Two Views on the First Amendment
By Bill McConnell -- Broadcasting & Cable, 7/4/2004 8:00:00 PM
Champion of Free Speech
First Amendment lawyer Robert Corn-Revere has been one of the most successful defenders of free-speech rights. Before the Supreme Court in 1999, he successfully argued against channel-blocking requirements that Congress had imposed on Playboy Television. Corn-Revere talked with B&C's Bill McConnell about the endangered First Amendment.
What's the danger from the indecency crackdown and the coming one on TV violence?
We are witnessing a period of cultural McCarthyism. The actions taken and measures proposed is unprecedented. The FCC has imposed record-level fines, stripped due-process protections and broadened its already vague indecency standard to the point of self-parody. Its new restrictions on "profanity" can extend to "blasphemy," "personally reviling epithets," "grossly offensive" words and "vulgar, irreverent or coarse language."
Aren't these just refinements of the same rules?
In the past, people worried about the FCC's "regulation by raised eyebrow." Now the FCC appears to be regulating by raised guillotine. Blowing out previous limits cannot reasonably be described as a "refinement" of old rules. Those pointing to previous court rulings upholding indecency rules overlook the warnings that the FCC was expected to proceed with "caution" and "restraint."
Do broadcasters deserve blame?
A few extreme cases do not justify draconian government overreaction. Standards being implemented already have had a widespread chilling effect. Many stations are abandoning live broadcasts, fearing a stray slip of the tongue. This is happening even with news. Radio stations are scouring playlists, and public broadcasters are editing documentaries and series such as Masterpiece Theater.
Should we have any indecency restrictions at all?
Broadcasters should be held to the same standards as all other media. It often is forgotten that the "indecency" standard is an exception to the basic constitutional rule that the government cannot reduce the adult population to reading or viewing only what is fit for children. Indecency-type regulations have been struck down when applied to print, cinema, the U.S. mail, the public forum, cable television and the Internet. This is not to suggest there should be no rules. It is just that broadcasting should be subject to the same standard as everyone else.
Big Media's Foe
Michael Copps' campaign to clamp down on broadcast indecency is showing results. The history-professor-turned-FCC-commissioner insists he's no less a defender of free speech than his critics. In his view, the FCC has placed too much emphasis on the rights of media and too little on average citizens. If John Kerry is elected president, Copps is the favorite to chair the FCC.
Some say free speech is under unprecedented stress not only because of the indecency crackdown but also because of limits on media ownership and the Patriot and Homeland Security Acts. Are these dark days for free speech?
You have to differentiate between those elements. I understand the importance of the First Amendment. But there are cases, like in media consolidation, where it has been misunderstood or twisted. We need to plow through that. The Homeland Security and Patriot Acts raise different First Amendment issues than indecency.
Do media outlets' free-speech rights count less than citizens' rights?
The First Amendment is necessary for a vibrant democratic dialogue. Turning the airwaves over to one, two or three companies gets in the way of that dialogue.
How would you apply that worry to entertainment?
We have given short shrift to making sure there is prime time available for independent producers. We ought to consider requests for a carve-out for them. If you're locking out all the independents , young writers and producers, it hurts the country's ability to sustain its creative genius.
Cable faces no broadcast-style limits on when racy fare is aired. Would you change that?
The question is whether we can find a minimally intrusive way the courts will accept.
The courts might look dimly at subjecting cable to broadcast-style limits. Would letting parents pick channels individually be an alternative?
It sounds attractive and gives consumers options. Consumers don't like to pay for things they don't watch. I understand there are questions about its viability as a business model and how minority-targeted and small networks would fare. But it's not that easy to break into cable anyway.
Do you have First Amendment concerns about dictating what programming a company offers?
When we're offering more choices, that expands consumers' rights; it's not restricting rights.
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