tv The Communicators CSPAN July 17, 2010 6:30pm-7:00pm EDT
be tennessees next governor at 9:00 p.m. eastern on c-span. at 10:00 p.m., a debate among four democratic candidates running in rhode island's first house district debate to replace patrick kennedy. that begins tonight at 8:00 p.m. on c-span. >> they are the towering figures and they are all different. they have their different talents. they have their different dangers. >> this weekend, biographer robert service, and his trilogy of books on russian leaders, lenin, stalin, and, most recently, leon trotsky. learn about their relationship and roles in developing their form of communism. robert service, sunday night on c-span's "q&a." >> this week on "the communicators," two viewpoint on a legal decision that rejected the fcc's policy on broadcast
indecency. attorney carter phillips represented fox television stations. patrick trueman filed a friend- of-the-court brief for focus on the family and family research county -- council. >> from the u.s. second circuit court of appeals decision this week, we now hold that the fcc's policy on indecency violates the first amendment, because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. carter phillips, you were the lawyer for fox television station. what is the net effect of this decision on in decency? >> i think it takes the law, essentially, back to pacifica, where the supreme court said -- the carline decision -- what it basically says is you should be
looking for that shock treatment, repeat statements, as a basis on which to enforced indecency. the second circuit would not have the authority to overrule what the supreme court has said. from that point forward, what the second circuit says is that what the commission has done is so vague and incomprehensible that it is not a basis on which the first amendment will allow you to enforce the decency -- the indecency standards. >> what other decisions have been made since that case -- that is of the case? >> on the question of indecency -- that pacifica case. >> on the question of indecency, there were standards vary solar -- very similar. the supreme court has consistently struck those dampier the question has always been if there is something fundamentally -- struck those down.
the question has always been if there is something fundamentally different between cable and the internet. the court of appeals did not say that you treat the media -- the broadcast media the same as all the others. the supreme court pastelist to do that. what it said is broadcasters are entitled to the same clear criteria so that they can structure their broadcast in a way that does not force them to end up running afoul of the indecency standards that the commission has adopted an expose them to potentially ruinous fines. >> carter phillips was the attorney in this case for fox television stations. also joining us on "the communicators," kim hart. >> in the decision, they bring up the media landscape that would have been almost unrecognizable in 1978. how do you see this evolving media landscape that is changing on an almost daily basis --
there are lots more opportunities for entertainment on the internet, cable, broadcast -- where do you see this discussion evolving? what is next for broadcasters? >> when the supreme case -- when the supreme court decided the case of george carlin with pacifica, it said that broadcast television was uniquely pervasive. it has become anything but, because virtually everybody has cable. i think young people cannot tell the difference between whether they are on a cable or broadcast channel. you have the internet. there is the oddity of, if you were to broadcast it on the traditional standards that the commission used until the decision came down and you would bleep out words on the
broadcast, you could then get on the computer one hour later, watch the exact same show, and it would not be subject to any of the bleeping. the media has converged in a way that makes singling out broadcasters for disfavored treatment, to my mind, is really unjustified. that would be the next step if the case continues on to the u.s. supreme court. that is an issue the u.s. supreme court would have to deal with. >> was that when your arguments? >> we made the argument, but we recognized that it was not really available to the second circuit to say things have changed. they're not permitted to overrule supreme court decisions. i thought the judge did a nice job of describing what you described, showing how things have altered so dramatically and kind of keep it up if the supreme court wants to revisit -- tee it up if the supreme
court wants to revisit it. they upheld the supreme court rulings from the 1960's and the 1970's. it is a very different world. a question of whether the supreme court would uphold the same regulatory authority in the environment that has changed dramatically -- to push the commission at risk of losing power. >> along the lines of the s.e.c.'s power -- indecency was clearly a priority under kevin martin and the bush administration. it has not been as much of your priority under this new fcc regime. where will the fcc go with this? what do you expect? >> i thought that the chairman's statement when the opinion came down was quite a bid. you have to balance the interest of children and families and the first amendment. i suppose that is literally true, but it does not give you much guidance as to how he will
