Post-Super Bowl Cultural Conservatism: Personal Foul, Piling On

by Carl F. Horowitz
by Carl F. Horowitz

Cultural conservatives in this country seem afflicted with a bad case of short-term memory loss. Only a few months ago, if you recall, they were nearly leaping over each other to congratulate CBS television for its eleventh-hour decision to yank the scheduled mini-series, "The Reagans," and move the presentation to the much-less-watched Showtime cable channel. Never mind that the made-for-TV film's "attack" on President Reagan's legacy consisted of maybe a combined half-minute's worth of dialogue, and in any event was tame stuff compared to what almost everyone on the Left (and a good many on the Right) today say about President George W. Bush. Never mind either that most of the people who denounced the movie never bothered to see it in the first place. CBS did the right thing, and thus deserved a round of applause.

Some people might not see much of a connection between coaxing CBS into pulling the plug of that mini-series and grilling that network this February (and no doubt for many months to come) in the wake of its failure to vet in advance the recent Super Bowl halftime choreography gaffe. That's a pity, really. Look beneath the surface, and think. A predator, knowing prey has succumbed once before, typically will attack a second time – and a third, fourth and fifth time, until finally (one hopes) the prey engages in healthy self-defense. Human beings, to say nothing of the lower species, have operated on this principle for millennia.

The moral guardians of the nation's airwaves, predators one and all, for the time being have the upper hand – and know it. There's seemingly no end to the bowing and scraping they seek from TV executives for "allowing" Justin Timberlake to rip away Janet Jackson's blouse at the end of the song, "Rock Your Body." They view the exposure, whether planned or spontaneous, of a pasty on one of Ms. Jackson's breasts for the duration of perhaps three nanoseconds as posing a mortal threat to America's families. CBS, they warn, has better clean up its act or heads will roll. CBS's sister network, MTV, which produced the halftime show, ought to heed the same message, as should the two networks' parent company, Viacom. In fact, so should the NFL and the offending performing artists. As for other entertainment industry bigwigs, the message is clear: Don't mess with us.

Major media, ever edgy about a pending FCC crackdown, predictably have chosen damage control over principle. Here's the body count over the last several weeks:

MTV bumped seven of its videos from prime time.
CBS instituted a five-minute tape delay for its broadcast of the Grammy awards show; Viacom is now outfitting all of its radio and TV stations with the same capability.
Janet Jackson was cut from the televised Grammy Awards presentation.
Clear Channel Communications, Inc., which owns more than 1,200 radio stations, fired a radio talk-show host for a sexually explicit skit, "Bubba the Love Sponge." The skit, which had aired on four Florida outlets, had prompted the FCC to recommend $755,000 in fines, which the network just recently agreed to pay.
Clear Channel, with its new "zero-tolerance" policy, announced it no longer would run Howard Stern's syndicated radio program on the half-dozen of its stations carrying it (Stern's parent company, Infinity Broadcasting, like CBS and MTV, is part of Viacom).
California's Laguna Beach High School pulled out of an agreement to let MTV film a reality show based on its students' lives.

Do the words "chilling effect" come into mind?

The nuttier fringes of the Right also have gone on the warpath. A Tennessee woman filed suit in federal court in Knoxville against Janet Jackson, Justin Timberlake, CBS, MTV and Viacom, seeking damages from each party. Excuse me, but exactly who was harmed by the halftime show? Was it the cheering fans inside Houston's Reliant Stadium, oblivious to the "pornography" in front of them? Or maybe it was the 90 million or so American TV viewers? Punitive damages, the suit read, should be set no higher than what the parties made out of participating in the Super Bowl. And get this – any additional punitive damages should not exceed the gross annual revenues of each defendant for the last three years. In other words, we're talking about extracting no more than tens of billions, possibly hundreds of billions, of dollars from the defendants.

