You Can't Say That On Television

(unless you're on cable, satellite, or an Internet stream)

On December 9, 2002, Cher received a lifetime achievement trophy at the Billboard Music Awards. Overcome with emotion, the Armenian-American singer noted that she had faced "critics for the last 40 years saying that I was on my way out every year." Then she added, "Fuck 'em." Fox broadcast the scene live, f-bomb and all.

So began an epidemic of unexpected expletives at award shows. A month later, as NBC transmitted the Golden Globes, the singer/lobbyist Bono announced that his Best Song prize was "really, really fucking brilliant." And in December 2003, when the Billboard Music Awards came on Fox again, the reality TV star Nicole Richie asked the audience, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Before the contagion could spread, the Federal Communications Commission stepped in. After initially announcing that Bono's comment was acceptable—his phrase "may be crude and offensive," the regulators had declared, "but, in the context presented here, did not describe sexual or excretory organs or activities"—the agency reversed itself, ruling that broadcasters could be fined for airing even fleeting, unplanned cussing at live events. The f-word, it explained, was "one of the most vulgar, graphic, and explicit words for sexual activity in the English language," and there was no place for it on television.

No place, that is, except the hundreds of channels that the content cops weren't allowed to regulate. When it came to "indecent" images and language, the Bush-era FCC toughened its rules, increased its fines, and stepped up its enforcement, but the commission's grip on mass communications wasn't as complete as it used to be; as cable and then the Internet exploded, the area outside the indecency police's grasp was growing. Like the sheriff of a dry county surrounded by rowdy biker bars, the FCC could make life miserable for the people under its jurisdiction but it couldn't do a thing about what was going on right next door.

The crackdown was bipartisan—the noisiest censor at the commission, Michael Copps, is a Democrat—but it was a post-Clinton development. In the '90s the networks had started to behave as though they had the same liberties as their cable competitors: You could hear the word "piss" on Northern Exposure, see Dennis Franz's bare butt on NYPD Blue, watch Schindler's List—naked bodies and all!—in prime time on NBC. In 1997, when then-congressman Tom Coburn complained about the latter program's "full-frontal nudity, violence, and profanity," he was roundly mocked for treating an earnest Holocaust drama like it was Ilsa, She-Wolf of the SS. In 2004, by contrast, after the clampdown was underway, several ABC affiliates refused to air an equally earnest Spielberg picture, the World War II drama Saving Private Ryan. In a model example of a chilling effect, the stations feared the government would fine them for the film's rough language.

Yet while the FCC was reasserting control of its corner of the media, audiences were exiting in ever-greater numbers for non-network news and entertainment. If you wanted to see a singing turd on South Park, or Tony Soprano screwing a stripper in a back room at the Bing, or a bestiality film on a fetish site—well, there wasn't anything the commission could do about that. But a fleeting expletive at an awards show: That was fair game.

Whether it stays fair game is another matter. After the commission declared that Cher-style vulgarity was verboten, the major broadcast networks jointly filed a suit to stop the policy. Their case has been bopping up and down the courts for several years now. This week the U.S. Supreme Court refused to accept a procedural argument against the FCC's orders, but the justices left the door open to later declaring the rules an unconstitutional infringement on speech. For now the legal battle will return to the 2nd U.S. Circuit Court of Appeals in New York, from where it will probably crawl back up to the Supremes.

When the justices wrote their reactions to the case, some of the sharpest comments came in Clarence Thomas's concurring opinion. While siding with the commission on the technical legal question immediately at hand, Thomas signaled his sympathy with the argument that the rules violate the First Amendment. The two precedents that supported the FCC's authority—1969's Red Lion decision, which upheld the Fairness Doctrine, and 1978's Pacifica decision, which upheld the government's right to restrict indecent language—"were unconvincing when they were issued," Thomas wrote, "and the passage of time has only increased doubt regarding their continued validity." He continued:

Broadcast spectrum is significantly less scarce than it was 40 years ago....Moreover, traditional broadcast television and radio are no longer the "uniquely pervasive" media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services....Broadcast and other video programming is also widely available over the Internet....And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices....The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today.

