In a recent decision, a federal appeals court weakened the ability of the Federal Communications Commission to police the airwaves for foul language. Although the 1978 Supreme Court decision affirming the FCC’s authority to do so still applies, the recent decision, if unappealed, will leave the FCC with little enforcement power to deal with broadcasters who allow expletives to grace their content.
The decision, to a large extent, is based on vague definitions and inconsistency in application by the FCC, but the basic finding is that the assessment of penalties interferes with First Amendment rights to free speech. That is quite different, for example, than requiring the elimination of ambiguity and more consistent enforcement policies. The ruling essentially eliminates the requirement for the media to remove the expletives (e.g. using pre-recorded programming or tape delays) and allow almost anything to be said.
On the one hand, there is no question that standards are changing. With each passing year (and generation) what was once taboo becomes more commonplace. One might argue, as did one of our children in relation to what type of movies would be acceptable for our grandchildren, that foul language is so common today that its absence in the media would portray an “artificial world.” Dropping prohibitions just recognizes reality. It is a question of where one draws the lines. But, inevitably, the lines keep moving, always in a more permissive direction and regulatory bodies should adjust.
On the other hand, the reason that this problem has become more acute has little to do with freedom of speech. It’s much more a function of economics. For example, TV networks have found it much cheaper to offer live talk shows and reality programs than to spend money on more traditional programming. Clearly, they then have less control over what is said, and an attempt to instill those controls may substantially increase costs.
The issue here is whether government has a responsibility to enforce moral standards. One might leave such a task to the general public -- e.g. we all have a choice in what we watch and what advertisers we support -- thus allowing economics to express our preferences with impact. It’s a little more difficult in controlling what goes before children, but some efforts can (and have been) made to do just that. But again, clearly, commercial interests and public indifference have put us on the current path -- one disapproved of by many but which continues on its merry way. As for industry, it hardly matters which one you chose (e.g. mass communications, banking, health). Greed for profits has clearly overshadowed moral considerations for many. And bureaucratic approaches taken by government seldom achieve the lofty ambitions to which they aspire.
So where does that leave us? Unless people weigh in, it leaves us right where we are today. There is little question that the First Amendment is a fundamental to our way of life. But where does common sense come into its application? Or should it?
The media presents another interesting challenge relating to moral behavior -- namely in advertising. Many people still place trust in the integrity of their favorite channels of communication -- newspapers, magazines, TV networks -- all of which are currently being challenged by the Internet (another story for another time).
Look at the media today and you will find numerous examples of advertisements that exaggerate claims or purposely mislead. For example, turn on the television and it won’t take long before you will see ads telling you how the advertiser can help you avoid paying what you owe to a bank or to the IRS. Based on instinctive faith in the advertising medium, people often assume that these ads are legitimate. Many are not. Numerous organizations that promote products and services have been warned, fined and even convicted for misleading the public. But the media continue to carry the ads (and collect hefty fees for so doing). What is their responsibility, particularly if the misrepresentation is already well documented?
The U.S. Post Office (Title 39, US Code, Section 305) directs the postmaster to return to sender any mail sent to an organization which is using the mails to obtain money through “false representation.” So precedent already exists. Why should not an advertising medium have similar responsibility (and liability) to protect its clients, once it knows that there is a problem? It is not a disinterested party, given the revenue it generates from such ads. Should the burden be on the public, to explore everything in advance (the old concept of “caveat emptor”)? Should we look the other way with the sense that naiveté carries its own penalties? Does/should the First Amendment allow the communication channel to function transparently with regard to culpability, when people are being misled and suffering financial hardship?
Questions of moral behavior are always difficult, since there are few absolute standards, and even those that may exist today are likely to change tomorrow. They are moving targets. But the media represents one of the most powerful forces shaping our every-day living patterns. Some argue that it follows the trends. It does. But it also creates new patterns by exposing people to behaviors in a manner that often creates those trends.
Who is responsible for morality? Do the media bear part of the burden? In the end, clearly, “we the people” have to speak out and determine what is acceptable and what is not -- where to draw the lines. And given human nature, it would seem that enforcement of a penalty (and reward) system is required. But nothing is likely to change unless people get involved.
Dr. Melvyn Copen lives in both Georgia and Arizona. He is an educator and businessman who has worked and lived in many foreign countries and provides consulting services throughout the world. His column appears every other Wednesday. Please share your comments with him via e-mail at firstname.lastname@example.org.