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The Federal Communications Commission’s paternalistic experiment with banning broadcasting indecency has been a monumental failure, akin to Savonarola’s burning of the vanities and the fig leaf campaign of the Counter-Reformation. Artistic genius has been chilled. The public has been denied unknown opportunities to view entertaining dramatic compositions. Due process and equal protection have been lacerated by a denial of fair warning to broadcasters and performers, and by freakish and politicized enforcement. Yet nothing good has been accomplished in diminishing vulgarities or coarseness in American culture or discourse. There may be better cases of wrongheaded regulation, but they do not readily come to mind. FCC Chairman Kevin Martin and strutting members of Congress, however, are flirting with rules to saddle cable and direct satellite TV with the indecency ban that bedevils broadcasting. Like the French Bourbons, they learn nothing, and forget nothing. Sex, nudity and profanity are inescapable elements of the human condition. They are neither inherently decadent nor debasing. The subjects are featured prominently in the works of Chaucer, Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Balzac, Rabelais, Peter Paul Reubens, Gauguin and Rodin. Unless indecency is sharply and narrowly defined, a prohibition stifles much great art and thwarts accurate reporting about public officials and public figures. OPAQUE DEFINITIONS Federal law, however, defines the term with an opacity that insults fair warning: “[L]anguage or material that, in context, depicts or describes, in terms patently offensive as measured by [national] contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” A companion FCC rule banning profanity defines the concept as “language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” The definitions require isolated FCC commissioners selected from a group of political insiders (not a cross section of the American community) to extract from hundreds of widely varying local cultures ranging from New York City and San Francisco to Salt Lake City and Cincinnati a national yardstick for determining whether a sexual reference is patently offensive. The commissioners undertake no polling. They cannot rely on precedents because the standard is “contemporary” attitudes, not sexual mores of the past. Their votes are pure whimsy — as the Janet Jackson and Bono incidents corroborate. Jackson’s breast was temporarily exposed during the 2004 Super Bowl’s halftime entertainment. The glimpse was vastly less sexually suggestive or evocative of lust than a typical beer, auto or Paris Hilton advertisement. The latter have been left undisturbed by the FCC, while the former occasioned a CBS fine of $550,000 based on the erroneous conjecture that the television audience found the Jackson incident patently offensive. According to a Gallup poll of adult viewers of the halftime affair, 55 percent were accepting, compared to 45 percent who took umbrage. A decisive majority of 64 percent opined that CBS should not be fined. Bono exclaimed, “this is really, really, f � king brilliant!” during a Golden Globes broadcast in 2003. The FCC’s chief of the enforcement bureau, David Solomon, opined that the expletive had been employed as an innocuous adjective conveying emotion, not as a profane noun. But the FCC commissioners overruled Solomon, despite his fidelity to past policy, in order to avert the political repercussions of appearing to condone the f-word on prime time television. The FCC’s definitions are also easily manipulated to further a partisan enforcement policy offensive to equal protection. Commissioners are highly charged political appointees. Democratic commissioners naturally resist enforcement action against generous Hollywood gliteratti donors to their party, whereas Republicans naturally seek a proverbial “pound of flesh” against the benefactors of their adversary. Further, legitimate artistic expression is deterred by the prohibitions. Broadcasters shy from material that may trigger complaints from socially conservative groups like the Parents Television Council to avoid hefty legal expenses and bad publicity. Thus, more than 60 of ABC’s 225 affiliates declined to air the Oscar-winning World War II drama Saving Private Ryan on Veterans Day in 2004 because the film is laced with profanity. The self-censorship followed the Janet Jackson and Bono enforcement capers, and a complaint to the FCC from the American Family Association protesting its language. The government is a poor surrogate parent. Parents should be supplied with the means to choose what their children watch. Cable providers have pooled resources to air public service announcements that instruct parents on the use of control systems in every household with a cable box or V-chip, thus enabling the blocking of programs according to ratings, channels or specific shows. The indecency project should go the way of the Prohibition Amendment. Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Ronald Reagan. At present, he is a constitutional attorney and international consultant at Bruce Fein & Associates and The Lichfield Group.

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