advice from a fake consultant

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Tuesday, June 26, 2007

On Facts And Figures, Or, Over 187 Billion Served

A story has recently made itself known in this space that has become more than a one-day event, and as a result we will be doing some follow-ups.

The complexity of the story requires that we discuss the nuts and bolts of the larger environment within which the story is contained, and we will do that today.

The story: the substitution of an “alternate meal” to force payment from parents of school kids who owe the school for unpaid meals.

If all of this sounds familiar, it’s perhaps because you saw my earlier story describing the practice, or, for that matter, onecrankydem’s.

Since then, there have been new developments.

To begin, the parents who started all of this in the first place have contacted me with additional information. For a variety of reasons (including my desire to offer the Chula Vista Elementary School District a chance to respond) we won’t be discussing that today, however. I’m also trying to get more information by contacting experts in the child nutrition, education, and mental health communities (yes, actual reporting!), and through a search of the available literature.

The parents have also begun the process of creating a survey that we will use to develop a larger data collection program to really understand how the “alternate lunch” programs work nationwide; and I’ll be asking for your help with this effort soon. So stay tuned.

With that addressed, let’s move forward.

In order to properly build “the rest of the story” we need to create a foundation upon which our project may be built, and that will be the focus of today’s conversation.

“It is hereby declared to be the policy of Congress, as a measure of national security, to safeguard the health and well-being of the Nation’s children and to encourage the domestic consumption of nutritious agricultural commodities and other food, by assisting the States, through grants-in-aid and other means, in providing an adequate supply of foods and other facilities for the establishment, maintenance, and expansion of nonprofit school-lunch programs.”

--National School Lunch Act of 1946, Section 2 (emphasis added)

School lunches as national security?
What’s that all about?

It’s about the roughly 10% of World War II Selective Service registrants who were rejected for service because of the apparent effects of malnutrition or underfeeding; this according to Major General Lewis B. Hershey in his testimony to Congress in the run-up to the passage of the Act.

How much of an impact does the National School Lunch Program have? In the 2004-2005 school year almost 95% of schools (98,000 plus) participated in the National School Lunch Program (NSLP), which means 29.1 million kids had access to meals served under the auspices of the program every school day. The USDA reports that over 187 billion lunches have been served since 1946.

Cash expenditures (not counting commodity donations) for the NSLP were $7 billion in fiscal year 2005.

There’s also a School Breakfast Program, and about ¾ of the schools that participate in the NSLP also are involved in the Breakfast program.
More about this later.

From the USDA’s Food and Nutrition Service’s “National School Lunch Program Fact Sheet”:

“How does the National School Lunch Program work?
Generally, public or nonprofit private schools of high school grade or under and public or nonprofit private residential child care institutions may participate in the school lunch program. School districts and independent schools that choose to take part in the lunch program get cash subsidies and donated commodities from the U.S. Department of Agriculture (USDA) for each meal they serve. In return, they must serve lunches that meet Federal requirements, and they must offer free or reduced price lunches to eligible children. School food authorities can also be reimbursed for snacks served to children through age 18 in afterschool educational or enrichment programs.”

Cash subsidies, you say?
Tell us more...

I will, but as so often happens, I’ll tell the story backwards.
Because in order to understand cash subsidies, you need to know about the different types of lunches.

So here’s how it works. All kids are permitted to purchase meals under the two programs (breakfast and lunch), but...

...If you are a family of four, earning less than 130% of the poverty level ($21,580), your kids can have Free meals.

...If your family receives Food Stamps, TANF (Temporary Assistance for Needy Families), or participates in the Food Distribution Program on Indian Reservations (FDPIR), your kids also receive Free meals.

...If your family of four earns less that 185% of the poverty level ($30,710) your kids can purchase the Reduced Price meal.

All students with family incomes above the 185% level can purchase the Paid meal.

For every Free lunch served the USDA pays the District a subsidy of $2.40.
The subsidy is $2.00 for each Reduced Price lunch; Paid lunches garner an “administrative subsidy” of $.23 each.

Of the 29.5 million students participating in the NSLP, 17.5 million were receiving Free or Reduced Price lunches.

The National PTA estimates that some of these kids get half their daily nutrition at school.

The Districts are not limited in the amount they can charge for Paid lunches (the average nationwide is $1.80 for the '06-'07 school year); but they are limited to charging no more than $.40 for the Reduced Price lunch. Districts, obviously, cannot charge for the Free lunch.

“Snacks” are also subsidized under the Act; and in 2004 it was $.61, $.30, and $.05 for each of the three categories.

Additionally, the Districts receive “USDA commodity foods” worth $.1675 per meal-and possibly even “bonus” commodities in some circumstances (see "Government Cheese" for more details).

Additional subsidies exist, but we’re not bureaucrats, so we’ll move on.

How many people know that the School Breakfast Program and the Black Panther Party are linked in history?

The Federal Breakfast Program was initiated as a pilot project in 1966, but was not established nationwide until 1975.

In the meantime the Black Panthers had been operating their own program (feeding as many as 10,000 every morning in Oakland alone); and it has been suggested that the Panther’s program shamed the Federal Government into making their Breakfast program permanent. (Are you a history buff? Here’s Huey Newton writing about the program in 1969.)

The Breakfast Program today has grown into about half the size of the Lunch Program (82,000 schools, 9.6 million students served, $3 billion in budget).

Reimbursement rates are $1.31, $1.01, and $.24 for the three categories of meals.

There is a second means of operating a school lunch program-the Provision 2 process. This is a method of funding that places all meals in one reimbursement category-and provides all meals for all students at no charge.

The reimbursement rate is designed to be lower than if the District collected cash for meals; but the administrative savings created by not handling cash or verifying family income eligibility every year can offset the rate difference-making this an excellent choice for many districts. (Districts must verify income eligibility once every four years.)

Nutrition is a component of the Programs we have not addressed. The Guidelines for the Programs can be seen here.

That’s a lot for one night, so I’ll leave with a final note:

The parents that are trying to get this practice stopped nationwide have established an email address for those of you who would like to touch base-and they’d love to hear from you.

Drop them a line at
They will appreciate it.

Next time: are these programs effective-and lots more.
Stay tuned.

Tuesday, June 19, 2007

On Teaching Debt Collection To Kids, Or, Here’s The Outrage Of The Week

There have been efforts in the past to teach “life skills” to students in the public schools, and of course among those skills is the lesson of financial responsibility.

I can imagine that these classes, especially for a student forced to take them first thing in the morning, can be like a daily session of discussing Hawley/Smoot in Ben Stein’s high school economics class. So, so dull that they make you nod your head in….zzzzzzz…

For some school districts, however, a more direct method of financial education has been employed-a method that will be our outrage of the week.

There is no question that the public schools are, financially speaking, stuck between a rock and a hard place; and just like a person living on a fixed income, every lost dollar hurts.

One form of “lost dollars” has historically been the money owed by parents for school lunches that are essentially provided “on credit”. Basically what happens is a kid might forget his lunch money that day, or a parent might have bounced a check for the prepayment of meals for the next month, and the school covers the money until they can collect the debt.

Now, debt collection is a highly regulated business. Federal law says you can’t just go around threatening violence to collect a debt, for example. State laws are even more restrictive: California says you can’t put a fake name on an envelope containing a collection notice or force a debtor to accept collect calls; New York says collectors are prohibited from:

“…communicating with you in a manner which simulates a judicial process or which gives the appearance of being authorized or issued by a governmental entity…”

With that in mind, it’s no surprise that schools would look for ever-more-creative ways to collect debts; but even considering all that I found myself shocked by this LA Times article entitled: “On school menus: cheese sandwiches, parental debt”.

The article describes the Chula Vista (a suburb of San Diego, California) Elementary School District’s “alternate meals” plan, which works something like this:

If a parent owes the district more than $5 in meal money, the district will send a letter home, put a sticker on the child’s hand, and eventually, hire collection agencies.

If all that fails, the district will basically…repossess lunch.
How is that possible, you ask?

Picture two second-graders in the cafeteria line. As they get to the yummy pizza, the first little girl gets her slice of pepperoni. But not the second girl.

She gets a cheese sandwich.

That’s right-this school district, and numerous others nationwide, have special school lunch “options” for those students who have parents that owe money-and in Calloway County, Kentucky, it only takes $3.00.

