Re: Untangling Re: Censorship Run Amok: XM, Big Money at the FCC, and the Rest

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seth Finkelstein <sethf () sethf com>
Date: May 18, 2007 9:06:32 PM EDT
To: David Farber <dave () farber net>, ip () v2 listbox com
Cc: Steve Lamont <spl () ncmir ucsd edu>, EEkid () aol com, Lauren  
Weinstein <lauren () vortex com>
Subject: Re: [IP] Untangling Re: Censorship Run Amok: XM, Big Money  
at the FCC, and the Rest

[For IP, if worthy]

        Can we try to entangle various different issues which have all
been mixed up? I'll state them as I understand them:

1) The Don Imus firing had nothing to do with the FCC, as his
particular racial slurs did NOT fall under FCC's indecency regulations
(the FCC only has power over "sexual or excretory activities or organs
in terms patently offensive"). It was purely a private decision based
on private protest, with no government aspect (someone, somewhere,
might have cried "FCC", but that was a completely empty threat based
on any reasonable construing of the FCC's reach). Some acts just stop
being funny, you don't see many minstrel shows anymore.

2) Sirius and XM, being satellite radio, are not subject to FCC  
"indecency".

3) If there's a suspicion that XM took action because they were
worried that a merger with Sirius would be blocked because of
retaliation, there's not much anyone can do about it - because unlike
FCC indecency regulations which could in theory be repealed, or ruled
unconstitutional under the First Amendment, the issue already postulates
an action outside formal regulatory reasons. That is, whether or not
the merger happens, both XM and Sirius aren't and won't be formally
subject to FCC indecency rules. So if the point is that the government
shouldn't punish them for backdoor reasons, that should go without  
saying.

4) But the evidence that there is a governmental aspect is extremely  
thin.
The article sources it vaguely to "industry observers", and one pundit,
"It's hard to read anything into it other than that they're catering
to federal officials," said William Kidd, a media analyst with Wedbush
Morgan Securities in Los Angeles.

5) But in fact, it's not hard to find other explanations at all, and
a careful reading even of the article shows an offended *management*
being a far more likely explanation:
  "XM issued a statement condemning the comments, and Cumia and Hughes
   apologized on the air Friday.

   On Monday's show, Hughes and Cumia complained about "dumb rules"
   and an "umbrella of morality and decency" that led Imus and some
   other hosts to get fired. XM officials suspended the pair Tuesday,
   saying the comments "put into question whether they appreciate the
   seriousness of the matter."

This seems to fall under: When you're in a hole, STOP DIGGING.
That is, it seems they got suspended for a public fight with
management over being told they'd crossed a line. Whether or not
that's a principled free-speech stand or a contract violation, it
seems first and foremost a private action because there's almost *no*
*evidence* that fear of government action was involved (I think there
really needs to be more than merely a conjectured possibility,
otherwise anyone could claim it).

6) The FCC merger explanation just smells fishy to me. These people
are *professional* *controversy-mongers*. It's literally what they
do for a living. It all stinks of a fabricated attention-getting device:
"HELP! HELP! WE'RE BEING REPRESSED! Big Bad government's *CENSORING*  
*US*!
All you free-speech supporters, starting jerking your knees in our
direction, we are victims of the evil FCC, save the world by telling
the company how they have to fight-the-power by keeping us employed".
Yeah, right. I'd want to see a whole lot more proof before I mustered
any outrage over what has to be presumed to be media manipulation.

7) There's a complicated issue of free-speech theory in the
following, but in sum, I believe it also our right to exercise
free-speech to protest to comedy-club owners, advertisers, and the
like, that racist remarks *are* offensive, and more relevantly, there
is an economic downside to pandering to racists. Yes, yes, it all gets
tangled up in the paradox of being intolerant of intolerance, books
can be written on this, but it's also a paradox not to be able to
speak out against hatred.

8) So while it's important to be vigilant against "government power to
muzzle free speech", it's also important not to take any claim of
free-speech martyrdom at face value, especially when the claimant has
an incentive to exploit anti-censorship activists for their own
enrichment.

--
Seth Finkelstein  Consulting Programmer   http://sethf.com
Infothought blog - http://sethf.com/infothought/blog/
Interview: http://sethf.com/essays/major/greplaw-interview.php


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