Is This What Net Neutrality Is Really About?

Recent congressional hearings held in the wake of the Federal Communication Commission’s (FCC) net neutrality ruling provide a glimpse into what is so deeply wrong with this regulation, and why so many activist groups were behind it.

It’s an aspect of this matter of which you were perhaps unaware while the FCC was considering its regulatory strategy. Perhaps you thought net neutrality meant what was said of it: that it was intended to prevent the blocking or throttling of websites, or of “paid prioritization.”

Silly you.  Actually, those were the interests of those companies — like Google and Netflix — that saw in governmental sway over the Internet commercial benefits for themselves.  But what about those groups and individuals who had political or ideological interests, and who played such outsized roles in the deal?

You know, groups like Free Press, Media Matters, Public Knowledge and New America’s Open Technology Institute?  Or what about the large grant-giving foundations, like Ford, MacArthur, Knight, and George Soros’s Open Society Institute that, in addition to munificently funding third-party net neutrality activists, directly lobbied the FCC themselves?

It should now be clear, even to those who weren’t paying attention earlier, that the primary interest these groups had, and have, in net neutrality is their desire to insinuate government in the regulation of speech on the Internet.  >> Read More

 

‘Breaking Bad’ Elevated Television

If you’ve been out of the country for the past six years, you have an excuse for being unfamiliar with Breaking Bad, perhaps the best show that’s ever been on television.

The story of Walter White, a humble high school chemistry teacher who, upon learning he has lung cancer, decides to team up with a former student to make methamphetamines, BB portrays the transformation of White from “Mr. Chips into Scarface,” as the show’s creator, Vince Gilligan, describes it.

Fresh off its Emmy award as best drama series, a recognition that was too long in coming, the question now is when will we see another TV series that is as astonishingly good?  And another question: Why is it so hard for truly excellent programming to get air time?

In his book Difficult Men, Brett Martin recounts the lengthy and harrowing path traversed by Gilligan on the way to securing a deal with AMC, one of the several channels that comprise AMC Networks.

Martin tells the tale of Gilligan’s meeting with executives of the TNT cable network, who liked the show but were afraid of the drug-making aspect of it: “We don’t want to be stereotypical philistine executives, but does it have to be meth?  We love this, but if we buy it, we’ll be fired.”

Nor was TNT the only cable network that turned thumbs down on Breaking Bad.  So too did Showtime, HBO, and FX, meaning, as Gilligan put it, “there was no place left in the known universe.”

Elsewhere in his book, Martin usefully recounts the words of the AMC executive (Rob Sorcher) who decided to take a chance on the show: “We had had success with Mad Men,” he said.  “And once you’ve had that cookie it tastes good.  You want another one.  The decision to go another way, believe me, it was … terrifying.  But once you did, once you chose quality over everything else … you could do anything.”

At a time when so much video programming – film as well as TV – is demographically driven, PC themed, and/or scripted for cardboard characters, Breaking Bad is something very different.

Incorporating tremendous writing, directing, acting, and visuals, BB delivered a series that was marked by ambiguity, complexity, surprise, and sophistication.

As many have noted, in recent years the Emmy’s have been dominated by cable rather than broadcast network programming.  Indeed, both pay and basic cable channels have gained a reputation as the place to find smarter, edgier original series like Mad Men, The Sopranos, and of course Breaking Bad (despite the initial drug-themed hesitation about BB).  And this raises the question of why much of the best programming has been gravitating to cable.  

One explanation is that broadcasting is much more heavily regulated.  For this reason, programming that is marked by sexual or violent content carries greater risk for broadcasters than for cable networks.  And the risks involved don’t issue from government only.

A case in point is the Showtime program Dexter, a series that, though critically acclaimed, features both sexual situations and violence.  In 2007, CBS announced that it was considering broadcasting reruns of Dexter over the air.  In response, a conservative group, the Parents Television Council, warned CBS affiliates to preempt the show, and threatened the show’s advertisers.

As it happened, CBS edited the reruns down to a TV-14 rating and aired them on its affiliates, but only for a single season.

None of this is to suggest that violence equals excellence, or that excellence can only be achieved with the inclusion of violence – only that where violence is a necessary ingredient in the excellent telling of a good story, its inclusion ought not to preempt the airing of it.