The culture-war types long have specialized in making molehills into mountains, all the better to boost their flaky profiles. What's different this time is that they have a true-blue friend in the Federal Communications Commission. FCC Chairman Michael Powell, in testimony February 11 before the House Energy and Commerce Subcommittee on Telecommunications and the Internet, called the show "a new low for prime-time television…the latest example in a growing list of deplorable incidents over the nation's airwaves." As the son of Secretary of State Colin Powell, you can be sure he sees this as his time to shine, to dispel any doubts he's a tough, no-nonsense guy like his father. He's already announced his intention to reverse an FCC decision that had let U2 singer Bono off the hook for using the word "fucking" (as an adjective) back in January 2003 at the Golden Globe Awards. The other four commissioners – Kathleen Abernathy, Michael Copps, Kevin Martin, and Jonathan Adelstein – each have demonstrated a propensity for not making waves.

Lawmakers are doing much more than hearing testimony. Subcommittee Chairman Rep. Fred Upton, R-Mich., a week and a half prior to the Super Bowl already had introduced legislation, the Broadcast Decency Enforcement Act of 2004 (H.R. 3717), to increase tenfold the maximum FCC per-incident fine for indecency violations from $27,500 to $275,000. The Super Bowl brouhaha provided just the lift to put the bill on the fast track. At the hearing Upton minced no words about the need for federal muscle:

This is a tough bill which, if enacted, would help clean up our airwaves, no doubt about it. It's just that, regrettably, the current "race to the bottom" in the entertainment industry has made it an all but impossible task for parents. They should be able to rely on the fact that – at times when their children are likely to be tuning in – broadcast television and radio programming will be free of indecency, obscenity and profanity.

Nor was this smug, pompous tyrant through. He warned of dire consequences for those not falling into line:

We need to look at the level of the fines. We need to look at beefing up the license renewal procedures to ensure that indecency violations are factored in by the FCC. As I've suggested before, perhaps we are at the point where we need to drop the hammer of three strikes and you're off the air.

Rep. Heather Wilson, R-N.M., taunted Viacom President Mel Karmazin at the hearing. "You knew what you were doing," she said. "You wanted us all to be abuzz. It improves your ratings. It improves your market share and it lines your pockets." (Surely Wilson, who holds a Ph.D. from Oxford, could have shown a bit more sophistication!) Karmazin's response was to whip out a white flag: "I take responsibility that it aired. Shame on me." Apparently, contrition didn't pay off. On March 3 the full Energy and Commerce Committee approved the Upton measure by 47-1, but with one major difference: The maximum FCC fine was now up to $500,000.

Meanwhile, House Majority Leader Tom DeLay, R-Tex, got downright threatening in a televised March 2 speech before the National Association of Broadcasters:

The television industry, like every other industry, works best when it regulates and polices itself. But if the entertainment industry cannot pull itself together and stay within some boundaries of decency, Congress will have no choice but to step in. Make no mistake: If decision makers at studios, networks and affiliates fail to appreciate the sensitivity of the post-Super Bowl environment, the consequences will not be merely economic.

Apparently DeLay is blind to the irony that it is people such as he who single-handedly created this "environment." Where's the late Frank Zappa now that we really need him?

Genuine friends of liberty logically recoil at the prospect of a federal investigation to Get To The Bottom Of This. While such a reaction is welcome, I find it insufficient. For even without government intervention, the hysterically orchestrated reaction to the halftime show may well result in a highly censorious artistic climate. In order to understand why, it is necessary first to understand a few things about the modus operandi of the traditionalist mind, especially as it resides in and around Washington, D.C., and why it so often incites rather than enlightens audiences.

Culture-war pundits are, by natural inclination, pugilists. They thrive on conflict; indeed, they cannot bear to live without it. Whenever there is an "incident" in literature, the arts or some other arena of culture to exploit for political gain, however trivial, they wildly inflate its importance. Part of the explanation for this is career ambition. These are people who make a living in newspaper, television, radio, think tank, lobbying and government circles – and very often more than one at the same time. To generate controversy is to generate readers, viewers, contributors, and maybe even a book contract. But arguably a greater reason for the combativeness is the prospect of combat itself. Exaggerating the menace posed by a Robert Mapplethorpe photograph or a Britney Spears song, for example, gives them a sense of importance, of being first among equals in the world of ideas. To observe Ann Coulter on the warpath (and when is she not?) is to observe someone whose existence revolves around picking fights.