Life’s tough enough for a kid in school: the pressure to have the right clothes and shoes, the need to fit in, and above all-making sure you avoid being humiliated in front of everyone. Here’s a piece of the LA Times article:

“…The cheese sandwich, they say, has become a badge of shame for the children, who get teased about it by their classmates. One student cried when her macaroni and cheese was replaced with a sandwich. A little girl hid in a restroom to avoid getting one. Many of the sandwiches end up untouched or tossed whole in the garbage. Sometimes kids pound them to pieces…

…A year ago, he said, a cafeteria worker took away Christopher's pizza and forced him in front of his friends to pick up a sandwich instead. A similar incident occurred when Christopher was in the third grade. "The kid was humiliated," said his father, who added that he did not realize he owed money, $7.50...

…One Chula Vista third-grader, whose mother requested that the girl not be identified, said students sometimes ostracize the cheese sandwich kids, switching tables and talking behind their backs. "Some kids say they're not the kind of kids you want to hang out with," she said.”

There are a bunch of other reasons why this is a bad idea, and an explanation of why the tactic is popular below; but first, a required disclosure.

Those of you who are regular readers will recall two stories that I recently did about The Yes Men, and you may already be suspicious that this is the third.

If this were a missile silo, I’d be telling you: “This is not a drill”.
I have no surprise twist coming.
This is a real story.

Now back to the news…

When we left off, we had discussed the stigma that I contend attaches to a kid when they get the “special” sandwich (or the peanut butter and crackers, or whatever) and everybody else gets the pizza; but maybe I’m just overreacting in my assessment.

To be sure I’m not; let’s examine how others might view the practice.

Washington State’s Department of Social and Health Services offers online information for foster parents, including a discussion of disipline and punishment that offers these comments:

…”Punishment is defined as imposing external controls by force on children to change their behavior. It includes…Imposing suffering, for example by withholding food…Personal or emotional attacks like name-calling, ridicule, and insults…Many forms of punishment are against the law.”… (emphasis in original)

…”It's not hard to understand why parents sometimes want to use punishment. There are many reasons, including…

The misbehavior often stops immediately
Children often show remorse during punishment
The parent gets to blow off steam
The parent feels in control
The parent hasn't let the children "get away with it"
The parent was raised that way”

The Centers for Disease Control offers a score card to help elementary schools measure their “School Health Index”; and items 5 and 6 on the list of score card items are-you guessed it!-lunchroom related:

“N.1. Prohibit using food as reward or punishment
N.2. Fundraising efforts supportive of healthy eating”

The State of Wisconsin has intervened to prevent the practice of withholding food as a form of discipline in school settings, as reported by the Winona Daily News:

“The state has ordered a military-style private school to stop punishing students by serving them smaller lunches and is withholding money for food programs until the problems are corrected…

…The state has halted its share of the money for lunch and breakfast for low-income students until the La Brew Troopers Military University School stops withholding food as punishment, Helen Pesche, child nutrition program consultant for the state, wrote in a letter to the school dated May 21…

… The letter said that inspections at the school found students were sometimes punished by being served lunch without either meat or a substitute and a vegetable and fruit…

… A DPI report said one day when inspectors visited the school, 24 students were served lunches that did not include a sloppy joe on a bun and canned fruit, like their peers ate. Instead, the report said the children were given a slice of white bread, half a cup of mashed potatoes and a half pint of milk…

…Withholding food is unacceptable for schools participating in the National School Lunch Program, a federally assisted program that subsidizes school food, the report said…”

The State of Illinois also frowns on this type of “food punishment”.
Consider this policy goal from's “evaluation tool” for Illinois schools:

“School personnel are encouraged to use nonfood incentives or rewards with students…and do not withhold food from students as punishment.”

Is this practice intended as punishment?
Here’s another quote from the LA Times, discussing what happened when peanut-butter-and-jelly was the “special sandwich”:

"It seemed to be one of the children's very favorite meals, so that wasn't productive," said Beth Taylor, nutrition director for the Johnston County School District in North Carolina, where such sandwiches were tried. Taylor said switching to vegetable and fruit trays changed everything. Among last week's menu items for students with lunch balances: crunchy cole slaw, fried squash and steamed cabbage. "The outstanding debt has been reduced to nothing," she said.”

Did everybody catch that admission by Ms. Taylor?
It was serving healthy food that turned the problem around.

Who thinks these kids will grow up to have eating disorders?
Who thinks opening a 24-Hour Fitness in Johnson County, North Carolina will pay off big one day?
Who thinks with policies like this in place buying stock in “Stroke, Inc.” or “Heart Attack & Co.” would be a great investment, if it were available?

With all that in mind, why would a school district pursue such a practice?
Because humiliation works.

The LA Times article reports that Chula Vista reduced its debt in this category by more than $230,000 from 2004 to 2006. Of 18,000 meals served by the District daily, up to 400 are of the “special sandwich” variety.

In its defense, Chula Vista points out that the “unlimited salad bar” is available to all students, but I suspect the salad bar does not reduce the impact of the “cheese sandwich equivalent” on the little kid to whom it is served.

Before closing, I want to offer one more learned opinion regarding the "food as punishment" idea. A learned Opinion that comes to us from the Unitred States Court of Appeals for the 7th Circuit (the case originated in the eastern District of Wisconsin).

The Court has been called upon to offer an opinion as to whether food substitution is an acceptable form of punishment for prisoners in Wisconsin’s Secure Program Facility at Boscobel (a Maximum Security Facility, previously a Supemax). Food substitution means a “nutri-loaf” will be the only food offered during the period of a prisoner’s punishment, and the court found that the punishment was a violation of the 8th Amendment prohibition against “cruel and unusual punishment”.

To put all this in perspective, we have on the one hand a highly effective policy borne out of the school districts’ need to collect money; and on the other hand the opinions of Washington State’s foster parent educators, the Centers for Disease Control, the courts of Wisconsin and the nutrition educators of Illinois who all feel this is a terrible idea.

If all that wasn’t enough, we have a United States Court of Appeals that won’t even allow this type of punishment in a Maximum Security prison.

As we all know, kids have a ton of barriers in their way when they are being educated, and there is no good reason to create another one when the punished child didn’t even commit the “crime”. Just because…

…The misbehavior often stops immediately
Children often show remorse during punishment
The district gets to blow off steam
The district feels in control
The district hasn't let the children "get away with it"
The district was raised that way…

…doesn’t mean it’s OK to abuse kids who have little, if any, control over the “bad” behavior of their parents.

Saturday, June 16, 2007

On Nothing In Particular, Or, A Few Words About Everything

I have been mulling over several thoughts recently, none of which seem to individually offer a complete day’s work, and I ask the reader’s indulgence as I attempt to stitch some of these disconnected concepts into a larger, and hopefully more interesting, quilt.

Let’s start with immigration:

The “immigration debate” seems to be a story of Mexican migration, and the entire focus of the current discussion is how to control the Mexican border.

But that really misses what immigration is all about in this country.

Here’s the numbers: the Pew Hispanic Center tells us that about 1/3 of immigrants come from Asia, another 1/3 from Latin America, and the final 1/3 from the rest of the world.

Of the 1/3 of immigrants from Latin America, about 60% of those are Mexican.

What do these numbers tell us?
Two things:

--A “perfect fence”, if such a thing could be created, would only prevent a subset of illegal immigration.

--If you really want to control illegal immigration, build walls around airports. That’s where the immigrants actually come from.

Speaking of walls…

…how does building a giant fence on the Mexican border keep out “terrorists’?

Ignoring the fact that Timothy McVeigh didn’t need to scale any walls, I will tell you here today that the “Jalisco Wall” will never prevent more than one terrorist from entering the country.

Do you know why?

Because that terrorist will come back and say: “They have a wall at the Mexican border now…” to which the “terror manager” will reply: “Hey, look at this map! Why don’t you just cross the Canadian border? They don’t have a fence...”

And that will be the end of that.

By the way, here’s an immigration hypothetical for you:

If Canadians were predominantly non-white (or even worse, French…), what do you suppose the odds are we’d be talking about securing two borders today, instead of just one? Think about that the next time the conversation comes up.

