The policies of the bush administration have been misguided and wasteful in so many ways that every so often I remember some radical wrong turn I’d completely forgotten about.
Like what the Federal Communications Commission has been doing the past two years. The cartoonishness of the stories that do grab our attention, like media IEDs—Justin Timberlake exposing Janet Jackson for .594 seconds, Howard Stern driven to satellite radio—have the effect of making us think that the whole subject is too trivial and vulgar to justify our concern. But no more influential piece of the federal apparatus has been captured more effectively by the Republicans’ Christian right wing than the FCC. And it has been running amok, mullah-like, throwing out old rules and precedents willy-nilly and making up new ones as it goes along.
The start of the new enforcement era coincided with the start of the last presidential-election cycle. Now it’s an election season again, and—voilà!—a more aggressively censorious set of FCC indecency rulings and fines were handed down in March. And after a grassroots Christian-right “congressional call-in day” at the end of April, the Senate passed—unanimously, by acclamation, the week before last—the Broadcast Decency Enforcement Act, which increases the maximum FCC indecency fine by 1,000 percent.
There is essentially no debate on this in Washington, of course: What’s in it for the Democrats? Indeed, this is just the sort of dumb, showboating “values” issue on which Hillary Clinton has tacked ostentatiously right.
But there is, happily, a dead-serious opposition, and I don’t mean the ACLU. No, the improbable free-speech white knights riding in for this battle are suits, members of the corporate Establishment, virtual and actual Republicans—the four big broadcast- television networks and their 800 local affiliates, who’ve joined forces to file a federal suit appealing the latest FCC rulings. They’re driven by commercial anxiety more than constitutional principle, of course, but they are nevertheless GE and Disney and Rupert Murdoch’s News Corp. taking a stand against “growing government control over what viewers should and shouldn’t see.”
It is comforting to watch the Man reaffirm mainstream values of laissez-faire restraint. And it’s fun to see this central contradiction of conservatism—the amoralists’ economic freedom versus the zealots’ will to regulate—exposed. But what’s most intriguing is that it might just become a great test case for the modern media age: Now that 86 percent of Americans have their TV programs delivered by cable or satellite, and any 12-year-old is free to look at billions of unregulated Web pages, what exactly is the point of having the federal government make rules about how raunchy or rude broadcast programs may be?
For decades, under Reagan and Bush 41 as well as Clinton, the FCC undertook indecency enforcement with a very light hand. After all, the big idea domestically has been getting government off our backs and out of our faces. And like other regulatory agencies, the FCC intended its findings to be a consistent body of case law, enduring and reliable.
Thus its Enforcement Bureau sensibly ruled in the fall of 2003 that Bono’s giddy, live-on-NBC reaction to winning a Golden Globe for his song from Gangs of New York (“This is really, really fucking brilliant”) was not indecent. The commission had given a pass to similar bits in previous awards-show telecasts—and besides, Bono’s usage was clearly outside the bounds of literal, dirty-word “indecency” as it had been defined over the years by the commission and the courts. “The word ‘fucking’ may be crude and offensive,” the FCC said, “but . . . did not describe sexual or excretory organs or activities.”
But then came 2004.
The Super Bowl nipple flash was a stroke of lucky timing for the right, a way to whip the issue of indecency into a pseudo-crisis. Two months later, FCC commissioners declared that old precedents were no longer precedential and overruled the career staff concerning Bono: “Any use of [fuck] or a variation, in any context,” they said, “invariably invokes a coarse sexual image.”
Of course, that’s simply not true. The phrase “fucking brilliant” makes no sane person think of sex. When Dick Cheney said “Go fuck yourself” to Pat Leahy in 2004 on the Senate floor, for instance, did he intend for Leahy to envision a literal, fantastic autoerotic act? Surely not.
The commissioners apparently didn’t really buy their own indecency argument either, so to cover themselves they unilaterally stretched the settled legal meaning of “profanity” to mean any language they find too coarse—such as “fucking brilliant.” At the same time, they also started going crazy with fines, ordering networks and stations to pay $8 million during 2004, several times as much as the cumulative penalties levied during the entire previous decade.