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Chairman Patrick Defends FCC

December 12, 1987

In Howard Rosenberg's article "FCC: A 3-Letter Agency That's a 4-Letter Word" (Nov. 30), he accuses the Federal Communications Commission of being inconsistent in abandoning the so-called Fairness Doctrine while enforcing the laws restricting obscene and indecent broadcasts.

Unfortunately, Rosenberg's flair for rhetoric in discussing such sensitive issues as free speech is not matched by a clear understanding of the law.

The FCC has been perfectly consistent in this area but, admittedly, recognizing this fact requires a more dispassionate and reasoned treatment than Rosenberg was able to muster in his article of one-liners.

The Fairness Doctrine essentially required broadcasters to be "fair" and "balanced" in their discussion of controversial issues of public importance. It was an FCC regulation, not a law, promulgated at a time when broadcast outlets were thought to be "scarce." (Today there are over 11,000 broadcast outlets in America--in contrast to fewer than 1,700 daily newspapers.)

The so-called Fairness Doctrine allowed unelected bureaucrats (such as myself) to second-guess the editorial judgment of electronic journalists and--more important--to regulate the content of speech crucial to the democratic process--the discussion of controversial issues of public importance.

Fairness is a laudable goal for all journalists. But assessing fairness requires an objective concept of "truth" against which to judge balance. When we vest in government the right to judge fairness and balance, we undermine a central supposition of the First Amendment: that the people--not the government--are the repository of truth in a democracy.

More to the point, the First Amendment does not guarantee us a fair press--only a free press, relying upon the people to discern truth from conflicting perspectives (even unfair ones).

For these reasons, the commission concluded that the so-called Fairness Doctrine was inconsistent with fundamental principles of First Amendment freedom.

On a more practical level, the commission found that the doctrine had the opposite effect of that intended. After extensively studying the matter, the commission found that, although the doctrine's goal was to increase the discussion of public issues, its actual effect was to reduce that discussion.

The fear of being punished by the federal government for failing to conform to its notion of "fairness" led many broadcasters to shy away from covering controversial issues at all. Applying the test set forth by the Supreme Court in Red Lion Broadcasting Co. v. FCC, it was this chilling effect that led the commission to conclude that the doctrine was unconstitutional.

As a constitutional and policy matter, obscenity and indecency present entirely distinct issues. It is textbook law that the First Amendment has never protected obscene speech and that certain non-obscene yet sexually oriented speech is subject to reasonable regulations in order to protect children's exposure to it. This principle applies across the board to all media of communications, including the printed press.

It is important to note that Congress, not the FCC, determined to restrict the broadcast of obscene and indecent programming over the airwaves. The U.S. Criminal Code prohibits the broadcast of obscene and indecent speech regardless of any marketplace considerations. In 1978, the U.S. Supreme Court removed any doubt as to the constitutional validity of the FCC enforcing these prohibitions by upholding commission action in channeling certain indecent speech to late-night hours.

In its recent actions, the FCC reaffirmed its intention to enforce the prohibition of the broadcast of obscenity at any time and toughened its enforcement standards as to broadcast of indecent--but not obscene--program material. Thus, the commission determined that indecent broadcasts may include more than just those that use the "seven dirty words."

Furthermore, the commission concluded that, whereas previous policies permitted such broadcasts after 10 p.m., these sexually oriented, non-obscene broadcasts could not be aired until after midnight. At that time, the risk of children in the audience is minimal, and parents will know that the supervision of their children's listening and viewing habits will have to be increased.

In sum, the commission's actions in abolishing the Fairness Doctrine and, at the same time, enforcing prohibitions against the broadcast of obscene and indecent material are perfectly consistent with controlling statutory and constitutional principles.

Stepping back from the legal issues, the FCC's actions make sense from a policy perspective as well. Political speech goes to the essence of public debate and discourse, and its protection from government regulation is critical to the guarantee of a free and democratic society. Obscene and indecent speech, on the other hand, has always been at the periphery of First Amendment concerns. As Justice John Paul Stevens once said, it is not the type of speech that we would march our sons and daughters off to war to defend.

In summary, the difference in First Amendment treatment accorded political speech and obscenity reflects not only well established constitutional principle, but priorities within a free society. The FCC's actions in these areas have been consistent with the law, and those priorities.

I submit that it is those who would regulate political speech, while tolerating obscenity, who have the consistency problem.

DENNIS R. PATRICK

FCC Chairman

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