The new culture war

February 19, 2005
Globe and Mail
By Simon Houpt

New York — As the U.S. House of Representatives took roll call Wednesday afternoon on the matter of H.R. 310 — otherwise known as the Broadcast Decency Enforcement Act of 2005 — television writers and producers in Los Angeles were taking the opportunity to fill the air, if not the airwaves, with expletives. "It could be the last time we're allowed to do this," muttered one bitter comedy scribe.

It was a grim joke: Private speech is still permitted in the United States. But the new act, which passed by a vote of 398-38, will jack up the ceiling on fines for broadcasting obscene, indecent or profane material, from $37,500 (U.S.) to a whopping $500,000. NBC and Fox responded to the vote with fearful condemnation, while executives at ABC and CBS bit their lips and said nothing.

Which is why across town, leaders of the Parents Television Council were all smiles.

"We're very thrilled by the outcome today," said Tim Winter, the executive director of the PTC, which monitors the airwaves for material it deems unsuitable for children. "We've been working behind the scenes on this very measure for a number of years, and the legislation hits almost every issue we could have hoped for."

If it has been a very bad year for indecency on the airwaves, as some conservative groups contend, it has been a very good year for the PTC.

Since Janet Jackson's nipple slipped out for a half-time Super Bowl appearance on CBS last February, membership in the watchdog organization has shot up about 20 per cent, from 850,000 to more than one million.

The PTC has been responsible for co-ordinating about 98 per cent of the indecency complaints registered with the Federal Communications Commission over the last year.

Jackson's wardrobe malfunction "was the proverbial straw that broke the camel's back," says Winter. "So many parents for so long have been so outraged at what they've seen, but they felt there was nothing they could do before."

The PTC is not alone. Critics of popular culture are on a victory lap around the United States, emboldened by the perception that they and their supporters helped return President George W. Bush to the White House last November

Some seem a little lightheaded with the power. In a comic echo of the 1950s McCarthy hearings, when friends of Communists were dragged before the U.S. Senate to rat on their friends, the cartoon character SpongeBob SquarePants was smeared last month by two Christian groups as an advocate of "the homosexual lifestyle" for his crime of appearing in a video — along with dozens of other characters from children's television — made to support the notion that families can be diverse. (Bert and Ernie were not mentioned, despite also appearing in the video.) Jerry Falwell, who rose to prominence in the early 1980s, is trying to ride the wave of social conservatism by recruiting one million members for his new Moral Majority Coalition. Values-based organizations with names like Concerned Women for America, Focus on the Family, the American Family Association, Citizens for Community Values, and the Traditional Values Coalition are flush with power and growing membership. They are pushing media companies to rein in the distribution of material they deem offensive, which includes programming that is sexual in nature or which "normalizes" homosexuality.

And elected officials are listening.

"These culture-war issues are so tempting for politicians," says Marjorie Heins, co-ordinator of the Free Expression Policy Project at the New York University School of Law, and the author of Not in Front of the Children: "Indecency," Censorship, and the Innocence of Youth. "They'll automatically get on the TV news, being 'shocked and offended,' as they claim, by the latest arguably indecent display. The TV station can show a little clip of the program and everybody can be titillated."

You'd have to reach back a decade and a half to find the last time that the arts in the United States faced similar co-ordinated attacks. Back then, the targets were primarily publicly funded organizations.

In the summer of 1989, a posthumous retrospective of photographer Robert Mapplethorpe came under fire from politicians and columnists who decried a $30,000 grant from the National Endowment for the Arts in support of the show at Washington's Corcoran Gallery of Art. The show was cancelled, but the NEA never recovered its equilibrium. It suffered through years of spasms until deciding to have all of its artists sign a "decency clause" that promised they would refrain from creating work that could be deemed obscene. (The Mapplethorpe show, meanwhile, moved on to Cincinnati, Ohio, where a gallery director there was put on trial for obscenity; he was acquitted.) An echo of the NEA debate is clanging around the Public Broadcasting System, which also receives a significant share of its budget from the federal government. Frequently attacked as liberal, PBS has made moves to prove it is balanced by hiring more conservative commentators, such as erstwhile CNN pundit Tucker Carlson. Still, the pressure from the right may have contributed to the announcement this week by PBS president Pat Mitchell that she would leave the network when her contract expires in 2006.

