FCC wins Lifetime Muzzle award

Wednesday, April 9, 2008

RICHMOND, Va. — The Federal Communications Commission and the Federal Emergency Management Agency are among the winners of the 2008 “Jefferson Muzzle” awards, given yesterday by the Thomas Jefferson Center for the Protection of Free Expression to those it considers the past year’s most egregious First Amendment violators.

The FCC won a Lifetime Muzzle for, as the center describes on its Web site, “years of applying inconsistent (if not arbitrary) standards in determining what is ‘indecent’ on broadcast airwaves — regardless of the political party in control of the Congress or the White House.” The prize is only the second Lifetime Muzzle given by the center in the awards’ 17-year history. (The first was given in 1999 to Rudy Giuliani, then-mayor of New York City.)

The FCC has won a Muzzle award four times and has been in the running nearly each year the awards have been given, mostly over how it has defined broadcast indecency following situations that included U2 frontman Bono’s use of the “F-word” at a 2003 awards show and Janet Jackson’s Super Bowl “wardrobe malfunction” in 2004.

“There are so many things wrong with the way the commission has operated in the last two decades,” center director Bob O’Neil said in a telephone interview.

The U.S. Supreme Court will hear arguments this fall over whether the FCC can ban “fleeting expletives,” a case that stemmed from the FCC’s ruling in 2006 that two award-show broadcasts in which celebrities uttered the F- and the S-words were indecent. Fox Broadcasting Co. and others appealed the decision, saying that the agency had changed its enforcement policy without warning and that the new ban was unconstitutional.

FEMA, meanwhile, made the list for staging a fake news conference during the Southern California wildfires. Agency employees posed as journalists and asked officials soft questions while real reporters got little notice of the news conference and were barred from asking questions because the conference call was “listen only.”

O’Neil said the bogus event was an example of fake speech substituting for free speech.

“We haven’t (previously) had anything that fell into the falsification or disinformation category; this is a first,” O’Neil said.

The Scranton police won a Muzzle for filing criminal charges against Dawn Herb, who screamed a string of profanities when a toilet in her home overflowed. Herb’s neighbor, an off-duty officer, told her to tone it down. After she continued, she was charged with disorderly conduct. A judge acquitted Herb in December, saying that though her comments might be considered vulgar, she had the First Amendment right to express herself.

“That the Scranton police department — with legal advice — would go forward to prosecute this woman just boggles the mind,” O’Neil said.

A Muzzle also went to U.S. Sen. Jay Rockefeller, D-W.Va., for introducing a bill that would require the FCC to maintain a policy that would make broadcasting a single word or image indecent, and therefore punishable.

CBS Radio and MSNBC were cited for taking controversial radio host Don Imus off the air after he made racist and sexist comments about Rutgers University’s women’s basketball team. The networks allowed public criticism to control their actions, O’Neil said, despite the fact that they could’ve used broadcast-delay technology to prevent the comments from being heard.

The Charlottesville, Va., center awards the Muzzles annually to mark the April 13 birthday of its namesake, the third president and free-speech advocate.

Other winners: Judge Jeffre Cheuvront of Lancaster County District Court in Nebraska for barring witnesses from using the terms “rape,” “victim,” “assailant,” and “sexual-assault kit” in a sexual-assault trial; the New York Department of Motor Vehicles for recalling a vanity license plate after deeming its “GETOSAMA” message offensive; the managing board of The Cavalier Daily, the University of Virginia’s student newspaper, for firing a cartoonist because of public criticism of a strip called “Ethiopian Food Fight” — despite the fact that the editors approved the cartoon before it was published.

Muzzles also went to prosecutors who sought federal hate-crime charges against two teens who fashioned nooses from extension cords, draped them off a pickup truck and drove around in front of crowds of black participants in a civil rights march in Jena, La., and to Lee Polikov, the Sarpy County attorney in Nebraska, who charged a protester for allowing her son to stand on an American flag near the funeral of a Bellevue soldier killed in Iraq.

“These are outrageous acts, but they’re First Amendment-protected and should not be subject to criminal prosecution,” O’Neil said.

Rounding out the list were Brandeis University administrators for declaring a professor guilty of harassment and placing a monitor in his classroom after he explained to his class that Mexican migrant workers are sometimes pejoratively called “wetbacks”; Valdosta State (Ga.) University President Ronald M. Zaccari for expelling a student for protesting the construction of two campus parking garages; and the principal of Lewis S. Mills High School in Burlington, Conn., and the district’s superintendent for barring a student from running for senior class secretary after she posted derogatory comments about school officials on the Internet.