FCC proposes harsh penalties for "fleeting expletives"

            The FCC has recently begun cracking down on television stations for what they call “fleeting expletives”, or indecent language that escapes censorship or occurs on live unscripted broadcasts. The FCC has come across a number of cases in which to exercise their power, beginning with the 2002 Billboard Music Awards, in which singer Cher said “People have been telling me I’m on the way out every year, right? So fuck ‘em.” (5). A year later, while presenting at the Billboard Music Awards, Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." (2). And in January of 2008, the FCC proposed a $1.43 million fine against the ABC for a February 2003 episode of "NYPD Blue” in which the side and back of a naked woman were briefly shown while getting into a shower. (4). Many ABC affiliates across the country were also fined for airing the show, but some were not because they were broadcasted after 10pm, not violating the 6am to 10pm time period when nudity and language are heavily watched by the FCC (4). The FCC is hoping to continue punishing television stations for airing vulgar language and indecency, even if it only occurs once and does not describe a specific act of sex (3). However, contrary to what the FCC argues, I believe that television stations should not be responsible for “fleeting expletives” that slip through live unscripted broadcasts; this is an example of excessive censorship, penalizing television stations for conduct that they are not responsible for.

The specific United States Code (1464) that the FCC uses to enforce its discretion over television companies states that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both." The FCC has added that "Indecent speech is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Such indecent speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience." (5). The FCC, responsible for content broadcasted throughout the television medium, clearly has a viable reason to go to great lengths to protect youthful audiences. FCC commissioner Deborah Taylor Tate stated that "Our action today should serve as a reminder to all broadcasters that Congress and American families continue to be concerned about protecting children from harmful material and that the FCC will enforce the laws of the land vigilantly.” (4). But one has to wonder, does this reason really allow them to blame television stations for the unexpected ignorant behavior of some celebrities?

While the FCC has a rightful concern for what is broadcasted to families with young children, I feel that shows containing live footage, or footage in which a second of indecency slips through the censors, should not be penalized. While yes, Nicole Richie’s choice of words at the Billboard Music Awards was unfortunate, a television station broadcasting the live feed from an awards show should not be responsible for the negligence of a celebrity. According to the Communications Act, the FCC can regulate the broadcast medium, yet it is not allowed it to engage in censorship. (5). Imposing such as sanction as this, to me, is clearly engaging in censorship. ABC defended its program by saying that "ABC feels strongly that the FCC's finding is inconsistent with prior precedent from the Commission, the indecency statute, and the First Amendment, and we intend to oppose the proposed fine," the network said in a prepared statement.” (4).

In the Supreme Court case FCC vs. Pacifica Foundation, Justice John Paul Stevens defined “indecent speech” as “any depiction or description of ‘sexual or excretory activities or organs’ in a manner that is deemed ‘patently offensive as measured by contemporary community standards for the broadcast medium’." Stevens focused on protecting “dirty” speech from young children (3). While the Pacifica case set guidelines as to when certain programs could be broadcasted (indecent speech could be broadcasted after a certain time at night when children were not likely to be watching, where as obscene speech was never broadcasted), I feel that this does not apply in this case. The FCC is trying to limit indecency during a live showing, at a time in which television stations have little discretion over what is said during the broadcast. Senator Patrick Leahy (D-VT), claimed that the FCC’s “fleeting expletives” no-tolerance policy was a  "rigid and unyielding application of so-called indecency ruled." He continued that the media should be "bringing vibrant and interesting voices and views into our homes," not worrying that "an inadvertent slip is going to land them in trouble with regulators." (1). I agree with Senator Leahy that the media is an outlet in which American citizens gain access to knowledge of the world around them, and any sort of censorship of it really is an infringement on everyone’s rights. But essentially, the FCC is infringing upon the rights of television channels because of the amount of censorship that this sort of discretion entails. Yes, I believe that children should be protected from indecent and/or obscene speech on television; but speech not anticipated within live programming is not the fault of television companies, and thus, should not be punishable.

