FCC’s Tate: need to balance freedom, protection of kids

Friday, June 27, 2008

  • Panel: Pacifica outdated?

    WASHINGTON — Federal Communications Commissioner Deborah Taylor Tate yesterday emphasized the need for maintaining a balance in broadcast regulation during her opening remarks during the First Amendment Center’s program, “Indecency & Violence in the Media: FCC v. Pacifica 30 Years Later.”

    Tate told attendees that the FCC takes a measured approach in regulating broadcast, working to “balance First Amendment rights with the protection of our most valuable resource, our children.”

    Tate and former FCC chairman Richard E. Wiley provided the commission’s perspectives, present and past, on finding that balance at the event, which was held in the Knight Conference Center at the Newseum to commemorate the 30th anniversary of the ruling in FCC v. Pacifica (1978). Wiley served on the commission when the complaint in the case was filed. The controversy involved an afternoon broadcast on Pacifica radio of the late George Carlin’s “Seven Dirty Words You Can Never Say on Television.”

    FCC Commissioner Deborah Taylor Tate at yesterday's conference

    The ruling in FCC v. Pacifica, which remains the main precedent for regulation of broadcast material, affirmed the FCC’s authority, albeit limited, to take action against Pacifica for airing the broadcast. Additionally, the Court’s plurality opinion, authored by Justice John Paul Stevens, emphasized that certain broadcast expression enjoys limited First Amendment protection due, in part, to its “uniquely pervasive presence.”

    Following Tate and Wiley was University of Miami law professor Lili Levi, who discussed her First Amendment Center report, “The FCC’s Regulation of Indecency.” Levi explained the changes in how the FCC has used its “broadly defined” powers to enforce indecency standards in the decades since Pacifica. She said that although there was a notable avoidance by the commission to regulate television programming from 1987-2002, the “latest era has been one of stringent indecency enforcement.”

    Professor Lili Levi

    More recently, Levi maintained, we have witnessed more stringent FCC regulation of indecency, with greater emphasis on “context.” Levi cited the recent example the FCC’s handling of the Janet Jackson incident during half time of the 2004 Super Bowl, saying that Jackson’s actual exposure would not have received as much condemnation from the FCC had it not occurred at the culmination of a provocative dance scene.

    “Context is often being used not to protect First Amendment freedoms, but rather to exacerbate findings of indecency,” said Levi. She said the FCC often invoked context as an excuse for inconsistent rulings.

    The conference occurred just months before FCC v. Fox Television Stations will be argued before the Supreme Court. The first major high court case concerning broadcast indecency since Pacifica, it involves an FCC policy that legitimates fines against broadcasters for one-time uses of “fleeting expletives.”

    Yesterday’s commemorative program concerning the landmark case also took note of the June 22 death of famed comedian George Carlin. Preceding a panel discussion, First Amendment Center Vice President/Executive Director Gene Policinski introduced a 2002 video clip from the “Free Speech in Comedy” awards held at the U.S. Comedy Arts Festival in Aspen, Colo. In a special edition of the First Amendment Center’s public television program “Speaking Freely,” aired that year, Carlin accepted an award and spoke of his views on censorship and political correctness.

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