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Bernie Sanders

The Last Days of the First Amendment?



Published May 4, 2005 at 4:00 p.m.

In last month's column I wrote about the Michael Jackson trial reenactments that have been airing on E!. I commented that some of the testimony has been so graphic, I was surprised the FCC hadn't started sticking the network with the kinds of fines it's so fond of heaping on Howard Stern. My remarks prompted a response from local filmmaker, free-speech advocate and all-around media fixture Bill Simmon.

Simmon, who also sits on the board of Vermont Community Access Media, got in touch to clarify the FCC's role with regard to broadcast vs. cable or satellite programming, and to direct my attention to a movement currently underway to radically amplify the agency's censorship powers. His insights were so illuminating -- and, in some cases, alarming -- that I decided to expand the communication into a full-length interview.

SEVEN DAYS: You pointed out that the FCC couldn't fine E! for indecency even if it wanted to, because cable networks are protected by freedom-of-speech provisions in the First Amendment of the U.S. Constitution. [Whereas broadcast television and radio aren't, since they're transmitted over the "public airwaves."] The last time I checked, Ben Franklin didn't invent cable TV. What sorts of provisions could the Founding Fathers have made?

BILL SIMMON: The Constitution was intentionally designed to be a fluid, living document that could cover situations they couldn't have predicted. Interestingly, the FFs argued about whether there even needed to be a Bill of Rights at all. Alexander Hamilton, at least, thought that the country didn't even need a guaranteed freedom-of-speech provision, in particular, because the federal government should have no right to abridge it anyway.

SD: If cable content isn't subject to indecency standards, why isn't there nudity and graphic content all over the dial? Wouldn't you think a network like Spike, which wants to attract young males, would boost viewership with a 24/7 fleshfest?

BS: Cable channels like Spike and Comedy Central self-censor for a variety of reasons. Corporate pressure can be a factor. Commercial cable TV is also beholden to the needs and desires of advertisers. I imagine most shampoo companies would rather not be associated with particularly extreme content. Finally, there are nongovernmental citizen watchdog groups that write lots of letters to TV channels and their corporate owners and advertisers telling them when they are crossing the line. The fact that Spike TV doesn't have hardcore pornography on 24/7 is a testament to society's ability to police itself without government intervention.

SD: Another thing you brought to my attention is that several members of Congress, including Sen. Ted Stevens (R-Alaska) and Rep. Joe Barton (R-Texas), in addition to Kevin Martin, the new chair of the FCC, want to change the rules and begin imposing indecency sanctions against cable and satellite outlets. When did the movement to extend the FCC's reach begin?

BS: I think the first place I remember this coming up in a serious way was in the 1996 Telecommunications Act, which included the Communications Decency Act. Things quieted down after that for a spell, until that fateful January afternoon when Janet Jackson had her "wardrobe malfunction." Since then, conservatives and prudes have been on a witch hunt, and things are really starting to heat up now.

People disagree on what is offensive television. I happen to think that religious programming that teaches that evolution is not true is both offensive and dangerous for children to see, but I do not support any legislation that limits that content from the airwaves. Why? Because I know how to operate a remote control, and I know how to use my cable box to block inappropriate content so my kids won't see it. I will not make the choice for someone else, and I don't want anyone making those choices for me.

SD: Why do you think there isn't greater coverage of this movement in the media?

BS: Great question!

SD: How much, in your opinion, does all this have to do with Howard Stern and a conspiracy to put him out of business?

BS: This isn't about Stern. It's about conservative Christians wanting to impose their will on our culture. Stern is standing up to them and that's good, but we need middle America to get in on this fight. I think that when people realize Tony Soprano can't say "fuck" anymore without a bleep, they'll pay more attention. Though it may be too late by then.

If we allow arbiters of decency to police our TV and satellite communications, what's next? Cellphone calls? Email? Who gets policed? Stern gets fined and Oprah doesn't for talking about the same stuff as it is now. Will Jon Stewart be watched more closely by the content police than Dennis Miller? Can anyone say "slippery slope"?

SD: What do you know about Stevens, Barton and Martin? How do they justify attempts to bypass the Constitution?

BS: The justification seems to be rather schizophrenic. Stevens has said, "There has to be some standard of decency," and "No one wants censorship," in the same breath. I'm not sure he understands what "censorship" means.

SD: In an interesting twist, Vermont turns out to be ground zero in the whole debate. Bernie Sanders was a guest on Stern's show on April 15 and informed listeners that he's introduced a bill -- HR 1440 -- to stop the FCC and the movement to expand its powers. He claims to have the support of at least 10 other members of Congress. Do you think he stands a chance against the right-wing machine?

BS: I think the bill is great, and God bless Bernie for standing up to these guys. Does he stand a chance? The censorship lines won't necessarily be drawn along party lines, so, yes, the bill has a chance. What's more likely is that neither Bernie's bill nor the one being proposed by Stevens will pass. Let's hope.

SD: Where can people get more information on how to protect their free-speech rights?

BS: Aha! I'm glad you asked [See sidebar].

In terms of protecting your own constitutional rights, it's like anything else. Get involved -- write letters to your congressional delegation, get your voice heard, vote for candidates who pay more than lip service to our basic civil liberties. We mustn't continue to let 9/11 be used as an excuse to limit our rights. I know it's cliché now to say it, but if we let our rights become curtailed out of fear, the terrorists really have succeeded.

SD: Which futuristic classic do you feel as though you're living in more -- Fahrenheit 451 or 1984?

BS: There have been some 1984-ish things going on lately, like the marketing of the Iraq war and of the President's environmental policies. But Huxley is the true visionary. I would say Brave New World is closest to the mark. Or Terry Gilliam's Brazil.