in the form of the FCC, to establish and enforce these rules?

The other source of current outrage is that the public feels appropriate rules ARE in place, but that the FCC has been very hesitant to enforce them (last year “240,000 complaints filed with the FCC about 375 programs, only three citations that might result in fines were issued“) and that the penalties for violations aren’t sufficiently severe to concern broadcasters (“Rep. Fred Upton, R-Mich., chairman of the House telecommunications subcommittee, has introduced a bill proposing that FCC fines be raised from $27,500 to $275,000 per incident.

Other possibilities informally discussed at the hearings:
1. Institute a “three strikes” rule: Three violations and a station would be off the air.
2. Spread fines around beyond the current local affiliate stations – add fines for the artists, for example, or for the networks, and tie the amount of the penalties directly into ad revenue.”)

Lastly, Jesse’s final statement, that “witless shock jocks” are a “product of the culture, not a cause of it” – I don’t entirely agree. The direction of culture is not one-way in either direction: the media both reflects and helps create the culture, and enforcing parameters on the media – in particular the broadcast media – absolutely has an affect on the culture by influencing what is considered permissible in public discourse. Even if that influence is only subconscious it is nonetheless very real.