Censorship

In Praise of Judge Rosemary Pooler

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Have I mentioned what a pleasure it is to read this week's 2nd Circuit broadcast indecency decision? Download the pdf and take a look. It's as good a summary as you'll find of why the Federal Communications Commission's attempts to regulate dirty words are caught in a double bind, either too vague to pass constitutional scrutiny or too narrow to stop the sorts of speech that the rules were designed to prevent. I know nothing else about the jurisprudence of Judge Rosemary S. Pooler, but if this is typical of her work, I'm a fan.

The indecency rules are rooted in the Supreme Court's Pacifica decision (1978), which upheld the FCC's right to sanction a station for airing a George Carlin routine at two in the afternoon. The routine in question is often known as "Seven Words You Can Never Say on Television," and because those seven words stand at the center of this legal thicket there's a misconception that there's a simple list of verboten terms that you can't say on the air, a clear-cut collection of do's and don'ts that anyone can easily obey. There isn't. In the first decade following the Pacifica ruling, the FCC did stick to prohibiting the seven words in Carlin's monologue, but in 1987 the agency announced that this had led to "anomalous results that could not be justified." Translation: The rule allowed broadcasters to say offensive things as long as they avoided a few specific words, and the FCC didn't like to have its hands tied. So the commission adopted a looser standard, and while it initially remained relatively restrained in how it applied the revised rules, all caution went out the window with the great indecency crackdown of the '00s.

That's the context in which the 2nd Circuit Court declared the indecency regs "impermissably vague" earlier this week. To illustrate the arbitrariness of the regulations, Judge Pooler cited a puzzling series of decrees:

[W]hile the FCC concluded that "bullshit" in an "NYPD Blue" episode was patently offensive, it concluded that "dick" and "dickhead" were not. Other expletives such as "pissed off," "up yours," "kiss my ass," and "wiping his ass" were also not found to be patently offensive. The Commission argues that its three-factor "patently offensive" test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word "bullshit" is indecent because it is "vulgar, graphic and explicit" while the [word] "dickhead" was not indecent because it was "not sufficiently vulgar, explicit, or graphic." This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

The confusion was only compounded when the FCC declared that sometimes a fleeting "fuck" or "shit" is acceptable, as long as it's either "bona fide news" or "demonstrably essential to the nature of an artistic or educational work." And the confusion was really compounded when the same commission that created the "bona fide news" standard also insisted that "there is no outright news exemption from our indecency rules."

The FCC still argues that it needs a loose standard to prevent indecency from assaulting American ears, lest broadcasters find creative new ways to be offensive that avoid the proscribed words. Here is Judge Pooler's response, which by itself is almost enough for me to wish someone would put her on the Supreme Court: "The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC's crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard."

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  1. Reason seems obsessed with indecency and obscenity lately. Is this a build up, or some sort of hint, to your upcoming cruise?

  2. Void for vagueness, arbitrary and capricious, a facial violation of the First Amendment. What’s not to love?

  3. Daily Newsesque headline:
    JUDGE TO FCC: KISS MY ASS

    1. Wouldn’t that be KISS MY FUCKING ASS?

  4. Seems like one could create a semi-objective system of evaluating indecency on a case-by-case basis without having to explicitly codify it. Assemble a demographically representative “jury” of ~100 individuals. Show them the scene in question, and ask them to say “obscene” or “not obscene”. If more than N% say its obscene then its obscene.

    1. Yeah. This is exactly the kind of thing I want to pay for. I’m totally incapable of managing my parental and individual responsibilities.

      Government! Protect me! PLEASE!!

      1. I like the ability to leave the room while my kid’s watching TV without worrying about him changing the channel and happening upon something I’d prefer he not see. Ultimately parents should be policing this stuff, and I think almost everyone would agree with you on that. The question is whether it would be tenable for parents to actually do this in the absence of any programming guidelines. I’m not sure it is. I might support throwing content regulation out the window if it were replaced by regulation requiring content providers and device manufacturers to support a robust set of “parental controls”.

