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Hypocrisy and Indecency in Broadcasting

an Interview with former FCC Commissioner Nicholas Johnson

"The Mike Webb Show"

Seattle, Washington
March 1, 2005


[Note: This transcript only captured Nicholas Johnson's responses to Mike Webb's questions and comments -- which can often be guessed at from the responses, but are not available for uploading.]

I am happy to be with you, Mike.  Thanks for the call.

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Well, it seems to me that once you are paying for a service -- you know, someone who has subscribed to a hard-core pornography channel on cable -- that kind of removes your right to criticize the content, it seems to me.  And I am not suggesting everything on cable is pornography, obviously, or indecency, but what we need to remember, is that "indecency" is an extraordinarily vague standard, so it puts a lot of power in the hands of the Administration and the FCC to frighten the broadcasters and make sure that they get favorable play to whatever the Administrationís line is.  Aside from the political manipulation involved in it, indecency according to the Supreme Court of the United States is protected speech.

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Yes, obscenity is not protected.  That can be regulated by a state legislature, a city council or Congress of the United States, and if itís regulated that would be normally be constitutional. Indecency is protected speech, but the standards vary from one medium to another.  So, in over the air broadcasting, where you still have scarcity, regardless of what the critics say, and you have a license to serve "the public interest, convenience and necessity," and itís a license for a limited term, and the programming comes into the home, often uninvited, and any two-year-old can turn on the set, there is a point to having a different standard.

But, when you subscribe to cable, not to mention pay cable channels, or you subscribe to satellite radio, then it seems to me itís a little tough to be complaining.

Furthermore, when I was on the Commission, and we had some of these indecency cases, the position I took was: letís turn this over to the Justice Department.  Weíve got laws on this and if they think it is important enough to go after, theyíll do it.

When it comes to commercials, the FCC doesnít have any problems throwing up its hands and saying, "Oh, we canít do anything about that, thatís the responsibility of the Federal Trade Commission."  Well, if they can turn commercials over to the Federal Trade Commission, I donít know why they canít turn indecency over to the Department of Justice and have them enforce the criminal law.

The thing that troubles me about it is that it does give the FCC a kind of leverage over the broadcaster, and I think that you want to respect free speech absolutely as much as you can.

Iíve never been troubled by the notion of the FCC telling an over the air broadcaster that he or she needs to have something on the air in the nature of local news and public affairs. But you donít tell them what they have to put on the local news.  You donít tell them they have to have the mayor on or anything like that.  You say there has to something more that a jukebox with commercials.

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Thatís another problem.  The FCC has repealed the Fairness Doctrine. If you can imagine any federal agency standing up flat-footed and coming out in opposition to "fairness."  Of course, the FCC also came out in favor of fraud.  It used to be that fraudulent practices by broadcasters were not considered to be in the public interest, but now thatís okay.

They are just throwing away all the rules, Mike.

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Yes, I think if we can get Senator Stevens to be more concerned about decency towards the environment instead of drilling up there in the arctic wilderness, and then we get him one of those big, tall black hats that the Puritans used to wear, so you could see these guys coming, you see, and you would know them when you saw them.

I just think thereís a lot of hypocrisy involved in this.  I was watching the evening news on television earlier and here comes this woman full of sexual innuendo about Levitra.  Her man gets it when he wants it, and so forth.

I would a lot rather explain to a four-year-old kid whoíd been breast-fed about Janet Jacksonís right breast than to try to explain to him what you have to do if youíve had an erection for four hours, you know.

I mean if they want to get involved in the details of programming, which I donít think they should, but if thatís what they want to do, letís take a look at the indecent commercials.  Letís take a look at what the commercials are doing to young junior high girls as Mary Pipher wrote in the book Reviving Ophelia, and letís talk about the effort to sell illegal drugs.  When you advertise pharmaceuticals on television, thatís an effort to sell an illegal drug.  It's illegal for the audience canít go out and buy that drug. They need a prescription.

And then all the product placement thatís going on; the promotion of smoking and whatever.

If the FCC wants to get into the details of programming, I think thereís a lot of stuff they can look at before they worry about indecency.

But, they donít want to do that.  Thatís the hypocrisy. The hypocrisy is that this is a political move thatís designed to serve Presidentís Bushís base with the right wing conservative Christians. There are a lot of decent people there, and I am not being critical of them, but I mean he is pandering to them with this instead of taking a serious look at programming content.

Like you say, put the Fairness Doctrine back where we need it.

The Supreme Court took a case of where I wrote a dissenting opinion as an FCC Commissioner saying that I thought if the station had time for sale they ought to be willing to sell it to everybody without making judgments about content. The Court said, "No, because we have the Fairness Doctrine, so we donít need to let people buy time."

But once you eliminate the Fairness Doctrine, then it seems to me weíve got to back and take a look at the fact that in America today there are about 1500 people who have a First Amendment right to speak over the channels that make any difference. The rest of us have all been silenced. Because the Supreme Court is now saying that with the First Amendment right to speak goes the First Amendment right to censor anyone else who wants to come on your station.

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Yes, there are laws involving indecency in regard to over the air stations.  And Senator Stevens wants to add that the ones you pay for: basic cable, pay cable and then the satellite radio services.  And the position I have been expressing is that once you know what it is, and you've paid to receive it, you kind of abandon any right to complain about what you get. You you are paying for it as much as if you went out and rented or bought a pornographic videotape or DVD.

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You and I are probably using airwaves from a satellite now for this phone conversation from Iowa.

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Hey, let me mention my website if I may. There is nothing commercial about it, itís all free:  Thereís no ďcom;Ē it's an "org" because there is nothing commercial about it.  There are thousands of screens of stuff up there, including lots of comments about indecency in broadcasting, and entire copies of books like How to Talk Back to Your Television Set and Test Pattern for Living.  Itís all free.

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You are a wonderful service to your country all the time, Mike.  You are out there, you doing something with that station.