Friends of the First Amendment (and lovers of media smut in all its forms) will recall 2004 as a year of retreat. The FCC upped its average fine for broadcast indecency sevenfold and brought to heel two media giants, Viacom and Clear Channel, with expensive settlements and draconian compliance agreements. (To give you a flavor: If, after appeals, the FCC rules that a broadcast is indecent, Clear Channel agreed that " the offending employees will be terminated without delay.")
The effect of all this can be guessed at from the news, noted today by the Center for Public Integrity, that the FCC, which last year raked in upwards of $3.5 million in indecency fines, has yet to issue a fine for indecent broadcasting this year. Needless to say, this isn't because the agency has loosened up. Nor is it due, much, to changes at the top at the FCC. (Chairman Michael Powell has gone and another commissioner is on the way out, leaving a vacuum.) No, this seems the fulfillment of Powell's desire, expressed last year, "to make the decision to air indecent or profane language a bad business decision." It hardly needs pointing out that, threatened with huge fines and, individually, with loss of livelihood, broadcasters will tend to interpret "indecency" rather expansively. A clearer example of a chilling effect is hard to imagine.