(1) “News Corp. Defends High Court's Indecency Challenge”, Oct 22, 2008, Jeffrey Yorke, Radio and Records

http://www.mediaweek.com/mw/content_display/news/media-agencies-research/e3if5f4f8d2ae5cf7f05e100a064aca89bc

(2) “THE F-WORD VS. THE STRIPPER POLE”, Michael Smerconish, June 7, 2007

http://www.mastalk.com/daily_news2/06_07_07.htm

(3) “High court to review penalties for TV expletives”, Bill Mears, CNN Washington Bureau

http://www.cnn.com/2008/US/03/17/fcc.expletives/index.html

(4) FCC Fines ABC for Indecency, Wall Street Journal

http://www.godlikeproductions.com/news/Breaking_News/12546-FCC_Fines_ABC_For_Indecency

(5) “FCC's ban on 'fleeting expletives' ruled unconstitutional: TV's over-zealous profanity police rebuked by court”, By OUT-LAW.COM, Posted in Law, 11th June 2007 09:23 GMT

http://www.theregister.co.uk/2007/06/11/fcc_profanity_ruling/

 

 

National Security Agency infringing on free speech/privacy rights?

            The National Security Agency (NSA) has recently been discovered to have listened to many non-terrorist affiliated Americans’ conversations in the “Green Zone” of Iraq. An act passed by the Bush administration, the Protect America Act (PAA) of 2007 sought to protect the security of American citizens by running a “program limited to those who are known al-Qaeda terrorists and their affiliates,” according to President Bush (2). However, what began as a project for national security has turned into a mass invasion of privacy, according to former workers for the NSA. Clearly, the NSA has been monitoring speakers’ rights too closely along a private medium that they have no warrant to search. The PAA demonstrates a level of high neoliberal protection of what the public is exposed to in an effort to “protect” them; but in reality, it is what could lead to further suppression of their free-speech rights.

            The NSA was created by executive order from President Bush shortly after the 9/11 attacks to monitor the content of certain phone calls of al-Qaeda suspects or affiliates, even if the receiver is in the US (4). While created to preserve national security, many people, including former employees of the NSA, have argued that the scope of the program is too broad, thus, infringing upon the rights of non-terrorist affiliated Americans.  Adrienne Kinne, an Army Reserves Arab linguist, previously worked for NSA and claims that the content of the calls was “personal, private things with Americans who were not in any way, shape, or form associated with anything to do with terrorism.” Kinne continued that that they were “personal calls that no one else should have been listening to.” (2).

            The Foreign Intelligence Surveillance Act (FISA), enacted by Congress in 1978, involved surveillance of foreign intelligence information, however, placed limits upon when such surveillance could be used. The act states that "’Foreign intelligence information’ is defined as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage, or international terrorism.” (4). FISA defines a “foreign power” as “a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government.” (4). However, FISA says that the government must obtain a warrant up to 72 hours prior to the surveillance, provided that there is a “probable cause to believe that… the target of the electronic surveillance is a foreign power or an agent of a foreign power.” (4). The Bush administration extended the surveillance power of the government in 2007 by enacting the PAA, thus eliminating the requirement of obtaining a warrant before beginning surveillance (4). Government officials have relied on the defense of “minimization”; thus saying that citizens’ rights will be affected minimally by the surveillance. However, according to an argument presented by the Center for Democracy and Technology, “the “minimization” rules that would be applicable to the PAA permits the government to retain, analyze, and disseminate to other agencies the communications of people inside the US, including US citizens.” (3).

            Employees from the NSA, such as Kinne, knew what they were doing was wrong, however, continued because it was their job; it was what they were told to do. According to Kinne’s interview with ABC, “collection of phone conversations US soldiers and aid workers in Iraq had with their families in the US continued even after NSA analysts knew that the telephone numbers on which they were eavesdropping belonged to Americans who had no ties to terrorism.” (1). Yet, Bush administration officials such as Michael Hayden, head of the CIA, contend that the program is “narrowly focused and drilled on protecting the nation from al-Qaeda and organizations affiliated.” (2). And eventually, as Kinne later pointed out in her ABC interview, the meaningless “eavesdropping” that happens at the NSA takes away from the true reason that the agency was established in the first place. “It’s harder to find the piece of information that might be actually useful; this is actually hurting our ability to effectively protect our national security.” (2). The legislation of the PAA act as well as the NSA are too vague; the government has too much discretion over what is listened to. If the government were allowed this much power when eavesdropping on private speech, imagine what implications this could have on free speech, over a public or private medium. The burden would be on the speakers to defend what they say if it falls into the government’s “terrorism category”. And for that matter, where would the category end? Where would government discretion end, if almost anything and everything said over any medium was under surveillance as possible terrorist speech? I disagree strongly that this is what the founding fathers had in mind when writing the “freedom of speech” part of the first amendment.