Related to this propensity, these pundits share a near-consensus opinion that America's cultural sky is falling. Encapsulated, the story goes something like this. For 40 years, ever since roughly the Beatles' first appearance on the "Ed Sullivan Show," there has been a ruthless assault by mass media (also known as "the culture") against family, community, religion and schools. Consequently, our now-hedonistic country has been rotting from within. Whereas in an earlier era we could quarantine and clean up cultural "pollution" emanating from New York, Hollywood and various college campuses, in the current era we poor Americans, our moral antibodies all but depleted, have virtually ceded control of our country to immoral elites. The grievances of Americans as yet seduced by counterculture pied pipers thus must be articulated before we all wind up in a sewer. End of story.

Now even at its best, this view is highly spurious. But as hammy, splenetic, media-hungry personalities like Coulter, not to mention Cal Thomas, Rush Limbaugh, Michael Savage, and Sean Hannity, advance it, this critique typically has all the intellectual rigor of a bad high-school essay.

Holding a view is one thing; convincing large audiences of that view's soundness is another. Toward that end conservative opinion-shapers have developed a propagandistic method for winning converts. They first pick and choose, as if by committee, an Incident – a moral smoking gun with which to indict all of contemporary America. Then they write editorials or give speeches that contain, directly or indirectly, four elements. Their canned response to the Super Bowl incident is a textbook example.

The first component of this attack is an expression of personal shock, or failing that, disgust. The Wall Street Journal, on its February 4 op-ed page, termed MTV President Judy McGrath "an impresario of soft-core (albeit legal) kiddie porn." Jay Ambrose, chief editorial writer for the Scripps Howard News Service, approvingly quoted a friend who called it the "Slime Bowl." (Washington Times, February 4). The American Enterprise Institute's Michael Novak, writing in National Review Online (February 4), referred to the Super Bowl halftime performers – all of them – as "seemingly drugged, indifferent, writhing pagan figures…not living human beings in action…sacks of flesh, writhing, grinding, pawing, acting out no higher appeal than bodily functions." He added: "It is as if they mean to corrupt, seduce, degrade. A more radically anti-Jewish and anti-Christian assault, embodying the sort of Wagnerian images of pagan disgust and decay that enraptured Hitlerian audiences, would be hard for them to produce."

Silly me. I always thought it was Kiss who portended the end of Western civilization.

The second component is a generalization about America since the '60s as sliding into a moral sinkhole where modesty, decorum and civility are absent. It is here where one encounters stock clichés like "defining deviance down," "the coarsening of the culture," and "a steady diet of gratuitous sex and violence." Bill O'Reilly, the bard of the Fox News Channel, gave us a good example in his syndicated column (Washington Times, February 9): "Janet Jackson's sleazy halftime performance symbolizes the debasement of American culture…American culture has collapsed, and big corporations are responsible. However, they, Janet Jackson and the MTV executives are laughing all the way to the bank." Columnist Suzanne Fields sounded pretty much the same theme (Washington Times, February 5):

Janet Jackson is a heroine for our time. Her titillation is less a low for prime time television than a confirmation of what's wrong with our pop culture. What's surprising is the explosion of outrage that was her "gift" to all of us….The drip, drip, drip of the popular culture dulls our senses. An open society with high technology exposes increasing numbers of adults and children to the lowest common (sic) denomination of sex and violence.

Not to be outdone, Fields' Washington Times colleague-in-arms, Diana West, registered this little gem in that paper (February 6): "We all breathe the same pop-polluted air and we are all numbed by our exposure to it. Miss Jackson may have brought down the house with her display – on her head, that is – but she still managed to soil our common national experience a little more by including in her act not the unthinkable, exactly, but the unthought of." A question: Since when does Diana West speak for all of America?

