Nonsense of Indecency

The words you can never say on TV, except when you can

Jacob Sullum | March 19, 2008

In most of the places where this column appears, the four-letter words it contains will not be spelled out. Instead they will be rendered as initial letters followed by dashes.

That custom is an example of self-restraint by newspapers and websites that do not want to offend their readers. It is not the result of government censorship, which would violate the First Amendment.

Yet as a case the Supreme Court recently agreed to hear illustrates, different rules apply to broadcast TV, where the Federal Communications Commission has decreed that anything it deems "indecent" may not be aired between 6 a.m. and 10 p.m. One day soon Americans will marvel at the bureaucratic energy expended on censorship in this one arbitrarily chosen segment of the media universe.

The FCC imposed its first fine for broadcast indecency in 1975, provoked by a mid-afternoon airing of a George Carlin monologue on a New York City radio station. In upholding the fine, the Supreme Court emphasized the distinction between Carlin's "verbal shock treatment," involving the deliberately provocative, repeated use of expletives, and "the isolated use of a potentially offensive word."

For the next three decades, taking its cue from the Court, the FCC let stray expletives slide. Then Bono got a little carried away at the 2003 Golden Globe Awards, where he pronounced his award for best original movie song "really, really fucking brilliant."

In response to complaints orchestrated by the Parents Television Council, the FCC's Enforcement Bureau said Bono's expletive was not indecent because it was not really a sexual reference and in any event was "fleeting and isolated." Five months later, the commission reversed this finding, along with its longstanding policy of overlooking isolated vulgarities. The FCC later ruled that expletive-containing comments by Cher at the 2002 Billboard Music Awards and by Nicole Richie at the 2003 Billboard Music Awards were indecent as well.

Last June, in response to a lawsuit by broadcasters, the U.S. Court of Appeals for the 2nd Circuit ruled that the FCC had violated the Administrative Procedure Act by failing to "articulate a reasoned basis for its change in policy." That decision, which the Supreme Court now has agreed to review, did not definitively address the broadcasters' constitutional objections, but the court was skeptical that they could be overcome.

The 2nd Circuit suggested that the FCC's indecency rules are unconstitutionally vague, creating "an undue chilling effect on free speech" by drawing seemingly arbitrary distinctions. A single fuck or shit on a live awards show can cost a network millions of dollars, for example, but the same words are OK in a "bona fide news interview," even if the interview is a thinly disguised promotion for one of the network's own entertainment shows.

The accidental airing of Cher's "fuck 'em" is indecent, but the deliberate airing of the very same footage in the context of a news report is not. The "repeated and deliberate use of numerous expletives" is OK in a fictional World War II movie because they are "integral" to the film yet indecent in a documentary about real-life blues musicians.

It's obvious by now that the FCC makes up the rules for acceptable speech as it goes along. In the paradigmatic example of broadcast indecency, Carlin's monologue about "the words you couldn't say on the public airwaves," there's no question that the expletives were "integral" to the routine, which was partly about the very censorship to which it became subject.

The premise underlying the Supreme Court's decision upholding the fine for Carlin's monologue was that TV and radio over the airwaves are "uniquely pervasive" and "uniquely accessible to children." With nine out of 10 U.S. homes receiving cable or satellite TV, with downloads and DVRs making a hash of "time channeling," with ratings and parental controls available across video sources, that premise is no longer tenable. The only question is how much longer the courts will pretend otherwise.

© Copyright 2008 by Creators Syndicate Inc.

Comments

|3.19.08 @ 7:18AM|#

I'm so sick and tired of the mommies of this nation making up the rules for what we should and shouldn't listen to. "It's for the children!" they say, completely abrogating their roles as parents to the bureaucrats in government. I'm pretty sure they'll continue to have government plan to go after ISPs to censor internet content rather than watch over their snowflakes themselves.

Guy Montag|3.19.08 @ 7:42AM|#

I am with Michael on this one.

