PROVIDING FOR CONSIDERATION OF H.R. 3717, BROADCAST DECENCY ENFORCEMENT ACT OF 2004 -- (Extensions of Remarks - March 16, 2004)
HON. RON PAUL
IN THE HOUSE OF REPRESENTATIVES
THURSDAY, MARCH 11, 2004
The House in Committee of the Whole House on the State of the Union had under consideration the bill (H.R. 3717) to increase the penalties for violations by television and radio broadcasters of the prohibitions against transmission of obscene, indecent, and profane language:
Mr. PAUL. Mr. Chairman, Americans are right to be outraged at much of the content of broadcast television and radio today. Too many television and radio programs regularly mock the values of millions of Americans and feature lude, inappropriate conduct. It is totally legitimate and even praiseworthy for people to use market forces, such as boycotts of the sponsors of the offensive programs, to pressure networks to remove objectionable programming. However, it is not legitimate for Congress to censor broadcast programs.
The First Amendment says, "Congress shall make no law ..... abridging the freedom of speech. ....." It does not make an exception for broadcast television. Some argue that broadcast speech is different because broadcasters are using the "people's airwaves." Of course, the "people" don't really control the airwaves anymore then the "people" control the government in the "People's Republic" of China! Instead, the "people's airwaves" is a euphemism for government control of the airwaves. Of course, government exceeded its Constitutional authority when it nationalized the broadcast industry.
Furthermore, there was no economic justification for Congress determining who is, and is not, allowed to access the broadcast spectrum. Instead of nationalizing the spectrum, the Federal Government should have allowed private parties to homestead parts of the broadcast spectrum and settle disputes over ownership and use through market processes, contracts, and, if necessary, application of the common law of contracts and torts. Such a market-based solution would have provided a more efficient allocation of the broadcast spectrum than has government regulation.
Congress used its unconstitutional and unjustified power-grab over the allocation of broadcast spectrum to justify imposing federal regulations on broadcasters. Thus, the Federal Government used one unconstitutional action to justify another seizing of regulatory control over the content of a means of communication in direct violation of the First Amendment.
Congress should reject H.R. 3717, the Broadcast Decency Enforcement Act, because, by increasing fines and making it easier for governments to revoke the licenses of broadcasters who violate federal standards, H.R. 3717 expands an unconstitutional exercise of federal power. H.R. 3717 also establishes new frontiers in censorship by levying fines on individual artists for violating FCC regulations.
Congress should also reject H.R. 3717 because the new powers granted to the FCC may be abused by a future administration to crack down on political speech. The bill applies to speech the agency has determined is "obscene" or "indecent." While this may not appear to include political speech, I would remind my colleagues that there is a serious political movement that believes that the expression of certain political opinions should be censored by the government because it is "hate speech." Proponents of these views would not hesitate to redefine indecency to include "hate speech." Ironically, many of the strongest proponents of H.R. 3717 also hold views that would likely be classified as "indecent hate speech."
The new FCC powers contained in H.R. 3717 could even be used to censor religious speech. Just this week, a group filed a petition with the United States Department of Justice asking the agency to use federal hate crimes laws against the directors, producers, and screenwriters of the popular movie, "The Passion of the Christ." Can anyone doubt that, if H.R. 3717 passes, any broadcaster who dares show "The Passion" or similar material will risk facing indecency charges? Our founders recognized the interdependence of free speech and religious liberty; this is why they are protected together in the First Amendment. The more the Federal Government restricts free speech, the more our religious liberties are endangered.
The reason we are considering H.R. 3717 is not unrelated to questions regarding state censorship of political speech. Many of this bill's most rabid supporters appear to be motivated by the attacks on a member of Congress, and other statements critical of the current administration and violating the standards of political correctness, by "shock jock" Howard Stern. I have heard descriptions of Stern's radio program that suggest this is a despicable program. However, I find even more troubling the idea that the Federal Government should censor anyone because of his comments about a member of Congress. Such behavior is more suited for members of a Soviet politburo than members of a representative body in a constitutional republic.
The nation's leading conservative radio broadcaster, Rush Limbaugh, has expressed opposition to a federal crackdown on radio broadcast speech that offends politicians and bureaucrats:
If the government is going to 'censor' what they think is right and wrong ....... what happens if a whole bunch of John Kerrys, or Terry McAliffes start running this country. And decide conservative views are leading to violence?
I am in the free speech business. It's one thing for a company to determine if they are going to be party to it. It's another thing for the government to do it.
H.R. 3717 should also be rejected because it is unnecessary. Major broadcasters' profits depend on their ability to please their audiences and thus attract advertisers. Advertisers are oftentimes "risk adverse," that is, afraid to sponsor anything that might offend a substantial portion of the viewing audience, who they hope to turn into customers. Therefore, networks have a market incentive to avoid offending the audience. It was fear of alienating the audience, and thus losing advertising revenue, that led to CBS's quick attempt at "damage control" after the Super Bowl. Last year, we witnessed a remarkable demonstration of the power of private citizens when public pressure convinced CBS to change plans to air the movie "The Reagans," which outraged conservatives concerned about its distortion of the life of Ronald Reagan.
Clearly, the American people do not need the government to protect them from "indecent" broadcasts. In fact, the unacknowledged root of the problem is that a large segment of the American people has chosen to watch material that fellow citizens find indecent. Once again, I sympathize with those who are offended by the choices of their fellow citizens. I do not watch or listen to the lewd material that predominates on the airwaves today, and I am puzzled that anyone could find that sort of thing entertaining. However, my colleagues should remember that government action cannot improve the people's morals; it can only reduce liberty.
Mr. Chairman, H.R. 3717 is the latest in an increasing number of attacks on free speech. For years, those who wanted to regulate and restrict speech in the commercial marketplace relied on the commercial speech doctrine that provides a lower level of protection to speech designed to provide a profit to the speaker. However, this doctrine has no Constitutional authority because the plain language of the First Amendment does not make any exceptions for commercial speech!
Even the proponents of the commercial speech doctrine agreed that the Federal Government should never restrict political speech. Yet, this Congress, this administration, and this Supreme Court have restricted political speech with the recently enacted campaign finance reform law. Meanwhile, the Department of Justice has indicated it will use the war against terrorism to monitor critics of the administration's foreign policy, thus chilling anti-war political speech. Of course, on many college campuses students have to watch what they say lest they run afoul of the rules of "political correctness." Even telling a "politically incorrect" joke can bring a student up on charges before the thought police! Now, self-proclaimed opponents of political correctness want to use federal power to punish colleges that allows the expression of views they consider "unpatriotic" and/or punish colleges when the composition of the facility does not meet their definition of diversity.
Just this week, there was a full-page ad in Roll Call, the daily paper distributed to House members, from people who want Congress to impose new regulations on movies featuring smoking. No doubt the sponsors of this ads are drooling over the prospect of fining stations that show Humphrey Bogart movies for indecent broadcasts.
These assaults on speech show a trend away from allowing the free and open expression of all ideas and points of view toward censoring those ideas that may offend some politically powerful group or upset those currently holding government power. Since censorship of speech invariably leads to censorship of ideas, this trend does not bode well for the future of personal liberty in America.
In conclusion, Mr. Chairman, because H.R. 3717 is the latest assault in a disturbing pattern of attacks on the First Amendment, I must vote against it and urge my colleagues to do the same.