Fox News v. FCC: Indecent Restrictions on TV Profanity?

November 10, 2008 | | Comments Off on Fox News v. FCC: Indecent Restrictions on TV Profanity?

If a word describes something usually done in the bedroom or bathroom, then that word should only be used in private. That is the motto after which the Federal Communications Commission’s (FCC) rules regulating the use of profane language on broadcast television seem to be modeled. One cannot delve into the meaning and purpose of FCC regulations without first understanding the subtle, and arguably arbitrary differences between obscenity, indecency, and profanity. Most people probably view these three words as interchangeable. In the context of everyday life they are. Legally speaking, there are differences between the three words.

Obscenity is the worst of the three and is not protected by the First Amendment. Obscene material is defined as “that which would be categorized as lewd by the average person applying contemporary community standards.” Obscene material depicts or describes sexual conduct in an offensive manner and lacks any artistic, political, or other important value. Indecent material is a little less offensive, and it is protected by the First Amendment. It has been defined as material which depicts or describes sexual or excretory activities in an offensive manner. Profanity, as defined by the FCC, includes language that is so offensive to people who hear it that is rises to the level of nuisance. Profanity is not always unlawful, foul words take on their indecent or profane character depending on the context of where and when they are spoken.

Currently, the Supreme Court is hearing a dispute between the major broadcast networks and the Federal Communications Commission. In the 1970s, the FCC was given authority to prevent profanity from airing on broadcast television between the hours of 6am and 10pm. Punishment for violating FCC regulations was limited then to cases where networks repeatedly aired profane language that was used in an effort to shock; one time slip up’s were excluded.  In response to the use of the F Word and the S Word by celebrities at award shows, the FCC adopted a policy which categorizes all profanity, even a single use of it, as indecent because certain words always create “sexual or excretory images.”

However, U.S. Supreme Court Justices do not all agree with the FCC’s contention that any use of the F Word or S Word always creates “sexual or excretory images.”  Chief Justice Roberts has a unique outlook on the situation because he is the only justice with small children. He agrees with the FCC’s new policy and does not find it to be unreasonable. Justice Scalia, seemingly in line with the Chief Justice’s view, stated that broadcasters were responsible for the decline in manners over the years.

Justice Stevens, on the other hand, is not convinced that every time the F Word is used it elicits sexual imagery.  He even seemed to hint that the use of profanity can in some instances be humorous. Justice Bryer expressed concern with how the FCC’s policy would affect live programs, sporting events in particular. He stated that at sporting events some people in attendance are going to use foul language, and with the FCC policy, all live events may have to be placed on tape delay in order to bleep out words used by spectators. Chief Justice Roberts suggested that profanity used at awards shows be distinguished from profanity used by sporting events spectators.

The events which caused the FCC to change its policy were award shows in which Nicole Ritchie, Bono, and Cher used the F Word and S Word. Bono stated that the award was “f—ing brilliant” and Cher said “F— ’em”, in an effort to show her distaste for her critics. During the Billboard Awards, when Cher dropped the F Bomb, the FCC cited Fox for indecency.  A Federal New York Court of Appeals dismissed the FCC policy, punishing one time use of profanity because the FCC failed to adequately explain why it was making the policy change. The Court did not rule that the policy was unconstitutional, but hinted that it probably was.  The government appealed that decision, and the Supreme Court will now decide the issue.

The networks argue that there is no need for the FCC to censor over-the-air broadcasts when cable networks are not censored, and that the FCC inconsistently applied its new policy. The FCC stated that it adopted the stricter rule because of all of the complaints they were receiving, mostly from the Parents Television Council. According to a recent poll, young people confessed that they use profanity more than older people and are not as disturbed by the use of profanity as older people. Sixty-two percent of 18- to 34-year-olds admitted to using profanity multiple times a week, while only 39% of those 35 years and older admitted to using profanity weekly.

The statistics I suppose are meant to be shocking, but they fail to meet that standard. There are so many explanations for the discrepancies between the age groups concerning admitted profanity use. Younger people may be exaggerating their use of profanity or perhaps they are more open about their use of profanity. Older people could be downplaying their use of profanity because they see the use of foul words as a sign of immaturity and they may feel they should not be using that language.  Also, adults spend more time in professional atmospheres where such language is inappropriate  Young people are in school, or are spending time in relaxed social environments where that language is more appropriate.

It could be argued that the FCC’s regulation of profanity on TV is ineffective in modern times because the FCC does not have the power to regulate images on the internet, cable, or satellite. Those avenues of media are probably utilized more frequently than broadcast TV. Solicitor General Gregory Garre suggests that the majority of people still utilize broadcast television for entertainment and news. He posits a slippery slope argument in favor the new FCC policy, stating that if broadcast indecency were not regulated by the government it would lead to uncontrolled use of profanity and indecency on television. As an example, which he admitted to be quite radical, he stated that Big Bird could start dropping the F Bomb.

Fox’s lawyer, Carter Phillips, is not concerned that use of profanity would be out of control because even late at night when broadcasters are allowed to air profane words, they do not. His argument is that the new FCC policy is unconstitutional because it infringes on the networks First Amendment right to free speech. The chilling effect on free speech may not be an issue because Solicitor General Garee stated that the FCC only wants to fine networks for profane speech based on the context of the program in which it is used. It’s main concern is cleaning up television during times when children may be watching.

The obvious concern which the Court will have to address is the effect the FCC rule will have on the First Amendment rights of broadcast networks. It is true that the networks are responsible for the content they air, but it seems unreasonable to expect networks to be held accountable for every four-letter word which celebrities or others utter during live broadcasts. It is impossible for networks to totally control, or even be aware of what is going to be said during a live broadcast.

This whole dispute over the new rule grew out of some foul language used during award shows. The FCC was upset because the shows aired during times when children may be watching. It seems relevant to mention that the award shows in question were not the Teen Choice or Kid’s Choice Awards, which are geared towards a young audience. The award shows in question were not meant to be viewed by children, some of the shows and musicians receiving awards do not produce episodes or songs that are even appropriate for children.  It is not safe to assume that because a show is on between the hours of 6am and 10pm, that all of its content will be suitable for children. I believe in this situation that First Amendment rights trump whatever interest the FCC has in adopting its new stricter rule concerning network responsibility for profanity on the air.

Photo courtesy of Flickr user @d@m.

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