Digital Crossroads is a weekly radio show, now in its 3rd year, new every Friday.
Today, a look back at election day from a unique perspective. Marge Heins is a great writer and veteran attorney with real experience at the Supreme Court. Her book Not in Front of the Children is required reading if you want to know the modern history of American broadcast censorship. I spoke with her on the phone Wednesday November 5th, the day after the Supreme Court heard oral arguments in the FCC vs. Fox “fleeting expletives” case.
Hear her expert opinion about what the Supremes will decide and how it will affect free speech over the airwaves in America. Then stay tuned for a look at what we can expect from a Barack Obama administration’s technology policy, including who will be running the Federal Communications Commission next year. Plus at the end of the show, hear what Studs Terkel, who died October 31st at the age of 96, had to say about Obama.
Listen or download HERE. Edited for FM broadcast.
- Bleeped from 3:05 to 3:10 “Fuck” “Shit”
- Bleeped from 8:40 to 8:45 “Fucking Brilliant”
- Bleeped from 9:30 to 9:45 “Bullshitter” “All Fucked Up”
- Bleeped from 11 to 11:30 “Fuck Em” “Cow Shit” “Bullshit” “Bullshitter”
Marjorie Heins is a lawyer, activist, writer, and founder of the Free Expression Policy Project. Heins founded and directed the Arts Censorship Project at the American Civil Liberties Union from 1991-1998 and was co-counsel on the ACLU’s Reno v. ACLU brief to the U.S. Supreme Court, which ultimately led to striking the Communications Decency Act as an unconstitutional violation of the First Amendment. She is a graduate of Harvard Law School.
Here are some highlights from her great piece about her latest trip to the Supreme Court, published on the Free Expression Policy Project website…
Although Justices Roberts and Scalia dominated the November 4 argument, Justices David Souter and John Paul Stevens joined Justice Ginsburg in expressing skepticism about the fleeting expletives rule. Justice Stevens, the author of Pacifica 30 years ago, asked Acting Solicitor General Gregory Garre, who argued for the FCC, if the Commission takes into consideration whether the use of an expletive is funny. Garre repeated the FCC’s frequent litany about “context”: the agency takes everything into account – audience, time of time, whether the language was gratuitous or pandering. Scalia then quipped: “So a bawdy joke is okay if it’s really good?”
This led to a colloquy about what language, if any, would be more “shocking” to children. Garre asserted that the Cher and Richie comments were indecent because there is more harm to children when a celebrity says these words. Chief Justice Roberts agreed: according to him, this is very different from a soldier shouting expletives in Saving Private Ryan “when your head is being blown off.” Carter Phillips, arguing for Fox, seemed astounded, replying: “It can’t be that the FCC can determine that a child has a different reaction in the two situations.” And in response to a hypothetical in which Roberts seemed to think that a football player yelling expletives would be okay under the FCC’s “contextual” analysis, Phillips pointed out that football players are celebrities too.
Only Justice Ginsburg seemed in favor of addressing head-on the First Amendment problem with a government agency’s shifting, subjective, often whimsical censorship decisions. “This whole argument has an air of futility,” she told Garre. “The Second Circuit more than tipped its hand. Is there a way we can say this issue is before us now”; that we should not ignore “the elephant in the room”? Whether four other justices will agree with her remains to be seen, but Souter, Stevens, and Kennedy – the most likely votes for a free speech-friendly result – did not seem eager to reach the First Amendment question. Justices Samuel Alito and Clarence Thomas said nothing at all.
The most likely outcome is a decision on the statutory issue only, either affirming or reversing the Second Circuit – that is, either deciding that the fleeting expletives rule was adequately justified or agreeing with the Second Circuit that it is “arbitrary and capricious,” and sending the case back to the agency for further deliberation. The latter result is in a sense the least palatable, because then the indecency regime as a whole would remain in effect indefinitely, while the FCC reconsiders its fleeting expletives rule.
A reversal on the statutory issue would give the Second Circuit an opportunity to transform its “dicta” into a holding that either the fleeting expletives rule or the entire indecency regime violates the First Amendment. This would almost surely be followed by a Supreme Court showdown on the issue.
But there is another possibility. An Obama administration could decide that it no longer makes sense to devote federal government resources to the FCC’s deliberations on whether American children need to be shielded from hearing an occasional “bullshit” or “fuck ‘em” on network television.
