The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Friday, March 19, 2004

Sandra Tsing Loh wraps her own story - and the NPR ombud blows an uncertain trumpet

STL has a Time piece out of her misfortune.

Jeffrey Dvorkin's piece suggests that no one is going to get crushed in the stampede to use her again in public radio:
Free speech is an important value for the public radio community. But very few people in the public radio community spoke up in support of Loh.

Some quoted the upcoming election. Others
told me that to support Loh openly might imply that public radio must also support other less acceptable forms of broadcast free speech, including Bubba the Love Sponge and Howard Stern.

Dvorkin enlarges on the point with a reference to the case of KBOO Portland, OR and Sarah Jones's feminist rap called Your Revolution.

The FCC imposed a $7,000 [1] fine on KBOO; but later reversed their decision.

The lawyers argued that her rap was creative - ie, not like those sleazbags Stern and Bubba.

The FCC just said - and Dvorkin quotes this - that the Jones
lyrics "were not sufficiently graphic" to deserve any kind of sanction.

Notwithstanding, he continues (emphasis his):
This is why the ruling is important for the Loh case: Solomon ruled that context does matter.

And proceeds to rave about the quality and uplift supplied by Jones' piece.

When he quotes the FCC guy as saying X - and continues as if he said not-X - what is one to make of it?

Worth considering at this point is Robert Corn-Revere's statement to the House Telecommunications Subcommittee (March 14).

He cites the KBOO case - and a similar case concerning a rap by Eminem:
These decisions show that the FCC is sometimes willing to correct its mistakes - which is good - but they also show that the agency was unable to apply its own standard even as it was attempting to provide industry guidance.

The obscenity rule (Miller v California) says (as one test of three) that nothing can be treated as obscene unless
the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This rule does not apply to the definition of indecency as used by the FCC: work with serious literary...value may still be indecent.

An article on the FCC and indecency supplies some caselaw (note 25) for the proposition that
The Commission has said that the seriousness of a program may be part of the merit of a program, and, thus, may be taken into account when evaluating a program's context.

But taken into account is nowhere near the defence that the Miller test offers works with serious value [2].

The 2001 FCC Guidance Notes (PDF) quote (p2a) the Miller test - but then do not even address artistic merit. It refers (p14a) to the case of Schindler's List - but says, on the nudity in that movie,
The Commission ruled that full frontal nudity is not per se indecent. Rather, the "full context" of the nudity is controlling. Looking at "the subject matter of the film, the manner of its presentation, and the warnings that accompanied the broadcast," the Commission held that the nudity in "Schindler's List" was not actionably indecent.

If the summary is correct, the quality of the flick, according to the FCC, was not relevant to the decision.

Dvorkin's thrust, based on - shall we say, an eccentric - reading of the law and practice seems to be that there are worthy recipients of First Amendment protection (eg, STL); and unworthy ones (eg, Stern).

And if the unworthy have to be thrown overboard to protect the worthy? I get the feeling this would not cause him to lose much sleep.

  1. The current limit is $27,500; in 2001 it was (from memory) $25,000. But $7,000 was the standard fine levied by the FCC for indecency violations.

  2. A brief filed in the Reno v ACLU case - in which the indecency definition was in question - suggests that a wide range of literary work would be classed as indecent.

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