        1. ‘The question is whether it would be tenable for parents to actually do this in the absence of any programming guidelines.’

          Should you get rid of your TV, or should everyone else in the country make a series of adjustments that will suit your censorship needs?

          Maybe a Federal Parental Council should be convened to discuss why you think it is OK for you to leave a child alone with a television.

          1. So is ‘bad’ for kids to hear obscenities because they are too cute? When they are 13 it’s ok? Fucking retarded shit.

          2. “Should you get rid of your TV, or should everyone else in the country make a series of adjustments that will suit your censorship needs?”

            Thing is, a significant portion of the country shares my censorship needs. As I stated, I would gladly self-censor if the capability were there.

            “Maybe a Federal Parental Council should be convened to discuss why you think it is OK for you to leave a child alone with a television.”

            No need to form a council; I can explain that for you. Namely because I know the likelihood of him chancing across something I’d consider inappropriate is very, very small. Without that assurance I would probably not ever leave the room if the TV were on. Actually I’d probably get rid of it altogether.

            1. hey dumbass – ever thought of using your fucking V-chip? Here are some instructions, asshole: http://www.tvguidelines.org/.

              Now stop whining and keep your shitty ideas to yourself.

              1. Or how about looking at the TV ratings? Is that so fucking hard?

            2. Thing is, a significant portion of the country shares my censorship needs. As I stated, I would gladly self-censor if the capability were there.

              Tell your kids to go to their fucking room, or pause/turn off the TV. Or use your fucking V-chip.

            3. I don’t remember anything in the constitution about “providing for the censorship needs of parents because they are too damn lazy to be responsible for what goes on in their own home.”

              1. I don’t remember reading anything in the constitution about TVs.

        2. I like the ability to leave the room while my kid’s watching TV without worrying about him changing the channel and happening upon something I’d prefer he not see

          Then put on a DVD for your little one.

          Also, there exists a V-Chip and most cable boxes also offer channel locks and ratings limits.

          There are lots of non-heavy handed ways for you to control what your kids watch without impacting everyone else.

          TV and radio don’t need all their content to be child-friendly.

    2. Yeah, your “jury” will become a set of busy-body, hand-wringing fucks who get off on telling other people how to live.

      1. You misunderstand me. Juries would be selected on a per-case basis, and would be done so randomly and without any sort of “selection process” like you see in current judicial juries. Basically you’d just be trying to assemble a “representative” cross-segment of the population. If a representative cross-section agrees (with a sufficiently high degree of unanimity) that certain content should not be broadcast during a particular time frame, then you have a good measure of what is “culturally acceptable”.

        This would be indirect contrast to the current situation where a small group of “busy-body, hang-wringing fucks”, as you put it, are (to some degree) dictating FCC policy by the sheer volume of their complaints.

        With a jury, theoretically, as the culture became more permissive FCC standards would relax accordingly.

        1. Or, you know, you could be an actual parent and exercise some supervision of the spawn.

          Because, everyone knows that the cable company forcibly installed their service in your house and has promised to shoot your dog if you don’t pay for it.

          1. I do exercise supervision. IMO its unrealistic to expect 100% child surveillance. For instance, if my kid is watching cartoons on PBS I’d like to be able to walk out of the room to take a dump without him switching over to NBC and seeing Hannibal Lecter eat some guy’s brain.

            1. Put your child in a hamster ball, so he can’t press any buttons…

            2. Of course it’s unrealistic. But, I bet if they see Hannibal Lecter eat some guy’s brain, it will be the last time they change the channel without daddy in the room. I was more concerned my my kids seeing the news.

              Life isn’t perfect. Either accept that they will see things you don’t want them to see from time to time, because adults watch TV too and that will require a learning moment and a talk, or get rid of your cable and only show ClearPlay DVDs. Your standards are not my standards.

              FWIW, the only time my kids changed the channel was to see what was on Cartoon Network, since they didn’t like the show that was on Nick.

