The Indecency Question


NEW YORK – Sunday's New York Times editorial page was only one of several mainstream weekend op-ed pages to tackle the question of why the Federal Communications Commission suddenly decided, in 2006, to declare "fleeting expletives" – the unscripted vocalization of "fuck," "shit," and other "dirty words" on broadcast radio and TV – a menace that only huge fines levied against broadcasters could control.

"For decades, the commission took a tolerant attitude toward fleeting expletives," the Times noted. "As long as they were not used in a deliberate and offensive way, it would not punish broadcasters for airing them. The commission suddenly changed course in a case involving the 2003 Golden Globes Awards show, which included the singer Bono’s uttering a single expletive as he accepted an award. Reversing its long-held precedents, the F.C.C. decided that Bono’s lighthearted slip made the broadcast indecent."

In fact, it took the FCC more than three years to make that decision, after having previously giving that particular broadcast a pass, declaring that "fleeting expletives" like Bono's exclamation "Fucking brilliant" were beyond its power to sanction. All that changed, however, as the Religious Right – particularly, the Los Angeles-based Parents Television Council – stepped up its complaint machinery and email-blasted the FCC's server with hundred of thousands of such complaints – although a recent report from the Government Accountability Office revealed that the FCC had consistently lied about and inflated the actual number of complaints it had received.

However, after assuming office in 2005, FCC chairman Kevin Martin, former Deputy General Counsel to Bush-Cheney 2000 and partly responsible for stopping the Florida recount and assuring Bush the presidency, began to take more and more power within his agency, and it was at his behest that the "fleeting expletive" rule was overturned – thereby setting the stage for a hard-fought court battle between FCC and all of the major broadcast networks, in Fox Broadcasting v. FCC, in which the broadcasters prevailed before the Second Circuit Court of Appeals in June, 2007.

"[T]he court ruled that the fleeting expletive policy was not properly reasoned," the Times declared. "It carefully dissected the F.C.C.'s analysis, which it rightly found to be 'divorced from reality.' The court also noted that the commission’s rules most likely violated the First Amendment."

"The F.C.C.'s rationale for its fleeting expletives policy is indeed thin," the Times continued. "It claimed it was only trying to reflect community standards. But there is scant evidence that the public is up in arms about an occasional coarse word. The words the commission finds so offensive, and so in need of punishment, are the sort commonly heard in PG-rated movies and walking down the street."

The Times correctly cast the FCC's motive in changing the rules and lobbying for increased fines (which it got from 2006's Republican majority) as a power grab, with self-censorship of the networks an added bonus. The Times noted that KCSM, a small public television station in San Mateo, Calif., was fined for broadcasting, uncut, a PBS-produced documentary, "The Blues," which contained dozens of the now-banned expletives (which, considering the subject matter, were integral to the story), while several PBS stations, fearing similar attacks on their bottom lines, aired expletive-scrubbed versions of Ken Burns' award-winning documentary, "The War." And of course, CBS is still fighting the incredible $550,000 fine levied against it for its impromptu half-second glimpse of Janet Jackson's nipple during the 2004 Super Bowl.

"The F.C.C. asked the Supreme Court to review the Second Circuit’s ruling," concluded the Times editorial, "and it is worrisome that the justices agreed to do so. The best thing they could do for freedom of speech and artistic expression is to affirm the appeals court’s thoughtful ruling."

The Los Angeles Times was of the same view in an op-ed piece published on Saturday, though its reasons were more pragmatic than philosophical.

"The [rules] change forced networks to delay live broadcasts so censors could bleep any expletive likely to draw a fine," the LA Times wrote. "That's a costly and imperfect process, however. The added cost and risk imposed by the rule may be enough to push all live events past 10 p.m. or into the realm of paid TV and subscription radio... More important, the rule against fleeting indecency can't fulfill its stated purpose, which is to shield young viewers. Kids aren't protected by measures that apply only to a small portion of the programming universe and only between 6 a.m. and 10 p.m. The limits on broadcasters can easily be circumvented by time-shifting video recorders and online TV sites. Meanwhile, cable and satellite services offer far more offensive fare, regardless of the hour."

