It is time for the government to get out of the business of regulating indecent speech. That was the message from News Corp. President and COO Peter Chernin to media executives and others gathered in Washington for The Media Institute's annual awards dinner.
Chernin argues that it is not too many steps from censoring unpopular entertainment to doing the same to unpopular political content.
Chernin weighed in on the issue in a speech accepting the Freedom of Speech award from the institute, whose trustees include major media companies.
Chernin was teeing up Fox's arguments before the Supreme Court, which is hearing the FCC's challenge to a lower-court smackdown of the FCC's fleeting profanity ruling against Fox's Billboard awards broadcast. That hearing will be Nov. 4, Election Day.
Chernin said the coincidence of the two events was appropriate. "The Fox case, if successful, is an affirmation of the First Amendment. The election is an affirmation of our democratic process. And the two are inextricably intertwined. The First Amendment is central to our democratic process because it ensures a full and open dialogue about the candidates for office. Without the First Amendment, our democracy could not be sustained," he said.
"While a case with Cher and Nicole Richie at its center is probably not one we would have chosen to argue before the Supreme Court," said Chernin, "we don't get to pick our cases. In fact, if anyone had told me that my company would be before the U.S. Supreme Court defending inane comments by Cher and Nicole Ritchie, I would have said, 'You're crazy.' But I would contend that the nature of this speech, and who said it, makes absolutely no difference."
That's because Chernin called the heart of the case "an absolute threat to the First Amendment. It hinges on utterances that were unscripted on live television. If we are found in violation, just think about the radical ramifications for live programming - from news, to politics, to sports. In fact, to every live broadcast television event. The effect would be appalling."
"As a media company," said Chernin, "we have not just a right but a responsibility to stand up to the government when it crosses that First Amendment line in the sand - even if the content we are defending is in bad taste. And in the indecency context, that line has not only been crossed, it has been obliterated," he said.
Chernin conceded some of the content Fox was defending in this and other cases "is not particularly tasteful," citing "expletives, the brief nudity, carefully placed whipped cream, and, of course, the pixels." He said he would not have allowed his kids when they were younger to watch some of those shows. But he also said Fox would "fight to the end for our ability to put occasionally controversial, offensive, and even tasteless content on the air."
That doesn't mean Fox doesn't make mistakes, he said, but the alternative is a media "ruled by fear of crossing an ambiguous line. Then, he says, the product becomes "less vital and more homogenous," viewers will have less choice, programming that is "provocative and accurately reflects our society will be compromised," and the First Amendment would be chipped away "until it becomes toothless."
Chernin said he did not blame interest groups who "claim" to be protecting children, saying it is their right to criticize TV. He said the "degradation of the First Amendment" has come from government succumbing to the views "of a particularly vocal minority."
Chernin said controlling TV content is the province of parents in concert with technology like the V chip and ratings.
He pointed out that indecency laws do not apply to cable or satellite or DVD's or VOD or pay-per-view or "the mother of all content providers: the Internet....Does it really make sense to continue government censorship of the occasional bad word, brief nudity, or sexual innuendo on a handful of broadcast channels when we live in an environment of infinitely unregulated choices?," he asked. Fox's answer to the court willl be a definitive 'no.'
"In the media-rich world we live in, singling out a few channels for indecency enforcement is not legally sustainable," he said.