There's no excuse for the FCC's indecency rulings.
During the 2002
Billboard
Music Awards,
Cher had a message for critics
who are always predicting the imminent demise of her career: “Fuck ’em.” While it
may have offended some people who saw the show, which was carried live by Fox, the
singer’s rejoinder does not fit the Federal Communications Commission’s
definition of
indecency.
What
Cher
said did not amount to “language or material that, in context, depicts or
describes, in terms patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory organs or activities.”
Cher was not describing sexual activities; she was
expressing anger.
So was the
FCC when it nevertheless
concluded Cher’s remark was indecent, one of several arbitrary
decisions that recently prompted the major broadcast networks to
ask
a federal appeals court to overturn the commission’s TV censorship policy.
Since “contemporary community standards for the broadcast medium” are whatever
the FCC says they are, the commissioners feel free to translate their own gut
reactions into legal mandates, with results that defy logic and chill speech.
The FCC
itself has suggested isolated uses of “the F-word” as an expletive or
intensifier do not qualify as indecency, which is barred from the airwaves between
6 a.m. and 10 p.m. In 2003 the commission
rejected
a complaint about Bono’s description of receiving a Golden Globe Award as
“fucking brilliant,” finding that “in the context presented here” the offending
word “did not describe sexual or excretory organs or activities.”
The following year, the FCC
reversed the dismissal. “Given the core meaning of the ‘F-Word,’” it decided, “any use of that word or a variation, in any context, inherently has a sexual connotation.”
Since the Bono decisions came after
Cher’s F-bomb, the FCC magnanimously refrained from fining the Fox stations that carried the
Billboard Music Awards. “This case…illustrates the difficulty in making the distinction between expletives on the one hand and descriptions or depictions on the other,” it said.
Now broadcasters are on notice that if they let a celebrity utter any form of “the F-word” during a live awards show, they will be on the hook for fines that could add up to millions of dollars. But if Cher had said exactly the same thing on a morning news program, that would have been OK. Maybe.
In March
the FCC
said CBS
had illegally aired indecency when its
Early
Show carried an interview with a
Survivor
Vanuatu runner-up who called another contestant “a bullshitter.” Last month,
apparently in response to the networks’ lawsuit, the commission changed its
mind,
saying
it had been too blithe about interfering with the editorial judgment of TV
journalists. Although the commissioners have rejected the expletive/description
distinction as “wholly artificial,” they seem confident they can distinguish
between real news coverage, such as a network’s interview with a star from one
of its own prime time shows, and entertainment, such as the live broadcast of
an awards ceremony.
The FCC’s hairsplitting is
especially absurd because it applies only to broadcast programming, even though
close to nine out of 10
U.S.
households have cable or satellite TV. In a
brief
supporting the networks’ lawsuit, the Progress & Freedom Foundation and the
Center for Democracy & Technology note that the proliferation of video delivery
methods, including the Internet and DVDs by mail as well as various kinds of TV,
undermines the special constitutional status of broadcasting, which supposedly
merits less First Amendment protection because of its “uniquely pervasive
presence.”
The brief suggests this trend,
combined with existing technologies that allow parents to control what their
kids see, augur a future in which household standards that vary from family to
family replace “community standards” determined by the idiosyncrasies of FCC
commissioners or complaints from one or two pressure groups. For those of us
who think public officials should not be paid to ponder
Cher’s
tirades or Janet Jackson’s right breast, that future can’t come soon enough.
© Copyright 2006 by Creators Syndicate Inc.