Brownback, a highly conservative member of the Senate who is seeking the Republican nomination in 2008, attempted to attach two amendments affecting broadcast content to a government spending bill, but could not generate sufficient support within the Appropriations Committee.
The first proposal would have restored the FCC’s ability to fine broadcasters for occasional slips of the tongue — so-called “fleeting indecencies” like Nicole Richie’s use of the word “fucking” at the 2003 Billboard Music Awards.
The second measure proposed by Brownback would have allowed the FCC to regulate violent content on broadcast TV the same way the commission regulates indecent content.
Committee chairman Sen. Robert Byrd, D-W. Va., asked Brownback to withdraw the amendments, and instead bring them to the Senate floor for debate. Brownback declined to drop the amendments, and requested a voice vote on his indecency measure. The indecency measure failed a voice vote, at which point Brownback withdrew his violent content amendment as well.
Brownback’s loss in the Appropriations Committee does not spell the end of his effort to grant expanded content regulatory power to the FCC.
According to media reports, Sen. Daniel Inouye, D-Hawaii, wrote a letter to Brownback saying that his committee, the Senate Commerce Committee, was the proper place to introduce the legislation expanding the FCC’s regulatory power. In his letter, Inouye stated that “our members are aggressively preparing bipartisan legislation to address these issues in a manner that will withstand constitutional scrutiny.”
Reed Lee, a constitutional law expert and current president of the 1st Amendment Lawyers Association, told XBIZ that the power Congress grants the FCC is relevant to the online adult entertainment industry due to the way in which the FCC policies and standards could be adapted and applied to other forms of media, including the Internet.
“The FCC’s regulation of broadcast media has provided a model that some people want to extend out to other forms of media,” Lee said. “The disclaimers that run at the start of certain programs warning about violent or sexual content, the ratings like TV-MA — in a sense this is what people are talking about when it comes to meta tags that could be used to filter web content, content disclaimers and warning pages on websites.”
While Lee said that there’s “nothing unconstitutional, per se, about a sense of decorum,” or requiring that people in certain settings adhere to certain standards set by private entities, the problem starts when the government seeks to extend those prohibitions into the public sector under the rule of law.
“Broadcast indecency is an area of the law that is in greater disarray than most other areas of 1st Amendment law,” Lee said.
Reed cited the FCC’s fine of the Public Broadcasting System for the use of indecent language during the course of a documentary on blues music as particularly problematic. By punishing PBS for the content of the speech in the documentary without considering the context of that speech, Lee said the FCC simply went too far.
“The question is not just whether the language used in a blues documentary is appropriate for 6-year-olds,” Lee said. “You also have to ask how likely it is that a 6-year-old is going to be watching a documentary about the blues.”
While it is not clear when the Senate Commerce Committee will take up the issue, Inouye said that debate of legislation nearly identical to Brownback’s could begin as early as next week.