Words Still Mean Something

WASHINGTON - In conceding his U.S. Senate seat yesterday to Democratic challenger James Webb, George Allen (R-Va.) ascribed his loss to, "They had the prevailing winds." Webb beat Allen by about 8,700 votes. In 2000, George Bush allegedly beat VP Al Gore for the U.S. Presidency by 537 votes in Florida, but lost the nationwide popular vote by 543,816 – yet Bush promptly declared that he had a "mandate" from the American people for his policies.

"Prevailing winds" vs. "mandate" – and yet, words do still mean something.

Parents Television Council (PTC) thinks they do as well, else they wouldn't have written a letter of protest to the Federal Communications Commission (FCC) over its late-night Nov. 6 decision to overturn two rulings in which the Commission had previously found that two major network news programs had aired "indecent" speech.

The reversals came as the result of CBS, NBC and Fox having filed for judicial review of five adverse FCC rulings, and the Second Circuit U.S. Court of Appeals in New York agreeing to a sort of voluntary "remand" of the decisions that sparked the suit back to the FCC for further review.

"The FCC's ruling about the indecent language on CBS Early Show is troubling," wrote PTC president L. Brent Bozell in a Nov. 8 letter. "The Commission has arbitrarily created a 'news exemption' for indecency where none existed before. In this case the Early Show carried an interview with a cast member promoting another CBS program, and that is considered a 'news' event? This creates a loophole big enough to drive a truck through."

Another name for that "loophole" is "the First Amendment," and the rescission of the two indecency findings, rather than being a "loophole" in anything, is hopefully the first crack in the wall around sexual and "profane" speech illegally erected years ago by the U.S. Supreme Court.

The First Amendment to the U.S. Constitution, adopted in 1791, reads, in pertinent part, "Congress shall make no law ... abridging freedom of speech, or of the press." Nowhere do the words "sexual speech" or "profanity" or "vulgarity" appear as exemptions to that congressional prohibition. Such exemptions were creations of the Supreme Court, in violation of the plain wording of the Constitution.

On the other hand, PTC was happy that the Commission upheld its indecency findings (and the fines that accrue to those findings) against the Fox Network for the 2002 and 2003 Billboard Music Awards. In the 2002 show, Cher dismissed some critics with the phrase, "Fuck 'em," a year later, Nicole Richie, speaking of her role on "The Simple Life," asked, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

The FCC had also dismissed a raft of complaints, almost all generated by PTC email blasts, against ABC for airing episodes of "NYPD Blue" in 2003 where various characters used the words "bullshit," "dick" and "dickhead."

The FCC said that the use of the word "bullshit," though not "dick" or "dickhead," was indecent but dismissed the complaints for procedural reasons. Although PTC had generated, through email blast, 96 complaints, the Commission noted that whereas the show had aired in some time zones at 9 p.m., the actual complaints were filed by viewers in markets where the show aired beginning at 10 p.m. – within the "indecency safe harbor" window, which runs from 10 p.m. to 6 a.m..

That, of course, pissed off Bozell.

"Finally, the FCC maintains that only one complaint was filed over ABC's NYPD Blue in 2003, and because that complaint was incorrect, there is no basis to consider action against ABC for the program in question," Bozell wrote in his letter to the five FCC commissioners. "This is factually incorrect. The PTC knows of, and has documentation proving there were at least 96 separate complaints from individuals in at least 28 states filed with the FCC over the use of the words 'B.S.' in NYPD Blue. Once again, the FCC Enforcement Bureau, which has a long, disgraceful and well-documented history of botching, or simply ignoring citizen complaints, has apparently dropped the ball, thus once again violating its charter. This is an outrage."

One of the commissioners, Jonathan Adelstein, was pissed off as well, alleging that the reversals of the two indecency findings were made not on the merits of the "news exemption" but rather to improve the FCC's chances of successfully defending against the broadcasters' lawsuit by jettisoning the FCC's least defensible decisions.

"Litigation strategy should not be the dominant factor guiding policy when First Amendment protections are at stake," Adelstein said. Adelstein was also upset with the "NYPD Blue" decision, claiming that it revealed a "lack of logic" on the FCC's part. "When the commission determines a national network broadcast violates our national community standards, we will only fine the local station that has a complaint filed against it by a viewer in its media market," Adelstein complained. "Although our obligation is to enforce the law to protect all children, we will only fine a local station that has the misfortune of being in a market where a parent or an adult made the effort to complain." Still alive in the networks' lawsuit are objections to a $27,500 fine against a WB Network affiliate for an episode of "The Surreal Life 2" showing several pixilated views of nude female guests; a $3.6 million fine against CBS and more than 100 affiliates for a 2004 episode of "Without a Trace," which depicts "a series of shots of a number of teenagers engaged in various sexual activities," although no nudity was actually shown; and, of course, the $550,000 proposed fine against CBS for allowing a split-second view of Janet Jackson's tit to be shown during the 2004 Superbowl half-time show. "The cloud hanging over broadcasters will remain until the FCC returns to its previous time-honored practice of more measured indecency enforcement," said a CBS spokesperson. "CBS will continue to pursue all of our legal remedies to that end." According to Broadcast and Cable Online, FCC policy pre-Bush, dating back to the 1970s, "did not take action against isolated or fleeting expletives," and the networks have argued that the FCC's previous "cautious and limited" enforcement are the "centerpiece" of its defense of having the power to regulate broadcast speech.

