First Am. Update #22 (broadcasting, art)
Chris Roth
Roth)
12 March 1996
Opinion & Analysis
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
:::::::::::::::::::::: The First Amendment Teach-In ::::::::::::::::::::::::::
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
+++++ ++++++++++
* * * * * * * * * * * * * *
F I R S T A M E N D M E N T
:: :: ::::::::::: :::::::::: ::::::::: ::::::::::::: :::::::::::
:: :: :: :: :: :: :: :: :: ::
:: :: ::::::::::: :: :: ::::::::::: :: :::::::::
:: :: :: :: :: :: :: :: ::
::::::::::: :: :::::::::: :: :: :: ::::::::::: #22
______________________________________________________________________________
In this issue:
The Federal Censorship Commission
inside job at a big city library
library content:
fundamentalists v. the First Amendment
artist's rights:
multinationals, judge v. the First Amendment
upcoming Ray Bradbury interview
Internet censorship, V-chip mess:
John Frohnmeyer speaks at Carthage College
______________________________________________________________________________
WHAT TV COLUMNISTS HAVE NOT TOLD READERS...
In January 1996, the US Supreme Court declined to hear a challenge
to the FCC's antiindecency scheme. In effect, the refusal upheld
the FCC's newly-expanded 6:00 AM-to-10:00 PM "unsafe harbor"
period.
One week later, the Supremes again damaged the First Amendment. This time,
they refused to hear a challenge to the FCC's censor-'em-by-finin'-'em-and-
let's-drag-our-feet-for-a-long-time process.
First Amendment defenders tried to complain that the FCC's
process is too lengthy. Some cases have moved through the
Commission for years, with no quick decisions.
Both Supreme Court events restrict the First Amendment rights of:
* anyone who appears on broadcast TV or radio
* the First Amendment rights of anyone who creates
broadcast content
* the First Amendment rights of broadcasters
* the First Amendment rights of viewers and listeners
Readers should note that the broadcasting industry constructs
the issue as a violation of the rights of the third group listed above.
Here's what's going on.
PR tricksters representing stations, group owners, and state and national
broadcasting associations routinely exclude the first, second, and fourth
categories in statements to reporters.
Sadly, this narrow, distorted view is then diffused as the
complete truth (see the "omission" section of Professor
Hugh Rank's "Schema for Propaganda Analysis") in news reports
by TV and radio stations. (Why should a journalist risk her career by
publicly contradicting a PR functionary who is also a coworker and
is usually closer to--or is--management?)
What about the fourth entry? Fact: citizens
are not without a First Amendment right to receive communications,
the January decisions notwithstanding. That part of the 8-0 1969 Red Lion
precedent has never been overturned.
Who's been fined for providing indecent (whatever that means)
content to receiver users? Infinity Broadcasting, America's largest
group owner of radio outlets, is one victim. In September of 1995, Infinity,
Howard Stern's employer, paid a frightening $1.7 million
to the US government. In one instance, Stern's employer
was fined for speech that included the following sentence:
(begin excerpt)
Here's a guy who plays the piano with his penis.
(end excerpt)
Another fine was for:
(begin excerpt)
There's a big black lesbian out of her mind with lust.
(end excerpt)
Note that neither sentence included any of the words from
George Carlin's proverbial seven words list. (A common
error made by journalists--especially media workers not employed at
national outlets--is reporting that the FCC's antiindecency
rules are confined to punishment of the words shit, piss, fuck, cunt,
cocksucker, motherfucker, and tits. False.) In fact, as
indicated in the previous paragraph, Infinity Broadcasting
was fined for speech that merely included the words
black, lesbian, and lust.
An attorney for the National Association of Broadcasters (NAB)
was quoted in the 15 January 1996 ish of _Broadcasting & Cable_:
(begin excerpt)
the two decisions "leave us with a very vague definition of indecency
and a great deal of discretion with the commission."
(end excerpt)
INSIDE STORY
The FCC's definition of indecency suffers from vagueness and
overbreadth. It fails to present anyone with a clear dividing line
between what's allowed and what's disallowed. As such, it is inherently
subjective.