What about that whole “immigrants and jobs” thing?

I would encourage everyone who has not seen “Roger and Me” (Michael Moore’s story of how GM “dejobbed” Flint, Michigan in the early 1980’s) to see the film, and see what happened to that city. That process, repeated a thousand times over, is why we have so few manufacturing jobs in this country.

Did Mexicans crossing over the border in the dead of night cause that?
My guess is that answer will be no.

When considering the impact of immigration, ask yourself these questions:

--Did textile mills close in the South because of Mexican immigrants?
--Did the shoe industry leave New England because of immigrants?
--Would US Steel and Bethlehem Steel still be names we recognize if it wasn’t for those pesky immigrants?
--Are the immigrants forcing the auto industry into its current troubles?

The jobs lost because of those actions didn’t go to illegal immigrants, they went to other countries.

What’s the lesson?

Even if you could monitor every person on the planet, and you could somehow keep out the “undesirables” with prefect success, it still wouldn’t fix a single one of the problems we discussed above. Money can travel to the cheapest workers these days, and a border fence (or two) isn’t much of a barrier to a multinational corporation.

Next topic:

“Can Obama possibly have the experience needed to be President?”

How often has that question come up?
“How many grains of sand are there on the beach? “ is the Zen answer.

Here’s the response.

An actor, a haberdasher, and a former Air National Guard pilot all had the skills required (in varying degrees…)-why not a sitting Senator?

Next time this issue comes up, try the “Prime Minister’s Questions” test.
It’s simple: ever seen Mr. Blair answer those questions every week in the House of Commons? It’s a bit rough-and-tumble, and the Prime Minister is expected to have some ability to provide reasonable answers-or be shouted down in the process. Now try to picture the current crop of Presidential contenders answering “Prime Minister’s Questions” week after week, with no teleprompter in the room.

This test will quickly shorten the candidate list-but it won’t eliminate Obama.

Moving on:

Have you ever seen anybody who needs a hug more than Tucker Carlson?

I watch him yap-yap-yapping away and it just makes me feel…sad.

Somebody take him on a roller coaster or something-and soon.
The poor man needs it.

One more “vent” and I’ll call it a day:

Since ’06, as a community, we have petitioned our Government for the redress of our Grievances, if you will, on issues that are truly matters of life and death, and the responses have ranged from disappointing to maddening-and beyond.

We are in a difficult position here-even those we consider our friends are moving more slowly than we want. We cannot allow ourselves to be placated, but we have to be pragmatic as well.

I have no solution for this problem, only perspective, and a piece of advice:

When you find yourself on the verge of giving up altogether, take a step back and consider where this debate was 18 months ago-and how far we have already pushed the envelope. We are getting there, far too slowly, but we are getting there.

It is we who control the debate now.
To paraphrase a line from Walt Kelly, “we have met the majority, and it is us”.
There will be efforts to alter the terms of the discussion, and there will be diversions along the way; but we can end this war, and we can change how we deal with heath care, and we can still have a planet that resembles the one we were born on, if we just remember that we’re winning here, not them.

And with that off my chest, perhaps we can fold up the allegorical quilt until the weather turns again, and enjoy a bit of summer.

Friday, June 15, 2007

On Recycling, Or, Exxon, You Light Up My Life

Barry Commoner is almost certainly the first Presidential candidate to orient his campaign around the intersection of Environmental, Economic, and Energy policy. Commoner’s philosophy (“The first law of ecology is that everything is related to everything else") was considered so radical at the time of his candidacy that he was ostracized to the lunatic fringe, as it were, which is why the vast majority of readers today do not recall his 1980 candidacy.

25 years later, the President has tasked the National Petroleum Council to conduct the “Global Oil and Gas Study”, which is to examine supply and demand alternatives through 2030 or so.

In conjunction with the Study, Exxon/Mobil has proposed a radical new energy solution that will be the subject of today’s discussion.

The Drake Well, drilled in Pennsylvania in 1859, might be viewed as a symbol of the end of the age of whale oil and other biological oil sources, and the beginning of the rise of fossil fuels (or “rock oil”, as it was known at the time).

Ironically, with the recent concern regarding Saudi reserves (follow the link for one of the best pieces of Internet reporting I’ve ever seen) and other issues related to “peak oil”, and the new interest in “bio-“energy (“biomass” and “biodiesel” being quick examples), the circle appears to be closing.

If you work in the petroleum industry, and have the choice of spending mid-June in Houston, Riyadh, or Calgary…well, let’s just say it’s no surprise that almost 20,000 attended the GO-EXPO: Gas & Oil Exposition 2007 at Calgary’s Stampede Park.

Excitement filled the hall in which the keynote luncheon speech of Thursday the 14th was scheduled. The conference organizers had already booked the Canadian Minister of Environment and the Korean Consul-General for the first two keynote luncheons, and there was considerable anticipation regarding the third and final event, where Shepard Wolff, Special Advisor to the National Petroleum Council, would be giving the hundreds of attendees the first glimpse of the results of the Study; which is expected to form the framework of a new Bush Administration/Canadian Government joint energy policy.

Instead Wolff shocked the audience of oil-shale experts by giving them advance notice of Exxon/Mobil’s introduction of Vivoleum, the first “renewable” oil resource to be championed by a major oil company.

Why introduce a non oil-shale based product at such a meeting?
Because of the need for redundancy, according to Wolff.

Alberta’s oil sands will become more and more important to the word’s energy picture as production of traditional “liquid” oil is removed from underground reservoirs-but that new importance will come at a price. The far more carbon-intensive extraction and processing technologies might “tip” the balance of global climate to a state of exceptionally rapid change, and new oil production alternatives will need to be in place.

To put it another way, if most oil moves internationally by ship, and these ships dock at terminals, and those terminals (and the oil pipeline access points that are sited concurrently with the terminals) were to become submerged by climate change, or damaged by hurricanes, or were somehow otherwise made unavailable; the global economy would be irreparably damaged-and in an effort to prevent that eventuality Exxon/Mobil has acted.

This brings us back to bio-fuels…

"We need something like whales, but infinitely more abundant…"

--Shepard Wolff, National Petroleum Council

In a time of increasingly violent weather globally, in a time where mass migration of displaced populations and their demands for resources from new hosts will create more and more “migratory mortality”, what better “whale substitute” is there but…people?

That’s right-NPC rep Wolff and his colleague at the presentation, Florian Osenberg, of Exxon/Mobil, announced that the company has made ready for commercial use a process by which human remains can be converted into a useful energy resource-the aforementioned Vivoleum.

"Vivoleum works in perfect synergy with the continued expansion of fossil fuel production” Osenberg informed the raptly attentive audience, "With more fossil fuels comes a greater chance of disaster, but that means more feedstock for Vivoleum. Fuel will continue to flow for those of us left."

In an extraordinary and enormously touching moment, 256 “commemorative candles” were lit to acknowledge the “sacrifice” of an Exxon janitor whose untimely death provided the…raw material, shall we say, that made the candles possible. As the Vivoleum candles burned, the video screens in the hall filled with the image of the dying janitor expressing his desire to participate in this great leap forward for world energy.

And it was at this moment that it became evident to Simon Mellor, International Commercial & Business Development Director of Petroleum (the Exposition’s producer) that these were not real oil industry representatives, that Vivoleum was not a real product, that his event had just been hijacked by The Yes Men, and that action had to be taken at once.

And that’s why he physically forced the two speakers from the stage. Canada’s CTV showed footage (after reaching the page use the “Chris Epp reports” link under the photo) of portions of the speech, the ejection, and the response from the show’s press representative.

Trust me when I tell you it is worth viewing, if only for this nugget:

“…the number of dead [because of global warming] will make death the new black…”

--Andy Bichlbaum, the real person behind “Shepard Wolff”

Those of you who recall the SurvivaBall story of June 2nd will immediately recognize this story as the second of a series detailing the exploits of The Yes Men; and those who are new to the conversation are encouraged to visit the SurvivaBall link for a more complete explanation of exactly what’s going on with these guys, and how they manage to pull off this and other similar pranks on unsuspecting audiences worldwide.

So as it turns out, today’s is a happy story, which I guess makes it OK for me to say…

Vivoleum-you really do light up my life!

