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Public Statements

Broadcast Decency Enforcement Act of 2005

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Date:
Location: Washington, DC


BROADCAST DECENCY ENFORCEMENT ACT OF 2005 -- (House of Representatives - February 16, 2005)

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Mr. PAUL. Mr. Speaker, 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 lewd, 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 expectation for broadcast television. Some argue that broadcast speech is different because broadcasters are using the "people's airwaves." Of course, the people do not really control the airwaves any more than 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. 310, 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. 310 expands an unconstitutional exercise of Federal power. H.R. 310 also establishes new frontiers in censorship by levying fines on individual artists for violating FCC regulations.

Congress should also reject H.R. 310 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. 310 also hold views that would likely be classified as "indecent hate speech."

The new FCC powers contained in H.R. 310 could even be used to censor religious speech. Last year, 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. 310 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. 310 is not unrelated to questions regarding state censorship of political speech. Many of this bill's supporters are 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 . . . 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.

Mr. Speaker, I am also concerned that the new powers H.R. 310 creates will be applied in a manner that gives an unfair advantage to large media conglomerates. While the FCC will occasionally go after one of the major media conglomerates when it does something especially outrageous, the agency will likely spend most of its energies going after smaller outlets such as college and independent radio stations. Because college and independent stations lack the political clout of the large media companies, the FCC can prosecute them without incurring the wrath of powerful politicians. In addition, because these stations often cater to a small, niche audience, FCC actions against them would not incur the public opposition it would if the agency tried to kick "Desperate Housewives" off the air. Most significantly, college and independent stations lack the financial and technical resources to absolutely guarantee that no violations of ambiguous FCC regulations occur and to defend themselves adequately if the FCC attempts to revoke their licenses. Thus, college and independent radio stations make tempting targets for the FCC. My colleagues who are concerned about media concentration should consider how giving the FCC extended power to revoke licenses might increase media concentration.

H.R. 310 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 last year's Super Bowl. Shortly before the 2004 Super Bowl, 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. Speaker, H.R. 310 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 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 allow the expression of views they consider "unpatriotic" and/or punish colleges when the composition of the facility does not meet their definition of diversity.

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. Speaker, because H.R. 310 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.

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