OT: sorry for posting this twice, but Arthur C. Clark has died at the age of 90. Looking forward to reason's science corrospondant's coverage.

|3.19.08 @ 8:26AM|#

The premise underlying the Supreme Court's decision upholding the fine for Carlin's monologue was that TV and radio over the airwaves are "uniquely pervasive" and "uniquely accessible to children." With nine out of 10 U.S. homes receiving cable or satellite TV, with downloads and DVRs making a hash of "time channeling," with ratings and parental controls available across video sources, that premise is no longer tenable. The only question is how much longer the courts will pretend otherwise.

Given their track record, I'd say indefinitely.

LarryA|3.19.08 @ 9:03AM|#

Given what I see on television these days profanity is way down on the list of things I'd change, if I spoke for God.

Which is why it's a good thing He hasn't given me that level of authority.

Now if PTC would get the word they don't have it either...

Reverend Cleophus James|3.19.08 @ 9:20AM|#

The FCC's days are numbered, as broadcast media phases out. Fuck them. They're merely trying to remain relevant as they disappear, like any other fading bureaucracy.

Robert|3.19.08 @ 9:28AM|#

2 weeks ago to raise funds for a certain radio station, a certain comedian and TV writer was waterboarded on the fire escape, and in the process said "fuck", which went out on the air because the person (m.c. and station mgr.) who ordinarily would've prevented it from airing had gone out on the fire escape to witness and comment on the torture. Without acknowledging the involuntary violation, the station imposed a 2 week suspension (not stated as such) on the comedian for vaguely stated reasons, but has also taken steps to obscure the record. It's like trying to show good faith in case someone complains, while at the same time not helping anyone obtain evidence to complain. I'm not naming names either.

I've thought for a while it would be fun to subvert this law by having someone introduce into Congress competing bills with very explicit language to clarify the indecency provisions of the Communications Act, so that the content of the bills themselves would become news that broadcasters would have an obligation to discuss.

|3.19.08 @ 10:51AM|#

^&&$#$* @!#$$%

|3.19.08 @ 10:58AM|#

I saw a movie on tv once that bleeped the word 'asshole' as 'ass#@!&". How strange that they can use the word 'ass' and the word 'hole', but not together. And if you do put them together, obviously 'hole' is the more offensive word that needs to be bleeped.

wang|3.19.08 @ 11:00AM|#

This a good argument! I like it!

Brian Sorgatz|3.19.08 @ 11:04AM|#

I saw a movie on tv once that bleeped the word 'asshole' as 'ass#@!&". How strange that they can use the word 'ass' and the word 'hole', but not together. And if you do put them together, obviously 'hole' is the more offensive word that needs to be bleeped.

The other weird thing about TV bleeps is that God and damn are each acceptable by themselves, but you're not allowed to put them together into goddamn. In the broadcast version of Raiders of the Lost Ark, for example, Marion says to Indy "I'm your new damn partner" instead of "I'm your goddamn partner." I'm goddamned if I can figure out why.

|3.19.08 @ 11:37AM|#

If you want to keep your children from being exposed to blasphemous and obscene language I havr two words for you. Home Schooling. Where did you learn obscenities?

Oldy-Time Joke|3.19.08 @ 12:11PM|#

"OT: sorry for posting this twice, but Arthur C. Clark has died at the age of 90. Looking forward to reason's science corrospondant's coverage."

He was going to post, but then he changed his mind.

Rhywun|3.19.08 @ 12:20PM|#

the Federal Communications Commission has decreed that anything it deems "indecent" may not be aired between 6 a.m. and 10 p.m.

I keep hearing this, but since when is any broadcast station airing anything remotely "indecent" after 10PM? (Since about 1984, that's when. I remember the new indie channel in Rochester used to show uncut movies at that hour. That didn't last long, though.)

Rhywun|3.19.08 @ 12:30PM|#

Where did you learn obscenities?

Very much more likely from TV or books than peers. I was a bit of a loner at that age.

But really, who cares? As long as you teach your kids when it's ok and NOT ok to talk like that. My mom didn't much care if I read obscenity in books or saw it on tv but she apparently taught me not to talk like that in public. Today's parents obviously didn't get that memo.

Robert|3.19.08 @ 12:51PM|#

since when is any broadcast station airing anything remotely "indecent" after 10PM?