For years now, many people have bemoaned the “dumbing down” of America, a phenomenon defined by Wikipedia as “the deliberate diminishment of the intellectual level of the content of schooling and education, of literature and cinema, and of news and culture.”

The popular and critical success of Breaking Bad demonstrates that there is both the talent and the audience for something better.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article appeared in the online edition of USA Today on Sept. 29, 2013.

A Court Strangely Conflicted About Indecency

By guest blogger LAURENCE H. WINER, professor of law, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.   

You taught me language, and my profit on’t is I know how to curse.”  – Caliban in The Tempest

Here’s a question the late language maven, William Safire, might have pondered listening to the recent Supreme Court oral argument in the Fox and ABC broadcast indecency cases.   What is truly “indecent” in the normative, Webster’s Third sense of the word as “not conforming to generally accepted standards of morality”:

(a) “crush videos” depicting actual, gruesome torture and killings of animals for purposes of sexual titillation;

(b) violent video games encouraging a player’s virtual infliction of grotesque mayhem on realistic human avatars;

(c) purveyors of vicious hate speech shamelessly exploiting military funerals to garner media attention; or

(d) fleeting, meaningless uses on television of commonly used expletives and the brief showing of a naked human buttocks to dramatize an awkward family setting?

Hint for those challenged since high school by multiple-choice tests: The answer is not (d).  Yet, the same justices who very recently, and most appropriately, have had no trouble deciding that the First Amendment robustly protects each of the first three categories of expression seem strangely conflicted about so-called “indecency” in the broadcast media.  George Carlin must still be laughing.

To be sure, for many years broadcasters have been their own worst enemy.  Before the 1978 Pacifica case, mainstream broadcasters shunned controversy, bowing to advertising dollars and what they assumed their audiences would not accept in adult entertainment programming.  So terrible precedent was set by the repeated “verbal shock treatment” of the Carlin monologue even when broadcast as a serious commentary on societal language taboos.  More recently, rather than forcing the issue in a favorable posture (and, perhaps, preserving their competitive position versus cable and satellite) by routinely presenting in prime time, with appropriate notice of the content, critically acclaimed adult dramas, broadcasters wound up before the Supreme Court defending inane comments of sophomoric “actresses” (that last term being used advisedly).

To be fair, however, such timidity may be understandable by a media industry anomalously denied full First Amendment protection throughout its history and at risk for increasingly large fines from the government agency that holds its license.  The Supreme Court, however, has no comparable excuse for not finally disavowing Pacifica.

In oral argument of the Citizens United case, Chief Justice Roberts noted: “[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  In U.S. v. Stevens, the “crush videos” case, he wrote for eight justices: “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.  We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”  And in Snyder v. Phelps, the military funeral case, his majority opinion eschews reliance on a “highly malleable” regulatory standard with “an inherent subjectiveness about it which would allow … impos[ition of] liability on the basis of … tastes or views, or perhaps on the basis of … dislike of a particular expression” (quoting Hustler Magazine Inc. v. Falwell).  Yet, in support of the FCC’s attempt to avoid a vagueness attack through its generic “context matters” approach to defining indecency – an indefensibly inconsistent approach that Justice Kagan justly summarized as, “nobody can use dirty words or nudity except for Steven Spielberg” – the chief justice made a telling slip of pronoun: “All we [sic] are asking for, what the government is asking for, is a few channels where you can say I’m [sic] not going to – they are not going to hear the S word, the F word.  They are not going to see nudity. “

Justice Scalia’s majority opinion in Brown v. Entertainment Merchants Association, the violent video games case, reaffirms that “disgust is not a valid basis for restricting expression” and warns of the “precise danger … that the ideas expressed by speech – whether it be violence, or gore, or racism – and not its objective effects, may be the real reason for governmental proscription.”  But Justice Scalia was very quick to endorse the “symbolic value” articulated in Justice Kennedy’s question as to whether there is “value, an importance, in having a higher standard or different standard for broadcast media on the television … an important symbol for our society that we aspire to a culture that’s not vulgar in – in a very small segment?”  So, per Justice Scalia, FCC commissioners presumably may not enforce their own tastes and standards regarding violence, or gore, or racism, but anything touching on sex (well, actually, even just profanity or nudity) is forbidden.  What fate now (pace former attorney general John Ashcroft and the “Spirit of Justice”) for the bare buttocks in the marble friezes adorning the Court itself to which Seth Waxman, representing ABC, called Justice Scalia’s surprised attention?