Essentially, the government is taking an ultra-neoliberal stance in allowing itself such power over the privacy of a telephone conversation to protect the public’s security. The PAA goes along with the neoliberal belief in active government; thus, if the government isn’t involved, neoliberals argue that citizens’ freedom is being violated. While yes, obviously the public’s freedom could be violated by a terrorist attack, I believe that giving the government the ability to listen in on any phone conversation without a warrant is going a bit far. There must be other means of detecting terrorism that do not involve a power-hungry government.

 

Footnotes:

1) Center for Democracy and Technology, October 9, 2008

http://www.cdt.org/

2) “Exclusive: Inside Account of US Eavesdropping on Americans”, By Brian Ross, Vic Walter, and Anna Schecter, October 9, 2008

http://abcnews.go.com/Blotter/story?id=5987804&page=1

3) Center for Democracy and Technology; “Minimization Cannot Be Relied Upon to Protect the Rights of Americans under a Warrantless Surveillance Program”, September 17, 2007

http://www.cdt.org/security/20070917mimization-memo.pdf

4) “NSA Warrentless Surveillance Controversy” Wikipedia

http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy

 

FCC proposes "must-carry" requirements for TV stations

In an effort to transfer all television stations from analog to high-definition digital cable in February 2009, the FCC has made “must-carry” rules for TV stations. Recently, the Community Broadcasters Association (CBA), advocating rights for Class-A TV stations, has filed suit against the FCC, claiming that the dual must-carry rule was “a violation of the First Amendment” (2). Class-A TV stations are smaller, low-power stations that are required, by law, to carry at least three hours of local programming each week; most of these stations are designed to serve minority and rural audiences (1). With these case filings, the CBA has expressed concerns over how the required local programming will affect smaller Class-A stations’ survival in larger cable networks through the switch from analog to digital cable in 2009. Cable associations have claimed that they already carry some Class-A stations, but the CBA says otherwise (1).  According to the terms of the FCC’S “must-carry” rules, a low-power station is “considered ‘qualified’ if: (1) it broadcasts at least the minimum number of hours required pursuant to 47 C.F.R. Part 73; (2) it adheres to Commission requirements regarding non-entertainment programming and employment practices, and the Commission determines that the programming of the LPTV station addresses local news and informational needs that are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station’s community of license” (3). However, I believe that the rights of these smaller stations have not been infringed upon because of the lack of spectrum scarcity that exists in television broadcasting as well as the government’s interest in delivering information to users of both analog and digital mediums until the 2009 shift.

            Many argue that the problem with enacting such laws for lower-power stations is that they may become less of a priority because of their narrowly local focus. “The requirement, which does not include an exemption for even the smallest operators in terms of MHz or subscribers, will force hundreds of operators to either drop channels their customers want to watch or prevent the addition of new channels, in order to carry duplicates of channels they already offer, all while costing each operator tens of thousands of dollars in equipment upgrades” said Matthew M. Polka, American Cable Association president (2).

            However, I find it very difficult to imagine that customers will get massive amounts of programming cut just because of the existence of duplicate channels; the duplicates will only be the few larger-scale channels that everyone watches. In the opinion delivered by Justice Kennedy in Turner Broadcasting System Inc. v. FCC, the court found that previous similar FCC mandates given to Class-A stations were indeed not an infringement on First Amendment rights. “The less rigorous standard of scrutiny now reserved for broadcast regulation should not be extended to cable regulation, since the rationale for such review--the dual problems of spectrum scarcity and signal interference--does not apply in the context of cable” (4). Regulations that apply to broadcasting methods such as radio, where there are only so many channels in which to broadcast information (the issue of spectrum scarcity), do not apply to as broad a medium as cable television. Thus, although the shift from analog to digital cable may require the existence of duplicate channels broadcasting the same material, there is no specific evidence as to how these “duplicates” will take the place of the Class-A stations within such a broad medium. Justice Kennedy continued in Turner that “Viewed in the abstract, each of the governmental interests asserted--preserving the benefits of free, over the air local broadcast stations, promoting the widespread dissemination of information from a multiplicity of sources, and promoting fair competition in the market for television programming--is important” (4). The purpose of the switch from analog to high digital does not violate any of the “governmental interests” mentioned in the Turner case; this switch does not inhibit the delivery of free information to viewers, but rather, enhances it by offering it on both analog and digital mediums. Similarly, the FCC is in no way violating the free-market of television programming by allowing certain major channels to be broadcasted multiple times, but rather, is trying to relate information that is most relevant to a maximum amount of viewers. The FCC is in no way infringing upon the rights of smaller local stations; the switch from analog to digital is inevitable, thus, the preferential broadcasting of major stations is directly related to the government’s interest in allowing a free-flowing medium of information.

