The FCC's Incomprehensible Ban on Broadcast Indecency

The Supreme Court examines TV censorship.

My daughters, who range in age from 5 to 18, watch TV programs and movies on DVDs, on smart phones, streaming from Netflix through our Wii, on video websites, on our DVR, and on demand from AT&T U-verse. They do not know or care what "broadcast television" is, and they certainly do not perceive a categorical distinction between "over-the-air" channels and the rest.

But the Federal Communications Commission (FCC) does, imposing a form of censorship on broadcast TV that would be clearly unconstitutional in any other context—for the children, of course. A case the Supreme Court heard on Tuesday gives it an opportunity to renounce this obsolete doctrine once and for all.

Officially, the FCC punishes TV and radio stations for airing programs that "describe or depict sexual or excretory organs or activities" in a way that is "patently offensive as measured by contemporary community standards for the broadcast medium." But no one knows what that means until the commission rules, and even then it is impossible to extract clear guidelines from the FCC's highly subjective judgments.

The commission has decreed, for instance, that fuck is indecent when uttered by celebrities during live award shows—whether exuberantly (Bono), angrily (Cher), or jokingly (Paris Hilton Nicole Richie)—and by blues musicians in a PBS documentary, but not by fictional soldiers in Saving Private Ryan, where the expletives were, in the FCC's view, artistically justified. Likewise, fleeting partial nudity on NYPD Blue was indecent, while full frontal nudity in Schindler's List was not. Call it the Spielberg Rule.

The FCC insists on no bullshit in a cop show but may allow it in "a bona fide news interview," although it emphasizes "there is no outright news exemption from our indecency rules." The commission is surprisingly tolerant of dickheads and asses, even when they are "pissed off." As the America Civil Liberties Union (ACLU) observes, such judgments are "simply a matter of taste, and the commissioners' efforts to rationalize their taste merely emphasize the arbitrary nature of the enterprise."

Since guessing wrong about the FCC's taste can cost broadcasters millions of dollars in fines and jeopardize their licenses, they tend to err on the side of restraint, which means much worthy material either is expurgated or never airs. The ACLU cites many such examples, including 9/11 documentaries, war reporting, political debates, live news coverage, novel readings, songs from Broadway shows, and a critically acclaimed British police drama.

In 2010 the U.S. Court of Appeals for the 2nd Circuit concluded that "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." The court ruled that the FCC's indecency ban "violates the First Amendment because it is unconstitutionally vague."

Fox and the other TV networks challenging the ban are urging the Supreme Court not only to uphold the 2nd Circuit's decision but to reconsider the 1978 ruling that approved content-based regulation of broadcasting on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to children." Now that nine out of 10 households are served by cable, satellite, or fiber-optic TV and children commonly watch video from nonbroadcast sources, it is hard to make that argument with a straight face.

Three decades ago, the Court portrayed TV and radio signals as unwelcome visitors in people's homes. That description was never accurate, since receiving the programming carried by those signals required deliberate actions. It is even further from reality in today's entertainment market, which gives parents many tools for regulating what their kids watch.

During Tuesday's oral argument, Justice Samuel Alito worried that repealing the indecency ban would trigger an explosion of televised nudity and profanity, even while conceding that the rule applies to an ever-shrinking part of the video market. In fact, there are more child-friendly entertainment options than ever before, no thanks to the government's ham-handed interference. From a consumer's perspective, the FCC's weirdly selective censorship is not just unnecessary but increasingly incomprehensible.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

© Copyright 2012 by Creators Syndicate Inc.

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  • Make My Monster GROW!||

    "The FCC, an appointed body, not elected, answerable only to the president, decided on its own that radio and television were the only two parts of American life not protected by the first amendment to the Constitution. Why did they decide that? Because they got a letter from a minister in Mississippi!

    A Reverend Donald Wildman in Mississippi heard something on the radio that he didn't like. Well, Reverend, did anyone ever tell you there are two KNOBS on the radio?"

  • Make My Monster GROW!||

    By the way, putting the quotes in italics makes it all spooky, like he's speaking FROM THE GRAVE!!!!

  • ||

    Speaking of italics...

    How do you guys post in italics? I can't. Is it a function of the browser (I'm using Firefox 9.0.1) or is there some work around? I've tried typing in word and copying it over, but that doesn't work either.

    Anyone?

  • Croesus||

    HTML tags.
    < i >Italics< / i >
    becomes
    Italics
    if you leave out the spaces.

  • ||

    Got it, thanks.