Justice Kennedy’s remark was by way of prodding the government’s position and well may not reflect his own approach toward mandating mere symbolic value.  After all, Justice Kennedy is the staunchest protector of free speech ever to sit on the Court.  And early in his tenure, his respect for the symbolism of the American flag did not keep him from providing a fifth vote in Texas v. Johnson to overturn a conviction for burning the flag as a political protest, despite the justice’s own, expressed distaste for the result, one that his view of the Constitution demanded.

Justice Alito (who dissented in Snyder and Stevens and concurred only in the judgment in Brown), perhaps searching for an easy way out, observed (to the dismay of attorney Carter Phillips and his client FOX) that “broadcast TV is living on borrowed time.”  So, rather than intervening, perhaps the Court should let the indecency issue “die a natural death.”  But such avoidance of a current constitutional problem because the future supposedly will take care of itself is reminiscent of Justice O’Connor’s controversial majority opinion in the 2003 law school affirmative-action case (Grutter v. Bollinger), an approach that it is difficult to imagine Justice Alito joining there.  

Perhaps the most dismaying aspect of the oral argument was the scant, almost non-existent, reference to the First Amendment and the appropriate standard of review, which in any non-broadcasting context would have to be strict scrutiny for a content-based restriction of pure speech.  The government relied, with encouragement from some justices, on the old shibboleth of broadcasters enjoying a special privilege in the free, licensed use of the public airwaves for which they may be made to pay through public interest obligations, including indecency controls.  So 20th century!  And an argument well characterized even then as a mere “trope” lacking serious analytical basis. 

The only specific rationale advanced to justify the continuing, chilling intrusion on broadcasters’ and the public’s First Amendment rights was the desire to maintain a “safe haven” on broadcast television, in addition to other dedicated family channels already available, where concerned parents may leave their children without fear they may encounter what five commissioners later determine was indecent content.  (Ads, however, for erectile dysfunction medication, with warnings about “an erection lasting more than four hours,” apparently are fine, despite the questions they could prompt in young children mystified by this adult condition but not at all phased by hearing other words with which they are fully conversant.)  Even if such a “safe haven” were desirable, the justices favoring the FCC’s position showed little inclination to consider the dubious constitutionality of forcing it upon broadcasters.

Kudos, however, to advocate Phillips who reminded the Court that the FCC was relying on “thousands of ginned-up computer-generated complaints,” and did not hesitate to tell the Court that it should overrule Pacifica (though this is not necessary to rule in favor of the broadcasters).  In the constitutional highlight of the Court’s unenlightened engagement with fundamental free speech issues, Phillips definitively rebutted Roberts’s reliance on carving out a small safe haven within broadcasting because so many other unrestricted channels are available: “[T]he notion that one medium operates in a certain way in the exercise of its First Amendment rights can be used as an explanation for taking away or for restricting the First Amendment rights of another medium is flatly inconsistent with what this Court has said across the board in the First Amendment context.  You don’t balance off one speaker against another and give one favored status and give another unfavored status.”  Amen.

The usual caveat about trying to prognosticate an eventual decision from oral argument naturally applies.  Justices Ginsburg and Kagan were skeptical of the FCC’s position, as Justice Thomas has been previously, and Justice Breyer was searching for his usual noncommittal, middle-of-the-road resolution.  It is doubtful a majority will emerge to overrule Pacifica, but the FCC’s current indecency policy also is unlikely to emerge intact.  Even a 4-4 split (Justice Sotomayor recused herself) would uphold the lower rulings against the Commission.  Pacifica, unfortunately, may not be as dead as the other broad categories of recent speech restrictions, but it may be left in a vegetative state.

                                  

The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.  Prof. Winer is a member of The Media Institute’s First Amendment Advisory Council.

‘Breaking Bad’: An Appreciation

Every once in awhile something happens in medialand that elevates and refreshes, and at least partially reclaims the enormous potential of the industry.  Media coverage of the events of 9/11 is one example, and the minor miracle that is AMC’s series "Breaking Bad" is another.

For the uninitiated, who unfortunately are legion, "Breaking Bad" is the story of Walter White, a high school chemistry teacher who, discovering that he has late-stage lung cancer, embarks on a career as a methamphetamine producer.