Sunday, June 10, 2007

On "The F-Word", Or, If Beavis And Butt-Head Were Lawyers...

Author’s Note: DIRTY WORDS AHEAD...

The Bush Administration has, as we all know, sought to expand the power of Government and alter the relationship between the Branches in fundamental ways. Those seeking examples need look no further than the reassessment of Habeas Corpus represented in the Military Commissions Act, or Presidential signing statements, or the “warrantless wiretap program”.

Another battle, less well recognized but equally fundamental, has been brewing over the FCC’s sudden reexamination of policies regarding the use of certain “obscene” and “profane” utterances over the broadcast airwaves.

On June 4th, the US Court of Appeals for the 2nd Circuit, based in New York, ruled that the FCC’s new policy exceeded its authority; and the two opinions (majority and dissenting) issued in Fox v. FCC (docket number 06-1760) will be the subjects of today’s discussion.

(Unless sourced otherwise, all further discussion is derived from the Fox v FCC link.)

I warn you once again, there will be offensive words used in this story.
Highly offensive words.

To quote the inimitable Carl Warmenhoven (the Seattle Comedy Underground’s Assistant Manager, or, as he describes himself, the Club’s Ass. Man.), words “strong enough to knock a fuckin’ buzzard off a shitwagon”.

Warnings having been issued; let us plunge ahead.

These kinds of stories always require a background discussion, and the best place to start here is a description of the issues under consideration by the Court.

To make a long story short, the Court was asked by Fox to rule that the FCC’s 2003 decision to change policy and begin imposing punishment for “fleeting expletives” broadcast over the public airwaves was an “arbitrary and capricious” decision that had to be struck down, and the Court agreed to do so.

Fox also asked the Court to address six other statutory and Constitutional questions related to the FCC’s authority to regulate “indecent” speech.

The Court declined to rule on those questions. Instead a statement was included in the majority ruling that is intended as a guide to the majority’s state of mind regarding the additional issues. The guidance (known as “dicta”, or the plural “dictum”) does not have the “force of precedent” of a ruling, as we will discuss below.

The likely outcome of the ruling is to return the state of the law to where it was before 2003, when “fleeting expletives” were not subject to punishment.

Having made a long story short, let’s make a long story long, shall we?

While 18 U.S.C. § 1464 requires the FCC to restrict “indecent” speech, the
Communications Act (47 U.S.C. § 326) prohibits the FCC from engaging in censorship, and this balancing act is the real reason for today’s conversation.

The first enforcement effort to restrict broadcast speech was the action launched in 1975 against the Pacifica Foundation, who broadcast, at 2:00 PM, George Carlin’s “Filthy Words” monologue, which was found by the FCC to be “indecent” content.

What, you may ask, is “indecent”?
From the FCC:

“[T]he concept of ‘indecent’ is intimately connected with the exposure of children
to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience. Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions, and we believe that such words are indecent within the meaning of the statute and have no place on radio when children are in the audience.”

The order was appealed by Pacifica to the same appeals court whose ruling we are today showcasing. During the appeal, the FCC “clarified” its position to acknowledge that live events can lead to unexpected utterances that can’t be edited, and that in these situations it would be “inequitable for us to hold a licensee responsible for indecent language.”

The Court, however, found the FCC’s position to be censorship.
In their view, the “vague and overbroad” restrictions banned...

“..the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.”

The US Supreme Court, upon review, took a different perspective.

In its presentation to the Supreme Court, the FCC made clear that it did not intend to regulate speech generally using this “indecency” doctrine, merely this particular broadcast of this specific monologue.

As a result, the Court did not choose to address the larger question of generic censorship, but instead whether this ruling was appropriate, as stated above, for this particular broadcast of this specific monologue.

Pacifica unsuccessfully attempted to argue that the content to be banned must be “obscene”, and unsuccessfully presented a First Amendment challenge to the restriction. Both arguments were rejected. Regarding the Constitutional challenge, the Court said:

“...of all forms of communication, it is broadcasting that has received the most limited First Amendment protection...”

To quote the 2nd Circuit’s June 2007 ruling, in reference to the 1975 “Pacifica” ruling:

“...because the broadcast medium is a “uniquely pervasive presence in the lives of all Americans” that extends into the privacy of the home and is “uniquely accessible to children, even those too young to read.”

In finding for the FCC’s right to regulate indecent material, the Supreme Court further...

“...emphasize[d] the narrowness of our holding . . . We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

There are limits to this power.
In their concurrence, Justices Powell and Blackmun wrote:

“...[t]he Commission’s holding, and certainly the Court’s holding today, does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here.” (emphasis added)

The FCC also realized the limit, and in fact FCC Chairman Charles D. Ferris gave a 1978 speech suggesting the Pacifica situation was “about as likely to occur again as Halley’s Comet.”

Halley’s Comet, in the form of Howard Stern, arrived in 1987.

Stern's radically new approach to “naughty broadcasting”, in the FCC's view, required a new regulatory scheme, and the FCC was again up for the task, in the form of The Infinity Order; which basically said broadcast material could be indecent even if it contained none of the “seven dirty words”:

“...indecent speech is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Such indecent speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience.” (Regents of the Univ. of Cal., 2 F.C.C.R. 2703, at ¶ 3)

Even now, however, the FCC still agreed that repetition is the key to allowing restriction. Here’s a quote from another Pacifica Foundation ruling, 2 F.C.C.R. 2698, at ¶ 13:

“If a complaint focuses solely on the use of expletives, we believe that under the legal standards set forth in Pacifica, deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.”

When this standard was challenged, the Supreme Court found for the FCC, but noted that the:

“...FCC has assured this court, at oral argument, that it will continue to give weight to reasonable licensee judgments when deciding whether to impose sanctions in a particular case. Thus, the potential chilling effect of the FCC’s generic definition of indecency will be tempered by the Commission’s restrained enforcement policy.”

In 2001, a consent agreement caused the FCC to offer further “guidance” regarding this issue:

“...indecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest.” (emphasis added)

To find material indecent, the FCC, as explained in 16 F.C.C.R. 7999, must make two determinations:

1) Does the material fall within the “subject matter scope of [the] indecency definition – that is, the material must describe or depict sexual or excretory organs or activities”...


2) ...Is the broadcast “patently offensive as measured by contemporary community standards for the broadcast medium.”?

For those a bit vague on the whole “patently offensive” thing, an explanation follows:

“(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the materials dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” (16 F.C.C.R. 7999, ¶ 10)

But even in 2001, the Court of Appeals notes: ‘the FCC cited examples distinguishing between material that “dwells” on the offensive content (indecent) and material that was “fleeting and isolated” (not indecent). (The Court is citing 16 F.C.C.R. 7999, ¶¶ 17-18)

And with that, we have completed the “distant history” portion of the story.
Take a moment, stretch, grab a beverage, and come on back.
We still have plenty of good stuff to discuss.

“...this is really, really, fucking brilliant. Really, really, great.”

--Bono, accepting an award at the Golden Globes, January 19th, 2003

That comment, made as part of NBC’s live broadcast, led to “obscene and indecent” content complaints against broadcast licenseholders from, as the Appeals Court puts it: “[i]ndividuals associated with the Parents Television Council”; and thus begins the "modern history" portion of the story.

FCC staff, in the form of the Enforcement Bureau, found no violations. The reasoning was twofold: the word “fuck”, as Bono used it, was not a reference to having sex, nor was it a repeated utterance.

The (politically appointed) FCC Commissioners saw things differently.
In their view:

--Any use of the word “fuck”, or any of its variants, is intended to reference sex, and is therefore indecent.
--The “‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language...”, which means, in the FCC’s view, that any use of the word violates community standards.
--The Commission no longer felt that “fleeting or isolated” mattered when considering these situations:

“While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.” (19 F.C.C.R. 4975, at ¶ 12)

--Finally, Bono’s comment was also found to be “profane”. Even though it had always defined profane as “blasphemous” in the past, the Commission ruled it could choose to redefine “profane” if it so desired.

NBC was not sanctioned monetarily, however. From the 2nd Circuit’s ruling:

“...NBC and its affiliates “necessarily did not have the requisite notice to justify a penalty.”...The Commission emphasized, though, that licensees were now on notice that any broadcast of the “F-Word” could subject them to monetary penalties and suggested that implementing delay technology would ensure future compliance with its policy.”

