from Copyfight by Ernest Miller
May 05, 2004
More on Cynicism, Indecency, the FCC and the Broadcast Flag

Earlier this week, I wrote about my belief that the FCC's true reasons for supporting the broadcast flag are not the purported reasons used to justify that support (The Broadcast Flag is Well-Designed Regulation). As Donna notes below (Plus Dessert), there have been two good follow-ups to my original post. First, on Freedom to Tinker (Dare To Be Naive) and, later, on Furdlog (Cynical or Naïve?). Read on for my responses ...

Ed Felten makes a point I completely agree with. When making policy arguments, one should challenge opposing arguments head on and explain why they're flawed. One should "pretend that the other side actually believes what they say they believe" and challenge their arguments on that basis. Absolutely. If you can't beat the arguments head on you're probably battling a lost cause or you're simply wrong. However, I do think that when the other side's supposed ends are incongruous with the means and the means are consistent with another end, it can be useful to point that out.

Even where means and ends are related in this way, however, it is not necessarily evidence of cynicism. It might simply be error. However, when the apparent end in also consistent with the self-interest of your opponents, then the charge of a cynicism may be raised and, indeed, should be raised as part of the policy debate. Of course it should certainly not be the sole argument.

Frank Field makes an excellent point that when an opponent's arguments seem illogical, it frequently is the result of one side or the other being blinded by ideology. Frank rightly cautions against attributing nefarious or evil motivations to those who are simply blinded by ideology: "They aren’t evil or stupid; they’re just confused and frustrated."

True. However, I must point out that my argument did not postulate that the FCC was either evil or stupid. What I said was,

I can only conclude that the FCC is acting quite cynically in support of an important constituency of theirs, the broadcasters *cough*regulatorycapture*cough*.

I was arguing that the FCC was acting either cynically or stupidly. There is a significant difference between calling someone cynical and calling them evil. Believing that someone is acting cynically is to be skeptical of their purported motives. It is believing that they are acting in self-interest rather than on principle. While we may think less of those who hide their true purposes, acting cynically is not necessarily evil or wicked.

Furthermore, we should not fear calling into question the opposition's motives where we believe the evidence warrants it. Indeed, it is the only way to have an open and honest debate if you truly believe the other side is being misleading. Of course, such charges should be well-supported and one should apply the same standards to both sides, something I try to do. For example, I have been similarly skeptical at times of EFF's arguments. See, for example, Some Questions and Concerns Regarding EFF's Filesharing Policy.

I also note that my discussion of cynicism was also in the context of "regulatory capture." What is regulatory capture? A standard definition is:

Regulatory capture: This is an economic term describing a situation where one operator (or group of operators) in the market uses its influence or resources to extract a regulatory decision, or lack of decision, for their own benefit rather than the benefit of society as a whole. It is associated with patterns of behaviour on the part of a regulatory body in one, or a combination, of the following situations:
  • the regulatory body is tending to further producer interests over consumer interests.
  • the regulatory body has become overly protective towards the regulated entities.
  • the regulatory body is tending to adopt objectives that are very close to those of the entities it is supposed to regulate.
Strangely, the FCC is frequently cited as a textbook example of regulatory capture. Now, regulatory capture and cynicism aren't identical twins, but they aren't strangers either; maybe they're more like brother and sister. I believe that the broadcast flag is a clear example of regulatory capture. Perhaps I'm wrong, but I don't recall any major supporters of the broadcast flag outside the content industries and the FCC. But what is my evidence of cynicism on the part of the FCC?

Indecency Cynicism in the FCC

First, I must admit that my view of the cynicism level at the FCC has been colored by recent events. Those who've been reading my personal blog, The Importance Of..., know that I've been closely following the indecency mess at the FCC (though no where near as comprehensively as Jeff Jarvis).

I am afraid that it seems to me that the recent FCC crackdown on the broadcast of indecent and profane speech is highly cynical, perhaps with the exception of decency nazgul Commissioner Michael Copps.

Item number one: Until the recent indecency brouhaha, Chairman Michael Powell used to be a strong proponent of free speech in broadcast. Read, for example (there are many more), this portion of a speech by then-Commissioner Powell in 1998:

I want to also say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. I sincerely question how long we can continue to maintain in the face of technological convergence that broadcasting is uniquely undeserving of full First Amendment protection. Technology has evaporated any meaningful distinctions among distribution medium, making it unsustainable for the courts to segregate broadcasting from other medium for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.

Today, Powell is a strong proponent of indecency regulation of broadcast. Indeed, he has presided over an unprecedented expansion of the definition of what is indecent and profane. Until Powell's chairmanship, the FCC had never found a broadcast to be "profane" before. Powell praised this application of the prohibition on "profane" speech, which seems highly incongrous with regard to his previous beliefs.

Powell hasn't provided an explanation for his recent change of heart when the indecency issue came to the political front burner. Perhaps I am a poor judge of character, but it certainly seems to me that the most likely explanation is that his recent statements are politically calculated to please a particular constituency (and save his job and/or political future) at the expense of his principles. I could be wrong. Powell may very well believe that we should have multiple First Amendemnt standards, or that technology has shifted once again to create meaningful distinctions between mediums, or that he was simply mistaken in the first place. But I doubt it.