As measured by the awards, which already include a Peabody and two Emmys, and by the reviews, "BB" has already established itself as perhaps the best show on television.  The writing, acting, directing, and camera work are achingly good.  Unlike the X-rated products that are consumed by people with the emotional maturity of children, whatever their age, "Breaking Bad" really is adult entertainment.

In this brilliant series human beings are complex, neither all good nor all bad, itself a kind of challenge to a world immersed in the poses and pieties of political correctness.  And then there’s the subtlety of it; the communication, with no more than a look or a word, of a world of meaning. 

But the best is the essential humanity of the production — the notion that, no matter how unequal our circumstances, we are essentially the same, and capable of great understanding and empathy.  How else to explain the poignant and touching relationship between Walter and Jesse, Walt’s wayward former student and now partner in crime?

Because of the way the series ended its second season — and because the producer (Vince Gilligan) has told us so — we know that "BB" will be back for a third year, a fact that virtually guarantees more awards and critical acclaim.  And that’s all to the good.  But there are aspects of this phenomenon that invite some further comment that go not to art but to the lesser realms of politics and commerce.

One such observation is the folly of trying to enforce content standards on TV fare where no account is given to the context in which certain words or pictures are used.  "Breaking Bad" features a number of words, and acts of violence, which by themselves might offend some people.  But where, as here, such things are employed not to titillate but to deepen and extend the reality of the experience, one would think many people might see what a mistake it is to allow any kind of governmental censoring scheme that is blind to such distinctions.

The commercial aspect of this show that rankles a bit is the fact of its distribution by American Movie Classics (AMC), owned by Rainbow Media Holdings, itself a subsidiary of the cable operator, Cablevision Systems.  Which is not to say anything derogatory about AMC.  Far from it, the network, and all involved, should be enormously proud of what they’re delivering.  (Which, by the way, also includes the terrific original series, "Mad Men.")

But why, one wonders, isn’t "Breaking Bad" being shown on one of the bigger cable networks, or indeed on one of the broadcast networks?  Kind of hard to imagine that AMC was the producer’s first choice when, were the show being aired on USA or TNT — not to mention, say, ABC — the audience would likely be orders of magnitude larger.  One assumes it may have something to do with the very qualities that make the show so rewarding —that  it’s seen as too smart or sophisticated for a mass audience. 

If so, that’s a shame, both for the country and for the industry, and something that’s being noted.  As Tim Goodman, TV critic for the San Francisco Chronicle and enthusiastic fan of the series, put it: “It’s like I’ve been freed from the tyranny of network programming.” 

Leave PBS Stations Alone

Since 1985, the Public Broadcasting Service (PBS) has had a policy on the books stating that its member stations must offer a “nonsectarian, nonpolitical, noncommercial educational program service.”

It might be going a bit far to say that PBS has “adhered” to the policy.  Member stations routinely air presidential debates and weekly shows like “Washington in Review” that are nothing if not political.  The “enhanced underwriting credits” for big program funders like Boeing and Lockheed Martin look suspiciously like slick network TV commercials.   

And being British isn’t enough to make shows like “Are You Being Served?” and “As Time Goes By” educational.  Moreover, a handful of smaller stations run sectarian programs that include Catholic Masses and Mormon worship services.

Now, however, the PBS board is considering a revision to its so-called “Three Nons” policy that could force local religious programming off the airwaves of PBS member stations, or force those stations to give up their PBS membership.

A change in policy would likely affect stations like WLAE in New Orleans, which has aired a Sunday Mass since 1984, and Brigham Young University’s KBYU in Provo that carries Mormon worship services.

The proposed policy change is a bad idea.  A PBS committee “believes that if PBS or its Member Stations were perceived by the public to be ‘commercial,’ ‘political,’ or ‘sectarian,’ PBS could be hampered in its ability to carry out its mission.”  

Wait a minute – PBS seems to be carrying out its mission just fine with its members’ current mix of programming that includes all of the above.  

So why single out sectarian programming?  Some might argue that there should be a strict separation of church and state, since PBS member stations receive some funding from the federal government’s Corporation for Public Broadcasting, either directly or through PBS.  

But one need look no further than the FCC, which regulates both noncommercial and commercial broadcasting, to diffuse that argument.  As far back as 1929, the agency (then the Federal Radio Commission) said that broadcast licensees would meet their “public interest” obligations by offering a “well-rounded” mix of programming that included “religion, education and instruction.”  In a 1946 report, the FCC said it expected broadcasters to make free time available to “religious, civic, agricultural, labor, and educational groups.”