NBC, Fox, and Viacom filed petitions asking for a stay and reconsideration.
Two years later the FCC has not acted on these petitions.
They have, however, chosen to act on the new policy, and have launched enforcement actions based on four incidents:

--“2002 Billboard Music Awards”: This line from Cher‘s acceptance speech was considered a violation: “People have been telling me I’m on the way out every year, right? So fuck ‘em.”
--“2003 Billboard Music Awards”: A violation occurred when, in a reference to her role on the show “The Simple Life” Nicole Richie, presenting an award on the show, stated: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
--“NYPD Blue”: The words bullshit,” “dick,” and “dickhead”, as uttered by Detective Andy Sipowitz and other characters on various occasions created violations.
--“The Early Show”: A contestant on CBS’s reality show “Survivor: Vanuatu” broke the rules by referring to a fellow contestant as a “bullshitter” in a live interview.

In ruling on the complaints generated by the above incidents, the FCC gave “shit” the same status as “fuck”-that any use of the word is, by presumption, indecent and profane.

As you might imagine, lawsuits were filed all around, and the FCC issued further revised guidelines in November 2006.

Under the newest rules, “fuck “ and “shit” were still out of bounds, but “dick”, “dickhead”, and “bullshitter” were all fine.

Why? This, from the 2nd Circuit:

“...With regard to the 2003 Billboard Music Awards, the Commission found that it would have been actionably indecent even prior to the decision in Golden Globes because the potentially offensive material was “repeated,” since Nicole Richie used “ two extremely graphic and offensive words,” and was “deliberately uttered” because of “Ms. Richie’s confident and fluid delivery of the lines.” (emphasis added.)

On the other hand, NYPD Blue aired after 10PM, which the FCC currently allows, and “The Early Show’s” incident was part of a news broadcast, which is considered by the FCC to be exempt.

The newest rules created a further series of lawsuits, and that brings us to the decision we are discussing today.

The FCC has asked the Court to confine its review to an examination of the two specific Billboard Awards Shows and not to the question of content regulation generally, but in oral arguments agreed that this was an issue the Court had jurisdiction to address, and that request was denied.

The Court of Appeals has been asked by the broadcasters to determine that:

(1) the Remand Order is arbitrary and capricious because the Commission’s regulation of “ fleeting expletives” represents a dramatic change in agency policy without adequate explanation ;
(2) the FCC’s “community standards” analysis is arbitrary and meaningless;
(3) the FCC’s indecency findings are invalid because the Commission made no finding of scienter;
(4) the FCC’s definition of “profane” is contrary to law;
(5) the FCC’s indecency regime is unconstitutionally vague;
(6) the FCC’s indecency test permits the Commission to make subjective determinations about the quality of speech in violation of the First Amendment;
(7) the FCC’s indecency regime is an impermissible content-based regulation of speech that violates the First Amendment.

The Administrative Procedures Act (5 U.S.C. § 706(2)(A)) says that Courts will set aside agency decisions if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To quote the Supreme Court:

““The scope of review under the ‘arbitrary and capricious’ standard isnarrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”

--Motor Vehicle Mfrs. Association of U.S., Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Further quoting the Supreme Court, an action is arbitrary and capricious:

“if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise...”

...also, a court, in review...

... “may not supply a reasoned basis for the agency’s action thatthe agency itself has not given.” (SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

Basically, the broadcasters claim the FCC made a 180-degree change in policy regarding these “fleeting expletives” since 2003, and the Court's majority agreed completely.

The broadcasters also claim there was no basis articulated by the FCC for this change, and the court again agreed with that claim. From the 2nd Circuit’s majority opinion:

“Agencies are of course free to revise their rules and policies. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (“An initial agency interpretation is not instantly carved in stone.”). Such a change, however, must provide a reasoned analysis for departing from prior precedent.

As this court has explained: [W]hen an agency reverses its course, a court must satisfy itself that the agency knows it is changing course, has given sound reasons for the change, and has shown that the rule is consistent with the law that gives the agency its authority to act. In addition, the agency must consider reasonably obvious alternatives and, if it rejects those alternatives, it must give reasons for the rejection, sufficient to allow for meaningful judicial review...

...Even in the absence of cumulative experience, changed circumstances or judicial criticism, an agency is free to change course after reweighing the competing statutory policies. But such a flip-flop must be accompanied by a reasoned explanation of why the new rule effectuates the statute as well as or better than the old rule...

...The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called “first blow” theory described in the Supreme Court’s Pacifica decision. In Pacifica, the Supreme Court justified the FCC’s regulation of the broadcast media in part on the basis that indecent material on the airwaves enters into the privacy of the home uninvited and without warning...

...”To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.” (438 U.S. at 748-49)...

... We cannot accept this argument... the “first blow” theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives. As the FCC itself stressed during oral argument in this case, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules.”

As an example, the Court noted that a broadcast of the very material that caused the enforcement actions in the first place would be perfectly legal in the context of explaining the issues in the case, even though the material might be seen by unsupervised children-the very risk the FCC says cannot be accepted if the program if the program is shown for entertainment purposes.

Then the Court resolves this question:

“The Remand Order makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient. For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is “difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.” Remand Order, at ¶ 23…

…This defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any “sexual or excretory” meaning. Bono’s exclamation that his victory at the Golden Globe Awards was “really, really fucking brilliant” is a prime example of a non-literal use of the “F-Word” that has no sexual connotation…

…Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced “sexual or excretory organs or activities.””

The Court then reminds us that Dick Cheney once told Patrick Leahy, on the floor of the US Senate, to “fuck himself”, presumably with the full knowledge of both parties of the impossibility of carrying out the instruction in a literal way. Mr. Bush’s own well-known comment to Mr. Blair suggesting the UN needs to “get Syria to get Hezbollah to stop doing this shit” (and again, we assume Mr. Bush was aware Hezbollah, as a viability-impaired entity, cannot take a shit), was also offered as such an example.

Next, the Court disposes of the FCC’s claim that fuck and shit are so offensive in their implied meaning that any use of the word, in any form, invokes these deeper sexual and excretory meanings; which has required the FCC to adopt the new policy regarding “fleeting expletive” enforcement.

It does so by dismissing the claim for lack of proof, and here the Majority Justices directly attack the Dissent’s reasoning for the need to act on the agency’s claims by suggesting that since the FCC is required to provide proof of the logic behind its analysis, and has failed to provide any, the FCC’s position cannot be supported no matter how much the Dissent Justice may agree with the Agency’s reasoning.

Further, the Court dismisses the FCC’s argument that failure to act will cause the airwaves to be filled with expletives by again citing the fact that the FCC offered no evidence to support their claims, a position to which the Dissent does not subscribe.

As regards the “redefinition” of profanity attempted by the FCC:

“The Commission’s new approach to profanity is supported by even less analysis, reasoned or not. The Commission sets forth no independent reasons that would justify its newly-expanded definition of “profane” speech, aside from merely stating that its prior precedent does not prevent it from setting forth a new definition… Furthermore, the Commission fails to provide any explanation for why this separate ban on profanity is even necessary. Prior to 2004, the Commission never attempted to regulate “profane” speech. In fact, the Commission took the view that a separate ban on profane speech was unconstitutional.”

The Majority Opinion also finds this new, actionable definition of profanity “largely (if not completely) redundant with its [the FCC’s] indecency prohibition”.

Having found no evidence to support the FCC’s new analyses and changed positions, the Court chose to “grant the petition for review, vacate the order of the FCC, and remand the case for further proceedings consistent with this opinion.”

Because the Court could dispose of the matter without ruling on the merits of the remaining Constitutional issues presented by the broadcasters, there is no ruling made regarding these questions.

We are at the 2/3 point of the discussion, and it’s time for another intermission.
I’ll be back after a short stretch, and I encourage you to do the same.
We will continue with the dictum from the Majority, and some further comments regarding the Dissent.

I have broken up a cinnamon stick into a big mug of apple cider, and I’m feeling much refreshed, and I hope you are as well. That having been said, it’s time to continue this particularly long story with a discussion of the Majority’s dicta.

