In April, 2009, the United States Supreme Court upheld a ruling which allows the Federal Communications Commission to levy fines against broadcasters for fleeting expletives, despite the Commission’s earlier assertions that such cases would be allowed under certain circumstances. This set the U.S. further down its dangerous path of excessive power granted to government agencies, and both major parties are at fault. For a review of this case, as well as the meaning of terms contained in this article, please read “What Are We Saying?“. This article was written as a college project, but has been updated with the information of the recent Supreme Court ruling. It’s a very interesting trip down the path from free speech to today’s government intervention in what we see and hear. Please enjoy!
Imagine, if you will, a scenario in which American television and radio are entirely clear of all forms of foul language, nudity, and violence. Nowhere is there any programming like “The Sopranos,” “Sex and the City,” “NYPD Blue,” or even Imus in the Morning or the Howard Stern Show. Where have they gone? They were canceled, not because fines drove them out of business, but because they violated the Federal Communications Commission (FCC) obscenity, indecency, and profanity policies, and were forcibly removed from the air. While this is not a likely outcome – and is presently constitutionally impossible – it is theoretically possible in the future.
The concept of a safeguard for children has been globally dogmatized by the Christian Church over the past two thousand years, and in the past hundred has been successfully woven into American law. The FCC has the right and responsibility to assess fines to broadcasters for violating standards of obscenity, indecency, and profanity in response to complaints from citizens as a means of protecting our children from premature exposure to “adult” images and language. Now that the FCC has the power to regulate, they are very much under the influence of Congress and the White House, and this makes for inconsistency in regulation, confusion among broadcasters, and politically-charged censorship of the airwaves. Rather than relying on government to control what children see and hear, Americans should take the bull by the horns and reject government control over broadcasters.
The United States began censorship of obscene and indecent material long before its independence; however, it was not always thought necessary to protect children from such things. Historically, children were viewed far differently than they are today. Marjorie Heins, founder of the Free Expression Policy Project and former director of the American Civil Liberties Union’s Arts Censorship Project, observes that in ancient Greece, children were not the vessels of virtue and innocence that they are today. Children were to be kept under control and trained properly, but there was no societal need to shield them from information about sex. Rather, the relationship between “an adult man and an adolescent boy” was the most valued in terms of sex; thankfully this is no longer the case. The ancient Greek philosopher, Plato, was the first to challenge these notions by stating that theater productions involving crime and debauchery were improper and should be outlawed (Heins 15). Mary Hull’s observations show that the assessments of many opponents to indecency today echo Plato’s sentiments: “[t]he belief that violent and sexually explicit images can have harmful effects on audiences is behind many challenges to materials, particularly those used in schools” (6). Plato’s pupil, Aristotle, pushed the matter even further; he made the now well-known claim that spectators at a violent opera do not reenact the events of the opera, but release their built-up tensions during the show via catharsis. However, he did feel that children should be protected from such displays by keeping them away from less than virtuous productions, lest they become less virtuous themselves (Heins 16). So Plato and Aristotle, for the first time in Western history, made the first strong push toward protecting children from vice in the interest of maintaining their innocence.
While the two famous philosophers first championed the idea of protecting the purity of children, albeit mildly, the Christian Church turned this simple philosophy into a mission. These attitudes can still be witnessed today, as religious organizations repeatedly lobby government to stamp out pornography and indecency. David Savage of the Los Angeles Times notes: “The government says broadcasters who use the public airwaves have a duty to protect children and families from unexpectedly hearing foul language.” When it first came into existence, Christianity heavily promoted “children as untamed vessels of depravity and Original Sin” (Heins 16). Over time, culture changed due to religious influence, and the innocence of children became revered and cherished.
While the Christian Church eventually succeeded in its goal to limit what children see and hear, Western society didn’t start that way. Marjorie Heins notes that prior to the 1800’s, the most common victims of censorship were “heresy and sedition” (23). This is logical, given the close ties between church and state of the times in Europe and early Western Hemisphere colonies. The Church, vying to keep itself in power, would naturally seek to root out all forms of heresy, and monarchs would do the same versus sedition. It is only natural for the powerful to seek more and more restrictive ways to preserve their power.
