December 28, 2004
Private: Fuzzy FCC Indecency Standards Raise Static
column by Alyssa Berman Cutler, blog editor
In the wake of recent large fines and publicity surrounding "indecency" on the airwaves, talk of an FCC "crackdown" is in (and on) the air. But the stories are complicated: the FCC fined CBS a then-record $550,000 for Janet Jackson's Superbowl "wardrobe malfunction," but has decided not to pursue complaints related to indecency during the Olympics opening ceremony, and initially refused to assure ABC that an airing of "Saving Private Ryan" would escape sanction, and then issued a ruling okaying the film after the proposed air date. Overall, the political climate and lack of clear standards have created an environment of uncertainty that allows the FCC to make decisions on a case-by-case basis and can allow interest groups to play a particularly large role.
The primary case on the issue dates back to 1973. In FCC v. Pacifica Foundation the FCC imposed sanctions against a California radio station that aired comedian George Carlin's monologue, "Filthy Words," a riff on the seven "words you couldn't say on the public airwaves," because they are "the ones that will curve your spine, grow hair on your hands and maybe, even bring us, God help us, peace without honor."
The majority in the case held that even when not obscene, a regulation of indecency on the public airwaves does not violate the First Amendment, and that the FCC has wide latitude in deciding how and when to penalize broadcasters, depending on the "context" of the challenged occurence. As Justice Stevens wrote, a "requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language."
Today, the FCC defines indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities." Such material cannot be broadcast between the hours of 6 a.m. and 10 p.m. Punishments can range from a refusal to renew a license to newly enlarged fines under the Broadcast Dencency Act of 2004. Given these vague terms, it's not surprising that the FCC has had a large amount of leeway in deciding what and when to prosecute.
Given that flexibility, FCC chairman Michael Powell's comments regarding the Janet Jackson incident concern many civil libertarians. Although much of the media focused on the actual breast-baring, Powell's comments at the time highlighted the subjective nature of the issue. "I think everybody's focusing on the finale, but a lot of what we've heard in terms of complaints and the breadth of the investigation is a little broader than just that incident," ESPN.com reported Powell said on ABC's "Good Morning America." "I personally was offended by the entire production."
It is comments like this that have prompted a movement towards more clearly defined guidelines from the right and the left, with those concerned primarily with free speech arguing that the lack of guidelines can lead to self-censorship, as in the Private Ryan case. "'When in doubt, leave it out' cannot be an acceptable policy in a democracy that depends on free and open discussion,"
Those pushing for greater indecency enforcement argue that they are simply voicing the will of a people fed-up with what their children can see on TV. Indeed, Powell has cited "a dramatic rise in public concern and outrage about what is being broadcast into their homes," as evidenced by the large jump in complaints in the last few years. However, according to an article in the trade publication MediaWeek, 99% of these have been from one activist group, the Parents Television Council.
This is particularly important because of the role that complaints play in FCC policy. In order to avoid an appearance of censorship, the FCC only investigates incidents regarding which it receives public complaints, often citing the number of complaints received as evidence of the severity of an incident.
One example is the recent challenge to a fine leveled against pixelated nudity on FOX. Topping even the Janet Jackson penalty, the $1.8 million fine is related to an airing of the reality show "Married by America." Although the FCC says the scenes (including topless strippers) were "graphic enough to be indecent," The nudity was obscured by blurring known as pixilation. But "even a child would have known that the strippers were topless and that sexual activity was being shown," the FCC had said." Fox argues that not only were the standards used here misplaced, but that the hundreds of complaints initially cited by the FCC turned out to have originated from only 23 different individuals, most of which were on form letters.
The current situation is not likely to change soon. As the chief of an ABC affiliate noted when defending the decision not to air Ryan,"We're just coming off an election where moral issues were cited as a reason by people voting one way or another and, in my opinion, the commissioners are fearful of the new Congress."