The Inverted Standard of Censorship; G. McGath

Gary McGath THE INVERTED STANDARD OF CENSORSHIP IN the past year or so, a number of religious and conservative groups have been trying to discourage al legedly immoral television pro grams by promoting boycotts of the programs' sponsors. Many commen tators have denounced these pro posed boycotts as acts of ((censor ship." Peggy Charren, president of Ac tion for Children's Television, says that ((censorship ... is what this movement is about, regardless of what they're calling it." James Ro senfield, president of CBS, calls boy cotts a ((technique of attempting to coerce the advertiser through threats and intimidation."! Yet a boycott is simply the exer cise of free-market power-the power to deal with someone or not, accord ing to one's own choices. There is nothing coercive about a boycott; the only Hthreat" involved is the (tthreat" to take one's money elsewhere. The claim that a boycott is coer cive rests on the unstated premise that the seller has a right to his market, and that the buyer is violat ing the seller's rights by going else where. But a (tright to a market" is a contradiction in terms. If someone does not have the right not to buy something, the transaction is not a purchase, put a forced exchange; a Mr. McGath, a computer programmer and freelance writer In Hollis, New Hampshire, writes regularly for Ergo.

499 500 THE FREEMAN August sale takes place only if both sides are acting by their own choice. To be precise, a sponsor boycott is a ((secondary boycott" - that is, a boycott designed to influence the ac tions of a third party. In this case, the boycott of the sponsors is in tended to influence the producers of TV shows by undercutting their fi nancial support. Secondary boycotts are unpopular, even among some people who otherwise support a free economy. Dr. Sylvester Petro, for example, has called the secondary boycott a ((predatory oppressi ve practice."2 But the right to decide how to spend one's money cannot de pend on the purpose which the spender is trying to achieve. If a per son does not wish to buy a product because he believes that buying it will indirectly promote immorality, it is his right not to buy it. Ifhe tries to convince others that his decision is correct and that they should join him in avoiding that product, it is his right to do so.

Whether the boycotters' stan dards are correct is a separate issue. ((Sex and violence" are the principal evils denounced by the advocates of a boycott. It can certainly be argued that there is something wrong with a moral code that regards sex as evil, and that lumps murder to gether with the punishment of mur der as ((violence." It can be argued that people who are concerned with morality on television shows would be better off to concern themselves with the ideas promoted by the shows rather than with the number of fist fights and low necklines that are presented. And it can be argued that urging people to simply shut off ob jectionable programs would be a more direct approach to the issue than boycotting sponsors. But criticisms such as these are legitimate only when it is recog nized that every person has the right to take whatever non-coercive ac tions he chooses. The distinction be tween having a right -to do some thing and being right is vital in this case.

Seeing the Problem It is possible that some of those who call boycotts ((censorship" are expressing doubt about the boycot ters' commitment to a free-market method. It is true that opponents of sex and violence in entertainment have frequently enlisted govern mental help in enforcing their views. For example, Jerry Falwell of Moral Majority, while calling for a volun tary boycott of broadcast television, has encouraged district attorneys to seek legal regulation of cable tele vision programs. 3 But if these incon sistencies are the real object of the critics' concern, they should be pointing out the inconsistencies and stating that the resort to govern mental action, not the voluntary boycott, is an attempt at censorship.

1981 THE INVERTED STANDARD OF CENSORSHIP 501 Moreover, if governmental cen sorship is anyone's actual concern, it already exists, not as a threat but as an ongoing occurrence. Under Federal law, the government can shut any broadcaster down simply by taking away or refusing to renew its license. For example, a broad casting company is not free to decide which views it will promote; if it gives air time to a particular view, it must give equal time to propo nents of the opposite view. More vaguely, and therefore more dan gerously, a broadcaster is required to promote the ((public interest." If the FCC decides that a station has not acted sufficiently in the ((public interest," the station can be taken off the air, even though it has not been found guilty of any specific of fense. JudgingPast Conduct Why is this governmental control not denounced as ((censorship"? One answer that has seriously been of fered is that censorship means only restraint of material that has been scrutinized in advance of its release, and that shutting down a station for what it has broadcast in the past is therefore not censorship. In uphold ing the non-renewal of KFKB's li cense, the District of Columbia Court of Appeals stated: There has been no attempt on the part of the Commission to subject any part of appellant's broadcasting matter to scru tiny prior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant's license, the Commission has merely exercised its un doubted right to take note of appellant's past conduct, which is not censorship.4 We may all be greatly relieved to know that when Russia jails dissi dents or South Africa shuts down newspapers, they are not engaging in censorship, since they are simply Utaking note of past conduct."

But if this standard is applied, boycotts are not ((censorship" either, since they are based on the past con duct of broadcasters and sponsors. This definition of censorship by non essentials is not a serious criterion for anyone, but a screen for a view of censorship that is even harder to put over: that voluntary action to influence a medium is censorship, but that governmental control over a medium is not. This view was ex pressed with unusual clarity by FCC head Newton Minow when he spoke to the Conference on Freedom and Responsibility in Broadcasting in Chicago on August 3, 1961: Naturally our concern here is with two special limitations on censorship: the First Amendment, which prohibits abridge ment by the government of freedom of speech, and section 326 of the Commu nications Act, which very wisely pro scribes any censorship by the Federal Communications Commission.