The Majority Opinion anticipates the possibility that the FCC will simply develop a series of explanations to justify these actions, with no policy changes, in an effort to overcome this Opinion. The Justices further anticipate that the broadcasters will once again be heading to court, and they offer a series of observations “in the interest of judicial economy”.

The basic point to be made here is that the Court feels any effort to continue this policy is doomed to fail Constitutional analysis.


Because the Government cannot “identify a compelling interest for any Regulation”, nor is this solution “the least restrictive means to further that interest.”

The Opinion also reminds us that all the speech the FCC proposes to regulate as indecent is First Amendment protected-that a finding of “obscene” is required to restrict speech. Here’s more:

“…we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of “fuck” and “shit” are presumptively indecent and profane, repeated use of those words in “Saving Private Ryan,” for example, was neither indecent nor profane. And while multiple occurrences of expletives in “Saving Private Ryan” was not gratuitous, a single occurrence of “fucking” in the Golden Globe Awards was “shocking and gratuitous”…

… The use of numerous expletives was “integral” to a fictional movie about war, Saving Private Ryan…but occasional expletives spoken by real musicians were indecent and profane because the educational purpose of the documentary “could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives,” Omnibus Order, 21 F.C.C.R. 2664, at ¶ 82 (finding Martin Scorsese’s PBS documentary “The Blues: Godfathers and Sons” indecent)…

We can understand why the Networks argue that FCC’s “patently offensive as measured by contemporary community standards” indecency test coupled with its “artistic necessity” exception fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech, and requires broadcasters to “steer far wider of the unlawful zone…

… Indeed, we are hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of the otherwise unspecified “context” of a broadcast indecency
. We also note that the FCC’s indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. It appears that under the FCC’s current indecency regime, any and all uses of an expletive is presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were “integral” to the work…”

Additionally, the Court reminds us that the FCC’s rationale that broadcast media reach into the home in a unique way, therefore justifying a more “strict scrutiny” position may no linger be justified. The Court reminds us that satellite, cable and the Internet have ended broadcasting’s days as the sole source of sound and pictures delivered to the home. Further, the Court notes, less restrictive options to censorship of content exist, including the V-chip and channel blocking, to prevent any owner of a TV set receiving broadcast signals from having to view any undesired content.

If all that wasn’t enough, the Court wants the FCC to know that the attempt to redefine “profane” seems similarly unfounded. It is not accepted practice to have two terms with the same definition and separate sanctions (in this case “indecency” and “profanity”); nor is the Court sympathetic to the FCC’s desire to alter the traditional connection between “profane” and “irreligious” speech.

Now to Justice Leval’s Dissent:

To be blunt, I find this Dissent unimpressive.

The Justice does not feel the FCC needs to provide evidence of a change in community standards to justify a change in their measure of community standards, for example; finding instead that the announcement of new standards is sufficient. Then there’s this:

“The majority is of course correct that the Commission does not follow an all-or-nothing policy. Its standards do attempt to draw context- based distinctions, with the result that no violation will be found in circumstances where usage is considered sufficiently justified that it does not constitute indecency…This, however, is in no way a consequence of the Commission’s change of standard for fleeting expletives. It applies across the board to all circumstances… If there is merit in the majority’s argument that the Commission’s actions are arbitrary and capricious because of irrationality in its standards for determining when expletives are permitted and when forbidden, that argument must be directed against the entire censorship structure….”

The Dissent is concerned that the broadcasters will, if allowed the freedom that existed before 2003, flood the airwaves with indecent material:

“The majority’s view presupposes that the future would repeat the past. It argues that because the networks were not flooded with discrete, fleeting expletives when fleeting expletives had a free pass, they would not be flooded in the future. This fails to take account of two facts. First, the words proscribed by the Commission’s decency standards are much more common in daily discourse today than they were thirty years ago. Second, the regulated networks compete for audience with the unregulated cable channels, which increasingly make liberal use of their freedom to fill programming with such expletives. The media press regularly reports how difficult it is for networks to compete with cable for that reason.

It seems to me the agency has good reason to expect that a marked increase would occur if the old policy were continued. In any event, even if the majority could reasonably label this aspect of the Commission’s reasoning “arbitrary and capricious,” it still would not matter. The agency’s action in changing the standard for fleeting expletives did not depend on the defensibility of this prediction. It is at most a small part of the agency’s justification for its action.”

The Dissenting Judge, however, ignores the requirement of the Administrative Procedures Act to provide evidence to support the new FCC position. You may recall that the Majority felt this was one of the major problems with the FCC’s arguments, and I see no more compelling response.

Speaking of compelling…

…in the earlier referenced consent 2003 consent decree, the FCC agreed “…indecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest.” (emphasis added)…

…and this is how the Dissent supports the new restriction on “profane” speech:

“In explanation of this relatively modest change of standard, the Commission gave a sensible, although not necessarily compelling, reason… the Commission did not mean that every speaker who utters the word
invariably intends to communicate an offensive sexual meaning. The Commission explicitly recognized that the word can be used in a manner that does not intend a sexual meaning.

A fairer reading of the Commission’s meaning is that, even when the speaker does not intend a sexual meaning, a substantial part of the community, and of the television audience, will understand the word as freighted with an offensive sexual connotation. It is surely not irrational for the Commission to conclude that, according to the understanding of a substantial segment of the community, the F-Word is never completely free of an offensive, sexual connotation.”

If this is the FCC’s position, where is the research documenting the “substantial segment of the community” that has been demanding these new rules?

Now here’s where it gets weird:

“As each of the instances under review in this case involved the use of the F-Word, and because I find that the Commission has given a rational justification for its rule as applied to use of the F-Word, I do not consider the Commission’s standard which makes it a decency violation to use the word “shit.” In Pacifica, in upholding the constitutionality of censorship under § 1464, the Supreme Court stressed the accessibility of broadcasting to children…

…The potential for harm to children resulting from indecent broadcasting was clearly a major concern justifying the censorship scheme. In this regard, it seems to me there is an enormous difference between censorship of references to sex and censorship of references to excrement. For children, excrement is a main preoccupation of their early years. There is surely no thought that children are harmed by hearing references to excrement.”

That’s right, folks, we have an Opinion that tells us that when it comes to broadcasting over the public airwaves, playing with poo-poo is OK, but playing with your pee-pee is bad.

It’s because I hate this foolish, tortured logic that I respect the beauty and simplicity of the First Amendment, which is why I’m happy the majority seems to have the legal “wind at their backs” in this case.

Well, folks, here we are at the end of the story-for now.

The case could be heard by the US Supreme Court if the FCC appeals; or it could rise through the administrative rulemaking process, and be heard again by this Court some distant day.

In any event, that was a lot of fuckin’ shit to read, wasn’t it?

Monday, June 4, 2007

The First Fake Film Festival: Laughing At War

Those of you who are regular readers know I have recently had an encounter involving my godson and the Army that has left me a bit somber.

In times of stress, as I have previously mentioned, I reach out to humor as a coping tool, and this week I have felt the need for a bit of coping, indeed.

As a result I have been watching my favorite not-so-serious war movies-and TV shows, as well-and “for the sake of your own peace of mind” (to quote a famous song) I would encourage you to do the same.

With this in mind, I offer my suggestions for The First Fake Film Festival-the “Laughing At War” edition. Try to take some time over the next week or two and re-watch some of these classics-and if there are some you’ve never seen, they’re worth the effort.

As you read the list, you’ll notice a theme-the movies tend to feature characters who either “massage” the system to fit their unique needs, or who have no interest in the system whatsoever.

One caveat: to qualify as a festival choice, the film had to be a part of my own collection. This means Charlie Chaplin and "Canadian Bacon" will not be on the menu, and for that I apologize in advance.

While I recommend each highly, I list them in no particular order below...

--Operation Petticoat-Submarine commander Cary Grant “acquires” the world’s greatest supply officer (Tony Curtis), who then “acquires” supplies in a manner rarely seen anywhere. The kind of supply officer who takes off during an air raid, with the message: “In confusion, there is profit!” (You can see Variety’s 1959 review of the film here.) Not only is this film hilarious, it features the second Darren Stevens, Dick Sargent. Blake Edwards directs. The film garnered an Oscar nomination for its screenplay. (Hint to Hollywood: adapt this into a science fiction comedy film-think a slightly bent version of “Star Trek”-maybe George Clooney as the Cary Grant character?) Try pairing this film with one of the next two...or both.