Alert readers have noted that these same flaws are present in
every let's-censor-arts-and-entertainment proposal. The task of
crafting a definition of what would be disallowed without inclusion of
vagueness and overbreadth is impossible. These twin deficiencies are
inherent in any proposed or preexisting scheme
involving "violent" content, obscene content, indecent content, and
government-coerced labels (including Ed Markey's
V-chip mess signed into law this year by President Clinton
as part of the historic telecommunications act).
SOLUTION
The solution to all of this is simple. The US Supreme Court, in
a future ruling, should overturn the
1978 FCC v. Pacifica Foundation precedent. The High Court should
declare that indecency is centrally protected under the First Amendment.
Such a decision need not address obscenity.
It could include two supporting declarations. First, the Court could
recognize that citizens have sufficient means of avoiding indecent broadcast
content. Second, the Supreme Court could forcefully add that captive
audience scenarios can be disallowed. That is to say, it's constitutional
for the government to pass laws that disallow a citizen or any
entity (private or governmental) from forcing
an unwilling citizen to read, view, or listen to unwanted media content.
(Of course, this would undermine, quite properly, the disastrous
1990 Rust v. Sullivan precedent and a proposed state antiabortion law now
being debated in Madison WI. It might also strengthen the rights of teenagers
forced to attend indoctrination sessions at churches.)
The good news is that this would require only five votes. The bad news
is that such an outcome is highly unlikely, given the disturbing
number of rightists on the High Court.
* * *
IN OLD MILWAUKEE
In early March 1996, a few part-time employees of Milwaukee's central
library were caught stealing approximately 800 items. The employees
were all under age 21. All were promptly fired.
The 800 items included books, CD's, and videocassettes, and were found
at area residences. Censorship was apparently not a motivation in any of the
heists. Local media outlets reported that the ex-staffers were expected to
face fines from the local government.
Thanks to the Milwaukee police and library professionals, the missing content
will be returned to library shelves.
* * *
FLIRTING WITH CENSORSHIP?
CONSEQUENCES...
Like many major American cities, Milwaukee has any number of fundamentalists
angered by words like carbon dating, condoms, contraception, and cockawee.
Sadly, the Religious Right is not alone. Procensorship sentiment eminates
from many parts of the political spectrum. Nevertheless, a
disproportionate number of demands for censorship are issued from the
right portion of the political spectrum. Especially from conservative
religious leaders.
----------------------------------CUT HERE------------------------------------
This is a warning to any self-appointed community censors. You will be
nailed for defacing, destroying, or stealing any book shelved
at the Milwaukee Central Library on Wisconsin Avenue.
You may not like certain ideas, words, images, and sounds.
But it is arrogant of you to even attempt to deny Milwaukeeans
the right to read, view, or listen to constitutionally-protected content
through legal or illegal means.
Here is what you will face if you aren't civilized enough to refrain from
breaking the law.
There is a municipal ordinance, 110-15,
titled "Vandalism." Deface a library book and you could be fined up
to $500. If you fail to pay, you could face up to 60 days in jail. And
there's municipal ordinance 106.21: "Unlawful Library Acts." This ordinance
disallows unlawful use of a library card, failure to return library materials,
theft of library materials, fraudulant registration for a library card,
and unauthorized alteration of ID markings on library materials such as books,
CD's, periodicals, and paintings.
----------------------------------CUT HERE------------------------------------
* * *
MULTINATIONALS AND MIRIAM CEDARBAUM
SPREAD NONSENSE, ATTACK
FIRST AMENDMENT
Below, a press release received on 5 March 1996 from an
artist's rights group.
(begin excerpt)
For immediate release:
Big Business v. Art:
City's Business Improvement Districts
Claim Sidewalk Art Sales Offend Their
Quality of Life
On Wednesday 2/28/96 six of New York's City's most
powerful business associations filed a brief attempting
to convince a Federal Appeals Court that artists have
no First Amendment right to sell their paintings in
parks and on public streets. The amicus brief was
filed on behalf of The Fifth Avenue Association, The
Alliance for Downtown New York, The Grand Central
Partnership, The 34th Street Partnership the Madison
Avenue Business Improvement District and The SoHo
Alliance.
