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Committed to the First Amendment 10/05/2003 08:00:00 PM Eastern

Defending the Indefensible

Viacom's Infinity Broadcasting will likely pay the indecency fine levied last week, say its mea culpas and go about its business. It has already paid far larger fines, and the political incorrectness of fighting hard against this one makes it even less likely that they will stand on principle. That's too bad. Infinity shouldn't pay.

Give us a second while we place the BROADCASTING & CABLE First Amendment Clothespin over our nose. There. Yes, we are going to defend Infinity's offensive speech against FCC action.

The Infinity shock jocks who encouraged listeners to have sex in St. Patrick's Cathedral went way too far. So did everyone else involved with what was essentially a marketing campaign for Sam Adams beer. It gives new meaning to the phrase "pandering to your audience," and everyone involved should be ashamed. But the matter should be dealt with among management, audience and media critics, not by a shocked and offended government.

The marketplace mechanism seemed to work in the case of Rush Limbaugh last week. Limbaugh's comments about Donovan McNabb and the media were generating bad press for ESPN, so he resigned. We don't know whether ESPN explicitly nudged him, but we wouldn't blame the network. The sports show was merely a side gig for Limbaugh. For ESPN, however, it is its bread, butter, entrée and dessert. Having to continue to deal with the issue was a distraction it didn't need, though one it arguably invited by hiring the acid-tongued Limbaugh in the first place.

But the FCC doesn't trust the marketplace to police indecency, so it smacked Infinity with the biggest fine it could. Yes, the Opie & Anthony broadcast was shocking, offensive and unwise, but that should be none of the government's business.

Road Kill?

Broadcasters should take a page from Viacom's CBS and start collecting their public-interest good works in a "best of" album because they are probably going to need all the evidence they can get.

The FCC last week said it is going on the road again with public hearings, this time giving tips on how to petition the FCC to deny station license renewals. It's all part of Chairman Michael Powell's diversity/public-service initiative, with a liberal dose of Michael Copps. We don't know whether the effort stems from the chairman's genuine concerns over local broadcasters' public-interest performance, a desire to separate that issue from the ownership-rule revamp he is trying valiantly to keep afloat, or some combination of the two.

The effect could be to put broadcasters in a world of hurt at renewal time. The industry has already seen what critics with a mission and a mousepad can do in the form of the battering the media-ownership review has taken, and that was with the FCC taking a beating, too. Put the FCC in the other corner giving instructions and the prospect for mass mischief or worse looms. Broadcasters have themselves to blame for some of this.

So, keep those telethons coming.

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