strike a particular balance. i do not think you can read too much into the fact that the commission has not done a lot of enforcement since the election, in part because the fcc has a lot of other irons in the fire. also, this litigation has been ongoing for quite some time. the commission has been somewhat constrained in how much it could invest resources, until it knows for sure whether there will be a problem. >> carter phillips, the second circuit only addressed a small portion of the indecency issue. the supreme court, when you look at the history, seems to have always kind of punted on establishing in decency standards. is that true? -- indecency standards. is that true? >> it is very difficult to define. they have basically been able to say that governments are not
allowed to regulate what is indecent. in the media, where they have had the opportunity to do some of that regulation -- i honestly thought -- i would read the second circuit opinion as a somewhat more sweeping one, because it not only says that fleeting and expletives are permissible, but also much more broadly analyzes scripted television and says, you cannot know if you're going to show " saving private ryan" as opposed to a documentary -- you cannot know which one is permissible. those are not problems that arise on the air in fleeting style. the second circuit decision is quite broad for purposes of saying we're not going to allow this any longer. >> the three judges wrote this, "the english language is rife with creative ways of depicting sexual or excretory organs or
activities, and even if the fcc were able provide a complete list of all such expressions, a new offensive and indecent words are invented every day." >> i would hope that the commission would give up this task or go back to where it was 30 years ago and recognize that there may be vy extreme situations where there is something that you could describe as indecent. if the pacifica court were reviewing that issue today, in this environment, i do not think they would have come at the same way. we'll see what appears in the supreme court and with the commission. >> what does this mean for nonverbal content? >> it did not say much about nonverbal content. there is some language that is concerned about what images you can show and which ones you
cannot show and how to apply that. from the second circuit's perspective, that one was not in this particular case. they will have to wait until janet jackson comes out of the third circuit or the "nypd blue" comes out of the other circuit. >> are broadcasters free to let would never fly -- whatever fly on air? >> i think the answer would be yes. you did not have to scrutinize every sporting event to make sure you do not have a word here or there. it is important to recognize the broadcasters have had the right for years to use expletives freely in the hours after 11:00 p.m. and before 6:00 a.m. you do not see a lot of it. broadcasters have a
responsibility to their audience. they will behave accordingly. >> have f-bombs been dropped on broadcast television between 11:00 p.m. -- just gratuitous ones? >> they have not. >> but they would have been allowed legally? >> yes. you lose more of your audience by offending them then you will gain by the occasional f-bomb that might get some traction with the audience. particularly, if you think about late-night and who was watching, they're not going to get all excited about it one way or another. >> this does seem to single out the f-bomb as being the target of some of this attention. do you think -- why do they single that out? there are plenty of other vulgar words.
>> they say that word invariably connotes sexual activity. that is counterintuitive to me. that is their position. they have made that the primary push as far as language goes. >> it in this decision by the second circuit court of appeals, they use the word "chill" or "chilling." why? >> if i do not tell you what the standard is with sufficient clarity and you are trying to stay within the lines so you are not exposed to huge fines per station, what do you do? you end up broadcasting in a way that keeps you very far from the line. you self-censor. you take out language that probably would have been ok, but you did not want the risk. the refusal -- one candidate had
been known to use expletives. that is a political debate. you would hope that would be one of the core, first amendment, protected values that you would most want broadcast media to get out there for the american people, in order to help them decide on which political candidate in the election. yet, one station walked away from it. >> carter phillips, you got the decision you wanted at the second circuit court of appeals. what was the reason for pursuing this, if the networks don't already use language that they are permitted to use after 10:00 p.m., and if you do not think it is going to really change the face of the network broadcast? >> there were two things. this places enormous pressure on live broadcasting. you had to monitor, have delays.
