Probono

Repressive?

Congress Considers New Frontiers In Censorship

By: Mark Kernes

HOLLYWOOD -
It used to be that when the entertainment industry cut its own throat, it took a few months for the Washington political wolves, their noses ever in the air, to catch the scent and rally to lap up the blood.

So when National Association of Broadcasters (NAB) President and CEO Eddie Fritts asked, at the NAB's convention in April, "[I]f Congress decides to regulate broadcasters for indecency, does it make any sense for cable, satellite TV [and] satellite radio to get a free pass?", the Forces of Decency? understood the fear behind the question and were ready to press their agenda.

Adult industry people might ask, 'How does this affect me?' Well, aside from cable channels like HBO, Cinemax, Encore, Showtime and The Movie Channel losing most of their late-night movie line-up; aside from productions like the Moonlite Bunnyranch's upcoming series "Cathouse" (which begins showing Thursday) being ditched; aside from softcore series like "Red Shoe Diaries" and "Women: Stories of Passion" being ditched, not much.

Of course, all of those productions featured adult talent in major and minor roles, were often staffed by industry techs and some were produced by adult studios, so it might behoove industry people to pay attention to what's going on in Washington these days...

The latest murmurs in Congress about censoring non-explicit material stretch back more than a year, where a bill to increase the upper limit of Federal Communications Commission (FCC) indecency fines ten-fold ? from $27,500 per incident to $275,000 per "fuck"? just missed passage last year. However, this year's bill to increase the fine to a half-million bucks has already passed the House, though it seems temporarily stalled in the Senate, which, after all, has been busy confirming as many religio-conservative appeals court judges as it can before the Democrats wake up and find their backbones.

And it matters not that the broadcast industry announced in late April that it would "soon issue a voluntary indecency code for stations" that might include a five- to 10-second delay on some broadcasts, including live news feeds, to prevent kids from popping up behind reporters and yelling "Trojans fuckin' rule" for the TV-viewing world to hear. After all, Rep. F. James Sensenbrenner III (R-Wisc.), author of H.R. 1528, the "spy or fry" drug bill, doesn't care about namby-pamby "voluntary" codes; he wants action!

"People who are in flagrant disregard [of indecency regulations] should face a criminal process rather than a regulatory process," Sensenbrenner lectured the NAB executives at their convention.

So even having Tony Vinciquerra, president and CEO of Fox Networks Group, describe his network's airing of a "Married by America" episode which included computer-masked nudity as "not our finest moment in TV" just ain't gonna cut it with neocon pols like Sensenbrenner.

A short digression: Did ya know that there is, among House Republicans, a "Values Action Team" (VAT) headed by Rep. Joe Pitts, one of the speakers at the Victims of Pornography Summit. He gives a report each week that Congress is in session to the Republican Study Committee. VAT members are provided with a free lunch courtesy of the Family Research Council at their weekly "strategy meetings," and their weekly public meetings "now draw over 30 pro-family outside groups."

Among the VAT's members ? no complete list is available ? are Reps. Dan Burton (R-Ind.), Jim DeMint (R-S.C.), Jeff Miller (R-Fla.), Michael C. Burgess (R-Tex.) and John Sullivan (R-Okla.). Some of their touted accomplishments last year were: Passing the late-term abortion ban; securing $25 million for "character education" and $65 million for "abstinence education" in a general appropriations bill; and preventing the government from "discriminating" against Medicare Choice providers who refuse to provide abortion services to their clients.

But it's Senate Republicans who seem to be the main ballcarriers for censorship this year. Consider Sen. Ted Stevens' (R-Ark.) speech at the American Cable Association's annual meeting in mid-May, where he opined that "there?s no question that the prohibitions on the over-the-air broadcasters ought to be met equally by anyone who is providing the services to the American family home."

Stevens went on to say that he'd met with Rep. Joe Barton (R-Tex.), the chairman of the House Subcommittee on Energy and Commerce, "and I think we?re on the same page on some of these things as we move forward this year," and that "the House and the Senate Committees are both committed to work on revisions that will ... bring about more decent programming... The basic aim is a level playing field for everybody involved in communication."

Now, one might question how level the playing field is to begin with for, on the one hand, over-the-air broadcasters whose signals can be picked up by any television with an antenna, and on the other, cable and satellite providers who charge fairly big bucks for feeds that enter a home by coaxial cable through a box that can be shut down at a moment's notice for non-payment of those fees.

But Stevens was on a roll.

"My staff tells me that many of you support the comments I?ve already made to the industry about the necessity for decent family viewing on cable," he told the cable- and satellite-casters. "I do believe that the concepts of must-carry and carrying television programming onto cable has brought about some change, but there?s no question that the prohibitions on the over-the-air broadcasters ought to be met equally by anyone who is providing the services to the American family home, at least that?s my feeling."

"While your digital subscribers could block individual channels or programs," he continued, "the majority of your customers are not able to do that and as you carry them over the air you really have to deal with the question of the moral and religious values of yourself and your viewers. I think Congress is becoming more sensitive to this."

Stevens never got around to explaining what interest Congress has (or should have) in the "moral and religious values" of cable and satellite providers or their customers, but it seems likely that we'll all find out soon enough. According to researcher Adam Thierer, Steven and Barton have been meeting with the new FCC chairman Kevin Martin to figure out a way to "broaden federal broadcast 'indecency' regulations to cover cable and satellite television," Thierer reported in a Washington Post op-ed piece in early June.

"In searching out a legal justification to censor new media outlets," Thierer continued, "policymakers are falling back on the same arguments they have used to regulate broadcast television and radio: They are 'pervasive,' and they are 'intruders' that are 'uniquely accessible' to children at home. These are the catchphrases a slim 5 to 4 majority of the Supreme Court used in FCC v. Pacifica Foundation (1978) to rationalize treating broadcasters like second-class citizens in the eyes of the First Amendment. There are many reasons to doubt Pacifica in today's world, but even under that case there's no logic for new indecency rules for cable and satellite channels."

Martin is certainly the man for the job. In a letter he wrote to L. Brent Bozell III, head of the religio-reactionary Parents Television Council (PTC) in December, 2003, Martin stated, ''Certainly broadcasters and cable operators have significant First Amendment rights, but these rights are not without boundaries. They are limited by law. They also should be limited by good taste.''

But "taste" is subjective, and it's clear that when the head of the FCC, which handed out $7,928,080 in fines last year, agrees with the guy who leads the organization that filed over 99 percent of the indecency complaints the FCC received last year, Martin's idea of "taste" is unlikely to match up well with that of today's cable and satellite operators.

"The FCC has been delinquent in its stewardship of the public airwaves," Bozell said. "This irresponsibility must stop, and with the leadership of chairman Martin, we are confident it will."

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