--I Was A Male War Bride-Cary Grant (again!) and Ann Sheridan team up in a film that has director Howard Hawks’ fingerprints all over it. The snappy repartee is reminiscent of “His Girl Friday”, and the scenes of Grant filling out...certain paperwork, trying to decode the cryptic door signs, and attempting to find a place to sleep before embarking to the USA would be enough to recommend the film to anyone-but there’s lots more.

--Mister Roberts-James Cagney, Henry Fonda, Jack Lemmon, William Powell-could you ask for a better cast? This adapted Broadway play, first directed by the legendary John Ford (illness left him unable to finish the project, which was completed by Mervyn LeRoy and the play’s director, Joshua Logan.), follows a “cursed” cargo ship and its maniacal Captain around the rear areas of the Pacific during the Second World War. The Captain’s palm tree is the icon around which the film is built, and it is the first time I can ever recall rooting for bad things to happen to an innocent plant. Three Oscar nominations, one victory-Jack Lemmon’s Best Actor, Supporting award.

--Kelly’s Heroes-This is another “acquisition” movie, and once again we have the big cast: Telly Savalas, Clint Eastwood, Stuart (“Rockford Files”) Margolin, Harry Dean Stanton, Carroll O’Connor, Don (“Make a deal...maybe he’s a Republican”) Rickles, and the very “Oddball” Donald Sutherland taking on the perfect crime (“We’re not the Army...we’re a kind of private enterprise operation...”). As with several of these movies, the story is set in World War II, but the real focus of the satire is elsewhere. Even Gavin MacLeod (the “Love Boat” guy) appears as one of the Heroes. Brian G. Hutton (“Gunfight At The OK Corral”) directs.

--The Russians Are Coming, The Russians Are Coming-I view this film as one that has recently evolved-a morality film about the Cold War that has morphed into a film about the New American Fear. Like a cinematic game of “telephone” the news of a Russian invasion of US soil is passed and distorted, causing wacky hilarity to ensue. Cindy Putnam plays the adorable Annie, Alan Arkin plays a frustrated Russian officer, Brian Keith a frustrated police chief, and Carl Reiner, Eva Marie Saint and Jonathan Winters fill out the cast. Norman Jewison (“Fiddler On The Roof”) directs. Four Oscar nominations, including Best Actor, Best Adapted Screenplay, and Best Picture.

--Duck Soup-When Groucho Marx is your President, what can go wrong? The citizens of Freedonia soon find out (in an action similar to Singapore’s, one of the first announcements is the banning of chewing gum...) in this story of Sylvanian war and conquest. The Four Marx Brothers appeared in five movies together, and this was the last of the run. The Great Depression of the 1930’s, the curious mannerisms of government, and Hitler are the targets of the satire. Leo Mc Carey, who later directed “An Affair to Remember”, takes the directorial helm here as well. (Number 85 on the AFI Top 100.)

Which bring us to the final three.

If you see no other films on this list, you must be sure to see this group of films. The satire of each is deeply and darkly developed, each has made a giant imprint on the American cultural consciousness, and each fits in as well today as the day they were made.

--Catch-22-A film that created its own catch-phrase. A superb indictment of military logic and the military-industrial complex. And suddenly, as today’s troops find their tours extended, a film newly relevant for more than the obvious statement about absurdity. Another huge role for Alan Arkin, with another big ensemble cast: Martin Balsam as the Colonel, Bob Newhart as Major Major; Martin Sheen, Jon Voight, Buck Henry, Orson Wells, Richard Benjamin all present and accounted for, and about a half-dozen more I’ll leave to you to look up yourself. Mike (“The Graduate”) Nichols directs.

--M.A.S.H.- The best Vietnam movie set in Korea ever produced, Robert Altman’s work of improvisational genius skewers war, religion, racism, and scriptwriting with equal enthusiasm. Ring Lardner attempted to have himself removed from the credits because of his feelings about how the director and cast ignored his carefully crafted words. Ironically, Lardner’s screenplay won the film’s only Academy Award. Another giant cast: Donald Sutherland, Elliot Gould, Tom Skeritt, Sally Kellerman, Robert Duvall, Fred Williamson, Gary Burghoff as the ever-prescient Radar, and, again, a ton more.

Altman reports he was able to keep the production of this film “under the radar” by keeping his budget low, and through the coincidence of the much bigger-budget “Patton” being filmed at the same time. Nominated for five Oscars, awarded one. (Number 56 on the AFI Top 100.)

--Dr. Strangelove Or: How I Stopped Worrying And Learned To Love The Bomb—Stanley Kubrick has presented to the world two of the greatest war films ever made-this farcical examination of nuclear conflict, and the deadly serious “Full Metal Jacket”. I make it a point to trot my copy of this movie around to all my friends to guarantee they’ve seen it, and there is no way anyone should go through life without that experience. Peter Sellers plays three of the central characters, Sterling Hayden sends the world hurtling toward destruction, George C. Scott auditions for “Patton”, Keenan Wynn plays Colonel “Bat” Guano, and, in one of the most memorable scenes in the history of cinema, Slim Pickens rides the atomic bomb, a-hootin’ and a-hollerin’ all the way.

The US Air Force was extremely distressed regarding the production of this film, for reasons that seem well founded, considering how the movie depicts the military. Nominated for four Oscars-Best Actor, Director, Adapted Screenplay, and Best Picture. (Number 26 on the AFI Top 100.)

So that’s the Official Program of the First Fake Film Festival.

I hope you’ll find the time to see some of the films, I hope you enjoy them all, and I hope the laughing helps everyone forget what we’re doing for a little while.

Update: begone, at the DailyKos site, reminds me that I neglected to mention the movie “Stripes”, and for that I owe the community a correction. It is a qualified movie by our earlier rules, as I do own it, but I just plain forgot. Mea culpa. For those not familiar, Bill Murray demonstrates why you don’t shoot hoops in the living room, an alternative use for a spatula, and how to make the cover of Newsweek. Rounding out the cast: Harold Raimis, John Candy, John (“I wish I was a lufa”) Larroquette, Sean Young, Judge Reinhold, Warren Oates. Try to imagine what hanging out at the craft service tent would be like with that crew…

--crossposted wherever they'll have me...

Saturday, June 2, 2007

On The Challenges Of The Future, Or, Meet The SurvivaBall

It is now well understood that the economy of the future will be profoundly affected by the coming changes brought on by alteration of the Earth’s climate.

The rising sea levels, desertification, and the likely change of Europe into an Arctic climate all suggest enormous migrations, competition for newly scarce resources, and the eventual conflicts that follow will all be an important part of the story of the 21st Century.

As we learned during the aftermath of Hurricane Katrina, civil disorder can follow a natural disaster unless on-site management is present to assess the situation, direct the recovery, and, most importantly, identify opportunities for private-sector entities to interface profitably with FEMA, the Department of Defense, and other Federal contract providers.

As often happens in times of exigency, the marketplace has acted, and an exciting new tool for crisis management has become available from America’s greatest expert in international “situational support”.

Did you attend the LexisNexis Catastrophic Loss Conference this past May 8th and 9th, at the fabulous Ritz-Carlton Amelia Island, Florida?

If you did, and you got up early for the 9:00 AM “Disaster Preparedness: How To Plan and React to a Catastrophic Event” seminar you were treated to a fantastic demonstration of the SurvivaBall, presented by Fred S. Wolf and Dr. Northrop Goody of the Halliburton Corporation; previously of Texas, and currently a newly settled corporate citizen of Dubai.

SurvivaBall, you ask?
In a nutshell, here’s the concept:

A single-occupant, self-sustained, inflatable “pod” (think “Boy In The Bubble” here), containing environmental, communication/data acquisition, defensive, and other operational systems. A pod that offers multiple means of locomotion for the occupant; and the ability, due to the robust design, to allow managers to function on-site in virtually any circumstances with complete efficiency and safety.

“It is essentially a gated community for one” Mr. Wolf told the attendees.

For those interested, the “usage and safety card” explaining the basic systems of the Model X7 SurvivaBall can be viewed here.

