In case you have been living in a cave, an estimated 80-180 million, depending on who you ask, television viewers recently were treated to a spectacular, superstar-studded Super Bowl halftime show, the only part of which that will be remembered by anyone is the split-second exposure of one of Janet Jackson’s breasts. Apparently, politicians think that it is fashionable to be appalled by such public exposure, notwithstanding the fact that it is completely acceptable in many cultures and despite such depictions found in many classic paintings and sculptures, including, until recently, a statue at the Department of Justice.
The “Spirit of Justice” is a 12-and-a-half-foot tall, cast-aluminum statue of a half-nude woman that has stood proudly in the Justice Department’s Great Hall since 1936. Those of you who are veterans of adult entertainment will remember, and the rest should know, that then-Attorney General Edwin Meese III in 1986 presented to the nation the Final Report of the so-called “Meese Commission,” which initiated the Reagan-Bush assault on the adult entertainment industry, leading to scores of indictments and jail sentences in front of the half-exposed “Spirit of Justice” statue. The Press Corps, which was not counted as one of Meese’s big fan clubs, had a field day with that contradiction, cartoons and articles appearing from coast to coast jabbing the Attorney General’s blunder. Not wanting a repeat performance, Attorney General John Ashcroft recently invested some $8,000 of the DOJ’s budget to erect a modesty curtain for the statue. DOJ sources denied that General Ashcroft personally ordered the placement of the curtain, but neither does it appear that he countermanded the order.
Returning to the Janet Jackson fiasco, it caused so much press coverage that it handed to the censorship forces on a silver platter an opportunity to cause a reaction inside the Beltway, which they did. Religious figures and hypocrites alike flooded Congress and the FCC (Federal Communications Commission) with demands to take drastic measures. And politicians, often hypocritical themselves, and loathe to do anything that might be construed to approve of the slightest hint of erotica, despite the public’s obvious majoritarian view to the contrary, were stirred to action. (It might be noted that “hundreds of thousands” of TiVo subscribers who replayed the Janet flash, creating the biggest TiVo replay spike in the history of the service, apparently were not so offended.)
The Media immediately circled the wagons in a damage-control effort, including eschewing some Janet appearances, tape-delaying live events and reviewing any programming that was even arguably erotic. Perhaps the most egregious of the events included in the media recoil from the “Janet Bowl” (well, do you remember the score, or even who won the game?) was at KCRW in Los Angeles. The victim of this travesty was Sandra Tsing Loh, a brilliant radio commentator and comedienne who included an “f-bomb” on a pre-recorded piece. The idea was that she would, as she had before in other pieces, use the “f-bomb” and then have it “bleeped out” in editing. (Using the word “bleep” instead of the real word, Loh explained, made the continuity better.) Well, this time the editor blew it and, clearly in fear of the FCC, the station – an NPR affiliate that often airs controversial pieces – fired Sandra as a consequence. Granted, they offered her her job back immediately thereafter (she declined, ostensibly opting to stay home and be with her offspring), but the damage is done; Los Angeles now will have to be without Sandra’s insightful commentary and humor, at least for the present.
What KCRW did was to censor itself, in fear of retaliation by the FCC. Certainly every other over-the-air media outlet in the country is engaged in comparable heightened scrutiny of its content for the same reason. Thus, the consequence of Janet’s publicity stunt was not only what she obviously wanted – publicity – but also what she probably didn’t want (and obviously didn’t think about): a nation-wide censorship movement and an avalanche of self-censorship by media outlets.
The FCC has authority to regulate all aspects of communications, from the more familiar — telephones, radio, and television — to the obscure, such as issuing radio licenses to airplane pilots and amateur radio operators. Included in the FCC’s enforcement authority is 18 U.S.C. §1464, a federal statute punishing “whoever utters any obscene, indecent, or profane language by means of radio communication,” which of course includes television. The landmark decision in this area focused on George Carlin’s infamous “Seven Dirty Words,” FCC v. Pacifica Foundation, 438 U.S. 726 (1978). That case arose from a citizen’s complaint to the FCC about an afternoon radio broadcast of Carlin’s “Seven Dirty Words” monologue. The complaint wound its way through the Commission’s administrative machinery, ultimately resulting in a reprimand of the offending radio station, threatening sanctions against its license upon further violations. The Commission claimed the power to do this under both the criminal indecency statute (18 U.S.C. §1464, above) and 47 U.S.C. §303(g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.”