  • ||

    cool

  • Bee Tagger||

    did anyone ever tell you there are two KNOBS on the radio?"

    Uh, there are far more than two knobs on the radio.

  • Bee Tagger||

    Maybe that was your joke already. The italics threw me off.

  • bill||

    +100 morning zoos

  • Make My Monster GROW!||

    Two knobs worth using to change what you're listening to. The bass and treble knobs just change the way the dirty words sound.

  • ||

  • Live Free or Diet||

    Dirty words? Clay! Sand! Peat! Loam! Silt!

    Or some really bad ones... Sludge! Mire!

  • ||

    see? mucous just doesn't get respect any more

  • Brett L||

    You're dating yourself. Most radios have zero knobs now.

  • ||

    fucking buttons and switches. though, even switches are going the way of the knob.

  • ||

    Implants.

  • Suki||

    Morning links at 9:30AM, maybe. With a 9:00AM time stamp.

  • Kromulent Kristen||

    Fuckin Limey slang - how does it work?

  • Abdul||

    If what's playing on the radio is indecent enough, I put my own knob on it.

  • Barely Suppressed Rage||

    Back when George Carlin first uttered that bit, most radios had two knobs:

    1. On/off/volume (one knob)

    2. Tuning

    Then as the 70's progressed, radios got all fancy, with "bass" and "tone" adjustments. Then in the 80's came "balance." Then came equalizers with sliders and all hell broke loose.

    And now we've come full circle, with iPods that have a single circle with a button in the middle, to control everything.

  • Suki||

    "One button to control them all."

  • ||

    the circular control is pretty ring-like...

  • ||

    ...and in the turpitude bind them.

  • Yet Another Dave||

    Absolutely a lot more than just two knobs. Especially if you're tuned in to pretty much any station that focuses on political discourse (Air America, Rush Limbaugh, etc.).

  • sarcasmic||

    And then you miss the best line:

    Go play with your KNOBS!

    sheesh

  • mgd||

    "Much worthy material"? Seems rather hard to believe.

  • Live Free or Diet||

    Slight aside...
    Believing in the power of cuss words has always struck me as a form of belief in magic. Same with words banned by political correctness. In the latter case, it's interesting to me how often Southern expressions are the focus of that. I heard an older woman at a deli counter recently calling customers "honey," "sweetie" and "darlin'." She sweetly called me "baby" (and at my age, I don't hear that much!) She was charming.

    Censorship from the government is unconstitutional on the face of it. Censorship from other power groups is just plain stupid.

  • ||

    i guess Ricky isn't the only morally deluded person, eh, Sullum...

  • invisible furry hand||

    Can it at least be renamed the Fucking Communications Commission?

  • Bee Tagger||

    Only if the Parents Television Council becomes the Pillow Talk Council.

  • ||

    Pusillanimous Turd Counters.

  • ||

    Potential Terrorist Club

  • ||

    Pulling Their Cocks

  • ||

    Penny-ante Talk Crushers

  • Barely Suppressed Rage||

    Puritanical Titty Censors

  • ||

    That may well be the coolest thign I ever heard dude.

    www.Plus-Privacy.tk

  • Bee Tagger||

    It's too bad you don't live a more exciting life, AnonBot. But then again, who does?

  • Ice Nine||

    Don't talk about his unexciting life until you've done a little thign-listening yourself.

  • Kromulent Kristen||

    Can you please go get Hobobber and have him post from now on? Kthxbye,

  • Make My Monster GROW!||

    I'm watching the episode of The Fresh Prince when Vivian teaches the Black History course in Bel-Air Academy on TBS.

    Couldn't the FCC have banned this Afrocentric, tribalistic bullshit when it first aired?

  • Bee Tagger||

    More importantly, which Vivian is the better Vivian?

  • invisible furry hand||

  • PIRS||

    Chimpanzees and apes must be seriously psychologically damaged because every day they see naked chimpanzees and apes - even while young! Sometimes they even see chimpanzees and apes having sex! Someone needs to help these poor animals. Maybe the FCC can help.

  • Racist Asshole||

    Isn't the welfare administration already on top of that problem?

  • ||

    RACIST!

  • Mensan||

    Humans are apes too.

  • ||

    If I were President I'd appoint Howard Stern as FCC chairman just to piss off the pathetic losers who associate with the Parents Television Council.

  • ||

    I'd resurrect Bill Hicks for the job. Failing that, maybe Chris Rock or H. Jon Benjamin.

