Posted by Sasha Volokh:
FCC v. Fox Television Stations, Part III: Bono and the FCC's change of course.
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242700245
This is part of a series of posts discussing the background of the
Supreme Court's "fleeting expletives" case from last week, [1]FCC v.
Fox Television Stations.
In the last two posts (click [2]here to see the whole string of posts,
including this one, on a single page, in chronological order), I
talked about the FCC's original policy against indecency on the
airwaves, which the FCC explained and defended in its 1975 opinion
against [3]the George Carlin monologue (watch a version of it [4]here
if you haven't seen it already), and which the Supreme Court upheld in
its 1978 case, [5]FCC v. Pacifica Foundation.
Now let's flip ahead 26 years, to the FCC's opinion, "[6]In the Matter
of Complaints Against Various Broadcast Licensees Regarding Their
Airing of the 'Golden Globe Awards' Program" (click [7]here for a
plain-text version).
On January 19, 2003, during NBC's airing of the Golden Globe Awards,
[8]Bono said: "This is really, really, fucking brilliant. Really,
really great." [9]The Parents Television Council complained, asking
the FCC to levy monetary fines against the offending stations. The
Chief of the Enforcement Bureau said the material was neither obscene
nor indecent -- and as to indecency, he found that Bono's language
"did not describe, in context, sexual or excretory organs or
activities and that the utterance was fleeting and isolated." PTC
appealed to the Commission.
([10]show the rest of this post)
The FCC's opinion is short. Recall the relevant sections of the
Communications Act of 1934 -- basically, � 326, which prohibits the
FCC from censoring program material, and 18 U.S.C. � 1464, which
prohibits obscenity and indecency. (Those sections are quoted and
explained in [11]the first installment of this series.) The
Commission's rules thus prevent obscenity at all times, and indecency
from 6 a.m. to 10 p.m. This is because the FCC's definition of
"indecency" refers to the composition of the audience, so a broadcast
that's indecent at 5 p.m. might not be indecent at midnight:
The Commission defines indecent speech as language that, in
context, depicts or describes sexual or excretory activities or
organs in terms patently offensive as measured by contemporary
community standards for the broadcast medium.
(Note that the FCC states here that, even though indecency regulation
has been upheld, "the First Amendment is a critical constitutional
limitation that demands that, in such determinations, we proceed
cautiously and with appropriate restraint.")
Let's start with Step 1, whether the material describes "sexual or
excretory organs or activities." Even though NBC's use of the "F-Word"
was "as an intensifier," the FCC said that, "given the core meaning of
the 'F-Word,' any use of that word or a variation, in any context,
inherently has a sexual connotation, and therefore falls within the
first prong of our indecency definition."
So that's a significant step. "Fuck" always has an inherent sexual
meaning. Let's just pause and ask ourselves whether that describes our
own experience with the use of that word. Now let's move on to Step 2,
whether the material is "patently offensive." We have to look at the
context; and "context," says the FCC, means the full context in which
the material appears, so we consider:
(1) the explicitness or graphic nature of the description or
depiction of sexual or excretory organs or activities; (2) whether
the material dwells on or repeats at length descriptions of sexual
or excretory organs or activities; (3) whether the material appears
to pander or is used to titillate, or whether the material appears
to have been presented for its shock value.
Here, says the FCC, the word "fuck" is always patently offensive:
The "F-Word" is one of the most vulgar, graphic and explicit
descriptions of sexual activity in the English language. Its use
invariably invokes a coarse sexual image. The use of the "F-Word"
here, on a nationally telecast awards ceremony, was shocking and
gratuitous.
Wow. Invariably. By "contemporary community standards." Hmm. Moreover,
the fact that this was unintentional is irrelevant; it has the same
effect of exposing children. "Our action today furthers our
responsibility to safeguard the well-being of the nation's children
from the most objectionable, most offensive language."
Interestingly, the FCC notes that NBC was on notice that this could
happen -- just the previous year, Cher had said "fuck 'em" during the
broadcast of the Billboard Awards Ceremony, and Bono himself had said
"fuck" during the 1994 Grammys! So basically, entertainment award
ceremonies are perilous grounds. The FCC also remarked, by way of
support, that technological advances -- a delay and bleep system --
make it possible to avoid broadcasting offending words now.
The FCC, with this opinion, retracted its previously held view that
"isolated or fleeting broadcasts of the 'F-Word' such as that here are
not indecent or would not be acted upon." (It said this in a series of
1987 cases including one involving, like the 1975 case, the Pacifica
Foundation.)
Also interesting here is an independent ground for the opinion: the
word is "profane" language, which is also prohibited under the same
statute, 18 U.S.C. � 1464. (This holding is also a change from
previous policy, which had demanded some blasphemous religious
context, like darning someone to heck.) This actually seems like a
more defensible ground than their main ground. In fact, it seems
pretty reasonable to say that isolated uses of "fuck" are profane and
therefore prohibited by the statute. (Though whether the statute is
constitutional to the extent it does that is another matter.)
Because this was a change of policy, the FCC decided not to enforce
the statute against NBC and the other broadcasters. (Under [12]NLRB v.
Wyman-Gordon Co., that makes this proceeding an invalid rulemaking,
though one the agency can rely on in the future... but that's another
story.) The FCC closed by noting that the decision "is not
inconsistent with the Supreme Court ruling in Pacifica," which
"explicitly left open the issue of whether an occasional expletive
could be considered indecent."
The main opinion was followed by the statement of Chairman [13]Michael
K. Powell (Colin Powell's son, by the way), supporting the new use of
the profanity section, noting that he wouldn't have supported a
retroactive fine, and urging caution in the use of enforcement lest
free speech be chilled. [14]Jonathan Adelstein wrote in support of the
profanity argument, said that "fuck" was offensive "whether it is used
as an adjective, adverb, verb or gerund," and, like the others, said
that a fine would have been inappropriate -- even though assessing a
fine was his "strong preference here."
O.K., weren't there at least some dissents here? Yes, two
Commissioners approved in part and dissented in part. First, there was
[15]Michael Copps, who dissented on the grounds that a fine should
have been assessed. Same goes for the last separate statement, by
[16]Kevin J. Martin.
([17]hide most of this post)
References
1. http://supremecourtus.gov/opinions/08pdf/07-582.pdf
2. http://volokh.com/posts/chain_1240936129.shtml
3. http://en.wikipedia.org/wiki/Seven_dirty_words
4. http://www.youtube.com/watch?v=3_Nrp7cj_tM
5.
http://en.wikipedia.org/wiki/Federal_Communications_Commission_v._Pacifica_Foundation
6. http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-43A1.pdf
7. http://www.fcc.gov/eb/Orders/2004/FCC-04-43A1.html
8. http://en.wikipedia.org/wiki/Bono
9. http://en.wikipedia.org/wiki/Parents_Television_Council
10. file://localhost/var/www/powerblogs/volokh/posts/1242700245.html
11. http://volokh.com/archives/archive_2009_04_26-2009_05_02.shtml#1241125819
12. http://supreme.justia.com/us/394/759/case.html
13. http://en.wikipedia.org/wiki/Michael_Powell_(politician)
14. http://en.wikipedia.org/wiki/Jonathan_Adelstein
15. http://en.wikipedia.org/wiki/Michael_Copps
16. http://en.wikipedia.org/wiki/Kevin_J._Martin
17. file://localhost/var/www/powerblogs/volokh/posts/1242700245.html
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