[Congressional Record (Bound Edition), Volume 150 (2004), Part 4]
[Extensions of Remarks]
[Pages 4436-4437]
[From the U.S. Government Publishing Office, www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 3717, BROADCAST DECENCY ENFORCEMENT 
                              ACT OF 2004

                                 ______
                                 

                               speech of

                             HON. RON PAUL

                                of texas

                    in the house of representatives

                        Thursday, March 11, 2004

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 3717) to 
     increase the penalties for violations by television and radio 
     broadcasters of the prohibitions against transmission of 
     obscene, indecent, and profane language:

  Mr. PAUL. Mr. Chairman, Americans are right to be outraged at much of 
the content of broadcast television and radio today. Too many 
television and radio programs regularly mock the values of millions of 
Americans and feature lude, inappropriate conduct. It is totally 
legitimate and even praiseworthy for people to use market forces, such 
as boycotts of the sponsors of the offensive programs, to pressure 
networks to remove objectionable programming. However, it is not 
legitimate for Congress to censor broadcast programs.
  The First Amendment says, ``Congress shall make no law . . . 
abridging the freedom of speech. . . .'' It does not make an exception 
for broadcast television. Some argue that broadcast speech is different 
because broadcasters are using the ``people's airwaves.'' Of course, 
the ``people'' don't really control the airwaves anymore then the 
``people'' control the government in the ``People's Republic'' of 
China! Instead, the ``people's airwaves'' is a euphemism for government 
control of the airwaves. Of course, government exceeded its 
Constitutional authority when it nationalized the broadcast industry.
  Furthermore, there was no economic justification for Congress 
determining who is, and is not, allowed to access the broadcast 
spectrum. Instead of nationalizing the spectrum, the Federal Government 
should have allowed private parties to homestead parts of the broadcast 
spectrum and settle disputes over ownership and use through market 
processes, contracts, and, if necessary, application of the common law 
of contracts and torts. Such a market-based solution would have 
provided a more efficient allocation of the broadcast spectrum than has 
government regulation.
  Congress used its unconstitutional and unjustified power-grab over 
the allocation of broadcast spectrum to justify imposing federal 
regulations on broadcasters. Thus, the Federal Government used one 
unconstitutional action to justify another seizing of regulatory 
control over the content of a means of communication in direct 
violation of the First Amendment.
  Congress should reject H.R. 3717, the Broadcast Decency Enforcement 
Act, because, by increasing fines and making it easier for governments 
to revoke the licenses of broadcasters who violate federal standards, 
H.R. 3717 expands an unconstitutional exercise of federal power. H.R. 
3717 also establishes new frontiers in censorship by levying fines on 
individual artists for violating FCC regulations.
  Congress should also reject H.R. 3717 because the new powers granted 
to the FCC may be abused by a future administration to crack down on 
political speech. The bill applies to speech the agency has determined 
is ``obscene'' or ``indecent.'' While this may not appear to include 
political speech, I would remind my colleagues that there is a serious 
political movement that believes that the expression of certain 
political opinions should be censored by the government because it is 
``hate speech.'' Proponents of these views would not hesitate to 
redefine indecency to include ``hate speech.'' Ironically, many of the 
strongest proponents of H.R. 3717 also hold views that would likely be 
classified as ``indecent hate speech.''
  The new FCC powers contained in H.R. 3717 could even be used to 
censor religious speech. Just this week, a group filed a petition with 
the United States Department of Justice asking the agency to use 
federal hate crimes laws against the directors, producers, and 
screenwriters of the popular movie, ``The Passion of the Christ.'' Can 
anyone doubt that, if H.R. 3717 passes, any broadcaster who dares show 
``The Passion'' or similar material will risk facing indecency charges? 
Our founders recognized the interdependence of free speech and 
religious liberty; this is why they are protected together in the First 
Amendment. The more the Federal Government restricts free speech, the 
more our religious liberties are endangered.

[[Page 4437]]

  The reason we are considering H.R. 3717 is not unrelated to questions 
regarding state censorship of political speech. Many of this bill's 
most rabid supporters appear to be motivated by the attacks on a member 
of Congress, and other statements critical of the current 
administration and violating the standards of political correctness, by 
``shock jock'' Howard Stern. I have heard descriptions of Stern's radio 
program that suggest this is a despicable program. However, I find even 
more troubling the idea that the Federal Government should censor 
anyone because of his comments about a member of Congress. Such 
behavior is more suited for members of a Soviet politburo than members 
of a representative body in a constitutional republic.
  The nation's leading conservative radio broadcaster, Rush Limbaugh, 
has expressed opposition to a federal crackdown on radio broadcast 
speech that offends politicians and bureaucrats:

       If the government is going to `censor' what they think is 
     right and wrong . . . . what happens if a whole bunch of John 
     Kerrys, or Terry McAliffes start running this country. And 
     decide conservative views are leading to violence?
       I am in the free speech business. It's one thing for a 
     company to determine if they are going to be party to it. 
     It's another thing for the government to do it.