Over time, society began to adopt the policies of the Church, and arrests began being used in an attempt to eradicate obscenity. Experts agree that the first such case occurred in London in 1663 and involved Sir Charles Sedley, a famous writer and “intimate of the King” who, while intoxicated, publicly danced about on the balcony of “The Cock”, a Bow Street tavern (Alpert 40-41; Heins 24). Sir Charles was completely naked and shouting obscenities in a “mountebank sermon” to the crowd below (Alpert 42). But Sir Charles’s case might have gone unnoticed had it not been for his next act. According to an account of the incident in 1 Keble 620, Sir Charles was punished “for shewing himself naked in a balcony, and throwing down bottles (pist in) vi & armis among the people in Covent garden, contra pacem and to the scandal of the Government” (qtd. in Alpert 42). This case was used as a precedent some forty-five years hence against a pornographic book dealer; the case was dismissed (Heins 24). However, government and the Church had their legal precedent, and it was used successfully to begin pushing toward a more restricted manner of public speech and writing.
Over time, this attitude spread to the American Colonies, and eventually the torch was picked up by Mr. Anthony Comstock of New York. Comstock was a devoutly religious man, and was stunned at the degree of pornography that existed in American bookstores in his day. Heins reports that Comstock, seeking to root out and destroy all written pornography, found like-minded wealthy men and formed the New York Society for the Suppression of Vice, whose purpose was to rid society of all elements that would lead men to “secret vice” or “unbridled indulgence” (30). Alpert observes that Comstock then successfully moved a bill through Congress in 1873 which made it illegal to send “certain books” through the mail, and subsequently took a pro bono job with the U.S. Post Office to lead the campaign to confiscate all such materials (65). With these actions, Comstock set the precedent for the FCC’s regulation of broadcasting in America, although his methods were far more oppressive.
After Comstock had led the way, and religious groups began pressuring legislators, it was a simple matter to grant the FCC the authority to fine broadcasters for airing “inappropriate” material. Tony Mauro notes that the Federal Radio Commission and its successor the Federal Communications Commission were created for the purposes of controlling the issuance of licenses to broadcasters, to ensure that the airwaves would not end up a jumble of deejays talking over one another (152). But from the very beginning, both commissions were given the power to regulate broadcasters’ content via U.S. governmental code.
According to the U.S. House of Representatives Office of the Law Revision Counsel, as well as the FCC website, the Commission is governed by the United States Code, Section 1464 of Title 18, “Crimes and Criminal Procedures.” This document states: “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both” (331). This line was written in or around 1927, and it has been kept for eighty-two years, with absolutely no edits, despite the fact that society has changed significantly during the same period of time.
With regard to filing complaints with the Commission the procedure can seem a bit daunting. Dr. Milagros Rivera Sanchez, former associate professor in the Department of Telecommunication in the College of Journalism and Communications at the University of Florida, and her colleague Michelle Ballard, explain that a complaint to the FCC must contain “the station’s call letters, the date and time of the broadcast, and either a copy of the program or a partial transcript that allows the staff to determine the context in which the indecent language was used” (145). This procedure might seem easy to follow, but imagine the quandary of a highly religious person, attempting to quote language he or she considers “indecent” or “profane.” Fortunately for them, they don’t always have to; Linda Greenhouse notes that 92.7 % of the complaints received by the FCC for Bono’s use of an expletive at the 2003 Golden Globe awards were filed by the Parents Television Council, a not-for-profit organization established to prevent sex and violence from being broadcast on television. This is hardly directly representative of society; rather, it is a case of a lobbyist organization controlling the direction of government.
