• by Tom Hespos , November 15, 2004

Jeff Jarvis reported on the Buzzmachine that the $1.2 million fine levied on Fox for a recent airing of a sexually suggestive "Married By America" was brought about because three individuals bothered to write letters to the FCC. Seems a bit excessive, no?

Jarvis filed a Freedom of Information Act request in October, asking to see the 159 complaints that were supposedly received by the FCC in regard to this particular program. His FOIA request revealed some interesting things. There weren't 159 complaints. There were 90. But those 90 complaints were written by only 23 individuals. Of those 23 individuals, only three bothered to actually write letters of complaint. The other 20 photocopied or e-mailed form complaint letters. So the virgin eyes of three people are responsible for this rather large fine.

I'll probably rant about the First Amendment to anyone who will listen over at my blog, but this column isn't the appropriate place for that. The Online Spin is about issues in emerging media, not the First Amendment.

But this interesting dynamic, in which a small handful of vocal citizens can leverage the government's obligation to oversee the use of the public airwaves to apply pressure on broadcasters and the content they disseminate, should not escape comment.

Surely this issue will be debated in the blogosphere quite voraciously (and then, in the mainstream press) with the First Amendment absolutists on one side and the conservative "shield my eyes" crowd on the other. Regardless of where it nets out, have we thought about what happens if and when the "shield my eyes" crowd starts targeting commercials in a significant way?

This is the nature of broadcasting. In disseminating a message to wide swaths of people of all different stripes (and, mind you, political persuasions), we run the risk of people taking offense. Moreover, we run the risk of intervention by the federal government. In short, if just a small number of conservative folks think your commercial's protagonist's skirt is too short, what's to keep the minority from prompting the powers that be to levy fines or stir up unwanted controversy.

Regardless of how one feels about the issue, the risk still exists in broadcast media. Your commercial message will no doubt reach a few folks who might take offense, maybe even enough to write nasty letters to the government. I should point out that the risk is significantly less for emerging media.

It would be awfully tough for the federal government to use its mandate to protect the public interest and airwaves as an argument against you if your ad is running in channels where information is requested by the consumer, in places where the consumer pays for the content on a subscription model, or where the communication takes place via bandwidth that is not held in the public trust. I'm not a lawyer, but the consumer seems to have a lot more choice in these instances, such as the option to cancel a subscription or opt out of the channel completely.

What is becoming obvious, thanks to the Jarvis post and numerous articles like it, is that the minority can exert significant pressure on the majority. Over the long term, there's no doubt that advertisers will find a happy medium. But in the short- to medium-term, there's a morality tug-of-war going on. Perhaps it's time to think about ad strategies and how they can be affected by this condition.