  Mr. Chairman, I am also concerned that the new powers H.R. 3717 
creates will be applied in a manner that gives an unfair advantage to 
large media conglomerates. While the FCC will occasionally go after one 
of the major media conglomerates when it does something especially 
outrageous, the agency will likely spend most of its energies going 
after smaller outlets such as college and independent radio stations. 
Because college and independent stations lack the political clout of 
the large media companies, the FCC can prosecute them without incurring 
the wrath of powerful politicians. In addition, because these stations 
often cater to a small, niche audience, FCC actions against them would 
not incur the public opposition it would if the agency tried to kick 
``Survivor'' off the air. Most significantly, college and independent 
stations lack the financial and technical resources to absolutely 
guarantee that no violations of ambiguous FCC regulations occur and to 
defend themselves adequately if the FCC attempts to revoke their 
licenses. Thus, college and independent radio stations make tempting 
targets for the FCC. My colleagues who are concerned about media 
concentration should consider how giving the FCC extended power to 
revoke licenses might increase media concentration.
  H.R. 3717 should also be rejected because it is unnecessary. Major 
broadcasters' profits depend on their ability to please their audiences 
and thus attract advertisers. Advertisers are oftentimes ``risk 
adverse,'' that is, afraid to sponsor anything that might offend a 
substantial portion of the viewing audience, who they hope to turn into 
customers. Therefore, networks have a market incentive to avoid 
offending the audience. It was fear of alienating the audience, and 
thus losing advertising revenue, that led to CBS's quick attempt at 
``damage control'' after the Super Bowl. Last year, we witnessed a 
remarkable demonstration of the power of private citizens when public 
pressure convinced CBS to change plans to air the movie ``The 
Reagans,'' which outraged conservatives concerned about its distortion 
of the life of Ronald Reagan.
  Clearly, the American people do not need the government to protect 
them from ``indecent'' broadcasts. In fact, the unacknowledged root of 
the problem is that a large segment of the American people has chosen 
to watch material that fellow citizens find indecent. Once again, I 
sympathize with those who are offended by the choices of their fellow 
citizens. I do not watch or listen to the lewd material that 
predominates on the airwaves today, and I am puzzled that anyone could 
find that sort of thing entertaining. However, my colleagues should 
remember that government action cannot improve the people's morals; it 
can only reduce liberty.
  Mr. Chairman, H.R. 3717 is the latest in an increasing number of 
attacks on free speech. For years, those who wanted to regulate and 
restrict speech in the commercial marketplace relied on the commercial 
speech doctrine that provides a lower level of protection to speech 
designed to provide a profit to the speaker. However, this doctrine has 
no Constitutional authority because the plain language of the First 
Amendment does not make any exceptions for commercial speech!
  Even the proponents of the commercial speech doctrine agreed that the 
Federal Government should never restrict political speech. Yet, this 
Congress, this administration, and this Supreme Court have restricted 
political speech with the recently enacted campaign finance reform law. 
Meanwhile, the Department of Justice has indicated it will use the war 
against terrorism to monitor critics of the administration's foreign 
policy, thus chilling anti-war political speech. Of course, on many 
college campuses students have to watch what they say lest they run 
afoul of the rules of ``political correctness.'' Even telling a 
``politically incorrect'' joke can bring a student up on charges before 
the thought police! Now, self-proclaimed opponents of political 
correctness want to use federal power to punish colleges that allows 
the expression of views they consider ``unpatriotic'' and/or punish 
colleges when the composition of the facility does not meet their 
definition of diversity.
  Just this week, there was a full-page ad in Roll Call, the daily 
paper distributed to House members, from people who want Congress to 
impose new regulations on movies featuring smoking. No doubt the 
sponsors of this ads are drooling over the prospect of fining stations 
that show Humphrey Bogart movies for indecent broadcasts.
  These assaults on speech show a trend away from allowing the free and 
open expression of all ideas and points of view toward censoring those 
ideas that may offend some politically powerful group or upset those 
currently holding government power. Since censorship of speech 
invariably leads to censorship of ideas, this trend does not bode well 
for the future of personal liberty in America.
  In conclusion, Mr. Chairman, because H.R. 3717 is the latest assault 
in a disturbing pattern of attacks on the First Amendment, I must vote 
against it and urge my colleagues to do the same.

                          ____________________