you will never have risen some -- you would never have a system that would be 100% accurate. it would be extremely expensive. that was reason enough. the second one is that you're going to self-censor. you would move away from providing better programming -- the 9/11 documentary -- programming like that where we're -- we're words would be used and you would just not go down that road. there may be some people in this country who would prefer to have network broadcasting be available so that 6-year-old can enjoy it at all hours of the day and night, but i do not think that is a sustainable system. the broadcasters have to compete against the cable operators and everybody else. instead of carving out a set of presentations that are suitable for children, you drive the
broadcasters out of business. >> kim hart. >> because of the competition out there, does this indirectly or directly force them to push the envelope a little bit more, to make sure they appeal to certain audiences? >> there will be some of that. there is no question that there is a little more provocative broadcasting. my basic point is that, from the experience from 11:00 a.m. until 6:00 p.m. -- from 11:00 p.m. until 6:00 a.m. -- it is not open season. your audience is different from the core of the audience that cable people are looking for certain images. expect certain language.
you not see that on broadcast. -- you will not see that on broadcast. another is a footnote on page 18. although the remand order also found the question profane, the fcc has abandoned that finding for the purposes of this appeal and has relied solely on its finding of indecency. what is the significance? >> that is up on the exchange. the statute makes it a crime for anyone to order an obscenity -- to cut her and obscenity or anything indecent or profane on the radio. profanity has been historically blasphemy, which would candidly raise even more profound first amendment issues under the establishment and free access laws, than it would under free speech. the commission, in defense of a change in policy with respect to
indecency, trying to say it is also profane -- the problem is it means that they now interpret profanity to be the same as in decency. the recognized as much and they decided not to defend on that ground. them any effect on radio with this decision? -- >> is there an effect on radio with this decision? >> the peseta -- pacifica case was a radio kansas. >> do you think our society's idea of what is in decent has evolved over the past couple decades? >> try to imagine what is patently offensive under community standards. i do not know -- i have under -- i have never understood how the commission thinks they can understand those standards. i have no doubt they have changed.
you hear language of sporting events that i would not have heard as a kid. the crowd would have screamed, there are kids in here. there have been fundamental changes. i understand some may be unenthusiastic about the course language in our country, but i do not think it will change anytime soon. >> carter what phillips was the attorney for fox television in this -- carter phillips was the attorney for fox television in this case. thank you for being here. we're calling to talk with patrick trueman, who was the -- who filed an amicus brief on behalf of focus on the family on the other side of this issue. we will be right back. patrick trueman, what were your arguments in favor of the decency standards that the fcc has developed? >> when you look at this issue of indecency, you have to put it in context. it only applies to broadcast
television, not cable. my argument is that people who are using only broadcast television and exclude cable have a reason for doing that. there are standard on broadcast television, but not on cable. the indecency law does not apply. people have a reasonable expectation in their own homes to be free from utterances of profanity or depictions of indecency. that is why the use of the password in my home -- we do not allow it there. i do not want someone like rock star bono from another country to come into my home and say that word. i do not want janet jackson to bear my breast in our home. we're older and we now have cable. i might expect that kind of material now.
when i just had broadcast television or when i am in watching broadcast television, not cable, i have a right to protection in my own home of my family from that kind of language. that is what broadcasters sign up for. there on the public airwaves, -- they are on the public airwaves come out belong to the public. -- airways, which belong to the public. when they get their license, they agree to treat the public a certain way. i forget the exact language, but they agree that they will use language that is in the public's -- programming that is in the public's interest. no one would be confused about the use of the f-word in someone's home. it is not thought to be in the
public interest. the three judges on the second circuit court of appeals wrote that the observation that people will always find a way to subvert censorship laws may expose a certain futility in the s.e.c.'s crusade against indecent speech, but it does not provide a justification for implementing a big, indiscernible standard." >> i disagree with that. this is what you'd expect from a court in manhattan. as i said in a press release, this is one reason why people feel so out of touch with their government. the court cannot figure out that the f-word on broadcast television, in the sanctity of our homes, is not prepared. if i went into your home and i said, in front of your wife and kids at the dinner table -- by the way, i use these f-word a lot. do you mind if i use it? that would be a silly question. rock star bono had no right to