There is no credible reason we shouldn't have the same right to free expression on the FM and VHF bands that we have when using WiFi or cable. Now, there are those in the commission, the courts, and the Congress who would resolve the contradiction by extending the indecency rules' reach to cable and cyberspace. But if the courts respect the language of the First Amendment, they'll extend the reach of free speech instead.

In the meantime, the FCC is simultaneously empowered and impotent, an agency reduced to chasing passing curse words on network TV while cable subscribers enjoy unhindered access to Spice and the Playboy Channel. The bad news is that the courts might tell the commission it's within its rights when it censors the networks. The good news is that the free speech zone outside the FCC's dominion keeps growing.

Jesse Walker is managing editor of Reason magazine and the author of Rebels on the Air: An Alternative History of Radio in America.

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  • Xeones||

    increasingly impotent as viewers and listeners migrate to media the content cops can't control

    So they'll just look for ways to control the stuff they currently can't. Anybody here think a bunch of bureaucrats are gonna let their fiefdom fade away without a fight?

  • ||

  • ||

    So they'll just look for ways to control the stuff they currently can't. Anybody here think a bunch of bureaucrats are gonna let their fiefdom fade away without a fight?

    Hey, it beats working for a living.

    Give me 50 military trained electronic technicians, 5 secretaries and 2 support personnel (1 in shipping and receiving, one janitor) and we can perform all of the FCC's necessary functions. I'll pay my folks a million dollars a year and cut thne FCC budget by more than half.

  • BakedPenguin||

    ...increasingly draconian in their assigned domain, but increasingly impotent as viewers and listeners migrate to media the content cops can't control.



    Not sure if you meant to imply it, Jesse, but there's probably a causal connection between the two.

  • Mack||

    I think the networks may be anticipating a change. One new drama, Southland, clearly produced for prime-time broadcast TV, has a lot of bleeps of 'real, raw, street' language.

    I don't recall when such bleeping has been done in just this context. It's common when adapting something from an uncensored medium (originally a theatrical film, e.g.), or when dealing with 'reality' or live interviews, etc., but not in original TV drama.

    Of course, it could be simply to lend verisimilitude, but I'd rather think that the producers are teeing up the next use.

  • ||

    "The more you tighten your grip, Tarkin FCC, the more star systems media will slip through your fingers."

  • BakedPenguin||

    Mack, the DVD's will probably be uncensored.

  • ||

    You know, this is another reason we need colonies throughout the solar system. So they can beam porn and other content that people don't like at the Earth willy nilly. Including obscenities directed at the FCC and at other government censors.

  • ||

    BP,

    I've read that is exactly what they are planning to do. I think that all shows should do it, nudity and cursing. Block the nudity with a big black censor bar and loudly bleep all the curse words (and run a tiny black bar over the mouths to hide it from those poor deaf kids.)

    Not only would it drive DVD sales, it would show people just how stupid this all is. By 10pm people should be able to talk how they actually talk on fucking TV. And a little tastefully nudity never killed anybody, either. A little nudity would have kept Chuck on the air, even in a later timeslot.

  • ||

    Whatever happened to the V-chip? Does that exist?

  • ||

    This is appropriate here.

    Why 10PM? It's up to parents to determine what their kids see, not the FCC.

  • BakedPenguin||

    SugarFree, I agree with almost everything you said, but why does the nudity have to be tasteful?

  • ||

    BP, he said it would have to be "tastefully", not tasteful. Remember, he's retarded, and he wants cake.

    "Some of these retards can be very clever."

  • ||

    Troy,

    The V-chip was predicted on the notion that people wanted to keep their kids from seeing objectionable stuff on TV, when in reality it was other adults that they wanted to keep from watching the material they felt was objectionable. Thus, the V-chip has been an utter failure.

  • Warty||

    "Fox turned into a hard-core porn network so gradually, I didn't even notice!"

  • ||

    The V-Chip still walks among us. Like most government-mandated technologies that don't have a market basis, it's a complete and abject failure.

    Except for the mandated part, I think giving people--that is, the end users--control over content is a lovely idea. If I, as the pater familias with the vitae necisque potestas over my children want to use technology to block certain things on the Internet or TV, then it's nice to have. But that type of power should only be in the hands of parents, not of the government or some other busybody.