502 THE FREEMAN August I am going to explore these at length but first I want to make an admission against somebody else's interest-there is much censorship-even as it is de fined here-there is much censorship in broadcasting today. It is as much to be examined, spotlighted and at times de plored as any form of censorship by a government agency. And since it is done by our owq. governmental licensees ev ery broadcast day, it violates the spirit of the First Amendment and Section 326 of the Act just as surely as if we had done it ourselves. The censorship I speak of here takes two forms. First is rating censorship-a result of the almost desperate compul sion of some of our licensees to work and - to plan and to live by the numbers, al ways striving to reach the largest possi ble audience in order to attract and hold the mass advertising dollar. At best, only the majority interest can be served here and the interests of massive minorities are badly served; and the public interest again is trampled .

. . . The other form of censorship I speak of is what Clare Boothe Luce has called udollarcensorship." Here the broadcast licensee simply abdicates his own judg ment and turns programming decisions over to an advertiser or his agency. 5 Here we have the inversion at its fullest. By defining censorship not as force, but as control over material prior to its release, Minow makes the broadcasters guilty of censor ship by the very fact that they are broadcasters, and makes the gov ernment innocent of censorship by virtue of the fact that it does not see the programs prior to their release. At this point, it is necessary to briefly answer· the argument that since broadcast frequencies exist in a limited quantity, government con trol over the use of those frequencies is justified. Everyth ing exists in a limited quantity, ineluding paper and ink for newspapers and cables for non-broadcast communications. It is this very fact that makes private property necessary. The govern ment's proper role is not to seize control of something because it is fi nite, but to establish the legal basis for guaranteeing property rights. In the case of television, this could have meant some sort of ((homesteading:' for frequencies; today, it should mean recognizing the property rights of broadcasters to the frequencies they are using over a given geographic area.

CensorshipExercisedin Licensing Procedures Someone might have asked Mr. Minow: isn't the government's power to take away a station's license a power of censorship? On the con trary, says Minow; the fact that the government has this power makes the station's decisions ((censorship." The logic is that since they are li censed by the government, they are subject to whatever restrictions (such as the First Amendment) are placed on the government. Isn't the free market best served 1981 THE INVERTED STANDARD OF CENSORSHIP 503 by letting stations broadcast what ever they want, since they must broadcast what people want in order to make money? Yes, says Minow, and that is why they shouldn't have that freedom. The free market would give the greatest number of televi sion viewers what they wanted, and would not permit ~~massive minori ties" to dictate the content of the shows; therefore, according to Mi now, the broadcasters must be reg ulated. A free market is ~~dollar cen sorship."

And this brings us back to the is sue of boycotts. We often hear that a person does not have true freedom of speech or freedom of the press if he does not have the means to exer cise his freedom-that freedom of the press requires someone to pro vide him with a press for his own uses. This view of freedom,. which confuses freedom with ability and rights with claims upon others, has traditionally been used on behalf of unpublished writers and unfinanced publishers. But the critics of ~~dollar censorship" are taking it to its logi cal conclusion and applying it to the sponsors and producers of TV shows. Minow regards ·advertisers as the parties guilty of ~~dollar censorship." By failing to pay for shows that would not give their products sufficient ex posure, they are allegedly depriving the shows' producers of their ~~free dom" to have their shows presented. The opponents of the boycott, though, realize that sponsors cannot afford to take losses indefinitely, and that it's their customers who have to be considered guilty of censorship if nfreedom" requires being provided with means.

The implications of defining cen sorship and freedom in this way are dangerously broad. If the boycotters are guilty of censorship when they decline to buy sponsors' products, then the rest of us are guilty of the same crime when we buy products that we have seen advertised, rather than products advertised on shows which we have decided not to see, or when we buy one magazine and not another at a newsstand. In every such case, we are failing to provide someone with the financial support that he may need to continue broad casting or publishing; we are engag ing in ~~dollar censorship." The danger in the inverted stan dard of censorship is that we will be forced, in the name of ((freedom," to pay for publications and broadcasts whether we want to or not. In fact, we are already forced to pay for gov ernmental subsidies to public tele vision and to the arts. The logical conclusion to which these subsidies could be carried is complete govern mental control of the broadcast and publications media, with subsidies available only to those who meet the government's criteria, and with charges of ~~censorship" being lev elled against anyone who tries to 504 THE FREEMAN August spend money on broadcasts and pub lications of his own choice. The United States is still a long way from this sort of totalitarian ~~free dom," but this is the actual state of affairs in many countries today. If we want to preserve freedom of speech here, we must not be silent when freedom is attacked in its own name. i Haven Bradford Gow -FOOTNOTESIRon Powers, uThe New tHoly War' Against Sex and Violence," TV Guide, April 18, 1981.