Secrets of the City

slow commenting day on MNSpeak. Wonder if Friday the 13th Weather has anything to do with it.

“The debate over the Fairness Doctrine continued in the Senate today, as Dick Durbin blocked Norm Coleman from offering an amendment that would forbid content control in political speech on the airwaves.”

That’s all you need to know about who the senate democrats are.

Good grief, Kersten certainly raises a lot of undue angst to those who blog on the left. I’ll say it again, her column on Ellison is nothing but sensible. Its a very logical critique to make when a local congressman has just made an idiot of himself at a public appearance.

If Coleman was really a conservative, wouldn’t he be trying to deregulate the airwaves?

I think we can all agree that the free market is the best way to address these issues.

BTW, Maz, I assume that you and Senator Coleman also oppose content control when it comes to regulation of “indecency” on the airwaves?

That’s all you need to know about who the senate democrats are.

They act political in Washington. Shocking.

BTW, Maz: The Public owns the airwaves, not Rush Limbaugh, Sean Hannity et. al. Stations are supposed to act in the public interest because they have a frequency at the good graces of the people of the United States.

In case you forgot.

This debate is not that illigitimate. Political? — yes.

“The Public owns the airwaves . . .“

Really? “The Public” holds title to them as property?

(It’s just that I’ve always thought this was a strange way to express the actual concept. The Public, through government, has chosen to assert control over the propagation of radio waves, much like we periodically decide that more international waters now belong to us, but it’s just not the same as “ownership.”)

Doesn’t the FCC still require that radio and television act in the public interest in order to hold a license? Isn’t fairness in the public interest?

Sure, but it’s an ill-defined standard. What’s fair? If, like jeff, you believe that your own political beliefs are correct to the exclusion of all others, could it ever be fair to allow someone to air programs supporting those wrong beliefs? And, isn’t that exactly the thought process of those people who make statements about Rush or Hannity not owning the airwaves?

If you insist that fair means an equal number of stations for each viewpoint, do you ignore the fact that stations airing some viewpoints don’t attract enough customers to pay the bills? Should then public coffer then pay for those stations? Or do we force unwilling people to listen?

This whole saga of limiting political speech, whether it’s McCain-Feingold or the Fairness Act, is actually only an Incumbent Protection Act anyway. McCain got the idea from King George III, I think.

This whole saga of limiting political speech, whether it’s McCain-Feingold or the Fairness Act, is actually only an Incumbent Protection Act anyway.

I’ve never understood the reasoning of that SC decision that said Money=Free Speech. Should probably read it, I guess.

How would a Fairness Doctrine limit political speech? Wouldn’t it be the opposite affect as in bringing in more points of view?

How would a Fairness Doctrine limit political speech?

By attempting to control which political views are allowed on a radio program for example, it is controlling political speech … a clear violation of the first amendment, which was written to protect political speech from government control.

There is no such thing as too much political speech and if money is used to buy distribution of it, then limiting money is limiting speech, just as limiting the amount of ink a newspaper can buy would be limiting, i.e., controlling their free speech.

BTW, Maz, I assume that you and Senator Coleman also oppose content control when it comes to regulation of “indecency” on the airwaves?

My view is that speech that’s not political in nature should not have the same 1st amendment protection as political speech.

The courts have ruled that the people have a right to establish community standards as to what constitutes indecency and may then empower the government to prevent indecent programs from being broadcast or disseminated.

I don’t know what Norm Coleman believes in this regard, but I think he might agree with me.

Awesome reasoning, Maz. Would you mind pointing me to the “political speech” clause of the First Amendment? Or the clause that carves out First Amendment protection for so-called “indecent” speech?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I’ll wait.

The Law

What are the statutes and rules regarding the broadcast of obscene, indecent, and profane programming? Title 18 of the United States Code, Section 1464, prohibits the utterance of any obscene, indecent or profane language by means of radio communication. Consistent with a subsequent statute and court case, the Commission’s rules prohibit the broadcast of indecent material during the period of 6 a.m. and 10 p.m. FCC decisions also prohibit the broadcast of profane material between 6 a.m. and 10 p.m. Civil enforcement of these requirements rests with the FCC, and is an important part of the FCC’s overall responsibilities. At the same time, the FCC must be mindful of the First Amendment to the United States Constitution and Section 326 of the Communications Act, which prohibit the FCC from censoring program material, or interfering with broadcasters’ free speech rights.

What makes material obscene? Obscene speech is not protected by the First Amendment and broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time. According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Supreme Court has indicated that this test is designed to cover hard-core pornography.

What makes material indecent? Indecent material contains sexual or excretory material that does not rise to the level of obscenity. For this reason, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience. The FCC has determined, with the approval of the courts, that there is a reasonable risk that children will be in the audience from 6 a.m. to 10 p.m., local time. Therefore, the FCC prohibits station licensees from broadcasting indecent material during that period.