commend my home and use that. the court did not strike down the federal statute on the broadcast indecency or profanity. that says it is a violation of federal law to broadcast indecency or profanity. if the regulations are vague, it is not that very language they? what is profanity? what is and decency? the court did not strike down -- what is indecency? the court did not strike down the statue tote, because the supreme court has already upheld the statute. >> kim hart. >> are you concerned that networks who have been continually pushing will now be unrestrained and do whatever
they want? >> let's go back a couple of years. the networks used to have a code of conduct. they have abandoned that as they have gotten edgier, in order to compete with cable television. they keep putting on language and depictions that are edgier. this is a green light to do more. there is a little bit of a quandary right now, because this is just one circuit court. the s.e.c. is free to enforce indecency law elsewhere, even though the regulations have been stricken by this court. some would argue that is not necessarily the case. the fcc would hold up enforcing indecency law until there is some clarification by a higher court. there is no question -- if the laws are stricken, you will hear
the f-word constantly on any show and you will hear worse. is that what people want? they can get that on cable television. consumers have a choice. they choose to watch network television. because that is on the public airwaves, they have a right to expect a standard of decency. >> on the other hand, from the business perspective, the networks are trying to compete with cable. they have a reason to need to air certain programming to make sure they are making money, just so they can survive on those public airwaves and continue their mission. does that mean thatthey -- that they should not be able to be a little bit edgier? >> two things. the standard only applies during certain hours, when children are expected to be in the audience. after 10:00 p.m., they can air what they want, because the fcc
regulations do not apply. the money set of hollywood is such that they think, in order to get an audience, they have to constantly deviate down. they should rethink their position and go up a little bit, try to add more uplifting programs. they do not have to say the f word constantly to get an audience. you do not have to bare a breast to get an audience. if they want that material, by a cable station patrick trueman, what does this do to the decency regulations -- buy a cable station. >> patrick trueman, what does this do to the decency regulations? >> the janet jackson super bowl case -- i suspect that will be decided soon. one or both of these cases will be appealed to the united states supreme court and decided there. >> who will do the appeal?
the fcc? >> they should. i doubt they would avoid that responsibility. public cannot appeal that year the fcc has to do that. >> carter phillips, the lawyer for fox, says he doubts -- he would be doubtful that the fcc would pursue it to the supreme court. >> i question that. if this case is not appealed, surely the janet jackson super bowl kansas will be. one case or another will get there. -- super bowl case will be. it will be the constitutionality of these regulations. i would have a hard time believing, after all these hundreds of thousands of complaints that the fcc received on the janet jackson matter, that they would not appeal on that. it said congress so much that they then said, increase the fines tenfold.
congress was outraged. the fcc has to appeal. i have no doubt that it will get to the supreme court. >> do you see any impact coming up on the political landscape in this election year? it could upset conservative voters. will this play into how the s.e.c. reacts going forward and how -- fcc reacts going forward and how the public use candidates? -- views candidates? >> when he was fcc chairman, he refused to bring in decency cases based on his political views. he felt money was spent better elsewhere. the fcc is now faced with the decision. i think they will hold off as
long as possible to see what the third circuit decides. i can see that decision coming down at any time. then you have to decisions to look at. one way or another, when that one comes down, they will have to appeal. >> the public is not upset about this because they have not heard as much about it. they will be upset when the third circuit says it was a corporate for janet jackson to bare her -- appropriate for janet jackson to bare her breast during halftime of the super bowl. they will do something to say that was not appropriate. >> patrick trueman, do broadcasters have an extra special duty during broad like -- during live broadcasts, which they do not have control over? >> it is not much of responsibility to have a four- second delay which would have caught these instances. that is the responsibility they
have to meet their obligations under the licensing agreement with the federal government. to broadcast on the public airwaves, they have to broadcast in the public interest. that is not much of a burden. they can meet that. the technology is there. >> at the same time, there has been an argument that the public's idea of what is indecent has changed over the past several decades. the language is being used. people of all ages are more accustomed to different kinds of images. do you think that should play a role in how broadcasters view their content? >> the fcc does take that into account somewhat. they have been relatively few enforcement actions on indecency and on profanity. despite the fact that the standards may have changed somewhat, using the f