The National Law Journal
Monday, May 11, 1998
Who's the Threat: Springer or Senator?
By Stuart N. Brotman

Jerry Springer is having his share of difficulties these days. Leaving aside the media accusations of staged incidents on his television talk show, the ongoing tussle between Sen. Joseph Lieberman, D-Conn., and Mr. Springer seems destined to lead the Springer team to tone down the top-rated show, which Senator Lieberman characterized a "bizarre, perverse circus." Even the likes of ABC Inc. President Bob Iger told an audience of his fellow broadcasters, recently gathered in Las Vegas, that he questions the "logic" of airing programs such as "Jerry Springer." "I believe the entire industry suffers from the association," he said. "Programs that are embarrassments to business will, in the long run, alienate our viewers."
Sounds like a healthy discussion between government and business about television, doesn't it? But beneath the surface lurks the potential for an unnecessary brawl that even the unabashed Mr. Springer might not allow on his show. Reaching beyond the bully pulpit to the harsh realities of the legislative arena, Senator Lieberman has taken to the airwaves to suggest that federal funding to provide closed-captioning for Mr. Springer's show be cut off.
This linkage between program content and limiting the media services available to people with disabilities represents a dramatic departure from existing law. And, contrary to Senator Lieberman's suggestion, legislative intervention may be necessary to make it explicit that government funding of closed-captioning programming be fully separated from government decisions about the shows people are watching.
Eight years ago, President Bush signed into law the Television Decoder Circuitry Act, which received broad, bipartisan congressional support. Rep. Edward J. Markey, D-Mass., then chairman of the House Subcommittee on Telecommunications and Finance, described the law as "a giant step forward toward ensuring full and equal access to television for all Americans."
Closed-captioning enables 24 million deaf and hearing-impaired citizens (including our growing elderly population, 40 percent of whom have moderate or severe hearing loss) to share in the television experience with the hearing world. It also benefits other groups, including 24 million to 27 million functionally illiterate adults, 18 million children in kindergarten through third grade learning to read, and 3 million to 4 million immigrants learning English as a second language.

'Agonizing Pleasure'
In 1991, soon after the law became effective, I was asked to convene a national forum on closed-captioned television, which is supported, in part, by federal subsidies to organizations such as the National Captioning Institute. I vividly recall speaker after speaker arguing for more captioning, more quickly, recognizing that some government funding would be necessary throughout the 1990s as a new generation of closed-captioned TV sets entered the market.
Perhaps the most poignant remarks were made by Jack R. Gannon, special assistant for advocacy to the president of Gallaudet University. He relayed the story of a deaf American who, frustrated and tired of waiting for more than 30 years for programs that he could understand, took his ax one day and destroyed his television set. "Frankly." noted Mr. Gannon, "there have been many times when we, as deal viewers, have been tempted to take out our axes as well."
Closed-captioning has provided a rich resource of employment for millions of Americans, offering what Mr. Gannon likes to call "agonizing pleasure." It's hard to believe that the original architects of the law would want it to support only programming deemed to pass muster with Congress. And it's even harder to imagine that such a bold act of governmental hubris would be sustained by the courts if enacted. After all, the Jerry Springers of the world may be tasteless and objectionable, but there is no First Amendment basis for cutting off federal funding because of what they talk about. So let's sever this unfortunate linkage before it becomes accepted as a possible policy trade-off, and maybe even strengthen the law to make sure it is not used again as a hostage to another headline-grabbing controversy about television's role in society. The notion that Congress should choose who is qualified to be a couch potato is silly, unconstitutional and, yes, half-baked.