The Second Circuit has set a briefing schedule for the CBS/NBC/FOX case that runs through Dec. 11, and the Third Circuit has set an identical schedule for CBS's challenge to the Janet Jackson "Titgate" ruling. Neither case is expected to be decided before sometime in mid to late 2007. It's worth noting that battles such as these, between networks that, in FCC chairman Kevin Martin's words, "argue they should be able to say the F-word on television whenever they want" and an FCC that, under Republican dominance, has stepped up "indecency" enforcement several thousand percent, are not merely philosophical.

At stake now, under legislation passed by Congress this year, are fines of up to $325,000 per violation per station and the potential loss of an affiliate's broadcast license, but even at the previous maximum fine of $32,500 per violation per station, an incident like 2004's widely-shown "Without A Trace" episode can add up to a hefty piece of change.

Also worth noting is that in a 2005 Pew Research Center survey, nearly half of those surveyed felt that in the censorship wars, the greater danger is in the government imposing "undue restrictions" on the industry rather than the industry making harmful content. Moreover, 86 percent of respondents believed that parents, not the government, are responsible for keeping their children from viewing inappropriate material.

What remains constantly at issue, despite FCC and Supreme Court rulings, is the basis for targeting "indecency" and "profanity" in the first place. Recently, Morality In Media president Robert W. Peters sent a letter to the FCC's Chief of Investigations William H. Davenport, in which Peters attempted to provide scientific backing for the concept that there are provable harmful effects traceable to the widespread use of profanity and vulgarity – or as Peters puts it, "swearing and cursing."

"Admittedly, it is difficult to explain why people get so uptight about four-letter words in general and certain four-letter words in particular," Peters wrote. "Undoubtedly, it has something to do with the views held by most Americans throughout our nation’s history that God is holy (profanity is therefore unacceptable) and that sex is sacred (obscene language is therefore unacceptable)."

Actually, very few people are upset by expressions like "goddamn" or "holy shit," and in what may be an analogous situation, an "American Values Survey" conducted by the Center for American Values in Public Life found that, of the 22% of the population that describes its religious orientation as "traditionalist," only three-quarters of those, or roughly 16% of the population, felt that not enough attention was being paid to religion by societal and governmental leaders. Less than half of "centrist" religionists (23% of the population) and less than one-quarter of "modernist' religionists (4%) felt that way. That's hardly "most Americans"; it's not even half.

Sadly, there are no studies regarding whether "most Americans" view sex as "sacred," though undoubtedly most view their own participation in it as "private." However, that's hardly reason to mount a government mandate against its depiction, as the current government, with the acquiescence of the courts, has.

"Most of the evidence of harms associated with swearing or cursing set forth below comes from articles that I have clipped from newspapers published or sold in New York City, where I have lived and worked for many years," Peters continued. "I see no reason to think that the experience of other large American cities is radically different from that of New York City, which means that what I have set forth above is the tip of the proverbial iceberg."

Or not. As Alan Leshner, CEO of the American Association for the Advancement of Science, has noted, "The plural of anecdote is not data" – and anecdotes are pretty much all Peters has to offer: Pages and pages of them, many having little to do with the "swearing and cursing" itself, but mention those words ancillary to some anti-societal actions, like disrupting classes or instigating fights in bars among drunk patrons. Apparently, no one's ever mentioned to Peters the generally-accepted scientific premise that "correlation is not causation."

However, even when Peters strays into science – well, polling, anyway – he screws up.

"According to a poll conducted by the Pew Research Center for People & the Press (News Release, 4/19/05)," Peters wrote, "69% of parents are concerned that their children see 'adult language' on TV, and 67% of parents think 'TV gives teens wrong ideas about what’s acceptable.'"

But as Dr. Marty Klein points out in his vital work, America's War On Sex, "Media crusaders and the FCC don't trust American parents at all. They don't believe most parents can make good judgments for their own kids. They say they're speaking on behalf of all caring parents, but of course they aren't. Presumably, if all parents felt the way the FCC and crusaders are portraying them, the market would have eliminated these shows [SpongeBob Squarepants, Teletubbies, etc.], these commercials, and the entire Comedy Central network. It's an old story: censors feel equipped to make the 'right' decisions when they're certain that others are not. As Clare Booth Luce said, 'Censorship, like charity, should begin at home. Unlike charity, it should end there.'"

There's plenty more in Klein's book about the insanity of "indecency." Peters (and the FCC's Kevin Martin) should read it. But for now, suffice to say that the probability that anyone has suffered any appreciable harm from hearing someone say "bullshit" or from seeing Janet Jackson's momentarily visible breast approaches zero – and neither Peters nor Martin nor the U.S. Supreme Court can produce one "victim" to testify (honestly) otherwise.

"Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced." — Albert Einstein