Benjamin, Aaronson, Edinger & Patanzo, P.A.

Broadcast Decency Enforcement Act of 2004

        Although close to 2.5 million jobs have been lost over the last four years, and although American citizens, both civilians and soldiers, seem to be getting killed on a daily basis in Iraq, it is wonderful to know that our elected officials in Washington are uniting together to curtail First Amendment freedoms and freedom of speech.  Early last month, by a 391 to 22 vote the United States House of Representatives passed the Broadcast Decency Enforcement Act of 2004.  The purpose of the Bill is to curtail alleged indecency over the broadcast airways.

    Should a similar Bill be passed by the Senate and ultimately signed by President Bush, which he has already indicated he would do, broadcast license holders would have the maximum fines raised from $27,500.00 to $500,000.00 per incident.  On the other hand, performers would now be subjected to maximum fines of $500,000.00 up from the maximum fine of $11,000.00 before the Act.  In addition, the performer may be punished after the first incident while previously punishment could only be had if a second incident occurred.  As to the broadcaster’s license, the Broadcast Decency Enforcement Act of 2004 would mandate the Federal Communications Commission to consider revoking a license from any broadcaster found with three indecency violations.

    The problem with this legislation along with all curtailment of First Amendment rights is that “indecency” is in the eyes of the beholder.  For example, in February Howard Stern on his morning broadcast, played a bit or actually a tape of a show shown on children’s television to teach young children how to be potty trained.  During his broadcast of this tape, no less than seven times did the censors censor part of the recording.  Obviously the censors found that some of the material was offensive to the adult listeners in morning drive.  However, apparently that same tape has been played on television for children numerous times without censorship.  How can a tape that is not offensive to children somehow become offensive to adults?

    The answer is simple, decency and offensiveness are subjective.  What is offensive to one is not offensive to the other.  What is humor to one is ridicule to another.  There is no such standard of offensiveness and indecency and therefore any regulation based upon offensiveness or indecency subjects that broadcaster to the whim and idiosyncrasies of the censor and the FCC.

    That would be bad enough, but now with the heightened fines and heightened scrutiny of Congress and the FCC, broadcasters are bending over backwards not to allow programing that in fact could trigger fines or FCC censure. Because of this fear disc jockeys such as Howard Stern and Bubba the Love Sponge have been yanked from several markets.  In essence, Congress’ legislation or proposed legislation and hearings are now acting as a prior restraint on First Amendment protected speech by causing broadcasters to pull the plug on their disc jockeys because  broadcasters are in fear that they will be hit with heavy penalties and fines. 

    So now, without banning messages such as Howard Stern’s the FCC and Congress are in fact causing the First Amendment protected speech to be banned.  The net result will be less cutting edge, less offensive, less adult and less free speech on the airways.  The net result will be the inability of you and I to hear offensive, crude, indecent and unpopolur comments, believe it or not, the essence of a free society.

    There is no need for the First Amendment when the government and everyone agrees with what is being said.  The government will never curtail the speech that they like.  The First Amendment not only protects popular speech or speech approved of by the government, but more importantly and more necessarily the First Amendment protects unpopular speech and speech disfavored by the majority or by the government.

    No one holds a gun to the head of the listener to require them to listen to Howard Stern or other shock jocks.  No one forces that volume to be turned up.  In a country that prides itself on freedom and the utmost freedom is the freedom of speech, how can speech that is obviously enjoyed by numerous adults, as the ratings show, be not in the country’s interest?  Unfortunately, the answer is that we are no longer a country that prides itself on freedom, but rather we are a country that prides itself in boasting about the freedoms that we apparently have little trouble giving up.

    With the Patriot Act the components of the Fourth Amendment have been thrown to the wayside.  The Fifth Amendment and Due Process took a major hit by the Patriot Act also.  By the Broadcast Decency Enforcement Act of 2004, the First Amendment is taking a major beating.  Yet, with all these freedoms being taken away, there is hardly a clamor.  No, freedom is just a buzz word that we like to use, what this country unfortunately now stands for is political conformity and political correctness.  It is time that we were a little less correct, and a little bit more free.

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