Monday, June 25, 2012

Week of 06/25/2012

FCC Spanked But Still Dangerous
– by David Matthews 2

Longtime readers of my column know that from day one, I am first and foremost a supporter of the First Amendment. The very first article posted back in 1996 was about the degenerative effects of censorship in a medium like the Internet. I was part of the lawsuit that overturned the anti-American Communications Decency Act in that same year. I continued to speak out afterward against its equally anti-American successors, and I speak out against such efforts today.

But this wasn’t something that I magically came up with just because it involved the Internet. My support of free speech goes back to the 1980’s, when religious groups and so-called “pro-family organizations” launched their anti-American holy war against anything they deemed to be “offensive”. Magazines, videos, nightclubs, songs (yes, Al Gore, that included your wife’s crusade), even TV commercials were not safe.

Unfortunately, the freedom-hating religious groups have long had the upper hand when it comes to government, and this is especially true with the hold they have over the Federal Communications Commission.

From its inception back in the 1930’s, religious groups made sure that the FCC was given the power to regulate not only broadcasting bandwidth, but also its content. They wanted to make sure that nothing “offensive” was ever uttered, shown, or otherwise expressed. And that wasn’t just limited to sex or violence. It also included a blanket prohibition against messages that encouraged fascism, Nazism, or communism. Oh, and they justified their control over the airwaves by claiming that these were really “the people’s airwaves”; which “doesn’t sound the least bit communistic”, does it? Just like the dictatorial control over the airwaves wasn’t “the least bit fascistic”.

Ever since then, it has been an uphill struggle to deal with a dictatorial federal agency being manipulated by religious extremists. And that is not an exaggeration! It has been proven that one certain religious organization accounted for over ninety-nine percent of all complaints to the FCC in the 2000’s. And all it takes to get the FCC to issue millions of dollars in fines against a broadcaster is a group as small as just twenty-three people. Twenty-three people!

Every so often, though, our legal system steps in and does the right thing. It has to, because the officials in the FCC have clearly proven they lack any shred of integrity or consistency.

And that is apparently what the justices of the U.S. Supreme Court did the other week when they ruled against the FCC in two cases.

The first involved the so-called “fleeting explicative”. For instance, if you have a live TV broadcast and someone utters a curse word out-of-the-blue, then that is considered a “fleeting explicative”. The broadcasters cannot control it, they cannot warn against it, but the freedom-hating religious groups still wanted the broadcasters to suffer for it.

The second concerned the FCC’s off-and-on fine against the now-defunct ABC series “NYPD Blue”, which involved showing a naked woman’s rear for all of seven seconds at a time when such displays were supposed to be allowed under already-established FCC rules. The broadcasters were supposed to be free-and-clear to show so-called “indecent” material during the hours of 10pm and 6am, and the FCC had already said that male nudity on that same show was perfectly fine, and they initially said this was okay as well. But then the religious groups began complaining and the FCC then changed their minds on the subject.

Fifth Amendment? What Fifth Amendment?

In both instances, the FCC first said such incidents didn’t warrant crippling fines, and then changed their minds when religious groups demanded otherwise. For this reason, the justices said the FCC went too far.

Unfortunately, in doing so, the justices of the U.S. Supreme Court did not go far enough in doing what really needs to be done.

Let’s get brutally honest here… the Federal Communications Commission is a regulatory body in desperate need of being either neutered or otherwise shut down entirely. It has long abused its power, it refuses to be consistent about its policies, and its only apparent reason for its existence is to serve as the enforcement arm of religious and social extremists whose very goals would violate the original regulations of the FCC if they were so broadcast.

Key to the FCC’s power over broadcasters is its arbitrary decision to declare something “indecent” – a term that the FCC refuses to this day to define for broadcasters – and to make this decision not only on a case-by-case basis, but to make it regardless of any previous cases. Not only that, but they change their minds about taking action based entirely on the manipulations of those religious and social groups. That part was aptly demonstrated with the “NYPD Blue” case that went before the justices.

Picture, if you will, a police officer pulling you over for speeding on the highway and letting you go with a warning. Then, six months later, that same cop decides to change his mind and issue you a ticket for it. Then a month later that cop decides to drop the ticket. Then five or even six years later that same cop decides to charge you with felony driving for that same incident.

This is what the FCC did with shows like “NYPD Blue”. This is what the justices said was abusive and dismissed the fines on it.

But they needed to do more. Much, much more.

The justices consciously passed on the opportunity to strip the FCC of their abusive power, which is what has needed to be done the moment the mandatory rating system was imposed on all television broadcasts starting in the late 90’s. The very justification that the courts gave in the original Pacifica decision to allow the FCC to wield this arbitrary power was rendered null and void with the ratings system. The justices have already required that government actions be based on, and I quote, “the least intrusive means”. When the ratings system and the means to block out TV shows based on those ratings were mandated, that became the “least intrusive means”.

By all rights, the FCC should have divested itself of its capricious authority then, but failed to do so. Likewise, the justices of the Supreme Court should have used this opportunity to strip the FCC of that same authority for that same reason, and they have failed to do so. Instead, they avoided the larger issue and only decided on the individual cases.

In other words, the FCC is still allowed to operate as the dysfunctional enforcement arm of social and religious extremists, assessing millions of dollars in fines in direct violation to the spirit and the letter of the United States Constitution, using justifications that are neither objective or follow any manner of precedence. They will continue to stifle televised content and force viewers to turn to other means for the entertainment they crave, and all to appease the dictatorial anti-American demands of those religious and social extremists.

This is why the extremists are actually celebrating a decision that they clearly lost; because now they know that the Justices of the Supreme Court adhere to a much higher responsibility than that of supporting and upholding the Constitution. They know that the justices would rather throw the Constitution to the fire than to dare disrupt the ever-present cult of the status quo, and in doing so they do this country a phenomenal disservice.

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