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Should The FCC Kick Rush Limbaugh off the Airwaves?

An op-ed written by Jane Fonda, Robin Morgan and Gloria Steinem that appeared on CNN.com suggests so.

“If Clear Channel won’t clean up its airways, then surely it’s time for the public to ask the FCC a basic question: Are the stations carrying Limbaugh’s show in fact using their licenses “in the public interest?”

The op-ed then goes on to say how much “hate speech” Limbaugh has spewed over the years and how dangerous he is to our society’s norms. There’s no doubt that Limbaugh has said some offensive, vile things. And he’s pretty much an equal opportunity offender — gays, Blacks, Muslims, the poor, and most recently women have largely come under attack throughout his career. But has he crossed a line of indecency that warrants government intervention?

The FCC polices terrestial radio (think FM and AM) and network TV (not cable or satellite) and uses a three-pronged test first established by the Supreme Court to determine if speech is obscene. One of those prongs defines obscenity as: “An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest.”

Which begs the questions: Who’s an average person? Do you know your own community’s standards? Is your community like mine? Lastly, how many people know offhand what prurient means?

If the three-pronged test used by the FCC is over the heads of the very people who may be offended, something is clearly wrong. Yet from their letter, it can be inferred that the authors believe not only that the FCC is the most effective arbiter of obscenity, but also that by removing speech we may disagree with we are more likely to create a harmonious society. On both accounts, they are wrong.

FCC Doesn’t Know What Obscenity Is
Even the American Civil Liberties Union has sided against the FCC numerous times regarding their interpretation of obscenity and their inconsistent punishments for allegations of it. They along with the Directors Guild of America, the American Federation of Television and Radio Artists and many others “told the Supreme Court the Federal Communications Commission has no business regulating any speech short of outright obscenity.”

Another issue with the letter is its lack of nuance. Even the FCC has used some common sense reasoning when considering what is indecent and what is not. Historically their primary concern has been safeguarding children, not adults who have probably already been exposed to such speech and are free to avoid it as they please. The seminal ruling, FCC vs. Pacifica, that ushered in content-based regulation of broadcast networks occurred in 1978 and the Supreme Court found that the “medium was “uniquely pervasive” and “uniquely accessible to children.” That is no longer true in a society where 90% of household have access to cable, satellite or another medium other than broadcast TV.

The authors take none of this into consideration and instead paint it as the same with a brush so wide it could cover the side of a 747.

It’s not just the American Civil Liberties Union, broadcasters, and the entertainment industry that have issues with the FCC’s rules — it’s also the courts. For instance the U.S. Court of Appeals for the 2nd Circuit found that “the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.” The court ruled that the FCC’s indecency ban “violates the First Amendment because it is unconstitutionally vague.”

Banning Hate Speech Makes Society Less Safe
While the authors claim their letter has nothing to do with politics, it’s hard to find that plausible. Talk radio is immensely vital to conservatives, serving as a reinforcement for the GOP message much like MSNBC’s nightly lineup does for the DNC. And while a handful of talk radio hosts are popular, including Sean Hannity, Neal Boortz, and Mark Levin — Rush Limbaugh still reigns as the most listened to on and off Capitol Hill. (His ability to bring voters to — or keep them away from — the polls has always been suspect, but GOP politicians have never been brave enough to test it.) Clearly bringing down Rush Limbaugh would be a political victory for Democrats, particularly months away from a presidential election.

Something that appears to be happening already, considering 98 advertisers have asked Premier Networks, which is owned by Clear Channel, to prevent ads from appearing on a number of right wing talk radio shows they produce that are known for offensive rhetoric. So why should the heavy hand of the government get involved when consumers are voting with their dollars and creating the biggest ripple in talk radio in its existence?

Furthermore, let’s take the authors at face value and presume they are not suggesting censoring Limbaugh due to politics. What they are still proposing is a society where the government decides what speech appears on our radio airwaves and by extension network TV screens on a daily basis. The government will “evaluate” the content, sterilize it, and sign off on its distribution. But what about speech that disagrees with government policy? What if the radio version of Wikileaks was on 101.5 on your local dial? Would the government sign off on that, or would that be too “obscene” and “indecent’ for public consumption? These are some of the reasons why our founders guaranteed freedom of expression, including freedom of speech, of the press, of association, of assembly and petition in our constitution under the first amendment. The Supreme Court recognizes it as “the matrix, the indispensable condition of nearly every other form of freedom.”

That Rush Limbaugh can spew such bile is a testament to our freedom of speech; not a threat to it. The threat occurs when we conveniently forget that shutting down dissent is not an American ideal, it’s an American threat.

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