The business associations' brief characterizes the
artist/plaintiffs as, "...purveyors of arts and crafts..."
despite them being accomplished painters with works
in many private collections and compares sidewalk
displays of fine art generally with, "...graffiti, litter
and petty street crime...". "First Amendment
protection should not depend on whether the
merchandise can, by some stretch of the imagination,
be characterized as art or an art form," it concludes.
This exposes a developing conflict between the arts
communities commitment to free expression, and the
business communities interest in banning independent
artistic expression from public spaces. The brief
claims that art has only incidental expressive content
and that selling art, as compared to selling books, is
not protected by the First Amendment at all.
Using Jackson Pollock as an example, the brief states,
"While Pollock's right to create his art is virtually
absolute under the First Amendment, his right to
market, sell or distribute his art must be subject to
reasonable regulation for the public health and
welfare", and further states, "An artists' freedom of
expression is not compromised by regulating his
ability to merchandise his artwork." This view
directly contradicts Supreme Court and Appellate
precedents concerning visual expression and its sale,
beginning in 1952 with Joseph Burstyn Inc. v. Wilson
343 U.S. 495. "That books newspapers and magazines
are published and sold for profit does not prevent
them from being a form of expression whose liberty is
safeguarded by the First Amendment. We fail to see
why operation for profit should have any different
effect in the case of motion pictures."
Printed matter, including baseball cards, art books
and pornographic magazines may be sold on New
York City streets without a license, based on a First
Amendment licensing exemption in the N.Y.C.
Vending Ordinance. The brief takes the position that
visual art has less meaningful content, less
communicative value and therefore less constitutional
protection than the written word. Statements in the
brief such as, "The sale of printed material is
inseparably and characteristically intertwined with
informative speech [or] particular views...the sale of
artwork is not." and, "...the sale of paintings and
other artwork does not reach this high level of
expression (guaranteeing First Amendment protection)
even though the items sold may have something of the
personality of their creators", will come as a surprise
to New York's 100,000 artists, world famous art
museums and 500 art galleries.
In their appeal motion filed on 12/29/95 [Lederman
v. City of New York 94 CIV. 7216 (MGC)], artists
claimed Federal Judge Miriam Cedarbaum's 10/24/95
ruling denying them First Amendment protection,
contradicted 50 years of Supreme Court precedents
concerning visual expression's First Amendment
status. In her controversial ruling Judge Cedarbaum
wrote, "...art is farther from the core than the written
word...plaintiffs' art does not carry either words or
the particularized social and political messages upon
which the First Amendment places special value...".
The artists' appeal motion, filed on 12/29/95, was
supported by amicus briefs filed by The Museum of
Modern Art, the Whitney Museum, the ACLU, the
NYCLU, Volunteer Lawyers for the Arts, The College
Arts Association, the N.Y.C. Arts Coalition, the N.Y.
Foundation for the Arts, SoHo art dealer Ron Feldman
art critics Irving Sandler and Simon Schama and
artists Clae Oldenburg, Chuck Close, Jenny Holzer,
Hans Hackke and David Hammons. David Ross, the
Director of the Whitney Museum of American Art,
stated in connection with this lawsuit, "We stand
firmly behind the idea that art is equal to other forms
of expression and is as protected as speech".
Since 1993, more than 250 fine artists (painters,
photographers, printmakers and sculptors) have been
arrested and have had their art confiscated by the
police while displaying it on New York city streets.
To date, the City has not prosecuted a single criminal
case against a street artist. Confiscated art is
destroyed or sold at a monthly NYPD auction.
For information: contact A.R.T.I.S.T. (Artists'
Response To Illegal State Tactics) at (718) 369-2111.
E-mail ARTIS...@aol.com or visit our web site at:
http://homepage.interaccess.com/~mar/nyc.html
Photos and videos of artists being arrested and
A.R.T.I.S.T. demonstrations are available. Recent
articles on this issue include: N.Y. Times letters to
the editor 2/23/96 and 2/28/96; N.Y. Times 1/24/96
B1 "Street Art; Free Speech Or Just Stuff" and
Christian Science Monitor 2/14/96 pg. 11, "Conflict
On the Streets: Artists v. N.Y.C."
