Monday, November 3, 2008


The NY Times Week in Review’s article Must It Always Be About Sex? reports on oral argument that the US Supreme Court will hear on Election Day, November 4 in the case of FCC v. Fox Television Stations. The Court will address the issue of broadcast indecency in a case that turns on the FCC’s ban on the use of fleeting expletives in live television broadcasts. At issue is whether the FCC, in changing its policy on the uses of expletives on broadcast television to be considered “indecent”, provided an adequate explanation and thus acted properly under the Administrative Procedure Act, or instead whether it acted arbitrarily and capriciously.

The Court addressed the use of expletives on broadcast television nearly 30 years ago in its famous ruling in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), when it ruled for the first time that the Constitution allowed the government to prohibit the broadcast, on radio and TV of vulgar words that were indecent, though not obscene. After Pacifica, the FCC followed a policy of acting against broadcasters only if a broadcaster used indecent language in a sustained or repeated way. In March 2004, the agency issued an Order revising its policy, in response to complaints it received. The factual situations that gave rise to the complaints were:

2002 Billboard Music Awards: In her acceptance speech, Cher stated: “People have
been telling me I'm on the way out every year, right? So fuck ‘em.”

2003 Billboard Music Awards: Nicole Richie, a presenter on the show, stated: “Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.”

NYPD Blue: In various episodes, Detective Andy Sipowitz and other characters used certain expletives including “bullshit,” “dick,” and “dickhead.”

The Early Show: During a live interview of a contestant on CBS's reality show Survivor: Vanuatu, the interviewee referred to a fellow contestant as a “bullshitter.”

The FCC’s new policy treated as illegal even a single use of “the F-Word” on the air when it issued its “omnibus order” stressing the ban on single usage violations. Fox TV and other networks complained to the 2d Circuit Court about the new policy. In June 2007, the 2d Circuit Court issued its decision in Fox Television Stations, Inc. v. Federal Communications Com'n, 489 F.3d 444 which the US Supreme Court will now review.

The FCC's argument is that these bad words cannot be separated from their sexual connotations. The 2d Circuit decision made clear that there was absolutely nothing sexual about their use when Judge Rosemary S. Pooler wrote: “these words . . . as the general public well knows, are often used in everyday conversation without any 'sexual or excretory' meaning.”

This case is not about whether we want to hear TV characters or performers curse more. The case is about whether censorship is alive and well and whether we want the FCC to be able to punish TV networks for using nasty words. These are nasty words, but they are just words. If listeners do not want to hear them, they can change the channel or turn off the TV. The FCC’s concern for the sensitivities of listeners who are offended at hearing the word "fuck" is an example of overregulation that the Supreme Court has the opportunity to address when it decides if the FCC overstepped it bounds under the Administrative Procedure Act. For more reading, see the SARA catalog to find these titles:

Anti-indecency Groups and the Federal Communications Commission: A Study in the Politics of Broadcast Regulation by Kimberly Zarkin (Call # KF2805 .Z37 2003)

Broadcast Indecency: F.C.C. Regulation and the First Amendment by Jeremy Harris Lipschultz (Call # KF2805 .L57 1997)

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