  • invisible furry hand||

    Has Ron Paul called for its abolition? If not, why not?

  • anon||

    Denis Leary already stole Hicks' persona, might as well appoint him.

  • ChrisO||

    I wish George Carlin had lived long enough. He would have been my first choice.

  • Abdul||

    The commission has decreed, for instance, that fuck is indecent when uttered by celebrities during live award shows—whether exuberantly (Bono), angrily (Cher), or jokingly (Paris Hilton)—

    Get your facts straight, Jacob! It was Nicle Ritchie in the last instance.

    In constituional law, the outcome frequently turns on small details like how blonde the bimbo is.

  • Gray Ghost||

    In constituional law, the outcome frequently turns on small details like how blonde the bimbo is.

    Probate and bankruptcy law too. What a weird string of cases the Anna Nicole Smith litigation was.

  • Fist of Etiquette||

    describe or depict sexual or excretory organs or activities

    It's nice to have a form of entertainment where my children aren't forced to watch depictions of multiple lacrimal glands spewing fluids all over a woman's face like some kind of bukake porn.

  • ||

    they don't call it the boob tube for nuthin'

  • anon||

    I bet that sounds dirty if you don't know what a lacrimal gland is.

  • Ice Nine||

    You don't really suppose...?

  • BakedPenguin||

    If it wasn't for the FCC, that wouldn't be possible. I have it on good authority the producers of Dora the Explorer and Spongebob are chomping at the bit to insert excretory porn into their shows.

  • Barely Suppressed Rage||

    Well, maybe Dora wants to do a bit of, y'know - exploring.

  • Bee Tagger||

    I call my cable provider daily and ask them to remove the Hallmark channel from my lineup for this very reason.

  • ||

    The chin on the family guy character looks like a set of balls. That show always creeped me out for that reason.

  • KDN||

    That fact has been a prop in a few jokes.

  • ||

    Chinballilitis is no joke.

  • Mensan||

  • np||

    So I guess this is the cosmotarian in me speaking, but I remember going to France a while back for the first time and turning on TV during daytime. Literally the first thing I see a commercial featuring a nude lady. Since then and seeing many examples of how other countries just take it all in stride I shake my head at how people just freak out at the idea of "indecency" on public airwaves when

    1) it requires voluntary participation just like cable, internet, theaters, home video, etc which aren't subject to the same restrictions 2) being public and government controlled, all content on those airwaves should be subject to 1st amendment protection 3) the FCC, beholden to the executive, seems blatantly unconstitutional 4) I can't believe how the left still wants to give the FCC more power "for good" in regulating the internet

  • ||

    You can just just block those shows if you are worried about your kids watching them. It is really not a big deal.

  • Barely Suppressed Rage||

    Usually the argument that "the French are doing it" creates in me a knee-jerk conclusion that it's something we should not do.

  • peachy||

    "...but when it comes to naked chicks, I change my mind" is how you meant to continue, right?

  • ||

    Speaking of European commercials and people saying "fuck", still one of my all time favourites

    http://www.youtube.com/watch?v=cUEkOVdUjHc

  • ChrisO||

    Frank Zappa's song "Bobby Brown" was a huge hit in Germany, and that's about as far from radio-friendly in the USA as you can get.

  • ||

    "The Morning Links is currently 3rd in Queue to be approved by a government censor. Please hold. Your censor should have your links approved in:"
    /automated voice
    "4 minutes"
    /normal voice
    "Thank you for your patience."

  • invisible furry hand||

    This impressed me too, if only because I can't drive and get very bored by video games*

    Science fiction’s greatest living writer never bothered with a driver’s license, regards video games as time wasters, refuses to unbind his books for electronic readers, and dismisses the computer as a highfalutin typewriter.

    * except for when I just want to shoot things

  • invisible furry hand||

    Goddamn, replied on the wrong post! Soz...

  • ||

    It still made me feel important.

  • invisible furry hand||

    My work here is done

  • ||

    "Fox and the other TV networks challenging the ban are urging the Supreme Court not only to uphold the 2nd Circuit's decision but to reconsider the 1978 ruling that approved content-based regulation of broadcasting on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to children." Now that nine out of 10 households are served by cable, satellite, or fiber-optic TV and children commonly watch video from nonbroadcast sources, it is hard to make that argument with a straight face."

    With the advance of technology in the 21st century, it is appropriate for us to adjust our mandate slightly. Not only are television and radio uniquely pervasive and uniquely accessible to children, but so is the internet. As a result, we have decided that any and all websites that transmit naughty images or language will arbitrarily be fined and shut down immediately. Take that Supreme Court!

