After the lunch break at Freedom to Connect, Jeff Jarvis, proprietor of BuzzMachine interviewed First Amendment Attorney Robert Corn-Revere. Their wide-ranging conversation addressed how legal precedents in the broadcast media world could affect use of the Internet — as well as how new technologies are policed. What follows is a partial transcript of their conversation:
Jeff Jarvis: I often blog about the FCC, and I am but a foot soldier with a BB gun. Who I have here is the prophet king. Bob Corn-Revere is a partner in the firm of Davis Wright Tremaine, where he advises clients on First Amendment and Internet-related issues, as well as FCC regulatory matters. Your guys concern is getting the tools out for people to use. Our job is to make sure that no one keeps us from using it. Many articles don't quote the other side. The other side is the First Amendment and the Constitution.
Bob Corn-Revere: I'm just here to represent my own point of view, not any client or company.
Jarvis: If we go back, George Carlin said his seven dirty words. The Supreme Court ruled on it. What are the new threats to free speech on the Internet?
Corn-Revere: A lot of discussion about this goes back to the Superbowl last year and Janet Jackson. It's broader than that. This is a political issue, but it's not a partisan issue. Democrats and Republicans want to equally regulate the Internet. It really began in 2003 with a growing sense of sentiment that the FCC wasn't doing enough. It's part of a trend we've seen over two or three decades. Even seven or eight years, something comes a long. It's a low-lying temperature, and then we have a breakout.
Remember the Golden Globe Awards with Bono. A three-hour show, and one word sets everyone off. There were complaints filed with the FCC. Letters were sent to Congress. This was a politically hot issue even in 2004. What the law means materially changed. This law has been on the books since 1927. It's been the same. But the FCC never defined what it meant by "indecent speech" until 1975. How the FCC treats that materially changed in the last two years.
Congress had adopted a law that made it criminally illegal to utter profanity on the radio. The provision for profanity really hasn't been enforced for decades. The Supreme Court had long held that blasphemy couldn't be actionable. So the concept of profanity was revived in the Golden Globe decision. That greatly expanded the area in which the FCC operates. This year, the FCC issued about $8 million in fines. That more than four times the amount of the last 10 years combined.
Jarvis: We've got a regime of new complaints. We have new legislation. We have enforcement and the chill. And then we have the move into new media.
Corn-Revere: Let's look at this in context, though. People talk about obscene speech, but obscenity just refers to hardcore representations of sexuality that are patently offensive. Now we have no real test for obscenity. We have obscenity light. Profanity, then, can encompass vulgar or coarse language, religious deprecations, and "decency." That vagueness is what has broken down. What has sustained a non-specific test through restraint has broken down.
Jarvis: Once I filed a Freedom of Information Act request. A show was fined because of 90 complaints that had come in from 23 people. When I really looked at them, I saw that all but two were the same. 23 people had just hit Send repeatedly on some decency Web site.
Corn-Revere: What's interesting to note in terms of complaints filed are the patterns. Complaints are on the rise, and the numbers look like the public is generally outraged. There's been a growth in the number of complaints, but not outrage. The vast majority of those complaints are from single-interest organizations. There are Web sited dedicated to collecting complaints.
If you look at the number of actual shows that are being complained about, it's actually declining. The number of programs has decreased by 20%, but the number of complaints has increased 100 times. If you count the members of the Parent Television Council, it's the equivalent of one rating point.
Jarvis: So we're split fringe to majority. That's led to legislation that would increase fines.
Corn-Revere: Let's go back to the Golden Globes. They said it was no longer fleeting references that would be let go. Any use of bad words would be acted on. A network was airing "Saving Private Ryan," and faced a big challenge. About a third of network affiliates decided not to air the film even though the FCC had issued a memo that said it wasn't actionably indecent.
Jarvis: Let's deal with the threat to other media. In the Senate version of the legislation, from Rockefeller and Hutchinson, you have an effort to extend this to violence and cable and satellite. Is it possible to extend this? If cable and satellite can be regulated for its content, what about the Internet?
Corn-Revere: We've already been here. Courts have been slow to extend the traditional protections of the First Amendment to new technologies. New technologies were always given less protection. The Internet is the first technology when it was given full First Amendment protection in the first case. Broadcasting is very different today. The Internet is not as broadly uncontrollable as other communication modes were in the past.
Jarvis: We've basically lost the battle in Congress. And in the public, we've got the Parents Television Council. Now it's up to the courts. Does this get settled in the Supreme Court?
Corn-Revere: The FCC has three decisions it needs to consider. Ultimately, that is where these things are going to be decided. With online communication, we can see a pretty accurate path of what to expect. Like the Energizer Bunny, the government will keep coming back to try to pass something they think will work. But in Internet cases, user empowerment is preferred over governmental control. There was also a trend in the effort to restrict child pornography because there was an effort by the government to extend what was considered child pornography. The justification for fighting child pornography is that making it is child abuse. But if an image comes from someone's imagination, it doesn't fall into the category.
Jarvis: The line between consumption and creation is now gone. I can consume and create at the same time. Do we have a right to hear as much as we have a right to speak?
Corn-Revere: That's already in the First Amendment. The combination of speaking and hearing is representative of what's going on here. Think of camera phones. You can talk about convergence, but it's fundamentally changing what's being legislated.