For the Want of a Bra

The Senate Commerce Committee vs. Free Speech

For the want of a bra, free speech was lost.

Well, not exactly, but if the recent actions by the U.S. Senate's powerful Commerce Committee are any indication, the future of free speech may be hanging by threads as sheer as the ones in a Victoria's Secret mesh babydoll.

The Washington Post reports that the Commerce Committee is paving "the way for a broad crackdown on offensive radio and television programming, including extending stiff fines to artists, limiting violence and temporarily preventing broadcasters from owning more stations until potential links between media consolidation and indecency on the airwaves can be studied."

The Senate committee followed the lead of its counterpart in the House of Representatives and has agreed to increase fines for "indecency." If things go Congress' way, first-time offenses by broadcasters will draw a maximum fine of $275,000, or 10 times the current amount. The per-incident fines will then increase to as much as $500,000. Going beyond restrictions being developed by the House, the Senate committee is also pushing to double all fines if the offending material is "scripted or planned in advance, or if the audience [is] unusually large" (no more Super Bowl botch jobs, thank you). On top of all that, the committee wants the Federal Communications Commission to set rules disallowing "violent" shows when kids are likely to be listening or watching. And then there's that moratorium on the loosened ownership caps passed last year until the General Accounting Office nails down the specifics of the "relationship between indecent programming and media consolidation."

The good news? The committee voted down, by a slimmer-than-slim 12-11 vote, a provision that would have given the FCC the right to regulate the content of basic cable and satellite programs in the same way it does TV and radio broadcasts.

So it turns out that the outraged pols and social critics were absolutely right when they fumed that Janet Jackson's notorious Super Bowl half-time show nipple-baring really did drive some Americans stark raving nuts. It's just that they were talking about themselves more than the population at large, which seems mostly willing to move on (after all, there's a new season of the violence-and-sex-drenched The Sopranos to catch). But for all too many members of America's political and chattering classes, beholding the slutty songstress's galvanized areola was the psychic equivalent of staring directly into a total eclipse of the sun, blinding them with indignation, outrage, and national shame.

Of course, the Nasty Girl didn't inspire such righteous apoplexy all on her own. She's had help over the past few months from "categorically indecent" Victoria's Secret lingerie shows; the foul-mouthed award-show ejaculations of U2's Bono; the verboten utterances of public radio monologuist, middle-aged housewife, and admitted knitter Sandra Tsing Loh; and the unmediated racism of Howard Stern callers, among others.

How seriously should we take any of this new congressional and regulatory activity? Given the unprecedented level of free expression we have and the ineffectiveness of past regulatory schemes such as the V-chip and past threats of content crackdowns from elected officials, it's easy to laugh off these latest legislative efforts. At best, they represent election-year pandering and, at worst, they will act as a minor drag on an unstoppable culture boom that gives all of us greater and greater opportunities to produce and consume more and more media.

Yet as Buzzmachine's Jeff Jarvis reminds us, "Once the government gets in the business of content [regulation]…then there is no stopping them. Slide down that slippery slope. Today, Howard Stern is offensive. Tomorrow, Sandra Tsing Loh on knitting is. Tomorrow, they try to regulate cable and not just broadcast. The next day, they go over the Internet (where, after all, there's lots of dirty, nasty, offensive stuff). This isn't about Howard. It's about you." If Jarvis seems a bit overanxious, it's worth remembering that it's only been a few years since the federal government almost succeeded in applying stultifying content regulation to the Internet. And it's only been a few decades since such obscene garbage as Lady Chatterley's Lover, Tropic of Cancer, and Fanny Hill (among others) were fully cleared for publication in these United States.

I'm far more confident than Jarvis that audiences and producers will always be able to route around censorship and regulations, especially the relatively mild sort of restrictions that would eventually pass constitutional and popular muster. This is especially true because technology continues to make it harder for all sorts of suppression. But he's right to emphasize the underlying logic behind the sorts of legislation and policy that are making the rounds in Washington, D.C. Just because censorship is unlikely to work is no reason not to stand against it in the first place. And in the second and third place, too.