Janet Jackson’s pop-up breast during SuperBowl halftime did not create the Broadcast Decency Enforcement Act of 2004. But it will propel passage of that Act, the consequences of which may be far worse than a bit of trashy exhibitionism on TV.

Independent television and radio stations may be silenced. This is especially unfortunate as the application of law is not necessary to remedy the offense.

The BDEA would increase the penalties for “transmission of obscene, indecent, and profane language.” Currently, the highest fine is $27,500 per offense. That maximum would be raised to $275,000 with an upper limit of $3 million for repeat offenses. Last Thursday, the Act was passed unanimously by a House of Representatives’ subcommittee and moved on to the House Energy and Commerce Committee. Increased fines are clearly in the air.

For some Federal Communication Commissioners however, hiked fines are inadequate. Commissioner Michael Copps has suggested that the FCC consider revoking the licenses of violators because fines could be “easily absorbed as a ‘cost of doing business’.” The regulation of cable television has also been discussed.

Immediate policy changes will probably not regulate cable—there is no legal precedent. Nor is the extreme proposal of revoking broadcast licenses likely to succeed. Not yet. But the next time there is a Janet Jackson incident, pro-regulation voices will declare, “the fines were not enough.” Then, talk of license revocation, and of extending decency standards to cable or satellite radio, will arise with fresh momentum.

For the moment, the policy change will basically increase fines. In doing so, the FCC aims at broadcast giants, like Infinity. But the target hit is likely to be quite a different one.

Jesse Walker, managing editor of Reason magazine and author of “Rebels on the Air,” explains, “What might be the cost of doing business for Infinity Broadcasting could spell death for a college station that plays records with edgy lyrics, or a low-power community station that airs serious discussions about sex and health.”

Radio is particularly vulnerable. There are more independent radio stations than television ones; a high percentage of radio programming is live; the FCC-targeted shock jocks are a radio phenomenon; and, there are few television equivalents to freewheeling college radio stations. But both radio and television are equally vulnerable to the vagueness of the FCC’s definition of indecency.

For example, one standard of indecency is whether the material is “patently offensive as measured by contemporary community standards for the broadcast medium.” Accused violations can be judged on a case-by-case basis according to this ill-defined measure.

In a letter to the House Subcommittee on Telecommunications and the Internet, Laura Murphy—Director of the ACLU Washington National Office wrote, “Because of the vagueness, speakers must...[guess] what the FCC will determine to be prohibited. Increasing fines merely exacerbates the problem, particularly for small broadcasters. Rather than face a potentially ruinous fine, smaller broadcasters are more likely to remain silent.”

Murphy concludes, “The bottom line is that broadcasters enjoy First Amendment protection.”

The FCC’s recent and heightened focus on indecency has already caused a chilling of free speech. For example, in 2001, a noncommercial community radio station in Oregon was fined $7,000 for playing a feminist rap song that included profanity. Although the fine was rescinded, the process took two years and the investigating agency declared, “it was a very close case.”

With the threat of the BDEA, even large broadcasters are chilling free speech and self-censoring. The most publicized instance is NBC’s decision to cut the image of an elderly woman’s breast from its popular medical drama “ER.” John Wells, “ER’s” executive producer, argued that the audience was aware of the show’s adult themes and could adjust their viewing habits accordingly.

Wells’ argument points to the best solution to the vulgarity of Jackson and her ilk. It is not a shotgun policy that may be absorbed by media mega-corporations while destroying community and alternative broadcasting. The solution is for audience to flex their buying and boycott power.

They did so with “The Reagans,” the anti-Reagan movie that posed as historical drama. When consumers threatened to boycott companies that bought commercial time during the movie’s broadcast, CBS relegated it to a comparatively small-time slot on Showtime.

Broadcasters are listening to audience feedback. When Nicole Richie uttered profanity on the “Billboard Music Awards” that was carried by FOX, the network immediately explored ways to prevent future embarrassment, including adding a five-minute delay to live feeds.

Today, the first response to any controversy is, “there ought to be a law.” But in matters of morality and freedom of speech, it is best for law to be the very last recourse society considers. The first resort is to let freedom and the free market function.

Those concerned with the moral content of radio and television are being provided with more control every day: rating systems, live-feed delays, constant polls that serve as feedback to broadcasters, organized boycotts, and tools of parental control such as cable locks or decoders. Passing a law has the same appeal as drawing a gun: on the surface, it quickly stops an activity that annoys you. But drawing a gun does not solve cultural issues: it only introduces force into them.

We cannot allow the self-serving coarseness of some performers to damage freedom of speech and independent broadcasting.