Public revulsion against the proliferation of broadcast vulgarity, indecency and obscenity runs deep. Who, after all, could possibly argue that it's all right for kids being driven to school to be exposed to graphic depictions of sexual acts if one turns on the radio?
Still, extreme legislation banning broadcast indecency, which the Senate may consider as early as this week, will ensure only that broadcasters and performers live in ratcheted-up fear of the government fines that punish arbitrarily.
Washington cannot address a key reason why vulgarity too often reigns on radio and television: because it sells. Don't like shock jock Howard Stern? Don't listen to the show. The government's current alternative is scarier than anything the deliberately provocative Stern could muster.
The pending Senate bill is a companion to chilling legislation recently passed in the House of Representatives that wrongly would put most of the policing burden on performers, raising fines from $11,000 to $500,000 for an initial indecency violation, regardless of their ability to pay, and removing earlier requirements that they first be issued a warning citation.
The top fine against them is nearly double the $275,000 that the Senate bill would permit the FCC to fine broadcasters for an initial indecency violation.
The bill's draconian provisions against performers raise serious 1st Amendment free-speech guarantees, because even "indecent" speech has legal protection. However, even if the legislation were constitutional, the FCC's past decisions demonstrate that it does not enforce its rules in any common-sense context.
Consider, for example, the $7,000 fine it levied against KBOO, a small radio station in Portland, Ore., in 2001. The penalty was in response to the station's airing two years earlier of a verse by feminist poet Sarah Jones. She attacked the misogyny and commercialism she perceived in rap music by using the words of rappers. The FCC fined KBOO after a listener complained that the song contained "offensive sexual references." Yet the rappers who used the words originally went untouched by the FCC. Go figure.
The FCC's recent enforcement of indecency laws is no less arbitrary. A discussion by Stern about raunchy sex practices draws tens of thousands of dollars in fines; a similar discussion on an afternoon TV talk show draws nothing.
The FCC could better crack down on the coarsening of the public airwaves by enforcing existing regulations limiting indecent speech from 10 p.m. to 6 a.m. or to niche markets like satellite radio, satellite TV and cable, which give parents control to block unwanted programs.
That would help communities keep morals from slip-sliding away while still allowing 38-year-old guys going on 16 to listen to their favorite shock jock.