              1. It seems as if you’re presenting a false dichotomy when you suggest that by advocating content regulation I am necessarily unwilling to “accept that they will see things you don’t want them to see from time to time.”

                To be abundantly clear: I accept that regardless of whatever I do and whatever content regulation is in place, it is a near certainty that my child will eventually see something I consider harmful.

                That does not imply, however, that I should not still attempt to minimize such exposure, supposing that it is in fact harmful in some non-insignificant way. We may disagree on that as well, given you seem to describe, “if they see Hannibal Lecter eat some guy’s brain, it will be the last time they change the channel without daddy in the room,” as a perfectly acceptable outcome.

                Personally, if my kid changes the channel when I’m not in the room and sees something so scarring that he’s literally afraid to change the channel without me in the room then that’s not “okay”.

        2. I realize you’re just riffing on ideas, trying to think of something that might help. But you need to realize that the very idea of using force to implement this or any other “nice” form of censorship is morally wrong. And, your idea of giving power to your “nice” version of the jury will only turn into something you didn’t envision over time. That’s the way it is with power.

          I’m being extra surly on this because I have a special place of disgust for “busy-body hand-wringing fucks”. I also have young children that I would like to protect from this stuff. But, I think that if they happen to see some titties or hear the work “fuck”, they aren’t going to explode. Plus, the marketplace naturally protects you. Can you imagine how pissed people would be if there were titties and fucks all over programming that kids might watch?

          Finally, full protection is utterly futile. I think it’s better to let our kids see certain parts of reality so we can talk about it. You know, there is nothing I can do about the fact that when my son gets to be about 13, one of his friends is going to whisper in his ear: “Hey, type the word “pussy” in to Google to see what happens!” And, he’s going to do it.

          But, if I’m a bit more open with him about this stuff, maybe he’ll talk to me about what he saw.

          1. I also have young children that I would like to protect from this stuff. But, I think that if they happen to see some titties or hear the work “fuck”, they aren’t going to explode. Plus, the marketplace naturally protects you. Can you imagine how pissed people would be if there were titties and fucks all over programming that kids might watch?

            Exactly.

            Nickelodeon, Nick Jr, Disney channel, these networks will never have allow this kind of content on their networks.

            And with modern cable/sattelite hardware it’s easier than ever to lock them to specific channels, or limit them to G rated TV programming.

            Furthermore, if my son does here an F word on TV it isn’t the end of the world. Chances are he is gonna hear it from me or my wife or our relatives or friends at some point.

            It’s not really a big deal unless you make it a big deal and treat it like it’s taboo.

            as for boobies, well my son has already gotten his hands on my playboys once or twice. And he’s still doing fine.

            1. as for boobies, well my son has already gotten his hands on my playboys once or twice. And he’s still doing fine.

              I was in Cape Cod a couple weeks ago with the fam and we went to Provincetown, as we have gone to many years before.

              Evidently 10 is the magic age for noticing certain things. This year was the year I had to have the talk with my son about why all those men were holding hands and acting like mom and dad (OK, with fewer ass-less chaps and tight shirts). He seems to be doing just fine with this new information.

              Fortunately, he missed the sex toy shop on Commercial St. I really didn’t want to have that talk this year.

              1. all those men were holding hands and acting like mom and dad (OK, with fewer ass-less chaps and tight shirts)

                All those men had fewer ass-less chaps than mom and dad?

                1. For whatever it’s worth, aren’t all chaps ass-less by definition? Wouldn’t chaps with an ass just be pants?

    3. Well, buddy, if your system is supposed to be applied post-broadcast, then it is even more vague (and hence unconstitutional) than the current rule.

      If it is supposed to be applied pre-broadcast, you’ll have to exempt everything broadcast live, leaving a gaping hole, and screen everything else, which will be quite a chore.

      And probably still an unconstitutional prior restraint.

