E-Mail This Article to a Friend Indecent proposal (continued)

THE WHOLE NOTION of regulating content is antithetical to the First Amendment and its guarantee of free speech. The idea that radio and television are not fully covered by the First Amendment goes back to laws first promulgated in the 1930s. The rationale: the airwaves belong to the public and, as a limited resource (there are, after all, only so many radio and TV frequencies), the broadcast spectrum may be regulated in the public interest.

Where there is no scarcity, there is generally thought to be no constitutional right to regulate. Print is not regulated, although it may not offer illegal content such as obscenity or child pornography. The same holds true with the Internet, despite attempts to place indecent but legal content out of the view of children.

Until now, non-broadcast TV and radio technologies — cable and satellite television and the nascent business of satellite radio — have also been unregulated. The legal theory is that these are services people choose and pay extra for, and that therefore they should be free of the restrictions governing over-the-air media that come into your home or car. To get back to The Sopranos, HBO is not one but two steps removed from free television: you have to sign up for cable or satellite, and then you have to sign up again for HBO. Caveat emptor.

Besides, though the number of stations available by satellite or cable is not infinite, it is far greater than the handful you can get via rabbit ears on TV or on your car stereo. Where there is choice, there is less of a rationale for regulation. That’s why the shock-jock duo Opie and Anthony, tossed off broadcast radio in 2002 for running a contest in which a couple allegedly had sex in St. Patrick’s Cathedral, is reportedly due to pop up on the Sirius network, for which listeners pay about $10 a month. According to a March 1 article in the Wall Street Journal, Sirius’s competitor, XM, offers something called "Gonzo Radio at Its Most Warped."

Yet these technologies, too, make use of the public airwaves — even cable TV, where a head-end antenna pulls programming off a satellite before distributing it via cable to households in a given community. And that means that, if the culture warriors have their way, satellite and cable will be regulated, too.

Existing law already requires cable companies to block out a station or stations at a customer’s request. There’s nothing wrong with that, and there’s nothing wrong with reminding the public that such an option exists. FCC commissioner Kevin Martin essentially backed that approach in his February 11 testimony before the Senate Committee on Commerce, Science, and Transportation.

But Martin concluded with this chilling threat: "Finally, I am sympathetic to the many people asking why our indecency regulations apply only to broadcast. Indeed, today programming that broadcast networks reject because of concerns about content may end up on competing basic cable networks, and radio personalities that we have fined for indecency violations just move to satellite radio. Increasingly, I hear a call for the same rules to apply to everyone — for a level playing field. If cable and satellite operators continue to refuse to offer parents more tools such as family-friendly programming packages, basic indecency and profanity restrictions may be a viable alternative that also should be considered."

THIS IS A dangerous moment. We can all laugh at the prospect of Bubba the Love Sponge standing in the unemployment line. But what are we to make of Clear Channel bouncing Howard Stern just as he switches from cheerleading for President Bush to criticizing him bitterly? What will happen now that Stern’s employer, Viacom president Mel Karmazin, has declared "zero tolerance" for indecency — especially given how dependent Viacom remains on government favors to keep its empire of television stations intact? What’s next? Lately, Stern has taken to predicting that he’ll soon be fired. It could be just a stunt. But who knows?

Last week a public radio station in Los Angeles, KCRW, got rid of commentator Sandra Tsing Loh after she used the F-word in a prerecorded piece. She claimed that it was a mistake — that it was supposed to have been bleeped out. Tsing Loh had been on KCRW for six years, yet she wasn’t given so much as a second chance. "It is the equivalent of the Janet Jackson performance piece, and there is not a radio or TV programmer today who does not understand the seriousness involved to the station," said general manager Ruth Seymour, according to a Reuters report.

"If you give the authority to government officials to regulate speech and content, then there are undoubtedly times when it will be misused and abused. And when it comes to First Amendment activities, that’s a concern," says Paul McMasters, First Amendment ombudsman for the Freedom Forum, based in Arlington, Virginia. And, of course, in the case of Tsing Loh, government didn’t even have to step in. Her bosses were terrified enough to act without apparently so much as a phone call from the FCC.

Of course, Tsing Loh has no right to be on the air, any more than Bubba or Stern or you or me. The fear, in an age of media conglomeration, is that a decision to silence someone in one place will amount to a decision to silence someone in many places. Bob Garfield, in a February 27 commentary for National Public Radio’s On the Media, got at this by offering a hypothetical concerning right-wing radio talk-show host Rush Limbaugh, who is heard on several hundred stations. "We — all right, I — would love to see Limbaugh eradicated from the airwaves one fed-up station at a time," Garfield said. "But the idea of it happening in one fell swoop makes me tremble."

Through their greed and insatiable appetites, the media moguls have made themselves dangerously dependent on the whims of government. Rather than a decentralized network of media organizations rooted in their communities, we look out onto a barren landscape over which looms a handful of giant players. But these are vulnerable giants, assembled with the complicity of a government that could one day turn on them. Rather than see their empires broken up, the moguls will make sacrifices to the regulatory gods. Bubba? Gone. Stern? Going.

The First Amendment? Oh, come on. Who cares about a little thing like that?

Dan Kennedy can be reached at dkennedy[a]phx.com. Read his daily Media Log at bostonphoenix.com.