More about the Supreme Court election day expletives
Jess Bravin, Wall St. Journal:
Last year, a federal appeals court in New York struck down a 2004 Federal Communications Commission rule penalizing the broadcast of “fleeting expletives.” That court found the FCC had been “arbitrary and capricious” in abandoning its prior policy, under which it generally ruled that isolated vulgarisms weren’t enough to trigger the legal standard of indecency.
Chief Justice John Roberts asked how the FCC justified punishing some programs for airing a fleeting expletive, while clearing the CBS “Early Show” when it broadcast a vulgarism uttered by a reality-show contestant.
“The commission has determined that news programs would be treated differently,” Mr. Garre said, “because of the different values present in that situation.” For the same reason, he said the FCC wouldn’t punish broadcast of a news report on the Supreme Court argument itself, even if it included the words at issue.
Greg Stohr, Bloomberg:
Defenders of the FCC rule call it a needed step to combat a sharp increase in profanity on broadcast television. Just last week Philadelphia Phillies player Chase Utley, at a televised rally celebrating the team’s World Series victory, shouted, “World champions, world fucking champions.”
Dahlia Lithwick, Slate:
Justice Ruth Bader Ginsburg, at one point, observed that the whole case has an “air of futility” because, if the court just decides the narrow administrative issue, the First Amendment problem is still “the elephant in the room.”
Justice Ginsburg can’t understand why an expletive-rich broadcast of Saving Private Ryan was spared the FCC’s wrath while a program about the history of jazz was tagged for indecency. “There’s very little rhyme or reason which one of these words is OK and which isn’t,” she tuts.
Neither Scalia nor Roberts will accept the argument that there is some higher standard to be met for administrative regulation just because speech is involved.
It’s hard to say how this all shakes out. Three justices say very little. Two clearly favor granting the FCC even more standardless discretion. The rest keep offering peanuts to the elephant in the room. It’s a safe bet that the court will try to stick to the narrow administrative question, despite the justices’ itch to talk dirty. Mostly, though, it’s a bitterly disappointing day for those of us who’d looked forward to hearing some filthy words at the high court. But, having run the whole case through the FCC’s highly subjective, context-based smut filter, I did come up with the following list of dirty words from today’s arguments: Briefs. Golden globes. First blow. Dung. Pipeline. Jolly-woggle. Perhaps it’s true that the Supreme Court can take away our F-bomb. But they cannot touch our dirty, dirty minds.
11/4/08 Email to Common Cause Media Reform and other lists-
The Court was surprisingly unsympathetic to the broadcasters’ arguments that the FCC had been too aggressive and inconsistent in its new enforcement of the indecency rules. In particular, Chief Justice Roberts and Justice Scalia seemed completely unsympathetic to any argument that the FCC had overstepped its bounds. While there were a few concerns expressed about the inconsistency of the FCC’s decision, it didn’t seem to be swaying a majority of the court. So it seems that Martin’s regime might get upheld.
So, it is not a good day for those of us who have been concerned that whether you agree or disagree with the FCC’s decision to regulate indecency in the first place, the current regime has been unpredictable and threatening particularly for smaller broadcasters who can get caught by FCC’s new increased fines and vague standards. On the other hand, for everyone who was concerned that the Court could take this opportunity to undermine the constitutional justification for regulating broadcasting altogether, we will likely live to fight another day.
Of course, all of this is just a prediction based on oral argument and oral argument is never completely clear. The decision won’t likely come out until next year and, theoretically a decision could wait as long as the end of the term next summer. -Cheryl Leanza, Policy Director, United Church of Christ
President-elect Barack Obama could name current Democratic FCC commissioners Jonathan Adelstein or Michael Copps to the position of the agency’s chairman. There has also been speculation he will name a chairman from outside the FCC, with the following names floating around: Julius Genachowski, Lawrence Strickling, Don Gips and Blair Levin. For the record, I’ve never heard of any of these men either.
There is a very interesting dynamic at the Federal Communications Commission right now, because of how the political appointments there work. Commissioner Adelstein and Republican commissioner Deborah Tate have not been reconfirmed by the Senate, even though their terms have expired. President Bush renominated both of them to five-year terms, forcing Democrats in the Senate to avoid voting before the August recess.
If Republican Chairman Kevin Martin opts not to retire, as chairmen customarily do when the Presidency changes parties, the Republicans would hold onto a three-member majority on the five-member commission. Obama names the new chairman either way, but holding off on Tate’s nomination assures Democrats of an immediate FCC majority next year.
