Is Free Speech Free?

The cornerstone of a free and democratic society is the guarantee of the freedom to express one's self without fear of governmental intrusion or reprisal. So basic is this belief, the Framers of our Constitution made it crystal clear, via the First Amendment, that the freedoms of speech, religion, the press and association were not to be compromised by governmental intervention or legislation. Or so they thought. The clarity they intended has evolved into a murky swamp beset with lawsuits and court decisions which confuse any attempt at reasoned analysis of the issue.

An absolutist would contend that all speech should be protected to preserve the right of the citizenry to project their ideas and opinions into the arena of debate. While the thought of censoring pure speech-political speech-is despicable, not all speech should share the same protection and certain limits on speech are necessary to preserve order in society. Three forms of speech are not protected by the First Amendment. Obscenity, deals with expression that appeal to the prurient interests and has no social or redeeming value. The "fighting words" or those words that arouse a passion in an individual where imminent danger or violence is at hand. And defamation, where an individual is libeled or slandered. But agreement on the elements that constitute each of these is not set in stone.

One of the least protected areas of free speech is that which involves public broadcasting. While federal statutes prohibit any form of censorship in television and radio programming prior to a broadcast, Congress and the courts have awarded the Federal Communications Commission the authority to determine what is "indecent" as broadcast and effectively suppressed expression. Once placed on notice that a broadcast is deemed "indecent", the broadcaster faces fines or a notation in their file that may weigh heavily on their attempt to renew their license. A subtle form of censorship so expressly forbidden under the law?

But what constitutes the moniker of "indecent"? The Supreme Court held that the term applies to the "nonconformance to the accepted standards of morality". In this day and age, what is the accepted standards of morality? The present administration has set its own standard on everything from abortion to gay marriages. Even children's shows such as Barney and SpongeBob Squarepants have taken hits from the moral right who attempts to save us from ourselves. For a governmental agency to have such power as to subjectively conclude what is decent or not flies in the face of what freedom of expression actually means.

A Supreme Court decision, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) upheld the superfluous powers of the FCC. A monologue by George Carlin, a famous and talented satirist and comedian, entitled "Dirty Words" ("7 Dirty Words") was aired on a radio station out of New York in the early afternoon hours. A man driving in his car with his son heard the broadcast and complained to the FCC that this was not the kind of programming that he and his son should not be subjected to this type of indecency. The FCC sent a letter of complaint to the station and though not sanctioning the station advised that further complaints would be taken under advisement once renewal of the license of the station was at hand.

A brief summation: Obscenity not at issue. Indecency at issue. Children involved. Afternoon when children are present. FCC can determine what you can or can not hear. No censorship. Captive audience. This was the opinion of the majority. You read the dissenting opinions and you decide who has the most reasoned analysis. Note while you do, that the monologue is only 12 minutes long and that the adult driving the car presumably had the capacity to hit another button. As an aside, the complaint by the dad in the Carlin case was the only complaint received.

Each morning on my way to work, I listen to a radio program, The Bob and Tom Show. Very entertaining, contemporary and at times promote debate on current issues through their satirical offerings. Not really for the timid or weak of heart. When my children were younger, we listened to the program while in the car together. Many times we laughed until we cried. If there was a question concerning what was said, I never shied away from an explanation. When I participated in the carpool and the backseat was filled with giggly little high school girls, I controlled the on/off switch. There was no captive audience who after listening to something for five minutes, then makes a moral decision to use their finger to find another channel.

But station owners have become hesitant to air programming that may run afoul of the FCC guidelines, whether real or imagined censure would be forthcoming. While we can't call FCC actions truly censorship, the words of a Supreme Court Justice ring in my ears. "I know it, when I see it"