Civil Liberties

No Shit

FCC censorship fight


According to the Federal Communications Commission, a single fuck or shit on a live awards show can cost a TV network millions of dollars, but the same words are acceptable in a "bona fide news interview." The accidental airing of a celebrity's spontaneous expletive is indecent, but the deliberate airing of the very same footage during a news report is not. The use of 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.

Confused? Imagine how broadcasters feel when they try to figure out the FCC's policy regarding dirty words on the air. In March the U.S. Supreme Court agreed to review that policy, which a federal appeals court has deemed "arbitrary and capricious."

The last time the Supreme Court addressed the FCC's regulation of broadcast indecency was in 1978, when it upheld a fine provoked by a mid-afternoon airing of a George Carlin monologue on a New York City radio station. The decision 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."

After initially saying Bono's expletive was not indecent because it was not really a sexual reference and in any event was "fleeting and isolated," the FCC reversed itself. It 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 year, 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 2nd Circuit was skeptical that they could be overcome.