When filing a complaint, the complainant must either provide at least some of the verbiage of the broadcast, or a copy of the program, so that context can be determined. If this material is not provided, the Commission will contact the complainant to request it, and if it ultimately cannot be delivered, the case is dismissed (Rivera Sanchez and Ballard 145). This policy places the onus heavily on the complainant, which would tend to deter complaints. However, as previously indicated, many complaints are filed from lobbyist organizations, so a concerted effort is certainly made by these organizations to record and document “offensive” programs, just in case there is a violation. Additionally, the FCC web site indicates that filing requirements are not so stringent as the Rivera Sanchez article states. The FCC requires only that sufficient details be provided that the Commission may determine context. But given that the average complainant might have difficulty navigating the web site to find the right source documents, the complaint procedure is somewhat elusive.
In spite of this, the number of annual complaints has been increasing steadily in the past several years. In the Commission’s chart regarding the number of complaints and Notices of Apparent Liability (NALs: the documents issued by the FCC when it assigns potential responsibility to an entity for a violation), “Indecency Complaints & NALs: 1993 – 2006”, the data show that the number of annual filed indecency complaints increased from 111 in all of 2000 to 327,198 for the first six months of 2006. It is worthy of note that there are no data in the chart on annual complaints from 1993 to 1999, and no data can be found from the FCC for July 2006 to present. Also important is that though the number of NALs was consistent at seven for both 2000 and the first six months of 2006, the dollar amount of assessed fines was vastly increased, from $48,000 to nearly $4,000,000. This indicates that the average fine was steeply raised, beginning in 2003. Strangely, there were no NALs issued in 2005, despite the fact that nearly a quarter-million complaints were received. These data show that either broadcasters are becoming more risqué with their programming or citizens have begun an earnest campaign of submitting complaints to the FCC, though the FCC has maintained essentially the same evaluation protocols while increasing the dollar amount of fines. However, an analysis of past cases shows that the Commission is anything but consistent.
In order to understand the ambiguity in FCC evaluations, it is helpful to first attempt to understand the language of its standards. According to the FCC web site, “obscene” is defined as material of a pornographic nature, “indecent” material is that which “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards,” and “profane language” is the use of words considered offensive enough to be considered a “nuisance” to society. In addition, the FCC has defined a “safe harbor” period (currently from 10 p.m. to 6 a.m., daily), during which a broadcaster may air indecent and profane material without fear of punishment. These terms help the reader understand the classification process used by the Commission when evaluating complaints. Additionally, these terms give the appearance of consistent evaluation criteria. However, much of the language used in the FCC web page is ambiguous, and this ambiguousness leads to subjective conclusions. For example, indecent material must be deemed “patently offensive” in order to be considered a violation, but language which is offensive to one person is commonplace to another. Also, to be considered profane, language must amount to a “nuisance”; this is another ambiguous term, as one could consider government’s intervention in broadcasting a nuisance.
The vagueness of government’s definitions for the terms “indecent” and “profane” is not clarified by a review of FCC decisions. Rivera Sanchez and Ballard explain that “[a]lthough the FCC has said that it will consider whether the offensive language is fleeting or isolated,…when it comes to expletives, the FCC appears to have zero tolerance” (147). The FCC claims to have a policy of fining the first incidence of an offense with a small fine, putting all other broadcasters on notice as to the seriousness of the matter, and then escalating fines for subsequent cases by any broadcaster of the same or similar offenses. However, when fleeting expletives are used, the data show that the Commission takes a hard stance toward the offender. For example, in 1992, a station was fined $3,750 for the use of one expletive, “shit,” which was broadcast only a single time. In 1997, another station was fined for four separate incidents, wherein the disc jockeys and their call-in guests were graphically describing sexual acts. The conversations were reminiscent of the Howard Stern Show, which had been receiving incrementally higher fines for the same type of offenses, yet the station in the 1997 case was fined only $2,000 per incident (Rivera Sanchez and Ballard 147-48). These contrasted cases show clear ambiguity or favoritism in FCC rulings, and a particular affinity for escalating fines in response to broadcasted expletives.