The third element in this attack is the call for widespread social disapproval, or what Bob Dole referred to on the 1996 presidential campaign trail as "a decent sense of shame." This bag of tricks should make some room for boycotts, as Suzanne Fields opines: "Boycotts of raunchy shows and public protests against specific vulgar and obscene entertainers could go a long way to change what we accept because we think we have no choice." Shame, as noted earlier, also can include hauling putatively guilty parties into the public spotlight, as the House did to Viacom's Mel Karmazin.

The final element is the Threat. That is, if the media and Hollywood don't clean up their act, the government will do it for them. And flowing from the expectation of government intervention, of course, is the hope of reflexive self-censorship. We've already heard from Reps. Upton and DeLay on this score. Let's now hear from the FCC's Michael Powell. "Action must be taken by the entire television and radio industry to heed the public's outcry and take affirmative steps to curb the race to the bottom," he intoned in House testimony "This industry simply must help clean up its own room." Similarly, Linda Chavez in her column (Washington Times (February 6) issued this warning: "Heads should roll at CBS and MTV, both owned by media giant Viacom, for foisting this crude act on us. And the NFL should decide whether it is promoting the game of football or soft-core porn with its Super Bowl halftime 'entertainment.' Apologies just don't cut it." Dan Thomasson also exemplified this mentality in his Washington Times (February 15) column:

Perhaps the only way to get the message across is to hit the media companies where it hurts the most, in their wallets. Unfortunately, that becomes a form of censorship that could carry into legitimate programs. It would be far better for the major players to censor themselves.

Of course, it is people like Dan Thomasson who get to determine what is "legitimate." To him, that is not censorship. But of course it is.

Let's understand a few things about the Federal Communications Commission. When Congress established the FCC in 1934 under the Communications Act, lawmakers intended it to serve as a public-interest agency in managing the radio spectrum, a principle amendments to the law later applied to television and other media. Any definition of "the public interest" inevitably is going to be clouded by sharp differences in public opinion – and magnified by the fact that so many people have an opinion to render, especially on talk radio. Thus, the commission is forced into the role of wise, impartial judge.

Most people aren't aware just how enormous a workload the commission faces. In 2003 alone the FCC received a combined 240,000 complaints over the content of about 375 programs. Agency staff had to review them, frivolous or not. The FCC wound up issuing fines in three cases. By having to consider a multiplicity of points of view in reaching a verdict, the agency tends to take its time. "The FCC is not an agency noted for the speed with which it makes decisions," notes communications-industry consultant Lawrence Gasman in his book, Telecompetition, "and the more disagreement there is, the longer the FCC takes to reach a resolution. Unfortunately, disunity in the electronic communications industry is increasingly the norm." That the revised Upton bill would require the FCC to rule on a case within 180 days – virtually a half-year – underscores how slow the process is.

On paper, the FCC acts independently in awarding broadcast licenses, establishing and enforcing broadcast standards, and evaluating the feasibility of new technologies. In practice, the commission almost from the start has been subject to intense political pressure. In 1936 President Franklin Roosevelt made a quick phone call to his FCC chairman to obtain (successfully) a radio license for a friend. Lyndon B. Johnson unlikely would have been able to build his radio chain, and subsequent political career, without help from friends at the agency. Partisanship knows no one party. The FCC showed overwhelming evidence of favoritism toward Republican-owned newspapers during the Eisenhower years when it awarded broadcast licenses to them. And for many years the agency has been taking heat for not awarding enough licenses to black, Hispanic and other minority group buyers. Chairman Powell and Sen. John McCain, R-Ariz., are jointly championing ways to promote "diversity" at the FCC. As for Michael Powell, does anyone actually believe he landed his job without some serious string-pulling by his father? While current FCC rules prohibit any more than three commissioners from belonging to the same political party at a given time, the reality remains that the agency is pulled from all directions.

The point is this: The FCC's sudden desire to issue fines, and Congress's sudden desire to raise the limits on them, did not happen in a vacuum. These things happened because the agency is facing demands by certain members of Congress, the Bush administration, think tanks and the media to "do something" about the alleged coarsening of our culture. Ideas, bad ones included, do have consequences. And in their desire to placate cultural conservatives, the FCC apparently is taking its cue from the state attorneys generals' holy war against the tobacco companies. In short, hit 'em in the wallet.

