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Monday, April 16, 2007

Don Imus and the FCC: Should Hate Speech be Regulated?
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I I think we can all agree that Don Imus is an ass and that his comments about the Rutgers University women's basketball team were offensive and racist. He has rightly been universally condemned for his actions, and his employers -- CBS Radio and MSNBC -- have terminated his morning talk show program as a result.

But does his behavior justify something more in the form of a regulatory response? Some people think so, including the Rev. Al Sharpton and Rep. Carolyn Cheeks Kilpatrick (D-Mich.), the head of the Congressional Black Caucus. As this L.A. Times article notes, Rev. Sharpton and Rep. Kilpatrick argue that the Federal Communications Commission (FCC) should sanction the CBS Radio stations that aired the Imus remarks. Rep. Kilpatrick has also suggested that the FCC should mandate diversity training for CBS Radio and MSNBC employees who allowed the show to be broadcast.

It goes without saying that any effort by the FCC to regulate hate speech is going to raise a number of sticky constitutional issues. As former FCC Chairman Richard E. Wiley tells the L.A. Times: "Lets say there was a discussion of some minority issue, and somebody said something that somebody took offense to. You can see how very quickly it could get very complex constitutionally." And as Tom Taylor, editor of Inside Radio, told the Times: "You'd have to build another building just for all the complaints" the FCC would receive, he said.

Wiley and Taylor are exactly right. Any regulatory process that set out to regulate offensive speech on the broadcast airwaves would open a Pandora's Box of unintended consequences, especially because it would become so thoroughly politicized. Do you find Rush Limbaugh offensive? Millions do, and they would likely be quick to petition the thought police at the FCC for regulatory punishment of Rush or his employers.

There is almost certainly no way that such a proposal would stand any chance of passing constitutional muster with the courts in light of the grave First Amendment concerns it would raise. America has no history of regulating hate speech. (Of course, America does have a tradition of regulating profanity and "indecent" programming, but hate speech has never been pigeonholed into that definition).

But I want to raise a different objection to such a proposal. Just for the sake of argument, let's posit that some court somewhere in this country allowed such a regulatory enactment to stand. How much of a difference would it really make in our multi-platform, multi-channel world of media abundance? Seriously, is there any shortage of soapboxes for a jackass like Don Imus to stand on a spew his stupidity? He was dishing out his insults on broadcast radio, which lawmakers have some authority over. But Imus was also on cable and satellite, where Congress and the FCC have never had much control over speech, even of the "indecent" variety. Moreover, there's also nothing stopping Imus from just starting up his own Internet radio show, podcast or blog. He could even put daily video clips of himself on You Tube if he wanted. And, if he's too much of an old-timer for all that, he could always find a fringe newspaper or magazine to write for. Or even just publish his own newsletter.

You get the point: There a plenty of ways for Don Imus, or anyone else in this country, to disseminate offensive remarks.

So, what's the proper response? Should we call upon our government officials to shut down any conceivable platform that the Don Imus's of the world might use to spread ignorance and hate? Or should we take the alternative path of matching his output with our own output in the form of the sort of unified condemnation that millions of people have engaged in since Imus made his remarks? That's the better solution: Match offensive speech with sensible speech. If someone is so foolish as to make ignorant and offensive remarks, they will pay a heavy price as the Imus case should make clear considering the universal condemnation that followed (and his dismissal less than a week after the incident occurred).

By contrast, asking regulators to police all the potential ways offensive speech might be delivered is quickly becoming an exercise in futility. There's just no way to shut down every platform that a knucklehead might use to deliver offensive remarks. But we now have the combined power of millions of voices and media platforms working together thanks to the world of media abundance we live in today. More speech, not more regulation, is the proper response to offensive speech.

posted by Adam Thierer @ 2:29 PM | Free Speech

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My take is: let don imus deal with the court of public opinion. People can just shut him off -- not tune in. Also, audience members who do not like him can decide NOT to shop with his advertisers, and they can make this clear with all those who advertise. We don't need more laws impacting free speech.

Great blog

Posted by: sky at April 17, 2007 1:06 PM

I am a retired trial lawyer, judge and paid $35.00 a accepted Phi Bata Kappa's invitaion to join. Also, I have listed to Don Imus on Msnbc from his start. Best show on morning radio and TV. I miss it but take pleasure in knowing he has a winning case and will get at least 40 million.

Posted by: clifton mcdonald at May 25, 2007 6:17 PM

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