“We are moving in the direction of undermining the First Amendment,” said US Representative Ron Paul, the maverick Texan who was the only Republican member of the House to oppose the Broadcast Decency Enforcement Act of 2004. Paul, one of the least likely defenders of shock jocks like Howard Stern and Bubba the Love Sponge, is, of course, correct. The measure, which passed the House by a vote of 391-22 last week, was written with the intent of preventing broadcast personalities from engaging in certain forms of potentially offensive speech by threatening them — and the stations on which they appear — with financial ruin.
Under the legislation that passed the House, the fine for an on-air personality who violates the ill-defined decency standards applied by the Federal Communications Commission would rise from $11,000 to $500,000. The fine against the owner of the station on which the violation was heard and seen would rise from $27,500 to $500,000.
Before the vote, officials of the American Federation of Television and Radio Artists urged the measure’s defeat, with union president John Connolly and executive director Greg Hessinger arguing in a letter to House members that, “Such legislation should be rejected on the grounds that it represents an unconstitutional threat to free speech and would have an unnecessary chilling effect on artistic freedom.”
Representative Gary Ackerman, D-New York, was blunter. If implemented, the congressman said, the law would not have “a chilling effect.” “It would have a freezing effect,” he explained.
Marvin Johnson, an American Civil Liberties Union legislative counsel, said “the very notion (of the legislation) runs counter to everything prescribed in the First Amendment. The vagueness of the language will lead broadcasters and individuals to stifle their remarks and remain silent rather than run the risk of facing an FCC fine. Not only will our First Amendment rights suffer, but so will the national dialogue. In the end, we are left with no clear understanding of just what is ‘indecent’ and worse yet, it seems we will only find out when huge fines are levied on broadcasters or speakers.”
So how did so flawed a piece of legislation win such overwhelming bipartisan support in the House? The answer has a lot to do with those flaws. Even members who knew the proposal was bad policy figured it was safe to support it because the bill’s prospects in the Senate seemed slim; and because, if it ever did become law, the measure would face a certain court challenge.