"All the words to be heard on the following program have been approved by an agency of the federal government."
"What you are about to see is bland, unrealistic and irrevelant, but it is suitable for children."
If broadcasters are going to warn us about programs that might offend us, they might as well start warning us about those that have no appreciable relationship to human life. What the Supreme Court has implicitly done in its unthinkable "seven dirty words" decision is to encourage more of just such programming, to promote even greater difference among broadcasters when it comes to putting reality on the air.
That the First Amendment is being trampled in such a decision, announced on the eve of the Fourth of July, is obvious. But then, it's already obvious that the First Amendment is not one that the Burger Court holds in high regard.
Possible deleterous effects of the decision are more disturbing still. The Supreme Court has given managements and owners of TV and radio stations terrific new ammunition to use against reporters, news directors, producers and writers who want to put potentially explosive or controversial material on the air.
And the Court has given the FCC. of all the all-thumbs regulatory agencies, new power to harass and intimidate TV and radio stations whose counterculture, antiestablishment or just offbeat programming may include vocabularies acceptable to their electronic constituencies but offensive to little ole ladies, elderly judges, near and far right wingers, or parents unable to regulate the listening and viewing habits of their kiddies.
The stations most endangered will be the struggling, minority-interest, fringe stations who can least afford expensive lawyers to defend them agains the FCC.
New FCC Chairman Charles D. Ferris was quoted after the decision as saying the commission would have "a very strong reluctance" to become further involved in "censorship". He meant the current commission. But the political complexion of the FCC changes regularly, and the commission has been nothing if not capricious in applying its own vague and sometimes baffling broadcast rules. As Barry Cole and Mal Oettinger note in their painstaking account of the FCC's sorry history. "Reluctant Regulators," published in January, "the business of selecting FCC commissioners has for years been little more than an exercise in political patronage.
The Supreme Court has given these patronees the power of life and death over spoken words. The precedent is stupefying.
An FCC source close to Ferris said prior to the announcement of the decision that the new Ferris-run commission does not place a high priority on stamping out naughty language. "We have a lot of very important things to do around here and I don't think that's one of them," the source said.
He said he would choose "a word from one of those seven dirty ones" to describe the whole case.
Indeed, it was widely assumed that the court would not uphold the "dirty words" reprimand that the FCC gave to Pacifica radio station WBAI in New York, but overturn it on free-speech grounds that seem clear as acrylic floor wax. A consortium of strange bedfellows had joined to oppose the FCC before the Court - from the National Association of Broadcasters, the three TV networks, and the Motion Picture Association of America, to Naderesque activist groups like the Citizens Communications Center (CCC) and the National Citizens Committee for Broadcasting.
And then the Justice Department put what was presumed to be the icing on the cake by itself coming out against the FCC's attempt to increase it authority. So who was for the FCC? And why on earth was the FCC, which has more on its hands than it can regulate already, seeking to extend its jurisdication?
"The reason," says Edward Kuhlman, director of ligigation for the CCC, "is Wiley," Richard E. Wiley, who just retired as FCC chairman, was a big, Bible-belt clean-up-the-airwaves man.
Wiley was a lackluster chairman, but he was a superduper public relations man. He knew that obscenity was a great, visible, attractive issue. It could be used to make the FCC seem a vigilant defender of the national morals. Thus it was Riley who took the heads of the networks into a back room and dreamed up the ill-fated family-hour plan, later struck down by a California court as being patently unconsitutional.
"This was one of Wiley's pet issues," Kuhlman says. "He thought that obscenity and indecency were issues that really appealed to people. FCC staff members have said they wanted to test their power on this one, to see how far they could go."
One irony is that a prevailing tradition at the FCC is to plead lack of authority whenever it's convenient. Regulate the advertising of products aimed at children? No, no, we can't regulate that - this is what in effect the FCC has repeatedly said to protesting consumer groups.
A landmark in FCC do-nothingism suggests how far the commission will go to avoid applying even its own rules. In 1964 it refused to revoke the license of a Jackson, Miss., TV station that had flagrantly discriminated against blacks, referred to them on the air as "nigras" and suppressed civil rights new during the turbulent '60s, even though an estimated 45 percent of the station's potential audience was black.
The commission had to be forced by a U.S Court of Appeals merely to hold a hearing in the matter, and then forced again by the same court to deny renewal of the station's license after the hearing was held.
It might be thought that the commission's notorious protectioniststance toward TV and radio stations would be a line of defense agains the inhibitions implicitly mandated by the Supreme Court. The FCC does tend to side with the forces of broadcast ownership, as represented by one of the most powerful lobbying armies in Washington, but this does not necessarily mean siding with broadcast journalists, or with creative artists still hanging on to threads of hope for free expression in broadcasting.
The goals of station owners are not necessarily those of broadcast journalists. They can be diametrically opposed.
Throughout the crazy-quilt history of broadcasting in the United States, some of the proudest and most significant moments came about when TV and radio stations told and showed us things we may not have wanted to see or hear. One recalls such controversial triumps as Edward R. Murrow's stand against Sen. Joseph McCarthy, or "CBS Reports: Harvest of Shame," or last week's ABC news close-up, "Youth Terror," in which a few of the dread seven dirty words were an unpleasant but integral part of the story.
Broadcasters do not need any more reasons to play it safe, to play it cool, to pacify us with things they know will be almost universally soothing and lulling. Why do the Supreme Court and the FCC have to give them a new exucuse for cowardice?
It's been said over and over that radio and television cannot be afforded full First Amendment freedoms because they differ in nature from print media. Here is a big flash for all those who've been asleep for past 30 years: The newspaper is an endangered species. In time the electronic media will be not only dominant but perhaps the only mass communications in this country. They won't be an adjunct of the press, they will be the press. "The press" will be as outmoded a term as "the privy."
Will the FCC then have yes-and-no power over every word spoken in all of mass communications? The thought is appalling. But there is hope. The proposed rewrite of the Communications Act of 1934 now before Congress calls for the abolition of the FCC and its replacement with a new agency. It can't happen too soon.
Kuhlman sees another bright side. Unwittingly perhaps, the Supreme Court may have given a new negotiating tool to the very activist groups the FCC has tried to ignore. The Court has acknowledged and upheld the concept of what Kuhlman calls "zoning" air hours - saying that certain things are not sutable for time periods when children are likely to be in the audience and that children are a special class to be accorded special treatment.
Well, lo and behold, this is just what Action for Children's Television (ACT) and other groups have been saying on the touchy issue of TV advertising directed at kids. The Federal Trade Commission is trying to hold hearings on this subject and members of Congress, under incredible buffeting from the broadcasting, sugar and food lobbies, have been trying to sabotage the effort. Kuhlman believes the FTC may be able to cite the dirty words ruling as a foundation for giving kids special handling.
If so, it's the only conceivable benefit to come out of a decision that should have civil libertarians and those with high hopes for broadcasting practically dizzy with depression. No, these are not the new Dark Ages. That is too melodramatic. But maybe these are the Belgie Ages - a time in which blandness, sameness, and mildness are exalted and endorsed by the media and even put into law by the highest court in the land.