Posted by Sasha Volokh:
FCC v. Fox Television Stations, Part IV: The FCC's new standards in action.
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242783653
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. Click [2]here to see the whole string of
posts, including this one, on a single page, in chronological order.
(As usual, click [3]here to watch [4]George Carlin's monologue if you
haven't done so already! In the last post, I discussed the FCC's 2004
rule on indecency, which altered its previous policy, mainly on the
word "fuck." For something to be indecent, it has to, first, refer to
sexual or excretory activities. And, second, it has to be patently
offensive, in context, according to contemporary community standards.
This second prong (heh-heh) involves analyzing (1) the explicitness or
graphic nature of the description of sexual or excretory activities,
(2) whether the material dwells on or repeats the description of these
activities at length, and (3) whether it appears to pander or
titillate or was presented for its shock value.
On the first prong, the FCC found that "fuck," in any form, always
referred to sexual activities. And on the second prong, the FCC
applied its three criteria and determined that its use on a nationally
televised awards show was indeed patently offensive. (As an
alternative ground, the FCC held that "fuck" was profane, another
prohibited category.) Therefore, the material was "indecent," and thus
banned by the statute, even if it was only mentioned once and
accidentally. (The previous policy had announced that isolated
occurrences were of no regulatory concern.) Nonetheless, the FCC
declined to assess a fine, because it was announcing a change of
policy and thought the regulated community ought to have more notice
before being fined -- among other reasons, lest there be a chilling
effect on speech.
That was the 2004 policy. About two years later, in March 2006, to
give greater guidance to the regulated community, the FCC released a
lengthy document analyzing dozens of particular cases, representing
thousands of complaints. The document was divided into three parts:
(1) cases where it found indecency or profanity and proposed monetary
fines against the licensees, (2) cases where it found indecency or
profanity but didn't propose fines, and (3) cases where it didn't find
indecency or profanity. Here are some examples -- I'll focus on the
ones involving speech rather than visual depictions of sex.
([5]show the rest of this post)
1. Sanctionable indecency or profanity
* Video Musicales (2002), WSJU-TV, San Juan, Puerto Rico. One of the
songs played on this show was from the album [6]Fatal Fantassy and
featured the group [7]Trebol Clan. But, just to show how uncool
the FCC is, they spelled "Fantasy" instead of "Fantassy," and it
looks like they think the song title is "Feat, Trebol, Clan"
rather than "feat. [featuring] Trebol Clan." Anyway, the lyrics,
translated from Spanish, go like this:
When I had been barely born, I instantly knew where I had come
from. Since then until I grew up, I have always yearned to be
inside a similar hole. In elementary school they called me Mr.
Cormer. In intermediate school they called me "little masturbator"
because this is where my vice of rubbing myself incessantly began.
Hmm, I guess it loses something in the translation. (Their
translation of another song from the same album, played on the
same show, features "I will give it to you through the ass.")
Anyway, here, the FCC had no trouble finding that this referred to
sexual activity, and as to the "patently offensive" prong,
satisfied the conditions of dwelling on the material and
pandering/titillating.
This section of the opinion also reveals that "the buttocks . . .
are sexual and excretory organs."
* The Blues: Godfathers and Sons (2004), KCSM-TV, San Mateo, Calif.
This show was a documentary containing "the 'F-Word,' the 'S-Word'
and various derivatives of those words." Here, the FCC was
unimpressed by the claim that the language was necessary to
"provide a window" into the world of the subjects of the
documentary, "all of which becomes an educational experience for
the viewer." The FCC used this opportunity to hold that not only
the "F-Word," but also the "S-Word," because of their "core
meanings," "inherently [have] sexual or excretory connotations"
and therefore satisfy the first prong of the indecency definition.
"Use of the 'S-Word,'" they wrote, "invariably invokes a coarse
excretory image" (emphasis added).
As an alternative holding, they held that, moving on to the
"profanity" prohibition, "the 'S-Word' is a vulgar excretory term
so grossly offensive to members of the public that it amounts to a
nuisance and is presumptively profane." The presumption of
profanity can be rebutted, but "only in unusual circumstances . .
. not present here." (By way of comparison, the FCC stated that
"this case is unlike Saving Private Ryan, where the offensive
words really were necessary for the film experience.