Concluded the LA Times, "Ultimately, parents who want to limit what their kids see and hear on TV will have to rely on the filtering tools provided by cable operators, satellite services and set manufacturers. They're bound to be more effective than the FCC."

On that same day, the Rocky Mountain News expressed similar reservations for similar reasons.

"We hope the justices affirm the 2nd Circuit, which ruled that the FCC could not punish broadcast stations that allowed 'fleeting expletives' over live TV," the News wrote. "We're not saying blue comedy routines belong in prime time. We just see no way to consistently enforce such rules and allow extensive coverage of live events, where language of passion and emotion sometimes cannot (or should not) be contained."

"Broadcasters - as opposed to cable programmers, who aren't using public frequencies - should have some legal accountability," the News concluded. "But the rules banning offensive speech need to be enforced consistently and pass a common-sense test. That's why we hope the justices will uphold the 2nd Circuit and go no further."

U.S. News & World Report tackled the issue on Friday, interviewing Robin Bronk, executive director of the Creative Coalition, an entertainment industry advocacy group, who put responsibility for children's media welfare where it belongs: On parents.

"Having the FCC step in our living rooms is not the solution," Bronk said. "You're a consumer; it's show business. So don't give the shows your business if you don't think they're appropriate. Vote with your remote control. If there's an outcry from enough consumers, the medium will change, the shows that you don't think should be appropriate will get off the air. It's a wonderful thing, capitalistic society."

Bronk also came out in favor of upgrading children's intellects.

"No one's throwing children under the morality bus," she stated. "What we need to talk about is what's the best way to ensure that our kids are media literate. This is the first generation of kids that has infinite access to television stations, to the Internet. We really haven't formally said these kids need to be literate in these mediums. When Gutenberg printed the first book, we made sure our children knew how to read. Now, they need to know how to read the Internet, they need to know what a product placement is, what a tabloid is, what true journalism is. And they don't. Many adults don't, either. If the government's going to get involved, let the government get involved to mandate that."

There may, however, be a ray of hope. Variety reported on Sunday that the FCC had failed to fine St. Louis, Mo. TV station KTVI for multiple airings of the movie The Pursuit of D.B. Cooper in 2003, which, according to Variety's sources, "contained numerous instances of 'shit' and its variations, including 'bullshit,' 'holy shit' and 'owl shit'." The agency had issued a "Notice of Apparent Liability" to the station in March, 2006, but missed its deadline of March 15 of this year for filing its formal notice of forfeiture, which would have allowed the agency to collect its proposed $27,500 fine.

"The failure to issue a forfeiture notice would seem an anomaly given FCC chairman Kevin J. Martin's often-repeated vows to hold broadcasters accountable for what they air and to take a harder line against indecency than previous chairmen have," wrote Variety reporter William Triplett. "Moreover, the FCC analysis of the Pursuit broadcast suggested a fairly open-and-shut case: multiple, scripted expletives aired on a Saturday afternoon, when children are likely in the viewing audience."

Triplett suggested, via attorney John Crigler, that the reason for the FCC's lack of follow-up may have been that the agency is "simply overburdened with complaints" – but the fact that the Second Circuit's exceptionally well-reasoned opinion in Fox Broadcasting has been accepted for Supreme Court review may be giving the agency second thoughts about its recent power- and money-grab, since it is only assured of four Supreme Court votes – Roberts, Alito, Scalia, Thomas – to overturn the Fox ruling, with "swing vote" Anthony Kennedy, author of the oft-quoted Free Speech Coalition v. Ashcroft opinion, as a likely supporter of the Second Circuit's decision.

Besides, the FCC can afford to miss a case or two. The idea that any particular TV or radio station won't air an expletive, "fleeting" or otherwise, ever again is about as likely as the idea that the sun won't appear to rise in the east tomorrow morning.