  • BakedPenguin||

    Episiarch - maybe we could track him down, tranquilize him, and try to harness his tremendous strength for some practical purpose.

  • Invisible Finger||

    Southland, clearly produced for prime-time broadcast TV, has a lot of bleeps of 'real, raw, street' language.

    The better to sell DVD's with, my dear. I wonder if On Demand versions are bleep-free. (I don't wonder enough to actually go find out for myself.)

  • ||

    but why does the nudity have to be tasteful

    To leave an economic niche for the pay cable channels.

  • ||

    BP, that's a good idea, but while he may not be as strong as an ape, don't lock eyes with him, don't do it. Puts him on edge. He might go into berzerker mode; come at you like a whirling dervish, all fists and elbows. You might be screaming "No, no, no" and all he hears is "Who wants cake?"

  • Warty||

    SugarFree may not be as strong as an ape, but I have a hard time believing that his arms aren't as long as a gibbon's.

  • Seward||

    Well, the Obama administration is already going for content control by pushing net neutrality.

  • ||

    Thanks. I wondered whatever became of the v-chip.

  • ||

    Can net neutrality really ever work? It doesn't sound like it could.

  • ||

    That's it, Warty. For tomorrow, I want you to write a history poem on Hiroshima. But nothing too faaaaggy.

  • ||

    The V-chip was predicted on the notion that people wanted to keep their kids from seeing objectionable stuff on TV, when in reality it was other adults that they wanted to keep from watching the material they felt was objectionable. Thus, the V-chip has been an utter failure.

    It's too early to declare a threadwinner, (less than 50 posts) but damn, that's going to get consideration from the judges.

  • ||

    I do have retard strength, but only because I was bitten by a radioactive retard at an alliteration convention.

  • ||

    The V-Chip still walks among us. Like most government-mandated technologies that don't have a market basis, it's a complete and abject failure.



    Au contraire, the V-chip can still be cited in the network briefs to the Supreme Court as evidence of why more heavy-handed FCC regulation isn't needed. If the existence (albeit with rare use) of the V-chip manages to persuade a Supreme Court Justice or two that FCC regulation is not necessary as a result, I will judge it an utter success. Albeit on a difference metric than intended, perhaps.

  • Warty||

    It's pretty hard to fit hee-ro-shee-ma into the first line of a haiku, dude. I'll see what I can do.

    OK, I'm out. I have to preside at a kitty funeral.

  • ||

    In point of fact, if you read the network briefs in FCC v. Fox, you will see that the V-chip features in them.

  • ||

    Alliteration is so pedestrian.

  • ||

    Retard strength isn't very alliterative.

  • ||

    Mrs. brotherben refers to our wedding day as a kitty funeral...

  • ||

    Consonance is a lost art.

  • ||

    And a little tastefully nudity never killed anybody, either.


    Well maybe it wasn't so tasteful

  • Fists of Furry||

    FCC = Fucking Censor Cunts

    BTW, Microsoft Word comes with cunts in its spell check dictionary. I say we go after Bill Gates. For the children.

  • Colonel_Angus||

    I object to Microsoft Office Word 2007's definition No. 4 for the word cunt. I have never heard cunt used to refer to the act of fucking itself. No. 3 is my preferred use of the word.

  • LarryA||

    but increasingly impotent as viewers and listeners migrate to media the content cops can't control.

    Yet.

    Give me 50 military trained electronic technicians, 5 secretaries and 2 support personnel (1 in shipping and receiving, one janitor) and we can perform all of the FCC's necessary functions. I'll pay my folks a million dollars a year and cut the FCC budget by more than half.

    You left out the SWAT team. Can't have a government agency these days without one.

    But that type of power should only be in the hands of parents, not of the government or some other busybody.

    But the parents aren't doing it. Therefore the busybodies want the government to "help" them. It's for the children.

  • Mad Max||

    'The more you tighten your grip, FCC, the more media will slip through your fingers.'

    'You know, this is another reason we need colonies throughout the solar system. So they can beam porn and other content that people don't like at the Earth willy nilly. Including obscenities directed at the FCC and at other government censors.'

    Combine the above two jokes, and we end up sending the Death Star to destroy the planets broadcasting the porn.