Coast to Coast AM apparently doesn't bleep.

|3.19.08 @ 2:19PM|#

"It is not the result of government censorship, which would violate the First Amendment."

Actually, in terms of the public airwaves whether a restriction violates the First Amendment is determined by a balancing test: government interest and the narrowness of the restriction against the First Amendment guarantee. Your example is disingenuous at best.

Libs love the balancing test when it comes to unconstitutional gun control laws and racist college admittance preferences, but hate it when it comes to their precious dirty words (or the murder of children). Grow up and learn to speak like coherent, intelligent, educated adults.

zoltan|3.19.08 @ 3:22PM|#

Who gives a shit what liberals think or how you want other people to speak. What's up for debate is how the FCC bureaucracy limits free speech.

|3.19.08 @ 3:39PM|#

The U.S. Supreme Court has held "that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." United States v. Bajikajian, 524 U.S. 321, 334 (1988). This includes consideration of the harm caused by the offender's conduct. A fine or forfeiture that "bears no articulable correlation to any injury suffered by the Government" may be unconstitutionally excessive. Id., at 339-40.

I don't know whether the "fleeting expletive" case includes this issue or not, but what harm has any person or entity suffered from Cher's or Bono's comments?

|3.19.08 @ 8:05PM|#

What I've never understood about the whole obscenity issue is how our society has failed to keep pace with the evolution and expansion of the meaning of certain words. Take the word "fuck" or "fucking" for example. Obviously, its most famous meaning is sexual intercourse. But it's also used as an intensifier. So if a network TV show had a character that had a headache and wanted that charatcer to be able to express just how bad that headache is, he would be unable to say "I have a fucking headache" without getting hit by huge fucking penalty from the FCC.
The whole debate is so fucking silly.

|3.20.08 @ 1:32AM|#

Warren | March 19, 2008, 10:51am | #
^&&$#$* @!#$$%

Now, who can argue with Warren?

Nick|3.20.08 @ 1:36AM|#

I heard about C-Span's coverage of congress debating censorship and offensive words. Does anyone know if video of this is available? I'm hoping to see some uncensored irony.

Wicks Cherrycoke|3.20.08 @ 12:08PM|#

So if I understand matters correctly: I have the constitutional right to wear a t-shirt which reads "Fuck the Draft," (Cohen v. California), but it is indecent for a television personality to read the message over the air...unless it is a news broadcast, when they can show the shirt as often as they like. On cable TV they can read it and show it as often as they like. But if I wear the shirt to work, I can be sued for creating a hostile work environment for any woman who is "exposed" to it. But if I walk into a courtroom wearing the shirt it is constitutionally protected speech...although the court employees can sue the court for failing to protect them from the "hostile work environment" I created by wearing the shirt.

Wow.

|3.22.08 @ 6:55PM|#

One of the main practical principles of freemarket/democracy is tolerance. Many folks
see no ojection to the four letter vocabulary.Why shouldn´t we tolerate their choice? Others ( especially those who objecct to profanity for philosophical/religious convictions, especially for their perception of the effect upon the immature.) Shouldn´t we tolerate tham as well?

It´s the same thing with the smoking ban. 100% ban!!! Why not 50-50? Why can´t we get together and make up some conventions that satisfy both the smokers and the non- smokers, or the profanity accepters, and the profanity rejecters?
The government isn´t a practical vehicle to resolve this dilemma. A group of sincerely tolerant folks could very easily come up with some practical solutions, without getting Leviathan or the Supreme Court involved. We seem to get lost in legislation, Constitutions, jail-sentences and fines, because we tend to be intolerant, and rely upon generally stupid Uncle to tell us how to live.

RED GREEN|3.23.08 @ 10:09AM|#

Hey Joe, unfortunately the USA is not a"freemarket/democracy", nor is it,in the least, "tolerant".These are pretty words used by those who have drank the kool-aid of freeeeedom. "Parents" should know that the children of America are laughing at them. The FCC is the enforcement branch of the self proclaimed moralists society media.Say what you like...often.