The FCC strayed from that policy briefly in 1999, when it issued a ruling that would have banned religious exhortation, proselytizing, and personal expressions of religious belief.  The resulting firestorm was so fierce (including the swift introduction of several bills in Congress) that the FCC deleted the provision a mere month later.

PBS should take its lead from the FCC.  PBS would do well to respect the local character of its member stations, and allow those stations to meet the needs of their audiences without injecting an anti-religion bias.

As it is, public broadcasting in this country is a strange and unlikely amalgam of governmental and private interests, with stations licensed to state and local governments, public and private universities, and even religious groups.  Its fragile equilibrium could easily be disrupted – say, by an untoward policy change.

Changing the “Three Nons” policy as proposed will accomplish nothing positive.  On the contrary, quite likely it will cause a firestorm of its own that might well ignite the now-simmering debate about the very existence of PBS, and whether a broadcasting system that receives even minimal government funding is still a good or necessary idea in this age of media abundance.    

Back to Square One

Two of the Supreme Court’s decisions most awaited by First Amendment advocates this term have landed with a thud.  Or maybe a whimper.  But certainly not with a bang.

On April 28, the Court upheld the FCC’s power to implement a tougher policy against so-called “fleeting expletives” on live television.  This was the Second Circuit’s case involving profanities uttered by Nicole Richie and Cher during music-awards shows in 2002 and 2003.

The other shoe dropped today when the High Court considered the Third Circuit’s case involving Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show.  The Supreme Court told the appeals court to consider reinstating the FCC’s $550,000 fine against CBS.  

In both cases the High Court skirted the constitutional question of whether the FCC’s content controls run afoul of the First Amendment.  Last week’s profanity decision, for instance, was decided on procedural grounds (upholding the FCC’s right to change its indecency policy) and only then by a slim 5-to-4 vote.

In both cases too, the courts of appeal had sided with the networks and against the FCC.  The First Amendment question will now most likely be addressed specifically at that appellate level and, one hopes, make its way back to the High Court for a definitive ruling.  

We know that the Supreme Court avoids reaching constitutional questions when a case can be decided on other grounds.  That’s exactly what happened here, so it shouldn’t come as a surprise.  But it’s still a disappointment.

On a bright note, however, Justice Clarence Thomas said in a dissent that he thinks it’s about time to reconsider the two cases at the heart of broadcast regulation: Red Lion, which creates a lower standard of First Amendment protection for broadcasters; and Pacifica, which turns on the FCC’s authority to regulate “indecent” broadcast fare.

The openness of Justice Thomas is both refreshing and hopeful.  But, with the First Amendment question presently back at the appellate level, it will be a long time (if ever) before the Supreme Court tackles the underlying premises of Red Lion and Pacifica.  And with a new, and as-yet-unnamed justice thrown into the mix following the retirement of Justice Souter, all bets could be off.
 

Hate Speech and the First Amendment

“If you bring up the First Amendment, you’re a racist.”  In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.     

The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media.  The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.

Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech.  Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.   

The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”  

Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent.  Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.

However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.   

Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”  

There are some narrow exceptions, like speech that incites immediate violence.  That seems to be the slim reed on which NHMC tries to build its case.  The petitioners say that there has been an increase in hate speech in the media.  Then they say that there has been an increase in the number of violent hate crimes against Hispanics.  By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.  

But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.”  Even a 1993 report by NTIA, which the NHMC petition quotes liberally,  “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”

So what’s going on here?  NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship.  Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.

But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings.  And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio … who needs a Fairness Doctrine?

This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness.  Speech isn’t always pretty, or pleasing, or even palatable.  That’s why we have a First Amendment.

Shadow Debate

By guest blogger ROBERT CORN-REVERE, partner, Davis Wright Tremaine LLC, Washington, D.C.

During the presidential campaign, and particularly since the election, conservative talk radio and the blogosphere have been abuzz with rumors that the Democratic agenda would include reviving the Fairness Doctrine.  Prominent media activists have labeled such claims as fantasy and asserted they have no interest in reviving the policy, which required broadcast licensees to air “controversial issues of public importance” and to do so in a “balanced” way.
    