In coping with the dilemma of defining what was “indecent,” the Commission ruled that “‘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.” Basically, “indecent” means too racy for children; “obscene” means something that can be prohibited altogether. The Supreme Court approved all of the above in the Pacifica case.
Since then, the Commission has defined a “safe harbor” for “indecent” but not “obscene” speech for over-the-air broadcasts. Under the “safe harbor,” since its most recent modification in 1995, indecent broadcasts between 6:00 a.m. and 10:00 p.m. are fair game for punishment by FCC regulators. The issue central to the Janet Jackson flap is whether her afternoon flash was “indecent” as defined above, and thus susceptible to FCC action.
Under then-current law, the licensee – the broadcaster holding the license – could be slapped with a $27,500-per-flash fine. Repeated violations can result in revocation or refusal to renew the broadcaster’s license.
Down the street from the FCC, Congress got into the act as well, not wanting to be upstaged – the “Broadcast Decency Enforcement Act of 2004” was introduced in the House (HR 3717), providing for dramatically increased fines ($500,000 per flash), more scrutiny of licenses and, significantly, fines against the artists, not just the licensed broadcasters. If enacted, our hero Sandra Tsing Loh could herself be in peril for a half-million-dollar administrative fine – i.e., no jury – if the FCC thinks she oversteps the bounds of decency as the FCC has defined them with the approval of the Supreme Court.
Particularly troubling – and not addressed in Pacifica – is the procedural aspect of FCC regulations. The FCC operates on complaints; it does not do investigation. And why should it? There is a national organization called Parents Television Council, which professes to monitor every television broadcast in the nation between 6:00 a.m. and 10:00 p.m., scrutinizing every scene, looking for a nipple flash, an “f-bomb” or anything else that they think is too racy for daytime, reporting all such incidents to the FCC. The PTC has even published a “white paper” of sorts, excoriating the FCC for its “dereliction of duty.”
Upon receipt of a complaint, the FCC preliminarily screens it, both to determine whether enough information is provided (identification of the broadcaster, date and time of the broadcast, and a tape or transcript of the allegedly offending item), whether the broadcast was during the “safe harbor” times and whether it might be “indecent”. If the FCC staff determines that enforcement might be warranted, it can undertake actions ranging from a letter to the licensee to formal referral to the Commission for enforcement action, which can range from fines to action against the license. Such an action can be appealed.
The problems included in that scenario are that there is no mechanism for a broadcaster to find out in advance what is “indecent” and that the enforcement process takes forever. Suppose that a station broadcasts something that it earnestly believes does not so offend community standards as to be considered “indecent,” but someone nonetheless complains. To be sure, any standards and practices executive at any network will tell you that this happens all the time. Does the station dare re-broadcast it pending the litigation? Again, self-censorship.
What does this all have to do with the Internet? Presently, nothing; eventually, perhaps everything. The FCC’s present indecency-regulating authority is confined to broadcast radio and television during the 6:00 AM to 10:00 PM window. There are many who are urging that the same slow but sure, star-chamber-type administrative procedures be put into place to monitor nighttime, over-the-air broadcasts, as well as cable and satellite television, which are not now subject to indecency review by the Commission. The Internet cannot be far behind, and Congress unquestionably has the constitutional power to add the Internet to FCC’s jurisdiction. Censors would love to give the FCC a license-revocation hammer over all manner of broadcast media, leaving every broadcaster subject to the Sandra Tsing Loh abomination. Why could that not include the Internet?
This entire mess is perhaps even more relevant to you because it illustrates the mood of the country concerning racy speech, and why the Internet is in the Government’s cross-hairs. If the Janet Jackson flash can generate so much commotion in Washington, imagine the Government’s opinion of 14-year-olds accessing your adult site. This is certainly something to think about with the promised spate of obscenity prosecutions.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