  5. There just needs to be a disclaimer in front of every show after 8 PM:

    “The following program may contain the words “fuck”, “shit”, “cunt”, “damn”, etc, as well as explicit gay anal sex. Just a thought: don’t let your kids watch it, but that’s up to you. Have fun!”

    1. So vague rules are OK before 8 PM?

      1. Well, no that would be arbitrary.

        They should put the disclaimer in front of every show, including Dora the Explorer.

      2. So vague rules are OK before 8 PM?

        I took the comment to mean that the networks should just add a disclaimer…

        like they currently do with their “this program may contain violence and language….viewer discretion is advised”

  6. Well, Bullshit.

  7. This is meme worthy, for a certain crowd I guess….

    ‘”The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC’s crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard.”

    “The observation that people will always find a way to subvert Drug laws may expose a certain futility in the DEA’s crusade against indecent drugs, but it does not provide a justification for implementing a vague, indiscernible standard.”

    1. What you are observing is a universal truth about prohibiting behavior that is voluntary and injures no one.

  8. This is all leading back to a list of specific words. A list that will get longer, and longer, and longer…

    Just like the list of Controlled Substances.

    I’m not seeing an enhancement of liberty quite yet.

    1. talking about things getting longer and longer and longer is obscene.

      1. so is talking about enhancement

        1. did I have a sockpuppet in these days?

  9. I’ve heard the f word many times thru sideline mics in NFL games. Does anyone ever get fined for tht?

    1. Even more often if you lip read (I can’t normally, but that’s an easy one to figure out).

      1. Even more often if you lip read (I can’t normally, but that’s an easy one to figure out).

        No No BP, those people are saying “Duck”

  10. This is the Cenral Scrutinizer.

    It is my responsibility to enforce all the laws that haven’t been passed yet. It is also my responsibility to alert each and every one of you to the potential consequences of various ordinary everyday activities you might be performing which could eventually lead to the Death Penalty! (or affect your parents’ credit rating). Our criminal institutions are full of little creeps like you who do wrong things — and many of them were driven to these crimes by a horrible force called MUSIC!

    Our studies have shown that this horrible force is so dangerous to society at large that laws are being drawn up at this very moment to stop it forever! Cruel and inhuman punishments are being carefully described in tiny paragraphs so they won’t conflict with the Constitution (which, itself, is being modified in order to accommodate THE FUTURE!).

  11. Why is the FCC necessary here (even assuming you think it is a big deal to say “Fuck” on Tv? Advertisers seem to do quite well in keeping language in check. How often do you hear obscene language on commercial basic cable? Even after 10 PM it is pretty rare, because of advertisers who know that the busy body assholes will be all over them if they are seen to sponsor obscenity.

    1. Yes, absolutely right.

      If the FCC should exist at all, it should be charged with simply establishing industry-wide technical standards. Of course it’s really not even needed for that — industry players have a huge incentive to establish agreed-upon standards for transmission, encryption, etc etc.

  12. If people taught their children to curse properly, they wouldn’t have to pick it up from TV.

    1. You should learn to curse in the same place you learn about the birds and the bees…the right place…in the gutter.

    2. Not to worry. I have my own little Sarah Silverman.

    3. If people taught their children to curse properly, they wouldn’t have to pick it up from TV.

      I’m trying brother!!

      WHen mommy and daddy fight, I tell my son “See that son — see how mommy is acting?? Thats acting like a ‘cunt’…can u say cunt?? Very good”

      1. “Can you think of words like ‘cunt’ I could call Mommy?”

        1. “Why don’t you do go back to your home on Whore Island?!”

        2. “Daddy, I heard one of my friends say ‘witch with a b’. I’m not really sure what it means, but would that be good?”

          “Yes, yes, son! You are catching on, very good. Now let me explain it to you…”

          1. So, basically, make your kids watch Deadwood?

  13. Rosemary Pooler was one the three judges on the panel which heard the initial appeal in Ricci v DeStefaco (along with Sotomayor). Of course if she was restricted to only vote on first amendment issues I would have no problem with her being elevated to the SC (how would she rule on hate speech?)

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