PAYING FOR INDECENCY CONGRESS BARES ITS TEETH IN RESPONSE TO A MORE OFFENSIVE UNVEILING - The Buffalo News

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PAYING FOR INDECENCY
CONGRESS BARES ITS TEETH IN RESPONSE TO A MORE OFFENSIVE UNVEILING

They had it coming. Moguls of the entertainment media who have proved far more concerned with good profits than good taste, and who created the culture that made Janet Jackson the offensive star of this year's Super Bowl, deserved the smackdown just laid on them by Congress.

In taking the maximum fine for airing indecent material from $27,500 to $500,000, Congress rightly took the penalty level from chuckle to choke. It also told the Federal Communications Commission -- which issued only 17 warnings from 2001 to 2003 despite tens of thousands of complaints filed by the public -- to get both tougher and quicker.

This page always will be a champion of First Amendment rights, and the new rule -- like the old one, even though its bite was laughable -- will require vigilant monitoring to ensure it encourages cultural restraint without abridging the flow of ideas. The flow of ideas that led to the free expression of Jackson by co-miscreant Justin Timberlake, by the way, doesn't qualify.

There are two important points to be made here, both of which apparently escaped the 22 House members who voted against the 391 who approved it. The first is that broadcast radio and television are regulated not because of what they say but because they use public property -- the airwaves -- to disseminate it. Cable and satellite broadcasts are not covered by this legislation, which is mirrored in the Senate by a bill that would also slow media mergers.

The second is that the "you can just turn it off" argument doesn't work when the public is ambushed by offensive behavior, as it was during the much ballyhooed entertainment extravaganza during the nation's premier sporting event, the Super Bowl, which is marketed not only as sports but as family entertainment.

Freedom of speech does not mean freedom to abuse, either in print or in person. Abusive language -- from threats to libel and slander -- is rightly subject to laws, and abusive behavior even more so. Internet "spamming," for example, abuses computer users by consuming time. The slipperiest slope here leads to chaos through lack of restraint, not to erosion of the Constitution.

And restraint, after all, is the key. The purpose of fines is to persuade those who control the businesses, as well as the performers who use those businesses as platforms for expression, to exercise a proper amount of restraint. FCC rules already demanded accountability, even if the agency was lax in reminding anyone of that. This change merely puts the cost of transgressions on the radar screen, and toughens the threat of broadcast license review for repeat offenses.

The system is not flawless. It still relies on FCC administrators and investigators to decide what's indecent, because that has never been clearly defined either by legislators or the courts. Good taste is still a judgment call, and meaningful fines probably will make many broadcasters leery of pushing the limits. Censure could lead to self-censorship.

But there was little doubt that Jackson, Timberlake and whoever else at MTV, Viacom, CBS or the National Football League had a hint of their impending brain locks didn't really understand where the limits were, anyway. In a rare instance of limits to expression becoming politically correct, thanks to a half-million complaints about the halftime show, Congress took quick action.

That action rightly reaches deeper than just this incident, because the incident grew out of a media culture that deemed it at least marginally acceptable. It wasn't. Congress and the FCC do face constitutional limits and the danger that they, too, can go too far -- but for the moment, score one for good taste.

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