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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Saturday, June 26, 2004

Censorship update

Two main areas:

First, Supreme Court opinions in the internet smut censorship case Ashcroft v ACLU are still due. According to SCOTUS Blog,
The lead opinion in this case probably was assigned to Justice Breyer.

Which is bad news, it suggests, because
Justice Breyer's previous opinion on this statute (which can be found beginning at page 29 of this pdf file) hints that perhaps he believes that the nationally uniform "community standards" of the law makes the statute analogous to the telephone-indecency statute the Court upheld in Sable Communications - which, if true, would be good news for the government.

These guys are Supreme Court litigation specialists, so...

The devil is always in the detail; but a loss in the ACLU case (after success in the Free Speech Coalition case, and the extremely strong Circuit Court opinions in ACLU) would surely be a blow (see further below).

Second, as I suggested (June 10), the Senate have cut their losses on S 2056, and gone for (on Roll Call 134) a rider (the Brownback Amendment to HR 2400 [1]) simply to increase the maximum amount of fines which the FCC can levy on broadcasters flouting 18 USC 1464 (obscenity, indecency and profanity) to $275,000 per violation or day of continuing violation, up to $3 million per violation!

The roll of shame is almost perfect: any sad sack liberals out there can shed their illusions: John Kerry voted for the amendment!

Anatomise that decision carefully: as we know, Kerry has missed 89% of roll call votes this year. He's always up and doing somewhere else - unless he sees that a vote is particularly advantageous, November-wise. Brent Bozell's anus given a premium work-out by Treebeard's tongue, and no accident about it.

And, now we have Comstock Kerry's true colours finally flying, worth mentioning a piece in the current issue of CJR:
Senator John Kerry...wins the White House in November [and] appoints Michael Copps, the senior Democratic commissioner on the FCC, and a logical choice, as chairman. Kerry then chooses a Democrat to fill the seat left empty by Powell, bringing the commission to full strength and resulting in a three-to-two Democratic majority.

A search on copps would show a good six or eight Plawg pieces on Comstock Copps; whilst Chairman 'Sonny Boy' Powell, trimmer though he is (like father...), at least makes noises in support of the First Amendment, Copps is for enforcement first and last.

With Copps in charge of the FCC, the Enforcement Bureau would become a profit centre. Fuelled by complaints from Bozell's Parents Television Council, and with the fines increased (if the Brownback Amendment is agreed in conference) to ten times the current level of $27,500, US broadcasting will be back to Pleasantville. The blacklists and Red Channels of the 1950s will appear a Shangri-La compared to the regime imposed (with implied sanction from the elected branches) by a Copps-led FCC.

However, Copps' fist may have commenced action a trifle prematurely.

Having indulged Copps' druthers, let's take a squint at mine: for the last decade, from 1995, when Infinity settled the outstanding, Howard Stern-caused, fines levied on it (March 14) until the Bono Golden Globes decision was reversed (March 19), it was pretty much all quiet on the FCC censorship front. Even the on-air antics of Stern, by miles the greatest cause of FCC censorship fines, had resulted in no fines over a practically a decade.

The policy was a variation of don't ask, don't tell. The broadcasters didn't go wild; and the FCC fined little and seldom.

The elephant in the room, then as now, is the same. But, since the FCC have broken with their earlier policy and look set - especially under a Chairman Copps - to fine broadcasters to the full extent possible - it's high time he was woken up.

That pachyderm is the complete and utter unconstitutionality of 18 USC 1464 (at least as regards indecency and profanity). Under the previous FCC policy, there was no need for broadcasters to go nuclear (or rather, constitutional) on the Commission's ass: the fines were at - or rather, well below - the cost of doing business level.

With a Copps scorched earth policy, and new maxima from Congress, all bets are off. The constitutional argument becomes an imperative.

(First Amendment lawyer Robert Corn-Revere had the temerity to make the argument before Rep Joe Barton and his Energy Committee boys (March 14).)

The suitably named Revere was also behind a petition submitted by various parties - including Howard Stern's ultimate boss Viacom - calling for a rethink of the Bono decision (April 21).

My guess is that, with the ante being raised by Congress and the FCC [2], broadcasters will have no alternative but to call for the football and let the constitutional Minutemen fly. (Revere, Minutemen - could this be a plan coming together?)

Returning whence we came, a favourable decision in the ACLU case - on the community standards issue, for instance - might well be helpful in mounting a challege to §1464. At the very least, it would establish what the First Amendment climate was amongst the current panel. More likely than not, a change of personnel would have occured by the time a §1464 case came to the Supreme Court.

  1. The National Defense Authorization Act for Fiscal Year 2005 - I get the funny feeling that that one will get signed!

  2. Even if Copps doesn't get the gig, one can't see the previous FCC indolence on enforcement returning any time soon.


Those in the cheap seats are having fun with the coincidence of the 100% GOP turnout for the 99-1 vote on the Brownback Amendment (John Breaux (D-LA) voted against - why?) and Dick Cheney on the Senate floor telling Patrick Leahy
Fuck yourself!

Mentioned just for completeness..

STILL MORE (June 28)

Harry Jaffe at the Washingtonian has background on the Post's handling of the Cheney fuck story:
How did [WaPo] come to print that four-letter expletive known as the f-word?

The two-word answer: Len Downie.

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