Shepherds of the Nation

The FCC's war on indecency


The DJ who calls himself Bubba the Love Sponge has done many things he probably should be ashamed about, including broadcasting live the castration and slaughter of a pig. But he has never shied from asking questions most of us would prefer to shunt aside, such as "What would happen if Shaggy from Scooby Doo was a crackhead?" A full transcript of the answer is not available, but the Federal Communications Commission has helpfully provided us with a summary:

The first skit begins when Shaggy tells Scooby Doo that he needs crack cocaine but has no money to buy it. Scooby Doo responds that Shaggy could "su(bleep)ck d(bleep)ick" to pay for the drugs.

In the next skit, the commission continues, "Fat Albert, a/k/a Phat Diddy Daddy, gets killed in a drive-by shooting after bragging that Jennifer Lopez had been "s(bleep)ing Diddy Daddy's (bleep)ck the previous night." A third skit, involving The Jetsons, drops the obsession with oral sex but not the obsession with penises; the fourth, starring Alvin and the Chipmunks, returns to fellatio country. Not content to summarize, the commission draws conclusions as well. The program, it notes, contains "graphic and explicit references to sexual and excretory organs." What's more, "the use of cartoon characters in such a sexually explicit manner during hours of the day when children are likely to be listening is shocking and makes this segment patently offensive," especially since "young children would be particularly attentive listeners to this segment because of the character voices and the cartoon theme music used in the segment." For that reason, it concludes, "this segment is apparently indecent."

It may be the most expensive negative review in the history of bad comedy. On that and five other episodes of his show, the FCC announced January 27, Bubba (a.k.a. Todd Clem) committed 26 "apparent indecency violations." To punish the four Clear Channel stations that aired the show, the agency proposed the highest possible fine for each incident—that's $27,500 apiece—plus another $40,000 for not maintaining proper records. The total would be the largest fine in the commission's history.

The only commissioner to dissent was Democrat Michael Copps, and that was because he thought the penalty wasn't harsh enough. After all, he argued, "the Commission could have proposed a fine for each separate 'utterance' that was indecent, rather than one fine for each lengthy segment." (The FCC is, in fact, still mulling whether to do this.) Better yet, it could have revoked the stations' licenses altogether. "I am discouraged," Copps deadpanned, "that my colleagues would not join me in taking a firm stand against indecency on the airwaves."

The commission's subsequent pledge to investigate the baring of Janet Jackson's breast during the Super Bowl has overshadowed its $755,000 fine, just as the size of that penalty overshadowed the fact that it is part of a larger "indecency" crackdown—one of the most intense in the commission's history. As Chairman Michael Powell proudly noted when he announced the ruling, "over the past three years, we have proposed nearly twice the dollar amount of indecency fines than the previous two Commissions combined (over seven years) and ten times the amount of fines proposed by the last Commission." Not only that, but "we will continue to look to Congress to dramatically increase the enforcement penalties available to us to prosecute clear indecency violations."

That's not all Congress might do. Last December Reps. Doug Ose (R-Calif.) and Lamar Smith (R-Tex.) introduced H.R. 3687, which would proscribe broadcast of "the words 'shit', 'piss', 'fuck', 'cunt', 'asshole', and the phrases 'cock sucker', 'mother fucker', and 'ass hole', compound use (including hyphenated compounds) of such words and phrases with each other or with other words or phrases, and other grammatical forms of such words and phrases (including verb, adjective, gerund, participle, and infinitive forms)." The bill was inspired by the one aberration in the FCC's recent regulation of speech: the Enforcement Bureau's October decision that it is permissible, under certain circumstances, to say "fucking" on TV. The chief effect of the ruling has not been to embolden the potty-mouthed but to galvanize the opposition, and Powell has asked the commission to reverse the new policy.

Now as far as I'm concerned all this is an open-and-shut issue of free speech, disturbing not just because it puts a Washington agency in charge of what you're allowed to say and show on radio and television but because it has an obvious chilling effect on material that isn't nearly as pathetic as Bubba the Love Sponge's sophomoric jokes or Justin Timberlake's dance routines. (ER has already excised a shot of an elderly woman's breast, and while I'm not an ER fan myself I have a hard time imagining that the show was trying to be salacious when it conceived the scene.) But a great deal of the country disagrees with me on this—and some of the civil libertarians you'd expect to speak up seem paralyzed. There's a number of reasons for that, but two in particular need to be acknowledged.

The first is that the war on indecency isn't going to do what its supporters want it to do. It might chill a lot of speech and cost some broadcasters a lot of money, but the angry mammophobes pushing the FCC to regulate the airwaves more harshly aren't mad merely because one nipple popped out on national TV and one rock star said the F-word at an awards ceremony. The whole halftime show was smutty, not just the flash at the climax; and you can't walk two blocks in any densely populated area without hearing someone cursing. Social mores have changed considerably in the last four decades, and the FCC isn't exactly equipped to change them back again. So no matter how much the government does, there's going to be pressure on it to do more; the censors' victories will feel as frustrating as their defeats. That's why it's possible for Michael Copps to wail that his commission isn't "taking a firm stand against indecency on the airwaves" even as it's taking its firmest stand in years.

Meanwhile, many defenders of free speech have backed themselves into a corner. Last year's movement against media consolidation was an uncomfortable alliance between people who wanted to expand the available range of expression and people more eager to eliminate expression they dislike. The anti-consolidationists' strongest ally within the FCC was Michael Copps, and it's no secret which category he fits. Many of the movement's self-described civil libertarians are being awfully quiet about Copps' efforts to suppress speech—perhaps because they don't want to break with the commissioner, perhaps because they've gotten into the habit of looking to the FCC to manage the nation's airwaves, or perhaps because the biggest forfeitures are falling on Clear Channel, the largest and most hated of the radio chains.

They're making a mistake. You needn't like Clear Channel to recognize that an FCC which revokes licenses and imposes draconian fines isn't going to refrain from penalizing college stations and low-power broadcasters. One of the opening shots in the new war on indecency was the $7,000 fine imposed on the Oregon community station KBOO in 2001. Its crime: playing a feminist rap called "Your Revolution," which mocked the check-out-all-my-bitches school of hip hop in terms that were sometimes a little profane themselves. In that case the fine was eventually rescinded, but that's hardly a reason to sleep easy—it took the FCC two years to reverse itself, and still it declared that it was a "very close case." And this was David "It's OK To Say 'Fucking'" Solomon of the Enforcement Bureau speaking, not the more politically attuned appointees atop the commission.

And so we're stuck with an FCC increasingly obsessed with controlling who can use the airwaves and what they're allowed to say. If that sounds unobjectionable to you, just wait until it's your ox that's getting gored.