More government oversight of PBS programming is on the horizon. Last month, in a widely reported flap, the newly appointed Secretary of Education, Margaret Spellings, criticized an episode of Postcards From Buster, a kids' program mixing live action with animation, in which the cartoon title character, a rabbit, visits exotic locales such as the Canadian North. The questionable episode, involving a visit to Vermont to learn how maple sugar is made, featured two lesbian couples who are parents of young children. Though no mention is made of their sexuality, Mitchell chose to pull the episode from network distribution after Spellings complained.

The matter didn't end there. The Department of Education, which is the majority funder of Postcards From Buster through an annual $20-million Ready to Learn grant, is suggesting that it will take a more hands-on approach to programming when the current grant expires in August.

But the main targets are on commercial TV, which gives this battle in the ongoing culture wars an unusual dynamic, transforming it from a debate about the expenditure of tax dollars into a much broader one about the role of the government in regulating speech. Television ads are coming under fire, and not just those that had been slated for the Super Bowl. One amendment that almost made its way into this week's House bill on decency was an attempt to get ads for erectile-dysfunction treatments banned from television and radio.

While Republicans generally claim to prefer to let the commercial marketplace regulate itself, they are the ones calling for stronger government oversight. Still, not all Republicans are in favour of the intervention.

The Cato Institute, a think tank favoured by old-style conservatives, argues that the government should stay out of the business of regulating culture. "Conservatives and religious groups decry government activism in terms of educating our children, for example, but with their next breath call in Uncle Sam to play the role of surrogate parent when it comes to TV content," wrote Adam Thierer, director of telecommunications studies at the institute, in an article posted on its website.

Bolstered by the show of government support, the Parents Television Council says its next target is cable television, which is not currently subject to the same decency restrictions as broadcasters. And it will keep the pressure on the FCC to enforce the new fines. Over the last year, the FCC has stepped up its rulings against indecent broadcasts, despite the fact that chairman Michael Powell, who will leave next month, had often said he was not interested in becoming the nation's nanny.

Earlier this month, 30 House Republicans sent a letter to President Bush calling on him to appoint a replacement for Powell who would crack down on smut. "The next FCC chairman will oversee an important time in our nation's history, and they must be ready to aggressively enforce the laws that Congress has passed," read the letter. "We must not let immorality become normalized, nor federal laws ignored."

One favoured candidate for the chairmanship is current FCC commissioner Kevin J. Martin, who supported the increased fines, and has been urging broadcasters to adopt a voluntary Public Interest Code of Conduct that would see them turn the first hour of prime time over to family programming.

Writers, actors and producers say all of this activity is making them very nervous about government control. Wednesday's vote "was a tragedy for creative artists," says Jonathan Rintels, a screenwriter and the head of the Center for Creative Voices in Media, which works against media consolidation.

"All of these really are civil-rights issues," contends John Frohnmayer, a former Republican who was pilloried from both the left and right when he headed the NEA from 1989-92, where he famously reversed the grants of four performance artists who specialized in cutting-edge, gay-oriented material. "Decency within a family-values context is a terribly oppressive notion. It says: You can only think the way I think, you can only act the way I act." Adds Frohnmayer, "If you can't tolerate differences, that's not good for society, and it's certainly contrary to the First Amendment."

In fact, the First Amendment may have the last word on the matter. No broadcaster has ever offered a meaningful court challenge to the indecency regulations, since TV and radio-station owners fear retribution from the FCC, which has the power to deny licence renewals. But if a broadcaster is slapped with a $500,000 fine under the new guidelines — or a series of them for a single violation, if the FCC deems each network-owned station subject to the penalty, as it did with CBS's Super Bowl fiasco — that broadcaster will have much more incentive to take the case to court instead of merely opening its chequebook.

And First Amendment advocates predict a challenge by a broadcaster could lead to all of the laws governing indecency to be struck down as unconstitutional.

Even if they're not, the attacks won't crush creativity in the United States. There are still many venues beyond the control of social critics. Take Broadway, for instance. When Frohnmayer left the NEA, he wrote a book entitled Leaving Town Alive that chronicled his stormy tenure at the agency. This week, he said he's working to adapt it into a stage musical.