That debate has now been joined in Washington by actual experts in communications law.  FCC Commissioner Robert M. McDowell, speaking at a Media Institute luncheon on Jan. 28, warned that there may be efforts to bring back the principles underlying the Fairness Doctrine, albeit in some modified form that may extend beyond the broadcasting medium.  In response, my friend Henry Geller, the venerable former FCC general counsel, criticized Commissioner McDowell’s views about the Doctrine and the concept of spectrum scarcity, and suggested instead that other new regulatory approaches may be appropriate.  

In a commentary written for Broadcasting & Cable, Henry acknowledged that “with the growth of cable, satellite, wireless, and, above all, the Internet, it is most unlikely that the fairness doctrine will return as a matter of general policy.”  But he also outlined other possible approaches, such as a spectrum fee to support meritorious programming, and suggested that the overriding issue is “the appropriate regulatory scheme for broadcasting in the 21st Century … not this skirmish over the unlikely re-appearance of the fairness doctrine.”
    
This looks like a debate in which both sides agree on two fundamental premises: (1) that the Fairness Doctrine is not likely to be resurrected, at least not in the form that existed before 1987; and (2) the real issue going forward is what type of regulatory model should be applied to broadcasting and other electronic media.  

Commissioner McDowell identified and critiqued various ways in which the government may assert its authority over broadcasting and other electronic media (including the Internet), while Henry Geller highlighted ways in which the “public trustee obligation” might be “clarified and made more effective.”  In short, they agree on the central issue, but simply offer quite different perspectives on the desirability of enforcing “public trustee” requirements.  
    
This overriding question about the proper regulatory approach is not confronting us because a new administration has come to Washington.  The Republican FCC under Chairman Kevin Martin launched an unprecedented number of regulatory initiatives designed to bolster and perpetuate government control over broadcast content and to extend such policies to other media. 

These efforts included a single-minded campaign to restrict broadcast indecency and Chairman Martin’s overzealous efforts to require a-la-carte marketing of cable and satellite programming.  They also included the regulation of video news releases – on cable as well as broadcasting – and proposed new rules to restrict product placement.  
    
One of Chairman Martin’s most ambitious initiatives, the so-called “enhanced disclosure form” which requires detailed quarterly reports on broadcast news and public affairs programming, and his proposed “localism” guidelines, to be overseen by mandatory local “advisory committees” and enforced by licensing review, would give the government far greater control over private editorial judgment than ever existed under the Fairness Doctrine.  In fact, forget the Fairness Doctrine.  “Localism” is the new “fairness.”  
    
The common element in all of these initiatives is the assumption that the government should oversee broadcasters’ (and perhaps others’) editorial choices – a philosophy that is antithetical to traditional First Amendment principles.  The real question, then, is whether the FCC can continue to maintain the legal fiction, eroded by time, technology, and case law, that the media it regulates are not entitled to full Constitutional protection.

Kevin Martin, and the Peril of Fixed Ideas

Like the man who appointed him to the position, today marks FCC Chairman Kevin Martin’s last day on the job. That both he and President Bush are leaving office to the relief of most, and the glee of many, is partly explained by a trait they share: Both have an unfortunate capacity to project their personal views ahead, and at the expense, of sound public policy.

In Bush’s case the most obvious example is the Iraqi adventure; in Martin’s it has been his pursuit of content controls on TV programming. This is not to say there weren’t other things on their agenda—some of which even went right—just that it is these issues for which they will be  remembered most critically.

Looking back on it, two events bookend The Media Institute’s relationship with Kevin Martin. The first was a speech he gave at our annual awards banquet in October of 2003, at a time when he was but a Commissioner at the FCC; the second was a private meeting I had with him in May of 2005, not long after he became Chairman.

With the benefit of hindsight, one can see in Martin’s banquet speech an outline of  where his personal views might later take him. Indeed, I knew even before the speech that he had a strong aversion to indecent programming. But even so I assumed that his clear understanding of the benefits of free speech (much of which he attested to in his remarks), and his knowledge of the constitutional limitations, would overcome his personal views.

To be fair, Martin would deny, and indeed has denied, that his pursuit of indecent TV programming was anything more than an obligation on his part; that Congress has passed laws and he was simply enforcing them.

That argument, though, puts me in mind of a tale concerning the former British Prime Minister, Harold Wilson. Seems that, so the story goes, Wilson went round to Buckingham Palace following his Labour Party’s defeat in 1970, there to tender his resignation to the Queen, only to find that she had gone for the day to the races at Ascot. This was said by many to be very odd because the Queen was known to be a lady who always put duty before pleasure. Perhaps though, said one, the Queen saw Ascot as her duty and Wilson’s resignation as her pleasure.

