Adelstein: Indecency Decisions Go 'Dangerously' Too Far

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While Democratic FCC Commissioner Jonathan Adelstein still supports stepped-up enforcement of indecency regulations, he thinks the commission majority has gone "dangerously" too far.

Adelstein was the only commissioner to dissent in part from the FCC's March 15 release of a raft of indecency decisions, saying then that he feared the commission was overstepping its authority.

He emphasized that point in a speech to the Progress & Freedom Foundation in Aspen earlier this week, according to a copy of the speech obtained by B&C.

"I believe that the Commission’s last batch of decisions dangerously expands the scope of indecency and profanity law," he told his audience, "without first attempting to determine whether we are applying the appropriate contemporary community standards."

He was preaching to the choir. The foundation is a limited-government group whose president was quick to praise the commissioner for his free-market take on several issues.

But part of the danger that Adelstein sees is that the FCC could lose its power to regulate content altogether, a point he made in his March dissent. "We may forever lose the ability to prevent the airing of indecent material," he opined.

Adelstein also got praise from the group for his opposition to government mandated multicast must-carry and cable a la carte.

"Because I have been such an outspoken opponent of media consolidation," he told his audience, "for which I make no apology, it may not always be clear that I believe restraint is often warranted.

"In fact, because I take the public interest and consumer welfare so seriously, I loathe having the government intervene in cases like multicast must carry or á la carte based on unclear justifications as to how mandates would help the public.As I said at the beginning, we should only do so when there are demonstrated market failures or public interest considerations.To the extent possible, we should let the many benefits of free markets and free speech guide our deliberations."

Below is the full text from Adelstein's take on indecency:

Finally, I would like to discuss indecency regulation.

Indecency is another difficult area where the FCC has competing obligations.We have to protect freedom of speech, but it is also our duty is to regulate the broadcast of indecent material to the fullest extent permitted by the Constitution.After all, safeguarding the well-being of our children is truly a compelling national interest.

The Commission’s authority to regulate indecent content over the public airwaves was narrowly upheld by the Supreme Court with the admonition that we should exercise that authority with the utmost restraint.Given the Court’s guidance in Pacifica, the Commission has repeatedly stated that we would judiciously walk a “tightrope” in exercising our regulatory authority.To put it simply, I believe that a rational and principled “restrained enforcement policy” is not a matter of mere regulatory convenience; it is a constitutional requirement.

I was the sole partial dissenter in the Commission’s most recent decision because while some of the programs discussed in the Omnibus Order were indecent and deserving of sanction, some of them, contrary to the Commission’s findings, were not.

I believe that the Commission’s last batch of decisions dangerously expands the scope of indecency and profanity law, without first attempting to determine whether we are applying the appropriate contemporary community standards.

The Order built on and stretched beyond the limits of our precedent in one of the most difficult cases we have ever decided, the Golden Globe Awards case.The precedent set in that case – any use of the f-word was per se indecent and profane – had been questioned by numerous broadcasters, constitutional scholars and public interest groups, who have asked us to clarify our reasoning.

Rather than reexamine the Golden Globe Awards case, the majority used it as a springboard to add new words to the pantheon of those deemed to be inherently sexual or excretory, and consequently indecent and profane, irrespective of a fleeting and isolated use.By failing to address the many serious concerns raised in Golden Globe Awards, before prohibiting the use of additional words, we fell short of meeting the constitutional standard and walking the tightrope of a restrained enforcement policy.

As it turned out, because the FCC failed to act on the petitions for reconsideration of the Golden Globe Awards case, which were filed over two years ago, the Commission has had to take the embarrassing step of asking the Second Circuit Court of Appeals to remand to the FCC a number of indecency cases in the Omnibus Order that were squarely based on Golden Globe Awards.

At the time of the Omnibus decision, I cautioned that the Commission’s careless approach endangered the very authority we so delicately retained to enforce broadcast decency rules.I warned that, if the Commission’s zeal leads it to overstep its statutory authority, the Commission could find its authority circumscribed by the courts.We may forever lose the ability to prevent the airing of indecent material, barring an unlikely constitutional amendment setting limits on the First Amendment.

In the Omnibus order, I expressed concern with regard to the example of the acclaimed Martin Scorsese documentary “The Blues: Godfathers and Sons.”It was clear from a commonsense viewing of the program that coarse language is a part of the culture of blues musicians and performers.To accurately reflect their viewpoint and emotion for blues music requires the airing of certain material that, if prohibited, would undercut the ability of the filmmaker to convey the reality of the subject of the documentary.

Over my objection, however, the Commission found the documentary indecent.As a result, PBS and other news and information outlets are forced to take extra steps of precaution to avoid the wrath of the Commission.They’re now perplexed about what to do with a WWII documentary by Ken Burns.If “Saving Private Ryan” was acceptable, why not real soldiers talking about the same conflict?But if you can’t say it in a blues documentary, why can you say it in a war documentary?You can see us tying ourselves in knots and confusing everyone.That’s not the restraint the Commission promised the Supreme Court in Pacifica.

I don’t believe the Commission has provided broadcasters a coherent and principled framework that is rooted in commonsense and sound constitutional grounds.While we often spend most of our time taking about economic freedom, freedom from governmental intrusion into speech is just as important.

As a father of two, I believe that the government has a legitimate interest in protecting children from indecent and overly commercial content. I fully support that, and have participated in stepping up our enforcement efforts.But I also believe that, as government officials, we are sworn to uphold the Constitution, and need to avoid overstepping our bounds.

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