However, not all the ambiguity rests on the shoulders of the Commission. Congress and the courts have played a large role in changes in FCC policies during the past twenty years. In 1987 the FCC changed its benchmark for indecency, and simultaneously reduced the safe harbor period by pushing back the start time from 10 p.m. to midnight, shrinking this period from eight hours to six. A series of legal challenges and policy changes ensued until 1995, when the D.C. Circuit Court ruled that a midnight start time for the safe harbor period was not the “least restrictive” policy to apply, and overruled the decision, declaring a 10 p.m. to 6 a.m. safe harbor for all broadcasters. The U.S. Supreme Court declined to review the case in 1996, and the safe harbor has remained unchanged since that time. (Rivera Sanchez and Ballard 145). This final example shows that Congress has repeatedly attempted to give greater powers to the FCC, but that the courts refuse to allow such transgressions. It is also important to note that in the entire eighty-two year existence of either the Federal Radio Commission (1927) or the Federal Communications Commission (1934), only two cases have been heard by the Supreme Court regarding indecency or profanity with the Commission as a litigant: FCC v. Pacifica Foundation in 1978 and FCC v. Fox Television Stations in 2009. It is truly shocking that only two such cases have been heard by the Supreme Court in the long history of the FCC given the sensitive nature of the First Amendment and the FCC’s tightrope walk along its restrictions.
In these two cases, the Supreme Court declared that the FCC’s actions were legal, both in issuing an NAL to Pacifica in 1978 for its broadcast of George Carlin’s “Seven Dirty Words” sketch during daytime hours, and in issuing NALs to Fox Broadcasting in 2002 and 2003 for expletives used during the Billboard Music Awards.
It is nothing new to see government attempt to expand the powers of the FCC. As far back as 1969, members of Congress have taken this tack. However, Olga Hoyt observes that historically, the National Association of Broadcasters (NAB), a private organization, has policed the industry voluntarily. While broadcasters’ membership in this organization is not required, the NAB strongly encourages and puts forth great effort to recruit broadcasters to join the NAB and conform to the its Radio and Television Codes, which are aimed at reducing profanity, indecency, and obscenity, as well as “words derisive of any race, color, creed, etc., any attacks on religion” (97). While this was seemingly intended to keep the FCC’s fingers out of broadcasters’ affairs, mention of these codes are difficult at best to find at the NAB website, at least not worded in these ways. What can be found, however, is a message from David K. Rehr, President and CEO of the NAB. He writes, in part, that the role of the NAB is “to [promote and protect] the interests of radio and television broadcasters in Washington and around the world.” So it would seem that the NAB is a large lobbyist organization, that would ostensibly seek to self-regulate the industry, so as to appeal to lawmakers’ interests, and keep the status quo with the FCC.
Unfortunately, with such an organization’s existence can come attempts to alter its intended functions and strengthen its power, and not necessarily from within. Olga Hoyt writes that during the 1960’s Senator John O. Pastore (D-RI) sought to remove all violence from television in both news and entertainment programming. He wanted all networks to put their produced works before “the [NAB] Code Authority before they went on the air.” This would mean that television would be censored before being broadcast, or “pre-censored” (99). This was obviously nearly forty years ago, but it is still surprising to see such a move by a member of the Democratic party; on the contrary, one might expect this request from the Republican party, spurred by religious organizations. However, Jane Kirtly, Silha Professor of Media Ethics and Law at the University of Minnesota’s School of Journalism and Mass Communications, observes in her article, “How Dirty Is That Word,” that generally, it is the Democrats who lean toward more control over “content” and greater restrictions on “media ownership,” while Republicans tend to turn a blind eye to the control of content and do not favor ownership regulations (66). Thankfully, it seems no such policy has ever been adopted by the NAB, and Congress has not submitted any such legislation.