Until Powell is more forthcoming about the reasons for his politically convenient shift of viewpoint, I can only conclude that he is acting cynically with regard to indecency regulation. Heck, even many of those who support the FCC's crackdown on indecent speech believe that Powell is acting insincerely. This doesn't mean Powell is evil. After all, I postulate he is only trying to save his job. However, it does mean that he is being disingenuous.

I don't know what ideology you can call this except "cynical politics." Hey, sometimes cynical politics is the best of a bad set of choices, but let's call it what it is. I also think it shows that Frank goes too far when he declares that "it is only the true sociopath who can actively pursue destructive ends while declaring the opposite and remain functional." I don't think Powell is a sociopath, but I do think he is acting cynically. He may even have rationalizations ("by supporting this indecency crackdown I can prevent more damage to the First Amendment in the future"), but that doesn't mean he isn't primarily operating in his self-interest of not getting fired.

And, if Powell is capable of acting so clearly cynical in one area, it is more likely that he is acting cynically in others.

Of course, Powell isn't the only source of cynicism at the FCC. The organization as a whole is acting cynically with regard to its policy on regulation of profane speech. The FCC defines (Obscene, Profane & Indecent Broadcasts) "profane" as:

including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.

The FCC has provided only one example of what is profane: that the use of the word "fucking" as in "fucking brilliant" is profane.

I'm not being deliberately obtuse, but I honestly don't know what is acceptable and what is prohibited under that definition and single example. See, FCC Revives Notion of the Profane and Howard Stern Should Ask FCC: What is Profane?. The FCC's official position, however, is that its definition is clear enough for broadcasters to be able to tell what is profane and what is not profane with little difficulty.

Call me skeptical, but I just can't believe that any reasonable person actual believes that the FCC's definition of "profane" provides clear guidelines. I also doubt the FCC's motives in claiming that their definition of profane is clear enough to require no further guidance. This is just a wild-ass guess, but I think the FCC isn't providing further guidance for their definition, not because their existing definition is a paragon of clarity, but because the FCC doesn't want to make further trouble for themselves (an example of self-interest). In other words, I believe the FCC is acting cynically with regard to their definition of "profane."

So, if I've recently become more skeptical of the FCC's claimed motivations, I think I have some justification.

Misleading Rhetoric, Cynicism and the Broadcast Flag

In my original post on this topic, I (and Felten) pointed out how the means of the broadcast flag don't seem to match well with its purported purpose. As evidence of cynicism, I noted how the means seem to fit another, self-interested set of motives better. But this is not the only evidence of cynicism on the part of the FCC.

One can also look at how the FCC promotes and describes the broadcast flag. The problem is that the FCC's arguments are full of misleading rhetoric, which only increases my skepticism with regard to their motives. It seems to me that if the FCC were truly convinced of the justice of their arguments they would have little need to misrepresent their position. Either the FCC believes its arguments aren't compelling, or they don't really believe in their own arguments at all. Both positions tend to support a finding of cynicism.

Let's take a look at the FCC's broadcast flag press release: FCC Adopts Anti-Piracy Protection for Digital TV [PDF]. For one example of misleading rhetoric, let's consider the subtitle and a sentence from the document:

Broadcast Flag Prevents Mass Internet Distribution; Consumer Copying Not Affected


The FCC said that consumers’ ability to make digital copies will not be affected; the broadcast flag seeks only to prevent mass distribution over the Internet.

Well, let's see, under the broadcast flag, consumers will not be able to make a copy of a broadcast and take it to their friend's house. I won't be able to record a show for my brother and then hand him the copy to use at his home. Yeah, so I can see how consumers' ability to make digital copies has not been affected. Oh, and what was that thing about consumer copying for fair use commentary, criticism and education? Apparently, that too is similarly unaffected. Or, maybe, the FCC doesn't believe that consumers engage in those forms of copying.

What if the FCC had more candidly said, "consumer copying affected to only a limited degree." Instead of claiming that consumer copying is unaffected, the FCC would make it clear that consumer copying was affected, but in their wisdom, the benefits outweigh the costs?

What about the claim that "the broadcast flag seeks only to prevent mass distribution"? Please. Why couldn't the FCC say without prevarication that "the broadcast flag seeks only to prevent distribution outside the home"?

I also find it telling that the FCC promotes the broadcast flag in order to promote consumers' interests. Normally, when the government promotes consumer interests' it does so by controlling the action of those who would harm consumers, such as unscrupulous companies. However, in this case, it is the consumers who are creating the harm. If similar logic applied to other areas of regulation, you would see headlines such as, "Auto Safety Standards Raised for the Benefit of Auto Manufacturers" and "Baby Rattle Recall Issued to Protect Toy Companies." Since, apparently, the consumers must be protected from themselves, why can't the FCC say so?

In conclusion, both Frank and Ed make great points about using the charge of cynicism in public debate. Still, I believe that the charge is justified in this case.