As noted earlier, the current per-incident maximum FCC fine for indecent broadcast content is $27,500. That sum seems manageable enough. Or is it? A single program, in fact, may contain more than one incident. Thus, if the commission concludes, for example, that four separate violations occurred on a single program, conceivably it could levy fines totaling $110,000. Worse, yet the agency can fine each individual station that carried the violations. So if 30 stations on a radio or TV network are found guilty, the combined fine could go as high as $3.3 million. And if Rep. Upton's revised bill becomes law, which is almost inevitable, this hypothetical example would trigger $60 million in fines. The $1.7 million in fines that the FCC laid on Infinity Broadcasting back in 1995 for certain materials aired on Howard Stern's broadcasts would rise to more than $30 million. Now you begin to realize why the networks are so keen on covering their asses by dropping "troublemakers."

Libertarians properly reject the idea of granting the FCC stronger (or as they say here in Washington, "enhanced") powers to oversee broadcast content. But a good many of them delude themselves into thinking that the market can produce "good" censorship. "American culture is generally sludge," they argue, "but let the private sector make decisions on how to clean up the mess." Such a notion, wrongheaded in and of itself, plays right into the hands of people who do want government to create a de facto Moral Environmental Protection Agency. After all, the market hasn't decided in favor of straight-laced Morality, and probably isn't going to. If it did, Britney Spears would be working as an obscure lounge singer back home in Louisiana, waiting on tables on the side.

Ilana Mercer is a good example of this libertarian delusion. While calling for the FCC to back off, she didn't mince words on the need for moral condemnation of the "Toilet Bowl." "In a free country," she wrote (WorldNetDaily.com, February 6), "the fans make the proprietors face the music through the power of the buck and the boycott, not the bureaucracy." Charley Reese, on this very Web site (February 7), went further, explicitly calling upon the FCC to levy a fine. "It was a stunt," he wrote. "The Federal Communications Commission should simply fine CBS and MTV and be done with it."

Sorry, Charley, you're a nice fellow but I can't let you get away with that one.

In practice, "letting the market decide" on how to deal with supposedly smutty artists means unleashing a torrent of shame, ostracism, boycotting and blackballing. How else does one get people, especially youths, to cease buying supposedly immoral art? But this is not market behavior. Indeed, the notion that family and community intimidation embodies a market sensibility ought to strike one as both repellent and dangerous. There is hardly an emotion more toxic to voluntary exchange than shame. Operating under a cloud of outside moral opprobrium, seller and buyer have to transact furtively, so as not to arouse retribution. Acquiring accurate market information becomes difficult, if not prohibitive. Worse, stripped of individuality, a person has virtually no opportunity to make use of his creative powers to start and build an enterprise. In cultures where shame and ritualizing are thoroughly woven into everyday life so to keep people obedient, this is lethal to an economy. Anyone with even a passing acquaintance with Hinduism, for example, can grasp why lower-caste individuals in India rarely rise above grinding poverty and humiliation, even without government-imposed barriers.

Shaming nonconformists into a perpetual state of feckless self-censorship is as much censorship as the official kind, whether conducted as local or national campaigns. Indeed, it may be worse. The FCC merely threatens and punishes as a matter of bureaucratic procedure. It's just business, mind you, nothing personal. Community shaming and other extralegal sanctions, on the other hand, are personal, intensely so. And they are designed to break nonconformists emotionally and economically, not just to give them a good scare.

Boycotting, a corollary of shame, is no better. In persuading people not to watch a TV show or buy products from its sponsors, those who conduct a boycott have to explain to their audiences why they should spend their time and money elsewhere. Getting the targets of boycotting to capitulate, in practice, is an ugly business. It best succeeds with falsehoods, selective usage of facts, wild generalizations, and threats. On the Left, Jesse Jackson has had enormous success with such tactics in bringing major corporations to heel; I fail to see why the conservative version of this is any more noble. It's a relief that in this country, at least, morally-charged boycotts by the Right are prone to fizzling out. The Southern Baptist Convention's boycott of Disney several years ago went nowhere, based as it was on the preposterous (and unproven) allegation that the company was inserting subliminal pornography into its animated feature films. And more recently, a planned boycott of a Dixie Chicks American tour, in response to anti-Bush comments (while the group was on tour in England) by member Natalie Maines, also tanked; on each of the 65 subsequent U.S. dates, the group grossed more than $1 million.