However, certain members of Congress are seeking to control broadcasters’ newscasts for political means, by returning to old ways. In 1987, the FCC repealed its “Fairness Doctrine,” which was aimed at providing freedom of speech, but instead discouraged broadcasters from airing political or opinionated discussions due to the requirement that they then air an opposite response if it were requested. Daniel Patrick, former FCC Chairman, and Thomas W. Hazlett, professor of law and economics at George Mason University, note that while there was no means of measuring the reduction of programming under the Fairness Doctrine, there was a sharp increase in the number of “informational” programs. This fact indicates that the Fairness Doctrine served to limit what news agencies broadcast for fear of appeals for equal airtime to counter previously aired information. Patrick and Hazlett observe that at the time the doctrine was rescinded, Congress did not wish to do so, as Democrats saw the measure as a means of “counter[ing] the slant of ‘corporate’ media,” and the Republicans wanted to use the doctrine to “oppose the liberal establishment.”
These trends continue to this day. At least two members of Congress, Sen. Richard Durbin (D., Ill.) and Rep. Maurice Hinchey (D., N.Y.), are introducing legislation designed to bring back the concept of fairness in news broadcasting (Patrick and Hazlett). Essentially, there is concern over the amount of radio and television devoted to one political side or the other. Some in Washington believe that mandating “fairness” would rid the world of Fox News’s and CNN’s style of political broadcasting (Patrick and Hazlett). However, this might make the airwaves more confrontational, or eliminate political discussion altogether. If fairness is the goal, it might be better applied to the concept that news agencies ought to represent both sides of any non-political story, rather than just the negative “shock value” aspects.
Furthermore, in recent years the FCC has been rather vague about what incidents will incur fines. Deborah Potter, executive director of the Radio and Television News Directors Foundation, notes that in 2004 following the infamous Janet Jackson Super Bowl fiasco, the Commission rescinded its past judgment that single utterances of profane language are not at risk of being fined. Specifically cited was the Bono Golden Globe event, which the FCC had previously ruled a non-violation, but about which it had changed its mind in the wake of Jackson’s misstep (Potter). This is a sharp turn in a very dangerous direction. Congress not only took no action to prevent such a measure, it has actually encouraged this policy by steadily increasing the maximum allowable fine per incident from less than $10,000 to more than $30,000, and hinting at increasing it “to as much as $500,000 per incident” (Potter). Then again, John Files and Todd Shields independently observe that in 2005 the Commission ruled that the unedited airing of the film “Saving Private Ryan” by ABC did not violate indecency standards because it accurately depicted events of Word War II. If Congress successfully passes a bill increasing fines, an accidental live broadcast of a stream of profane language could bankrupt a local station. The past decisions of the FCC would leave broadcasters paralyzed with confusion over what is allowable in broadcasts, which would mean that newscasters would be forced to self-censor their stories, restrict what they report, or actually restrict their broadcast of live news to the safe harbor period. However, no such restriction will be placed on cable broadcasters, so there will be discrimination against network television (Potter). This would be most unfortunate, and most likely would not be upheld by the courts.
In our history, society has slowly grown wary of subjecting children to indecent and profane language and pictures, and we have enacted legislation designed to protect them. This directly led to the creation of the FCC and to subsequent Congressional decisions on the extent of its powers. Further, the Commission has been granted considerable leeway in application of policy, and has largely run unchecked since its inception: particularly so in the past twenty years. Worse yet, Congress and the White House actually seek to use the FCC as a political tool to reduce the influence of their opponents and critics, and these policies have been largely successful. When we rely on government to aid us, generally it aids itself in its aims. A better tack is for society to work together to regulate itself and protect its children. In this way, we keep the power for ourselves, and ensure that we view and hear what we wish, and not only what politicians would like. Certainly, no one would wish a society in which our government can actually control the messages we are allowed to broadcast on television and radio, but we are dangerously close to such a reality. Americans must move toward self-regulation of what our children see and hear, and stop relying on our government’s slanted ideologies to help us raise our children.
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