This Does Not Compute

Technology, gaming, music and things that just don't compute

Speech you don’t like is protected, too

Courtesy LiveSoMa

With all of the stories lately about how Big Media is killing fair use, cops heckling (or arresting) photographers who didn’t do anything illegal, and this whole ACTA debacle (that the American public doesn’t even know about…yet), it was refreshing to see a victory for free speech. Recently a federal appeals court laid the smack-down on the FCC for its aggressive stance (and fines of) unscripted, accidental expletives on TV.

This all started with the Janet Jackson Super Bowl Incident a few years back. People overreacted, the FCC decided to cover its ass, and TV networks now faced a new challenge: Keep language clean by any means necessary, or you’ll piss us off and pay big time. Thus, we ended up with boring, old-fart bands doing the halftime show (not that I bother watching anyway), lots of prerecording and expanded use of tape delay.

The real problem with the FCC’s rule change was the chilling effect it had on the industry. Networks suddenly had to be on guard against offending Big Brother, instead of just offending the majority of its audience (remember, networks operate on ad revenue — as long as advertisers continue to think their messages are getting across, who cares if a few viewers get mad). Having to censor yourself to keep from angering the government is never healthy in democracy — in fact, it’s most common in totalitarian societies (North Korea, Cuba, etc.).

Don’t get me wrong, the FCC has an important role and its rules are there for logical reasons. They’re structured around the notion that the airwaves in the US, upon with broadcast signals (TV, radio, etc.) ride, are considered public property. Now, mass chaos would ensue if there were no regulations on the frequency spectrum — nobody would be able to do anything, because everyone would be stepping on everyone else’s freqency — so the FCC exists to bring some order. In exchange for paying your fees and operating only within your allotted freqency, TV stations are subject to decency standards. Because children can and do watch TV, during certain hours of the day networks need to keep it clean. In the late evenings (presumably after the kids have gone to bed), things are relaxed a bit, but still nowhere near what HBO and other cable networks are allowed to get away with.

It’s the grey area of “obscenity” where the new FCC rule fell. Obscenity is generally defined as what the majority of society would consider objectionable, but quantifying specific things as obscene is generally pretty tough. A few topics are quite clearly obscene — child porn, for example — but stuff like an errant F-bomb during a live concert or show is anyone’s guess. Obscenity is not covered by the 1st Amendment, but getting something classified as obscene usually involves a trip to the Supreme Court. The 1st Amendment offers great freedom; I feel it’s probably the most important doctrine we have in the United States (and my wife would agree, as she’s sick of hearing me go on and on about it). It protects speech in almost every case, with the following general exceptions:

  • Obscenity (e.g. child porn)
  • Defamation (libel, also includes blackmail)
  • “Clear and present danger”/danger to the public (shouting “fire!” in a crowded theater, publishing military maps during wartime)

Ultimately, the FCC decided to cover its ass and put anything that, well, anyone in the viewing public would consider objectionable into the category of “obscene.” For once, the courts decided to use some common sense and logic and came to the conclusion that 1) it’s a slippery slope to put the new requirements on networks, and 2) sometimes, sh*t happens. And I thank them for it.

What really got me thinking about all of this again (I say “again” because I had to think about it a lot when I was in journalism school) was two recent news stories. This summer, as it usually does very year, the local Pride organization held its festival in a metro area public park. It got all the proper permits to rent out the space, did all the paperwork, got everything squared away legally. But then it heard that some guy was planning to show up and hand out Bibles in the park. The guy was anti-gay, but in interviews with the press, he said he wasn’t there to talk trash so much as to evangelize. The pride group went to court, asking for a temporary restraining order against him, claiming that it wanted the festival to be free of anti-gay protesters, since the organization paid to rent the park and all. After a few days, the judge came back with his verdict: Protesters were to be allowed at the festival, provided they were no more a public nuisance than the festival participants themselves.

I completely agree with the judge’s ruling. I have no problem with the gay community, I’m not anti-gay, and I think anti-gay protesters need something better to do with their time. But the judge was obviously informed about how the 1st Amendment works: You can’t pick and choose what speech is free and what is not. With the exception of what I listed above, it’s all or nothing. The fact that the pride festival was held on public property meant that the 1st Amendment protections held for anyone, including those with unpopular opinions. Had the festival been held on private property, then the pride group would have had every right to decide who was allowed to be there.

As my media law professor said, it really comes down to this: You have to protect the speech you hate in order to protect the speech you love.

A few days ago I came across a story about how, back in January, the Westboro Baptist Church held some protests in San Francisco. With such a large gay community, some of the citizens of that city decided to fight back, but not with violence or shouting or anger. They simply ridiculed the Westboro people by making their own similar, but hilarious protest signs (one of which is the photo at the top). This, I feel, is the best way to express your discontent with people who are trying to attack your beliefs — not with thrown punches or lawsuits, but by belittling and embarrassing the hell out of them, using the very principle that allows them to protest to your own advantage.


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