Posted on Apr 6, 2006 in
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On June 19, 1934, the 73rd US congress enacted The Communications Act of 1934. President Roosevelt signed the bill into law, giving it his blessing as part of the New Deal. The major component of this legislation was the establishment of the Federal Communications Commission, or FCC. The first part of the legislation details the responsibility, power, and purpose of the FCC:
For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the ‘Federal Communications Commission’, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter. [1]
This provision essentially grants the FCC all-encompassing power to regulate US communications. Supposedly, this power was granted to the FCC by congress. While there is the small issue of one branch of government not being allowed to give another branch its powers or create independent agencies that aren’t really part of any branch of government [2], congress never had power to regulate communications in the first place. Article 1, Section 8 of the US Constitution (Enumerated Powers of Congress) says nothing about congress’ power to regulate any form of speech or communication. Supposedly, congress assumed this authority under the commerce clause, which states that congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.
Now, it may be valid to say that radio communications require regulation to some degree for technical reasons. No one — including myself — wants hand-held radios setting off nuclear bombs. Obviously, the framers of the constitution could not have imagined radio waves flying around the country, so there may be some room to adapt to technology here. However, my immediate qualm with the FCC lies with its structure and its power to regulate speech and anything it considers “indecent” material.
The FCC has 5 commissioners who are nominated by the president and confirmed by congress. Still, the FCC is an independent agency that does not actually operate according to the presidents wishes – its biggest influences are congressional committees. The structure of this body is troubling to say the least. Here is an independent agency, created by a congress to do something that congress itself does not have the power to do, run by 5 unelected officials, and vaguely influenced by the pressure of congressional committee. If one of the purposes of the FCC is to regulate obscene speech based on what the general public considers obscene, concentrating such a power in such a small number of hands – and in such an arbitrary manner — seems like the wrong way to go about it. Again, if the FCC regulated communication from a purely technical standpoint, the structure wouldn’t be nearly as relevant.
As far as obscenity is concerned, you may be surprised to know that the FCC does not actually have a list of words, phrases, or pictures that are illegal. Instead, the FCC enforces federal “obscenity laws” (absurd in their own right) which vaguely define obscenity as material that:
-Appeals to the prurient interest of society, based on applying community standards.
-Shows or describes, in a patently offensive way, sexual conduct specifically defined by law.
-As a whole, lacks serious literary, artistic, political, or scientific value.
Everyone single one of these guidelines for determining obscene speech is arbitrary, vague, and completely subjective. Who is to say what has literary or political value? Who is to say what constitutes offensive sexual conduct? Who is to say what is artistic? Who is even capable of fully understanding the prurient interest of the “average person”, let alone the standards of an entire community? Given the sweeping power conferred upon the FCC, enforcement of “obscenity laws” allows the FCC to completely regulate what is said, printed, or shown over any broadcast medium. If the FCC hears something they don’t like, they can revoke the license of the broadcaster. If your broadcast was wrongly considered obscene, you have nothing to worry about because “the FCC strives to address every complaint within 9 months of its receipt.” [3]
Notably, nothing prevents the FCC from choosing a religion its unelected members don’t care for — let’s use Christianity as an example — and threatening all broadcasting stations with revocation of their licenses if they air anything mentioning Christianity in a positive manner. This may seem extreme and I doubt it would ever happen; but under the law, it is entirely possible. The only thing preventing the commission from doing this is their good nature. There is absolutely no reason why a government body needs this type of power to regulate speech in such a comprehensive manner.
Unfortunately, some people feel that there is a reason the government needs this kind of power. The response I hear is always the same: the government has to protect children from obscenity. My first response to this statement is “Really? Why?” While these people think of a reasonable answer to my question (don’t worry, there isn’t one) allow me to explain the big picture: when the government has the power to regulate speech it considers indecent, obscene, or some other far-reaching, subjective adjective, there is no way to determine what falls under each category. The whim of the commission de jour is all that stands between free speech and complete restriction of any broadcasted speech. Counter-arguments about the small likelihood of such restrictions — or how Americans would never stand for restrictions on political or religious speech — are both misguided and irrelevant. Why take the chance? Why give the government the power in the first place? If the federal government doesn’t need the power or it would be wrong for the government to fully exercise its powers, why should it have the power?
I’m sure that most parents don’t want their children being exposed to profanity or obscenities – a valid viewpoint – but giving the government power to regulate any and all speech broadcast in the country is the wrong way to solve the problem. Perhaps the better solution is to inform your children that while some people on the radio and TV may use inappropriate language or do things that don’t fit with your family’s morals, part of living in a free society means letting people live their lives differently from yours and say what they want. Tell them that it’s more important for us, as a whole, to be free than it is for them to be completely sheltered from bad language. Tell them that if the government has the ability to regulate speech, there is nothing preventing it from censoring speech that disagrees with the government. Explain to them that, in that situation, the free press is no more and the idea of a free society will be a memory. I understand that most of the people who support the FCC’s obscenity guidelines probably mean well and want what’s best for their children. I understand this and I sympathize with their intentions, but I do not want to raise my children in a society where “Freedom” is the F-word.
[1] — Communications Act of 1934
http://en.wikipedia.org/wiki/Communications_Act_of_1934
[2] — MISTRETTA v. UNITED STATES [488 U.S. 361 (1989)]
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/mistretta.html
“The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. The Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” U.S. Const., Art. I, 1, and we long have insisted that “the integrity and maintenance of the system of government ordained by the Constitution” mandate that Congress generally cannot delegate its legislative power to another Branch.â€
[3] — FCC Regulation of Obscenity, Indencency, & Profanity
http://www.fcc.gov/eb/oip/
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