In terms of policy, David Oxenford writes November 4th on Broadcast Law Blog Obama will likely deliver on his promise to appoint a Chief Technology Officer as a cabinet-level position to deal with technology and communications. Obama is also expected, Oxenford writes, “to look for ways to encourage minorities and other new entrants into broadcast ownership.” Oxenford also expects, “regulation that imposes some public interest obligations on broadcasters.”
President-elect Obama has named tech executives to his transition team, according to CNET. Julius Genachowski previously served as chief counsel to former Democratic FCC Chairman Reed Hundt, as well as working for InterActiveCorp, an investment firm and co-founding a venture capital organization. Sonal Shah works for the philanthropy division at Google.
CNET reporter Martin LaMonica writes November 5th that Obama is expected to be the first green high-tech president. Clean tech under Obama will include less controversial ideas such as:
- An investment in upgrading the power grid which would make it easier to use solar and wind.
- A national renewable portfolio standard that mandates utilities get 10 percent of electricity from solar, wind, or geothermal by 2012.
- Continued support for biofuels and introduction of low-carbon fuel standard.
- Increased fuel-efficiency standards and tax rebates for plug-in hybrids.
However Obama has also pledged some more controversial plans, namely:
- A carbon cap-and-trade regime meant to make low-carbon technologies more price competitive.
- Research on so-called clean coal technologies to store carbon dioxide emissions underground.
Democracy Now host Amy Goodman is skeptical about these and other Obama policy plans that could potentially bring huge profits to corporations. In her weekly syndicated column, entitled Organizer in Chief published November 6th by Truth Dig, Amy Goodman writes:
Before heading over to Grant Park in Chicago, Sen. Obama sent a note (texted and e-mailed) to millions of supporters. It read, in part: “We just made history. And I don’t want you to forget how we did it. … We have a lot of work to do to get our country back on track, and I’ll be in touch soon about what comes next.” But it isn’t enough for people now to sit back and wait for instructions from on high. It was 40 years ago in that very same place, Grant Park, that thousands of anti-war protesters gathered during the 1968 Democratic National Convention, demanding an end to the Vietnam War. Many from that generation now celebrate the election of an African-American president as a victory for the civil rights movement that first inspired them to action decades ago. And they celebrate the man who, early on, opposed the Iraq war, the pivotal position that won him the nomination, that ultimately led to his presidential victory.
Another son of Chicago, who died just days before the election, was oral historian and legendary broadcaster Studs Terkel. Amy writes, I visited him last year in their shared city. “The American public itself has no memory of the past,” he told her. “We forgot what happened yesterday … why are we there in Iraq? And they say, when you attack our policy, you’re attacking the boys. On the contrary … we want them back home with their families, doing their work and not a war that we know is built upon an obscene lie. … It’s this lack of history that’s been denied us.”
Amy concludes her column, writing-
The Obama campaign benefited from the participation of millions. They and millions more see that the current direction of the country is not sustainable. From the global economic meltdown to war, we have to find a new way. This is a rare moment when party lines are breaking down. Yet if Obama buckles to the corporate lobbyists, how will his passionate supporters pressure him? They have built a historic campaign operation—but they don’t control it. People need strong, independent grass-roots organizations to effect genuine, long-term change. This is how movements are built. As Obama heads to the White House, his campaign organization needs to be returned to the people who built it, to continue the community organizing that made history.
Of Studs Terkel’s death, Chicago Tribune reporter Patrick Reardon writes he was “born in New York City but came to embody Chicago as no other writer or cultural figure ever has. And few have left such a deep literary imprint. He took the obscure academic exercise known as oral history and turned it into literature. In transcribing the words and hopes of ordinary people, he gave voice to the voiceless.” Reardon continues, “whether on radio or on the page, he used his words to celebrate the People with a capital P and to protest their oppression by the stupid and powerful.”
According to Jeff Cohen, founder of Fairness and Accuracy in Reporting, Studs Terkel will never be silenced. “Studs received generally favorable treatment from mainstream media. The respect was not mutual. He decried the elite media’s coziness with the powerful, the timidity that subverted public television, and the censorial ways of corporate media bosses.”
In his last interview, October 23rd, a week before his death at the age of 96, Studs Terkel told Edward Lifson of Huffington Post, “Community organizers like Obama know what’s going on. If they remember. The important thing is memory. You know in this country, we all have Alzheimer’s. Obama has got to remember his days as an organizer. It all comes back to the neighborhood.”
According to the piece, Studs Terkel was hoping for an Obama landslide. “I’m very excited by the idea of a black guy in the White House, that’s very exciting,” he said as he was hanging up, “I just wish he was more progressive.”