* The Pursuit of D.B. Cooper (2003), KTVI-TV, St. Louis, Mo. Same
analysis here, where an auto mechanic says he will have someone's
car running "slicker 'n owl shit" and "smoother 'n owl shit." In
addition to "owl shit," there was also "bullshit," and "shit"
generally. All of these fell within the "shit" category described
above.
2. Indecency or profanity that is not sanctioned
* The 2002 Billboard Music Awards (2002), Fox stations. This is
where Cher said, "People have been telling me I'm on the way out
every year, right? So fuck 'em." This was found indecent, but not
sanctioned because it was broadcast under the previous regime,
where isolated uses weren't sanctionable.
* The 2003 Billboard Music Awards (2003), Fox stations. This is
where Nicole Richie talked about "get[ting] cow shit out of a
Prada purse." Same analysis as the Cher quote. One of the
offending words was bleeped out; the FCC noted specially that Fox
could have delayed the broadcast long enough to be able to bleep
out all the occurrences.
* NYPD Blue (2003), ABC network. Several episodes of this show
involved the words "dick," "dickhead," and "bullshit." Follow
carefully now: "'[B]ullshit,' whether used literally or
metaphorically, is a vulgar reference to the product of excretory
activity" and therefore satisfies the first indecency prong. Same
goes for "dick" and "dickhead," which are references to a sexual
organ. However, because the "S-Word" is just so vulgar and graphic
(always invoking a coarse excretory imagine, for instance [8]in
the philosophical book by Harry Frankfurt!), "bullshit" ends up
also satisfying the "patently offensive" prong, whereas "dick" and
"dickhead" just aren't "sufficiently vulgar, explicit, or
graphic."
Again, while "mere dramatic effect does not justify use of
patently offensive expletives," this case is still unlike Saving
Private Ryan, where it was necessary! Go figure.
3. No indecency or profanity
This section involves a number of different shows, where characters
are "kissing, caressing and rubbing against each other" accompanied by
off-camera music and without "depictions of sexual organs"; an episode
of Will and Grace that involves the gag of people adjusting Grace's
breasts upward as she heads off on a date; a character on Two and a
Half Men hitting on a female doctor while she's holding his scrotum in
her hand; an episode of The Oprah Winfrey Show where an expert on teen
sex discusses "tossed salad" and "booty calls"; a political
advertisement referring to a judicial candidate's ruling in a case
involving rape and sodomy; various shows featuring the words "bitch,"
"slut," "ass," "damn," "hell," and others; an episode of Family Guy in
which "penis" and euphemisms therefor are repeated; an episode of The
Simpsons where Mr. Burns goes to a strip club... you get the picture.
In one of the separate opinions (most of which I'm not summarizing
here), Commissioner [9]Deborah Tate suggested that the cartoon nature
of The Simpsons shouldn't necessary count against a finding of
indecency. Well, that's the FCC's take on what its new policy means.
On the one hand, it's good that they actually gave concrete guidance
to the regulated community, and declined to fine broadcasters
operating under the previous regime. On the other hand, looking at
these applications really gives one a sense of how arbitrary these
things are. "Bullshit" is patently offensive because, as a variant of
"shit," is inherently excretory and highly vulgar, while "dick" and
"dickhead" are not because, even though they're variants of the sexual
term "dick," they're not sufficiently vulgar? Mere use of vulgar words
for dramatic effect isn't enough... unless it's Saving Private Ryan?
In any event, this is where matters stood when the FCC v. Fox
Television Stations case was heard. In the next post, though, I'm
going to talk about the general issue of what an agency has to do, as
a matter of administrative law, to justify itself when it changes
policy.
([10]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://www.youtube.com/watch?v=3_Nrp7cj_tM
4. http://en.wikipedia.org/wiki/Seven_dirty_words
5. file://localhost/var/www/powerblogs/volokh/posts/1242783653.html
6.
http://music.barnesandnoble.com/Fatal-Fantassy-Vol-2-Esto-Es-Mambo/e/641287000422
7. http://en.wikipedia.org/wiki/Trebol_Clan
8. http://www.amazon.com/Bullshit-Harry-G-Frankfurt/dp/0691122946/
9. http://en.wikipedia.org/wiki/Deborah_Tate
10. file://localhost/var/www/powerblogs/volokh/posts/1242783653.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