However he saw his duties, Kevin Martin’s crackdown on TV content was definitely his pleasure.

In November of 2004, The Media Institute published an essay written by Arizona State University professor Laurence Winer. Titled “Soul of the Censor: The FCC Attacks Television Violence,” the essay was a brilliant, if provocative, explication of the constitutional infirmities, and other problems, with the FCC’s crackdown on violent and indecent TV programming.

Six months later, and with growing concern about the direction in which he seemed headed, I wandered over to the FCC for a meeting with Martin, who just two months earlier had been named Chairman. My hope for the meeting was that I might be able to persuade him to make a course correction re “fleeting expletives,” and all the rest of it, on the argument that the Commission was putting the cart before the horse; that, as Professor Winer had observed, not only was there no evidence in the record of harm from exposure to indecent TV, the nature of the alleged harm itself wasn’t even explained.

Martin was having none of it, though, and showed a particular displeasure with Winer’s essay. And so, though I didn’t realize it at the time, what had been a collegial relationship with him, and with Michael Powell before him, turned adversarial. Thereafter, he rarely attended Media Institute functions, and largely stopped communicating with us.

But he didn’t stop, or even slow down, his campaign to “clean up” the airwaves. Instead, he turned his attention to cable TV, and to his “a la carte” proposal for cable pricing, a mission that, given its length and depth, took on almost comical proportions, with some observers likening it to Ahab’s pursuit of Moby Dick.

Martin argued that the motive behind his a la carte advocacy was to give consumers a break in the rising cost of cable TV service, but virtually nobody was buying it. Instead, it looked to most people as just another attempt to supplant ‘indecent” with “family friendly” programming. As Fortune’s Mark Gunther put it, “So what’s going on here? Politics, as usual.”

In the end, the great irony in Martin’s a la carte campaign–and indeed in all of his efforts to combat what he deems offensive or harmful TV programming–is that owing to the Internet and its effects, the marketplace by itself is moving toward program disaggregation and greater consumer choice, a development one might think a Republican appointee would have expected and preferred to government controls.
 

Obama and the Media, Part I

Writing in Broadcasting & Cable as chairman of the American Business Leadership Institute, the gifted Adonis Hoffman*       suggests that business has nothing to fear from an Obama Administration. 

Some early tests of Hoffman’s thesis will come in that corner of the nation’s economy that we care about most — the media and communications sector.  Three distinct issues come immediately to mind: consolidation, content regulation, and net neutrality.

Unless you’ve been in a coma, or trapped inside Free Press (which is pretty much the same thing), you’re aware of the pit into which much of the print and broadcast media are falling.  You also know that the proximate cause of their problems is the Internet, and the damage it has done to publishers’ and broadcasters’ business plans.

For all of this, you’re also aware of one other thing: that however much professional journalists and entertainers may disappoint, they are an essential part of any well-functioning democracy.

So given all of this, why would anyone want to deny broadcasters and publishers such business opportunities as may obtain these days through consolidation?  It’s not, after all, as though we’re talking about marrying companies that are triumphant and unstoppable.  Just the opposite.  In many smaller communities especially, we‘re talking about companies that are on the cusp of oblivion.  And while it’s hard to make the case that inter- or intra-industry consolidation comprises a solution to the crisis facing broadcasters and publishers, neither is it easy to make the argument that it wouldn’t help on the margins.

In a recent interview, Kevin Martin, whose chairmanship of the FCC has been indelibly marked by his passion for content controls, is said to have made “no apologies for his indecency enforcement, saying it was for the sake of children.  He adds that food marketing and media violence are two other places he thinks the government may need to step in….”

And so much for anything and everything to do with personal responsibility, the First Amendment, and the quaint idea that the people who own businesses are in the best position to know how to run them.

Depending on how Obama and his appointees come down on this issue, future programming decisions may well be made not by people whose primary interest is in creativity or profits, but in politics — thereby opening the door to every special interest and single-issue fanatic with designs on TV, and through it, on you.

(Next in "Obama and the Media, Part II": Net neutrality.)
*Adonis Hoffman is a member of The Media Institute’s First Amendment Advisory Council.

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