Free Speech Wins - Newton Minow on Second Circuit ruling against the FCC "fleeting expletives" rule

Quick interview with Newton Minow, who joined an amicus brief on behalf of the broadcasters against the FCC. Minow is a former chair of the FCC.

Mary Minow:   What inspired you to join the brief in the case of Fox Television et al v. Federal Communications Commission?

Newton Minow:  Henry Geller, who is an expert in these matters and who served at the FCC as General Counsel when I was there, called my attention to this case. I respect his judgment and I studied it. I concluded that the FCC went too far. When it made a rule against fleeting expletives, that is, spontaneous unrehearsed live statements, I thought they’d gone much too far.

Mary Minow: Did you have any hesitation in going against the Commission that you  chaired under President Kennedy?

Newton Minow: Yes I did. This rule was put in years ago when Michael Powell was Chair of the FCC, under George W. Bush.  For this amicus, a group of former FCC commissioners and staff joined together. We were Democrats, Republicans, a diverse group. All had the interest in changing this law. We said at the beginning of the brief that we all had different views, but on this one subject we all agreed.  I, myself, was particularly offended with the FCC fined a PBS station for a respected drama, for what it considered bad language. ["The Blues: Godfathers and Sons," a documentary by filmmaker Martin Scorsese that contained profanity.]

Mary Minow: You are a crusader for decency in television when it comes to children. [Abandoned in the Wasteland: Children, Television and the First Amendment, coauthored with Craig LaMay]

Yet you joined the side against the FCC, which was trying to shield children. How do you explain that?

Newton Minow:  I want two things. I want children to be protected, and I also want the First Amendment. In balancing these two things, I thought that fleeting expletives in a live program was not something that would affect children. And besides that, advocates for children’s television, for the most part, joined us.

Mary Minow: Then what groups were in favor of the “fleeting expletives” rule?

Newton Minow:  The Parents Television Council was very much in favor of the rule. But what they were asking for was a form of censorship, which I thought was too much, even though I often agree with them. This was a matter of excess.

Mary Minow: What do you think is the next step? How do you craft a narrower rule?

Newton Minow:  [Laughs…]  I’m sure they’ll work on this now. The court said it could be constitutional if the rule was precise, but that this rule was vague and overreaching. It’s a big challenge. This is really the one place where the government has a hand in regulating a medium, but you’ve got to be very careful. This is a big challenge.

Mary Minow: Anything else you’d like to add?

Newton Minow: Yes. Another factor here is that over-the-air broadcasting is competing with cable. That gives cable an unfair advantage since it isn’t subject to the same regulations.  And I will read your blog

Mary Minow: But isn’t that an argument to regulate the medium that the government has control over?

Newton Minow: There has to be some balance.  Having one regulated and one  unregulated is really unfair. 

Comments

[Henry Cohen]

Betty, there is no federal law against exposing minors to pornography. There are state laws against selling to minors material that these laws define as "harmful to minors"; these laws vary from state to state, but I doubt that they would criminalize a parent's leaving a copy of a pornographic magazine around the house, and they certainly cannot prevent minors from viewing the pornography that is available for free on the Web. Therefore, a social scientist who wished to study whether viewing pornography harms minors ought to be able to identify some minors who have viewed pornography, especially since virtually all minors over a certain age have viewed it.

[Betty]

Dear Henry Cohen,

You wanted to read some studies showing if there is harm done to children due to exposure to hardcore porn. Unfortunately for you its illegal to expose children to porn for science sake, :) the closest you can get is sexualized media. You might find this report on the sexualization of girls interesting though.

http://www.apa.org/pi/women/programs/girls/report-full.pdf

Betty

[Henry Cohen]

Mr. Kleinman,

The first of the two studies to which you link "suggest[s] that men charged with Internet child pornography offenses and those who commit hands-on child sex offenses are, in many cases, one and the same." That suggestion, even if true, does not imply cause and effect. In any case, it does not address the question of whether children's viewing pornography harms children.

The second study to which you link was by an organization established to combat pornography, so its objectivity seems questionable.

Neither these two studies nor the one you cited in your earlier comment refutes my comment that there is no evidence that hardcore pornography is harmful to children. This fact suggests that you had no basis to assert that my comment was "simply false." The usual rule is that three strikes and you're out.

[Dan Kleinman]

Mr. Cohen,

How about these:

http://www.apa.org/monitor/2009/12/child-abuse.aspx

http://safelibraries.blogspot.com/2010/01/adult-porn-adversely-affects-children.html

[Henry Cohen]

I am a lawyer and not a psychologist nor sociologist, so I confess to being unaware of studies on the allegedly harmful effects of hardcore pornography on children. The study to which Dan Kleinman links, however, does not appear to address the subject. In any event, it is difficult to imagine how such a study could adequately isolate all the factors in children's lives apart from exposure to hardcore pornography so as to establish a causal connection between hardcore pornography and harm to children.

Or has it been found that a single exposure to hardcore pornography, like a single exposure to a flasher, can cause a child an immediate and lasting psychological trauma, with symptoms such as nightmares?

[Dan Kleinman]

Setting aside the issues at hand, what I liked most about this blog post was seeing Mary and Newton interacting in this manner. And that comment from Newton. The whole package is, well, cute, touching, you know, something like that.

As to the comment by Henry Cohen that "there is no evidence that hardcore pornography is harmful [to children]," that is simply false. For example, see "Report of the American Psychological Association Task Force on the Sexualization of Girls." [ http://www.apa.org/pi/wpo/sexualization.html ]

[Newton Minow]

Thanks. Very provocative. - Newton Minow

[Henry Cohen]

I agree with everything Mr. Minow says in this interview, including, "I want children to be protected, and I also want the First Amendment." But the FCC rule and the statute underlying it have nothing to do with either children or protection, so in this instance we can have the First Amendment without worrying about the protection of children.

The FCC rule does not apply to children's broadcasting per se; it applies to all broadcasting between 6 a.m. and 10 p.m., whether or not children are likely to watch it, and to no broadcasting between 10 p.m. and 6 a.m., even if children are likely to watch it (and not all kids go to bed at 10 p.m.). The rule is not about children.

And there is no evidence that hearing a "dirty" word or seeing a bare breast are harmful; in fact, the notion is absurd. Everyone of us grew up hearing "dirty" words, in the playground if not in the home, and, although American society has many problems, no one has ever attributed them to our widespread exposure to "dirty" words and bare breasts. There is nothing special about exposure to them on the broadcast media. Pictures of bare breasts are widely visible on newsstands and in convenience stores, and there is yet to be a report of harm from them.

To be fair, one must acknowledge that, even though there is no possibility that, without the FCC rule, hardcore pornography would be shown on broadcast television, technically speaking, the FCC rule also serves to preclude hardcore pornography from being broadcast between 6 a.m. and 10. p.m. But there is no evidence that hardcore pornography is harmful either. A prepubescent child might be puzzled by it and might inquire as to what those people are doing, but there is no basis upon which to conclude that he or she would be harmed. A postpubescent child might masturbate as a result of viewing it, and in that fact may lie the so-called harm. The statute underlying the FCC rule was enacted in 1934 -- a time when belief in the dangers of masturbation was widespread. Today, perhaps, parents do not wish to consider the fact that their teenagers masturbate.

But there can be no real fear today that the FCC rule is necessary to keep hardcore pornography off the air. So what is the real reason for the rule? The protection of children is the excuse for the rule, not the reason for it. The reason for it is the desire of those in power to impose their tastes on the rest of us.