Material is indecent if, in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium. In each case, the FCC must determine whether the material describes or depicts sexual or excretory organs or activities and, if so, whether the material is patently offensive.

In our assessment of whether material is patently offensive, context is critical. The FCC looks at three primary factors when analyzing broadcast material: (1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock. No single factor is determinative. The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors.

What makes material profane? Profane language includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a nuisance. In its Golden Globe Awards Order the FCC warned broadcasters that, depending on the context, it would consider the F-Word and those words (or variants thereof) that are as highly offensive as the F-Word to be profane language that cannot be broadcast between 6 a.m. and 10 p.m.

I had said: “The courts have ruled that the people have a right to establish community standards as to what constitutes indecency and may then empower the government to prevent indecent programs from being broadcast or disseminated.”

Great appeal to authority, Maz. If courts have ruled in a way that supports your beliefs, they must be correct. Constitution be damned. Good to see yet another ends-justifies-the-means “conservative” showing his true colors.

P.S. You’re aware the courts upheld the Fairness Doctrine, too, right? Were those the “activist judges” I’ve heard so much crying about?

Even conservatives believe in stare decisis.

Really? You think so? Am I having fever dreams when I think I’m seeing conservatives who have made it their missions in life to overturn cases like Planned Parenthood v. Casey?

“Awesome reasoning, Maz. Would you mind pointing me to the “political speech” clause of the First Amendment? Or the clause that carves out First Amendment protection for so-called “indecent” speech?“

Read the last one hundred years of Supreme Court decisions dealing with the subject. The Constitution sets out a bright-line rule – no interference in “speech.” The SC, over the course of its existence, has carved “speech” out into several categories, out of necessity. (Just as complete adherence to the 2nd would allow us to own Shrike missiles, complete adherence to the 1st would make libel and slander, lying about your public company, child pornography, and exhorting huge crowds of your followers to “go out now and kill all the Swiss!”, all legal and unchallengable.)

No clause in the Constitution says this, but the Supremes have been “interpreting” the Constitution since they were established. We get in big fights about whether they should interpret the words in the way the drafters of those words probably meant, or in ways that the new Justices think best fit today’s world, but the splitting of speech into more-protected, less-protected, and unprotected categories is there, and is the law right now.

“Am I having fever dreams when I think I’m seeing conservatives who have made it their missions in life to overturn cases like Planned Parenthood v. Casey?“

You may be having fever dreams – can’t tell, don’t know you – but, yeah, lots of people want to overturn Casey, but that would be kind of useless without going back to R v W. You can respect stare decisis and for that very reason believe that Roe v Wade was an improper exercise of the Supreme’s Constitutionally-derived powers.

Some of us believe that what Blackmun came up with in RvW was a well-reasoned, middle-ground, appeasing sort of ruling, designed to quell a rising near-civil-war controversy in the country. Problem is, if you understand what the Supremes can and can’t do, you know that the ruling was really an improper trespass into the legislative branch’s Constitutionally-mandated territory.

Thus, the desire to overturn R v W doesn’t represent the disrespect for stare decisis that some would say.

Bobby, I’m not advocating any particular interpretation of the First Amendment; only point out that there’s nothing particularly conservative or principled in what I see supported by Maz.

As for stare decisis, I don’t buy your argument. You just said “the Supremes have been ‘interpreting’ the Constitution since they were established,” and there’s no question that Casey and Roe (and, by extension, Eisenstadt v. Baird and Griswold v. Connecticut) all turn on Constitutional interpretation. You may disagree with 40 years of precedent, but that doesn’t make it non-precedential. Rationalizing what would be a revolutionary change in our laws and our society as not “disrespect[ful] for stare decisis” is, IMHO, mind-boggling.

“You may disagree with 40 years of precedent, but that doesn’t make it non-precedential.“

Actually, my point was that what Blackmun did was not within his power to do. The recognition of a new “right” was something they normally do, but he then essentially wrote a complete and complex statutory framework to go with it, balancing out when that “right” exists and when it is superceded. That’s not what the Supremes get paid to do.

And your “you may disagree” part makes me wonder if you read what I wrote carefully.

I read what you wrote, except it didn’t make sense. Roe wasn’t a “complete and complex statutory framework.” It was a logical application of privacy cases to a complex legal and biological issue. It doesn’t stop being a constitutional question just because science is involved. If you really get that confused by trimesters, Casey must have come as quite a relief.

“If you really get that confused by trimesters, Casey must have come as quite a relief.“

Yes, trimesters confuse me. We always had quarters, or semesters. Probably why I so egregiously misunderstood Roe.