Under the leadership of chairman Michael Powell, the Federal Communications Commission has lost its bearings as the protector of America’s airwaves. Instead, it has taken on the role of morality police, responding to the arbitrary whining of the religious right.
Powell, the son of lame duck Secretary of State Colin Powell, has presided over a cynical and opportunistic assault on free speech. Powell’s campaign began in earnest after the exposure of Janet Jackson’s nipple at the Feb. 1 Super Bowl. The “wardrobe malfunction” cost CBS $550,000 and probably drew more attention from Americans than the genocide in Sudan.
Perhaps the most publicized flap was a Monday Night Football promotion for the ABC show “Desperate Housewives” in which actress Nicolette Sheridan, seen nude above
the waist from the rear, leapt into
the arms of Philadelphia Eagles
wide receiver Terrell Owens. The incident caused an outrage that resulted in more than 50,000 complaints to the FCC. The FCC has not yet sanctioned ABC for the skit, but Powell has appeared on TV to complain about it.
The FCC’s censorship campaign continued last week with the agency levying a record $3.5 million fine against corporate radio giant Viacom for racy content on its Opie and
Anthony Show. The program’s broadcast of a purported sex act in New York’s St. Patrick’s Cathedral crossed the FCC’s vague line of “indecency.” Opie and Anthony was quickly pulled off the air following the incident and has since joined XM Satellite Radio.
Similarly, the FCC has led Howard Stern, a frequent target of the agency’s indecency actions, to abandon public airwaves altogether
and join a satellite radio station. Stern’s show isn’t a huge loss to the public airwaves, but it raises a red flag when people on the edge of culture begin abandoning media to avoid censorship.
The FCC’s campaign has already had a chilling effect on television. Sixty-five ABC stations refused to
air Steven Spielberg’s World War II film “Saving Private Ryan” on Veterans’ Day, fearing possible FCC sanctions. This is slightly more damaging than Howard Stern’s loss. Shock jocks are one thing, but when TV
stations feel compelled to airbrush history to appease the FCC, we have a problem.
The FCC’s campaign represents
an unholy alliance between a regulatory agency of the executive branch and the religious right. Essentially,
a few self-appointed guardians
of public morality — Powell, his
two consistent allies on the commission and religious conservative groups such as the Tradition Values Coalition — have effectively been given a veto over the First Amendment. This is a turn of events that could not have been foreseen by the founders of this nation, who thought free speech was so important that they made it part of the First Amendment to the Constitution. It was part of the purpose of the First Amendment to guard free speech from the whims of a moody public.
The FCC’s charter provides its own contradictions. It holds that “whoever transmits over any cable system any matter which is obscene or
otherwise unprotected by the Constitution of the United States shall
be fined not more than $10,000
or imprisoned not more than 2 years, or both.” It also maintains that nothing in the FCC’s charter “shall be understood or construed to give the commission the power of censorship” and that the agency may not “interfere with the right of free speech by means of radio communication.” In effect, it gives the FCC the power to regulate obscenity but not to censor.
This inherent contradiction plays out now by giving the FCC the power to impose huge fines after the fact, but not to censor anything before it is broadcast. This inevitably results in a chilling effect, which leads to the bland, inoffensive programming we see and hear on the radio and TV every day.
The idea of free speech lies at the heart of America. The idea of federal regulation protecting public morality came much later. In any contest between the two, free speech must win. In the end, Nicolette Sheridan’s naked back doesn’t hurt anyone. Censorship can. European programming proves that TV can show nudity and edgy programming without the sky falling.
The first step in fixing this situation would be removing Powell, who has become an embarrassing publicity hound. The second would be a congressional law or executive order that would resolve the contradiction inherent in the FCC’s charter.

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