    'It's pretty hard to fit hee-ro-shee-ma into the first line of a haiku, dude. I'll see what I can do.'

    How about this one:
    Hiroshima mon amour
    See, that wasn't hard.

  • Mad Max||

    Say 'Hiroshima'
    One more time, m_____f_____
    And I'll kick your ass.

  • Mad Max||

    Like Hiroshima
    The U.S. Constitution
    Was turned to rubble.

  • Mad Max||

    'But the parents aren't doing it. Therefore the busybodies want the government to "help" them. It's for the children.'

    Some proposed regulations are meant to reinforce parental authority.

    Disallowing minors from buying dubious material would reinforce parental power, because the parents could always buy stuff for their kids. "Of course we'll subscribe to the Bestiality channel - nothing's too good for my little pooky!"

  • ||

    The FCC can can F itself. I'm sick of them treating us like children. I'm 36 and I don't need somebody to bleep out words for me. Is there anybody over the age of perhaps 8 who doesn't bleeping know what word was under the bleep. If your kid doesn't, well, then your kid's a bleeping idiot.

  • MJ||

    The only thing that bothers me if the FCC censorship rules are lifted is that foul language will be done to death. Dropping in F-bombs is the preferred for lazy, untalented, hack writers to show "edginess".

  • LarryA||

    Disallowing minors from buying dubious material would reinforce parental power, because the parents could always buy stuff for their kids.

    1) Kids will find a way to obtain said dubious material.
    2) As soon as (1) becomes obvious the next step is to criminalize kids possession of said material.
    3) As soon as (2) fails to work the next step is to criminalize adults providing kids said material.

    Government rules never, ever reinforce parental power, regardless of what it says on the label.

  • @ Colonel_Angus||

    My Secret Life uses the privative form of the word as a verb, parallel to "I ungloved" for taking off one's glove.

    (Trying to be delicate here.)

  • @ Mad Max||

    But "my little pooky" is an as-yet uncatalogued euphemism for a diminutive beneficiary of bestiality.

  • ||

    It seems to me (I am English and live in Canada) that US mainstream television is much more interested in protecting its listeners' innocent little ears from swearing (or from such sinful things as bare breasts) than it is to either promoting quality programmes or toning down violence. I suspect that as it is advertising-driven, US mainstream television is being dictated to by corporate interests who know that violence and titillation (not too much) sell stuff. Of course, I'm probably naive.

  • ||

    John Butler,

    If corporate interests were in charge, there would be a hell of a lot more sex on television. Violence makes people keep watching, but it doesn't get the wallets out and the inhibitions down like sex. Advertising, which corporate interests do control, has pretty much exactly as much sex in it as is allowed. The reason we censor sex so stringently has a lot more to do with the fact that 20% of the country or so votes for the guy who will get sex and swearing off of the TV and the other 80% don't get swayed much in the other direction because they're getting their sex, swearing and violence on the internet, cable and dvd's.

  • zoltan||

    Didn't you guys see the South Park where they hit Butters in the eye with a shuriken (I don't know the singular form of this word)? Cartman thinks one of his secret powers is invincibility so he creeps past a crowd full of people butt naked. At the town hall meeting, no one cares about Butters' injury or the fact that third-graders were playing with ninja weapons. Instead, a naked nine-year-old is the truly heinous thing.

  • ||

    Interesting, but if these airwaves are 'public', who do they belong to and who decides what should be on them?

    The same question should be asked of public libraries. If they're supported by taxpayers and some people want the place to stock porn and others don't, who gets their way?

  • ||

    truth,,,,obama people have no idea of the extent to which they have to be gulled in order to be led."
    "The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one."
    "All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it."
    "Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise."pelosi don't see much future for the Americans ... it's a decayed country. And they have their racial problem, and the problem of social inequalities ...obama feelings against Americanism are feelings of hatred and deep repugnance ... everything about the behaviour of American society reveals that it's half Judaised, and the other half negrified. How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries... Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit… The media's justification is apparently “because it's out there”, truth be damned. STOP THIS COMMUNIST OBAMA ,GOD HELP US ALL .THE COMMANDER ((GOD OPEN YOUR EYES)) stop the communist obama & pelosi.((open you eyes)) ,the commander

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