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The Decency Effect

by Paul Rapp on January 12, 2012

The Supreme Court is taking another whack at FCC vs. Fox , a case that’s been bungeeing around the courts for years. We’ve talked about the case here at least twice before. This time the big question is teed up: whether FCC restrictions on speech on broadcast television are constitutional. Arguments were held before the Court this week, and the various justices’ comments were pretty interesting.

The case involves FCC penalties that have been levied against networks for a couple of spontaneous, unscripted F-bombs dropped by Nicole Ritchie and Cher during broadcasts of the Billboard Awards in 2002 and 2003 and a woman’s bare butt that flashed on NYPD Blue in 2003. I tried to find out whose bare butt is at issue here and failed. Shading everything is the fact that the challenged regulations apply only to over-the-air broadcast networks, which the FCC has always had jurisdiction over, and not cable or satellite networks, over which the FCC has no jurisdicition.

Predictably, and rather sadly, the “conservative” limited-government justices Roberts and Scalia came out in favor of the government regulations over speech, mainly on grounds of “public decency.” Chief Justice Roberts said all the government wanted was a few channels where one can’t see nudity or swearing. Apparently he doesn’t believe in the wisdom of the markets like his fellow indoctrinated neocons, nor has he watched the Nickleodeon or Disney cable networks lately. Constitutional originalist Justice Scalia observed that “[t]he government is entitled to insist upon a certain modicum of decency.” Which means that on one hand, he thinks corporations (which, don’t forget, are people) have the unfettered right to “speak” by giving unlimited, untraceable money to political candidates—that’s just perfectly “decent”; but if someone utters a certain word or shows their butt on a teevee with rabbit ears, well that’s indecent, and the government is “entitled” (entitled!!!) to bring out a big can of government-issued whoop-ass. And that’s in the Constitution where? Isn’t that the only place we should be looking for guidance?

Fellow conservative Samuel Alito took the most interesting tack of the group, pointing out that over-the-air broadcast television was rapidly going the way of 8-track tapes and vinyl records, so why do anything? Why does it matter? Ummm . . . because 95 percent of us watch these channels on cable or satellite and your censorship affects us, too? Because nobody knows when over-the-air TV will die, if ever? Because freedoms delayed are freedoms denied? Need more? Holla. I got ‘em.

There is supposed to be a decision issued in June.

Moving on, there was an interesting article in The New York Times recently about how rock music, however defined, was treading water, if not drowning. Well, yeah, this has been happening for a long time, it’s evolutionary, and there’s all kinds of reasons one can point to for why rock appears to be withering on the vine. And I’ll talk about one right here.

It hit me when I read the coverage of Van Halen’s recent triumphant reintroduction set at the tiny Café Wha’ in New York City. David Lee Roth gushed that the band played little venues like this five days a week for four years until they broke in the late 1970s. That triggered a memory of Cheap Trick’s Rick Neilson, who, at a talk last fall, said that Cheap Trick played four sets a night five nights a week for years before they broke.

And I’m thinking, “Who the hell does that anymore?” Pretty much nobody! Most local bands are lucky to get two or three gigs a month, and those are usually for a set or two. And they pay crap.  If there is a “tour,” it’s usually something the band saves up for, and winds up a grim, money-losing, bad-food, sleep-on-the-floor disaster. And everybody is playing in three or four bands at once just to keep busy and interested.

So musicians don’t get the opportunity to develop the chops, instincts or stagecraft necessary to become rock stars in any classic sense of the term. Bands don’t get to develop as cohesive machines, they don’t develop a distinctive sound or a strong collective personality. And I’ve rung this bell before, but I’ll ring it again: A major contributing factor to this is the absurdity of having a 21-year-old drinking age. Van Halen and Cheap Trick were able to play four sets a night, five nights a week, because every town had a couple roadhouses, or gin joints, or converted warehouses that hired bands every night of the week that drew big crowds, made up mostly of 18-21 year olds looking to get wasted, to hook up, and to rock out. We’ll never see that again.

So. Buh-bye, the rock.

Paul Rapp is an art & entertainment attorney with an office in Housatonic, Mass. His website is paulrapp.com.