As those who viewed the card noted, the SurvivaBall has extraordinary capabilities that put this device truly in a class by itself.

First, of course, is the ability of the pod to obtain power from either wind or tidal forces (through the use of the detachable propeller fans), or, if no other means is present, the ability to capture power from living animals.

Even more interesting, however, is the application of a concept pioneered by coral-the ability to aggregate individual SurvivaBalls into a multi-dimensional self-contained and limitlessly scalable structure that can adapt to any management challenge.

Would this technology be prohibitively expensive?
Only if you ignore the upside potential.

Consider this: if Halliburton had been able to deploy managers in SurvivaBalls during Hurricane Katrina’s landfall, then as soon as the weather cleared, Halliburton could have landed a contract with FEMA for security services that could have brought in billions of dollars in additional revenue-even if no real risk existed. After all, Halliburton managers would be the only outside personnel functioning on the scene, meaning FEMA’s perceptions of the security situation could be effectively managed in the most profitable way possible.

How many of you knew all of this was satire?
How many of you know “The Yes Men”?

For those who don’t, it’s time for an introduction.

The public suffers when corporations are able to “disguise” their real identities, and The Yes Men are specialists in “identity correction”. To quote the website:

“Honest people impersonate big-time criminals in order to publicly humiliate them. Targets are leaders and big corporations who put profits ahead of everything else.”

Here’s another example:

Dow Chemical is associated with the disaster that affected the citizens of Bhopal, India, due to its merger with Union Carbide. Neither company has ever acknowledged liability; a page posted by Union Carbide asserting the Indian state government of Madhya Pradesh is the current responsible party can be seen here.

Enter The Yes Men.

A series of actions were launched against Dow, including this:

On the 20th anniversary of the disaster, a Yes Man, impersonating Dow Chemical corporate representative "Jude Finisterra", made an announcement on BBC World Television that Dow had admitted liability, planned to offer compensation to all victims by selling all its corporate assets, and would become a generally better corporate citizen going forward.

The international uproar resulting from that incident forced Dow to issue a press release to confirm, publicly, that they do not intend to compensate anyone, and that nothing had changed.

Now, here’s the crazy part. The group has been able to effectively mimic opposition websites, in order to spread a more “corrected” message about the target. This causes confusion not only amongst members of the general public, but in the corporate world as well. As a result, they are invited to speak at conferences by those who think they are representatives of the actual target company. (As was the case at the Loss Conference.)

This is how “Erastus Hamm” came to appear at a London banking conference, announcing that Dow had introduced “Acceptable Risk”; a software tool that allowed companies to determine exactly how much corporate malpractice might be acceptable in various regions of the world, as long as sufficient profit can be identified. (The fake “Mr. Hamm”, an unaware South African banker, and fake Dow’s mascot Gilda, the Acceptable Risk Golden Skeleton can all be seen posing in this group photo from the event.)

This is not the first identity correction the group has performed. The hilarious movie “The Yes Men” documents the outcomes of previous successful efforts in spoofing George W. Bush’s and the WTO’s web presence, including a masterful prank that placed a “WTO” representative on CNBC.

The sophistication of these actions is stunning-costume design, the “presence” they create, the message they put into the public’s just amazing.

Which, finally, brings me to my point.

I am in receipt of an email from the group that informs me that “an event” will soon occur, but that a considerable amount of preparation will first be required.

So I am asking those of you who might support such an undertaking to consider making a small donation (or a giant one, if you’re George Soros, for example) to The Yes Men.

For purposes of disclosure, I am not personally involved beyond the fact of writing this story, and that I am an owner of the DVD I mentioned above.

So that’s my story-good people are trying to change the world, one prank at a time, and if we don’t give them a hand, we might someday see a real SurvivaBall out there.

Friday, June 1, 2007

On The Difficulty Of Writing, Or, The War Hits Home

I do not want to write this story, and I have been stuck for about ten days because I do not want to face the reality of this particular situation.

But here it is.

Last Friday was the day The Girlfriend and I had to travel to Fort Lewis, Washington, to attend the military departure ceremony for one of our two godsons.

He enlisted in the Army National Guard, and now it’s time to go to the Middle East.

There was no mystery or great surprise that he would be going, and the news is not all bad.

He is not in a Stryker Brigade; thank whichever deity you support, nor a military policeman. It is theoretically possible that the support role he will be filling will actually be moderately safe, which is about the best spin I can offer considering the circumstances.

He and his brother are our two godsons, and we have literally been looking out for them since the days of their birth. To illustrate the point more clearly, I was his birth photographer.

The Girlfriend and I attended Lamaze-twice-to allow us access to both deliveries, but circumstances caused us to miss his older brother’s birth by eight hours.

We have been the “bad” godparents ever since-the ones who introduced them to Beavis and Butt-Head, and Ren and Stimpy, and Skittles and Jolt Cola and Archie McPhee.

It isn’t as though I didn’t try to nip this in the bud.
I suggested the Air Force (a subject I can speak about from personal experience), but I was clearly not as persuasive as I could have been.

Which is how we found ourselves at Fort Lewis.

The families assembled in a hangar on base, a small band offered up patriotic music, important officers offered up inspiring words, and an award was presented to the officer who managed the required paperwork that made the deployment possible. Finally, with a clanging of warning bells, the hangar doors were opened to reveal the soldiers we were there to honor, standing in formation.

Nobody reacts to the officer who says: “This is the last time I will have the chance to address all of you...”

Everyone wants to look brave, soldier and family alike; but there is no way to sit in a room with small child noises filling the space, and not know the future will likely be so, so tough for some of those little children.

There’s an innocence in their sounds that is particularly disheartening.

The babies are too young to realize what’s going on, and the crying, or laughing, or play noises echoing throughout the hangar are based entirely on the moment of their own existence

This creates a sound track that makes a weird counterpoint to the military ceremony to which I should be paying attention, and the babies, wisely, don’t.

Our godson is not currently a parent, which means most everybody there on his behalf was one of his various types of parents (biological, grand, and god), but the foster stepbrother we have all become attached to (hi Dustin!) was there as well. He is neither a baby nor a teenager, and we will see how this affects him as time goes on. So far, he’s doing well.

In stressful situations I look for whatever humor might be found, and I cannot help but notice the police officials gathered. Why police officials? Police officers are represented in the unit, and their commanders are attending the ceremony.

Curiously, the two small cities sent a three-star and two two-star “generals” as their representatives, but the Army only sent two brigadier (one-star) generals on their behalf. I did not make an effort to determine if the Army felt outranked, although I had the opportunity. More about that later.

With the speeches over, the audience is invited to step onto the “flight line” area outside the hangar and view the “static display” aircraft, while mingling with the soldiers-a family photo-op, if you will. Dustin’s excitement about sitting in the helicopter’s gunner seat is natural for a kid, but scares me to death as I picture him as an adult in the same seat for real. I keep my fears to myself.

As it turns out, our godson’s mother is a personal acquaintance with one of the two actual generals present. This means our godson must now have a “casual” conversation with his mom, the other relatives, and the brigadier general that every other enlisted trooper in the area is trying to avoid at all costs.

Have you ever seen the unflappable Buckingham Palace Guards? The absolutely deadpan face, no matter what the distraction? I had never seen that face on my godson before, and I hope to never have to see it again.

Considering the circumstances, I did not ask the general if he felt outranked by the police. It would have been fun, but I am required to be an advocate for my godchildren, not their torturer.

He will be leaving us in a few days for three months of training, then overseas, and then we will see what happens. We hope he returns safely, but I have long known that no soldier returns uninjured; and I will happily settle for him just returning with all the parts he left with. If he comes home not too emotionally damaged, I’ll consider that a bonus.

I do not believe that these deployed soldiers will, in the end, make any difference.
I do not believe their sacrifices will make “terrorism” somehow stop.
I do not think we will “re-examine our situation in September” and decide that we have fixed anything.

My own father served tours as a sailor in Vietnam, so I am well familiar with the waiting that lies ahead-and the fear.

It is my hope that we will gather again only once more-to welcome them home.

Time will tell, but from now till then I’ll be hoping against hope they can again have their commanders “address all of you.”

Author’s comment: This was a very difficult writing project for me, and I appreciate the reader’s patience as I worked through an uncharacteristically personal story.