A Federal Court That Trusts People More Than Government

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There’s a government agency in Washington whose job is deciding what’s “offensive” and should be kept off broadcast TV and radio—the FCC. Its policy is terribly, dangerously flexible. If material has to do with sexuality or excretory functions, it’s “offensive” if the commissioners decide it’s offensive. You don’t have the right to see or hear “offensive” material on broadcast TV.

A federal court (including a judge appointed by President Bush) ruled this week that that’s just too vague, “creating a chilling effect that goes beyond the fleeting expletives at issue here.”

That ruling is good news for parents, consumers, and citizens.

Not because we desperately need to hear the words “bullshit” and “dickhead” on TV (the FCC says one is permissible, the other isn’t). But because we desperately need to know that our media isn’t being censored according to its point of view. And because broadcasters need to know what they are allowed to say. And because citizens need to know what their government won’t let them hear or see. And because parents deserve the right to decide what their children will see and hear, rather than the government.

This is a court decision reminding us that we are a nation of laws, not subjective application of laws.

The FCC has tried to have it both ways. On the one hand, they claim they simply want to prevent the broadcast of words and pictures that are “offensive,” claiming they’re not trying to censor ideas. If so, they should simply provide a list of words and pictures that Americans can’t broadcast. It’s an infantile approach, but it would provide objective guidance.

But the FCC says a list of words isn’t sufficient, because people could skirt censorship by using euphemisms to express “offensive” ideas. If enough people agree that “spanking the monkey” means masturbation, for example, this previously meaningless expression could suddenly be considered offensive, exposing a broadcaster to litigation.

So the FCC doesn’t want to just censor offensive words. It’s the ideas behind the words. Ideas that may surprise, shock, or disgust some people. Americans need the right to express—and experience—such ideas.

The people in the films Saving Private Ryan and The Blues use similar coarse expressions. The FCC decided that the same words used in one film were acceptable, but were indecent in the other. This is how the FCC attacks content.

“There should be other ways people can say things,” say some. Well, if you’re watching a movie in which soldiers are being shot at, and they say “oh dear,” you’re not being confronted as deeply. The same is true when old bluesmen are talking about racism or sex or anything else, and we’re only willing to hear them say “oh dear.”

Some Americans claim the right to feel comfortable when consuming radio or TV. There is no such right, and government should not protect people from such discomfort. When we invite external stimulus into our homes we run the risk of being challenged. We do have the choice of managing those challenges: we can subscribe to cable or not. Watch Bill O’Reilly or not. Turn the damn set off. Or not.

The FCC’s vague policies have led stations to self-censor, especially since fines increased astronomically. Some TV stations no longer show Saving Private Ryan on Memorial Day. Several public radio stations actually cancelled Garrison Keillor’s episode that used the word “breast” to mean “the heart of.”

The court has wisely reminded us that the dangers of self-censorship are far greater than the dangers of individuals feeling personally uncomfortable, or of children hearing “bad” words.

That’s the genius of the American system—a radical new assessment of the cost/benefit of free expression and censorship. This system requires a civic adulthood from us—tolerating words, pictures, and ideas that aren’t our own.

Let’s rise to the challenge of our First Amendment. Let’s be willing to risk our personal discomfort for the good of the Republic—and a marketplace of ideas that has made America a special place in the history of the world.

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