(end excerpt)
* * *
COMING TO NEWSSTANDS
The May issue of _PLAYBOY_ will include Ken Kelley's interview with Ray
Bradbury, author of _Fahrenheit 451_. Bradbury's novel is perhaps the
most prominent anticensorship book of any kind.
In 1966, _Fahrenheit 451_ was made into a major motion picture. Francois
Truffaut and cinematographer Nicholas Roeg lensed the evocative,
dreamlike film in Europe. Although the film is available on 12-inch
laserdisc and VHS, no widescreen versions are available to consumers.
Fahrenheit 451 is the temperature at which paper catches fire and burns.
_Fahrenheit 451_ was based on a 1950 short story titled "The Fireman." That
story appeared in _Galaxy Science Fiction_. Bradbury's literary classic
depicts a dystopia where firemen burn books and citizens are distracted
by gadgetry, hobbies, and an antipolitics mood.
Ray Bradbury grew up in Waukegan IL.
* * *
JOHN FROHNMAYER APPEARS AT CARTHAGE COLLEGE
Former National Endowment for the Arts (NEA) chairman John Frohnmayer
just completed a three-day visit to Carthage College.
Frohnmayer spoke out against censorship while at the scenic
campus, located on Lake Michigan in Kenosha WI. The First
Amendment defender's _Out of Tune: Listening to the First
Amendment_ was recently published.
>From Michael Burke's article on the 5 March 1996 _Journal Times_:
(begin excerpt)
I went in as a First Amendment moderate and came out as a First
Amendment radical.
(content deleted)
After I tried to play it up the middle and got shot by both sides.
(end excerpt)
John Frohnmayer also criticized the V-chip provision of the new
telecommunications law.
(begin excerpt)
If you're worried about violence, how do you show a documentary
about the Battle of Antietam? ... What rating does it get?
And there could be no nudity, but tremendous degradation. How do
you rate that?
(content deleted)
I think we're in an era of great danger to the notion of free
expression.
(end excerpt)
Below, excerpts from Bill Guida's article in the 6 March 1996 _Kenosha News_:
(begin excerpt)
Because the Internet is powerful is not a reason to license or
restrain it. It is an opportunity for the exercise of democracy.
(content deleted)
Not every problem in our society is susceptible to a legal solution.
(content deleted)
Ethics, that is, principles of self-control and self-determination,
are a part of what makes our society function and function well.
(content deleted)
Congress has once again fallen into the irresistable trap of analyzing
the technology, rather than the underlying principle of the United
States, which is that we protect the ability to communicate--no matter
what the form of communication.
(content deleted)
That is really the genius of American society. That we can use speech
to counter speech. That we use speech to move forward the community
of understanding that allows us to be cohesive as a society.
(end excerpt)
A C C E S S
==============================================================================
To hear Howard Stern's morning drive time program in NE IL or SE WI, tune
to 1160 khz on the AM band.
==============================================================================
Professor H. Rank's "Schema for Propaganda Analysis" was reprinted in
Sheila Harty's book titled _Hucksters in the Classroom_.
==============================================================================
To subscribe to _Playboy_, touch 1-800-999-4438.
==============================================================================
To subscribe to the Racine _Journal Times_, touch (414) 634-3333 or 552-7100.
==============================================================================
To subscribe to the _Kenosha News_, touch (414) 657-1600 or 553-9770.
==============================================================================
To subscribe to The First Amendment Teach-In's newsletter service, send an
e-mail message to: list...@listproc.bgsu.edu
Leave the subject line blank. In the body of the message write:
subscribe fau (your name)
No subscription fee. No advertising.
==============================================================================
The First Amendment Teach-In is at PO Box 17121, Milwaukee WI 53217-0121, or
fi...@omnifest.uwm.edu
==============================================================================
(c) 1996 by Chris Roth. All rights reserved.