 

Footnotes:

(1) "FCC exempts small cable operators from HD must-carry rule" by Matthew Lasar Published: September 05, 2008 - 07:15AM

http://arstechnica.com/news.ars/post/20080905-fcc-exempts-small-cable-operators-from-hd-must-carry-rule.html

(2) “Cable’s dying, the FCC’s killing it” by Jason Lee Miller. Published 02/07/2008 - 1:06PM

http://www.webpronews.com/topnews/2008/02/07/cables-dying-the-fccs-killing-it

(3) “Cable carriage of digital TV signals summary of FCC rules adopted January 18, 2001”

http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-06-1080A1.doc

(4)  Cornell Law School Legal Information Institute; Turner Broadcasting System, Inc.. v. F.C.C. (93-44), 512 U.S. 622 (1994)

http://www.law.cornell.edu/supct/html/93-44.ZS.html

 

San Francisco Pharmacy Cigarette Ban2

(sorry I'm having technical difficulties)

            The battle between tobacco companies and the US government has come to light with the filing of two lawsuits this past year. In one, tobacco company Philip Morris USA, claimed that a new San Francisco law banning the sale of cigarettes in pharmacies “violates its free-expression right to sell its products” (1). The second lawsuit involved Walgreens filing suit, arguing that because the law only included pharmacies and not larger grocery-style stores, it was discriminatory and could affect the store financially.

            The Philip Morris case centers on the right of tobacco companies to have their products advertised and communicated to adult consumers. “Although called a ban on sales, the purpose and effect of the ordinance is to suppress communications directed to adult smokers, in violation of our constitutional rights,” said Joe Murillo, a lawyer representing Philip Morris USA (3). Advocates of the bill claim that specialized pharmacies should not carry cigarettes because of the health risks involved with them. Also, according to the Police Powers granted by the Tenth Amendment, the State has the power to “enact reasonable laws to protect public health, public morals, public safety, and the general welfare of the community” (3).  However, it seems to be up to the courts to find a compelling government interest in regulating what products are sold in a particular store, especially if there is limited evidence as to whether or not there is a correlation between how pharmacies sell tobacco and youth/ adult access to these products (3).

            The Walgreens case focuses the financial interest of Walgreens in cigarette sales. Recently, Walgreens filed a brief stating, “the company would lose millions of dollars, equal to nine percent of a store’s non-pharmacy sales, if the ban takes effect” (3). The company continued that “the city is discriminating by not applying the ban to grocery stores or big-box stores that have pharmacies within them and also sell cigarettes” (2). City attorneys, however, argue that “the public trusts pharmacies as health-promoting businesses and that the sale of tobacco by drugstores ‘sends an implicit message that smoking is acceptable’” (2). Walgreens argues that the law is financially discriminatory, and that customers who would usually buy cigarettes from them will now go to the larger “big-box” stores that are not included in the ban.

            I believe that the San Francisco ban is, indeed, in violation of pharmacy and tobacco companies’ rights because I do not believe that the government has any particular interest in telling pharmacies what they can and can’t sell. Yes, cigarettes are a health hazard, however, just because a pharmacy sells cigarettes does not mean the consumer has to buy them. Walgreens also has a financial interest to protect; the ban clearly favors their “big-box” and grocery competitors. In the precedent case Lorillard Tobacco Co. v. Reilly, Chief-Justice Sandra Day O’Connor wrote that “The state’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity” (4). Consumers have a choice whether or not to smoke cigarettes, thus, where they are sold (even at a pharmacy where “good health” is advocated), is inconsequential. O’Connor continues in Lorillard that “We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products… As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication” (4). An act by the State to regulate what a store sells clearly infringes upon the rights of that store, as well as the industry that the ban effects. If our government is capable of having this sort of jurisdiction in relation to the freedom of speech, think what they’ll ban next.

(1) http://firstamendmentcenter.org/news.aspx?id=20602

(2) http://www.nbc11.com/newsarchive/17592901/detail.html

(3) http://tobaccoanalysis.blogspot.com/2008/09/philip-morris-and-walgreens-file-suit.html

(4) http://www.firstamendmentcenter.org/analysis.aspx?id=4898

San Francisco Pharmacy Cigarette Ban