Nicholas Johnson [NJ]: Thank you. I have a numbe of points. I'll make all of them, if I may, as quickly as I possibly can.

You all mentioned that you have a responsibility but no ability to control what goes out on the airwaves. There is such a thing as a 7-second delay device -- which you are all encouraged to use, as I am sure you know -- which is a technological solution to this problem.

Secondly, with regard to the George Carlin Pacifica case, that was not a forbidding of those seven words. That case had to do with the time of day when the program was aired and the nature of the program -- which was a repetition of those words, because Carlin was trying to make a point about how uptight we are about indecency.  And indeed there were some justices who thought that what he wanted to do was perfectly okay.

What I find an internal hypocrisy in this whole process is that those on the FCC today who advocate that "the public interest" -- which is the statutory standard -- "the public interest is what interests the public," use that argument to justify not requiring local stations to have any local news or public affairs, or balance or Fairness Doctrines; to be able to use their stations in the way that Gary just described as a pro-corporate anti-union propaganda outlet.

But then, when it comes to indecency, suddenly "what interests the public" is no longer the standard.

The fact is that those who complain the loudest about some of the indecency in broadcasting come from communities where the programs are very highly rated, and they clearly are of interest to the public.  I am not saying that, therefore, these programs should be on the air, I am just pointing out that there is an internal inconsistency and hypocrisy here.

If the FCC wants to get involved in programming, which is says it doesn’t, I would suggest that there are a lot of things that it could do, going back to the standards that we had some 30 or 40 years ago with requirements of local news and public affairs, balance in presentation of political points of view, and the Fairness Doctrine.  I think those would all be quite constructive involvements in programming. They don’t want to do that, and so they select the ones they want to select.

I would differ with your guest with regard to the lack of connection between the failure to cover unions and the standard with regard to indecency.  I think there is very much a connection. I think that a part of the motive -- but here you are always running a risk when you guess at others’ motives -- is to keep pressure on the broadcasters to see to it that the administration in particular and corporate America in general get a fair shake, from their perspective, which means drowning out all other voices.  I would say the reason some areas of the United States are hostile to unions is because there is no favorable coverage of unions in the programming rather than the reverse.  I don’t think it’s the fact that there is hostility to the unions that leads to the fact that there is not the programming.

Finally, and you will be relieved to know this is my last point, when in comes to regulation of commercial content, which I find far more offensive and indecent. We could talk about Mary Pipher’s book, Reviving Ophelia, and many others who have commented about the adverse impact of commercials. The FCC is quite prepared to say, "Oh, I suppose we could regulate that, but after all that’s the responsibility of the Federal Trade Commission." So they turn their backs, fail to do anything about that.

When it comes to indecency in programming your guest pointed out the criminal statute in Title 18. That’s something the Justice Department can deal with.  Why don't they defer to the Justice Department? That’s what I advocated when I was there. We’ve got a criminal law. We've got a Department of Justice. Let them go after and prosecute these cases if they think they are important enough to go after.

So that’s my final point until I get a response that requires me to come back with more.

GT: Thank you, Nick. We may ask you to come back as a guest. Which we will do. Nick, you just mentioned that you "were there." By that you mean that you were on the FCC, right?

NJ: Yes, 1966 to 1973, seven years spent writing dissenting opinions about how corrupt and horrible the FCC was during a time that we now look back upon as "the Golden Age of responsible FCC regulation."

GT: All right, you're up next to be our guest. One person at a time. And then Leo, what's your response to that?

Lyombe S. Eko [LE]: Thank you very much, Nick, I really appreciate it.  I was just wondering, Nick, if I might ask you a question – what direction do you think the FCC should be heading?

NJ: You mean with regard to indecency?

LE:  Right.

NJ: Well, I think they ought to confront these hypocrisies that I have talked about, and the kind of bias in the media that Gary talked about, and the perversion of the media to serve, not just ideological ends, that’s bad enough, but partisan ends.

I mean there are radio stations and networks that are devoted not just to espousing conservative positions on the issues, but are devoted to slashing and burning Democrats. And I think to suggest that there is going to be a balance in programming because we have all these outlets.  I mean, it doesn’t make any difference whether you have five licensees or 10,000, if they are all billionaires who are members of the local Rotary Club and country club and they are running a businessess supported by advertising, where advertisers to a much greater degree than ever before are calling the shots. You're not going to get a diversity. You're not going to get union coverage. You're not going to get a lot of issues covered. They are going to tend to support actually whoever is in power, because they are much more hypnotized by power than by even political party -- but they are certainly much more comfortable with Republicans and conservatives. That is, I think, the result of a deliberate effort to turn the media around in the way that it has been turned around to the benefit of those in corporate America and in government who are in power and intend to stay in power.

GT: Wow.

LE:  Thank you.

NJ: Why do you say "thank you"? You don't really mean "thank you."

LE: Thank you for your opinion. I appreciate it.

NJ and LE: (laughter)

LE: If I might say something.  I think basically if we look at the overall media, it seems to me that the aim of the mass media is not like what they have in Europe. The British, the BBC has a charter that says their job is to inform, to educate and to entertain.

The mass media in America are profit-making enterprises. They are capitalist enterprises. Their aim is to make money. So their goal is to get the eyeballs to the TV sets.  If we get entertained in the process, well and good, if we get educated in the process, well and good. And it is this capitalistic logic, I might add, that drives some of the things we see going on.  So, when we talk about indecency, it seems to me that the mass media as usual, since they are for easy solutions, they want to make quick profits, and in this sense indecency is an easy way out.

Who doesn’t like decency, who doesn’t like a decent society?  And so, going back to the early Puritan origins of the United States, in this sense, it is a very simple thing to capitalize on.  And I think that’s why the FCC is making a lot of it.

GT:  And yet It’s pretty hard to define.

LE:  In this sense, if you look at indecency, it is defined in the statute, it is defined in the FCC rules as material that presents human sexual or toilet functions in a highly offensive manner.  So, anything that has to do with sex or toilet functions that you present in a highly offensive manner, in the presence of children, that is considered indecent.

GT:  And Nick, do you have any further comments?

NJ:  If you haven’t already made this point, and I missed the first part of the show, there is an enormous constitutional distinction between obscenity on one the hand and indecency on the other. "Indecency" in most contexts is protected First Amendment speech.  Whether that is something you are comfortable with or not is another matter all together. But that is the law. There is an exception, for a variety of reasons I won’t take more time to go into, with regard to broadcasting, a somewhat different standard. Indeed, most media have to some degree individualized standards. But indecency is constitutionally protected speech in general.

LE:  Yes, basically in this sense it is protected when it is used in the right time and in the right context outside of safe harbors. In this sense it is indeed protected.  Remember we said at the beginning that indecency is aimed at protecting children from adult material.  Obscenity, on the other hand, is not protected.  Obscenity is material that lacks any scientific, political, cultural, or social value and appeals really to the prurient interest, to the sick, morbid, very unhealthy interest in sex.  That kind of material is not protected. That is obscenity as defined in Miller v. California.

NJ:  Right.  I should also note that the seven words in Carlin; I said something about that. But the FCC, I believe, has recently reversed field because of the heat they took over “Saving Private Ryan,” and stations' assumptions that under no circumstances could those words be used.  And I think they’ve now said that in a proper context there is nothing wrong with using words that would in fact be used in those settings as indeed soldiers would in the heat of battle.

GT: Thank you. And this is Nick Johnson from Iowa City. He's a former member of the FCC. And we'll have you on our program sometime in the future to talk more about those issues. Thanks for calling.

NJ: OK, thank you. Bye bye.