Private-sector censors, baneful in and of themselves, want government to be a partner anyway. Shaming enthusiasts, such as L. Brent Bozell III, Irving Kristol, Amitai Etzioni, and Robert Bork, long have ached for state intervention. Chapter Eight of Bork's 1996 book, Slouching Towards Gomorrah, which was praised nearly across the board by conservatives, was titled "The Case for Censorship." Boycotts and other modes of taboo enforcement, he argued, weren't enough. Censorship is an absolute necessity. "Without censorship, it has proved impossible to maintain any standards of decency," he noted. But he added that the judiciary, which protects artists from censorship, won't change until the larger culture changes.

Conservatives, at least privately, may admit they lack the numbers to pull off a successful shame or boycott campaign. That's the unspoken reason why they've gone to the Federal Communications Commission to do their bidding. And the FCC is the main reason these days why they're smiling. If this agency didn't exist, people like L. Brent Bozell III would have had to invent it.

Culture-war conservatives publicly counter they do have mass support. They point to the fact that the vast majority of the letters received by the FCC over the Super Bowl incident had expressed disgust. But to treat this as evidence of massive nationwide support for a crackdown is absurd. Think about it. If someone is moved to write or call the commission about a particular TV or radio program – any program – that person is apt already to be in a complaining mood. Just imagine the improbability of large numbers of people composing a letter to the FCC or calling its hotline, and exclaiming, "Wow, guys, that Super Bowl halftime show was awesome. It really rocked." Of course the responses overwhelmingly weighed in support of action against the networks. By virtue of its assigned role as public-interest arbiter, the FCC serves as an ideal address for the perpetually irate. Keep in mind, too, that it was certain pro-censorship organizations, such as the American Family Association, that spurred much of this letter-writing campaign, effectively fulfilling their own prophecy.

When cultural conservatives shift the focus from cursing the darkness to lighting a candle, they go from dangerous to silly – progress of sorts. Case in point: Michael Novak. In his National Review Online piece he set forth a guide for future halftime shows:

There are so many beautiful events in the history of our nation that our children and our families deserve to know, so many glorious episodes to dramatize. Why doesn't the NFL stage a ten-year sequence of halftime shows that tell the great story of the Founding of our nation? For this story embodies all the virtues required by championship football, and many others besides.

Ah, so that's what TV viewers have craved all along – an endless, dumbed-down civics lesson masquerading as entertainment. Hey, I've got an idea. After the decade is up, why doesn't the NFL give out an award for the most patriotic, uplifting halftime presentation? We could call it the Medved Trophy.

It is the mark of the ideologue, Right and Left alike, to manufacture majorities of the moment, a temptation magnified by the availability of mass-communication technology. The very idea of rights, as our Constitutional framers envisioned, is to protect individuals, however "weird," from this sort of vulgar, combustible moral vigilantism. Call that brand of vigilantism, yes, censorship.

Opposition to censorship, whether of the official or informal kind, must be the overriding principle for any supporter of liberty. That means, inevitably, doing battle with the censors. There's no way out of this. Libertarians should forget about their purity, get in the trenches, and fight. Write the FCC. The commission listens to citizens who favor censorship; they also will listen to those who oppose it. E-mail your Congressman and tell him to vote against H.R. 3717 (and soon – the full-floor vote may come up any day). Flood the White House switchboard with calls, since President Bush has expressed his support. Get involved and protest. If you allow the moral bullies to seize the high ground, they will.

I might mention in passing something about the Super Bowl perhaps lost amid all the controversy: The New England Patriots defeated the Carolina Panthers, 32-29, in a down-to-the-wire thriller. But, hey, who cares about a mere game of football when "the culture" needs cleaning up?