  • ||

    ""on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to children." ""

    Cable is as accessible to children too. So that distinction doesn't apply anymore. Of course it was bullshit from the start.

    They are just sensoring words, not ideas or topics words mean.

    Ladies and gentlemen, Mr. Frank Zappa

    http://www.youtube.com/watch?v=8ISil7IHzxc

  • Anomalous||

    In the words of the late "Grandpa" Al Lewis:

    FUCK THE FCC! FUCK 'EM! FUCK 'EM!

  • ||

    If they started cursing and showing nudity on regular tv I might actually start watching it.

  • ||

    This is a ridiculous article. Even in 1978, it took "deliberate action" to access broadcast indecency in the home - really? Seems like the author is saying that the mere act of buying, plugging in and turning on a radio or TV is the same as an adult consenting to porn. Is he serious? I suppose indecent exposure should also become legal, because leaving ones' home to go grocery shopping is a "deliberate action" that constitutes consent to see people nude. That will probably be the author's next article, sorry for the spoiler. Fact is, broadcasting,unlike cable, internet, etc. uses the PUBLIC airwaves which do not require a subscrition. I'm sick of people like this author who think that if people subscribe to Playboy Channel, even if that is 90% of the people, the other 10% have NO choice in their lives, but to receive the same content. The author is obviously against any form of choice, and all for forcing indecency and porn on EVERYONE

  • Geotpf||

    If you have an internet connection, everything you would find on the Playboy channel (and much, much beyond that) is easily available for free. Obviously, not on Disney.com, like such would not be on the Disney channel or a Disney cartoon blook on a broadcast network.

    If you don't like a particular program, change the channel/go to a different website.

  • Pablo Picasso||

    You obviously think there should be NO choices in peoples lives unless they've been vetted and approved by you or a government official who consults your sense of values. Who cares if 90% of Americans want Playboy channel, iPhones or indoor plumbing, you don't and therefore those should not be allowed.

    And it's a very odd kind of logic to say that by giving a choice to 100% of people it's the same as removing choice for the minority who don't care to make that choice. I don't think you're in Kansas anymore Toto.

  • Ugh||

    Even now, there are roving gangs of libertarian journalists rampaging through neighborhoods, forcing indecency and porn on innocent citizens.

    The silent epidemic.

  • ||

    TN, have you ever actually read the First Amendment?

  • ||

    ""The author is obviously against any form of choice, and all for forcing indecency and porn on EVERYONE""

    Fucking hilarious.

  • ||

    I would rather the SCOTUS rule on the Constitutionality of allowing regulatory agencies to pass the equivalent of legislation without being directly answerable to the people.

    That ballsy act would solve this issue and about 90% of the rest of the problems this nation faces.

  • Daniel||

    Why anyone would want the government regulating what we see is beyond me. The FCC can go f*@k itself: http://sirrealswordsofwisdom.b.....tself.html

  • Yet Another Dave||

    I have never understood the arbitrary nature of what constitutes "obscenity" in our culture. How come "shit" must be banned, but "crap" is more or less acceptable, even though they describe pretty much the same thing?

    How come men can be seen topless on prime-time TV, but women can't? We've got the same body parts there - just shaped differently. Further, have you been to a beach lately? The average guy's bathing trunks these days cover a lot more skin than the average woman's bikini. But I digress.

    And I do wonder about the restrictions on broadcast TV being so much tighter than on even basic cable. FX can get away with so much more than NBC can. Makes no sense, especially considering that, as the article notes, nearly all our households that have TVs also have cable/satellite, DVD players, etc. - the remainder are mostly octogenarians that are terrified of universal remotes, so their TVs still have turn knobs.

    I remember when Married With Children caused such a stir, people upset because children might see such a racy show on a broadcast channel. It was on at 10 p.m. ... if you're so worried that junior might see a show with some sexual innuendo, put his ass to bed at a respectable hour and in a room that doesn't have its own TV.

    With some reasonable government restraints - the V-chip, for example, or just saving the mature materials for later at night - I would really prefer to parent my own children, thank you very much. I don't need the government to do it for me.

  • sweeterjan||

    1978 ruling that approved content-based regulation of broadcasting on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to http://www.maillotfr.com/maill.....22_35.html children." Now that nine out of 10 households are served by cable, satellite, or fiber-optic TV and children commonly watch video from nonbroadcast sources, it is hard to make that argument with a straight face."

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