Did you hear that Big Bird dropped the "F Bomb" on Sesame Street? Okay, not really. But, if you were recently listening to the Federal Communications Commission's (FCC) argument before the U.S. Supreme Court in the "fleeting expletives" matter, then you might believe that it is just a matter of time, at least if broadcasters have their way. Of course, if Big Bird did drop the "F Bomb" (or the "S word"), the FCC would probably fine him—unless, of course, he did so while in a war film, on a morning news program, or on "Oprah" and did so "in context." That is the lesson to be learned from recent FCC decisions and arguments, and why many broadcasters are confused—to say the least—about what can be said on television or radio. The one lesson most broadcasters have learned is not to use either word spontaneously during an awards show.
After generally flying under the radar for years, except in extreme cases, indecency and profanity on the airwaves are making news―and not so much for the words being uttered, but for the actions taken in response. The networks, the FCC, the Parents Television Council, the courts, and former FCC members are all speaking out on indecency―sometimes with some pretty harsh (although not indecent―yet) words. Much of this brouhaha stems from recent decisions concerning fleeting expletives and fleeting images, issues that are now before the U.S. Supreme Court.
Although 18 U.S.C. § 1464, which provides that: "Whoever utters any obscene, indecent or profane language by means of radio communications shall be fined under this title or imprisoned not more than two years, or both," was first adopted in 1927, it was not until the 1970s that the FCC really began to focus on prohibiting indecency. In 1978, the U.S. Supreme Court upheld the FCC's authority to impose sanctions on broadcasters for the broadcast of indecency in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which concerned George Carlin's infamous "Filthy Words," a monologue on the seven "words you couldn't say on the public . . . airwaves." For the next few decades, the FCC generally exercised restraint in issuing findings of indecency (generally describing indecency as language or material that depicts or describes sexual or excretory activities or organs) and consistently found that isolated or "fleeting" material did not fall within the parameters of actionable indecency. But the FCC has recently taken a much more aggressive role in monitoring and fining what they consider indecent matter and in issuing findings of indecency even for a slip of the tongue. And, many are not happy. Now, the U.S. Supreme Court will address the issue for the first time in three decades.
Fleeting Expletives
In 2006, the FCC found Fox Broadcasting in violation of its "fleeting expletives" policy for broadcasts of the 2002 and 2003 Billboard Music Awards shows. In 2002, in accepting an award, Cher stated "people have been telling me I'm on the way out every year, right? So f--- them." In 2003, presenter Nicole Richie said―in reference to her show―"why do they even call it 'The Simple Life?' Have you ever tried to get cow s--- out of a Prada purse? It's not so f---ing simple." (The interesting thing about the Richie incident—and something that does not get much mention—is that she was scripted to say "pig crap" and "pig manure," which, despite the fact that those words generally refer to excretory material, would have been perfectly fine.) Similarly, the FCC found indecent the January 2003 "Golden Globe Awards" broadcast in which U2 lead singer Bono exclaimed that winning the award for best original song was "f---ing brilliant." Although the FCC did not institute a fine in the Golden Globes case, it advised that it was putting broadcasters on notice that, even though the term "f---ing" was used as an "intensifier," and not in a sexual or excretory manner, such language would not be tolerated in the future―even if fleeting.
In a June 2007 decision, the U.S. Court of Appeals for the Second Circuit vacated the FCC notices of apparent liability issued against Fox for violations of the indecency and profanity provisions in the Billboard Music Awards case, finding that the FCC's "fleeting expletives" policy was arbitrary and capricious under the Administrative Procedures Act (APA) for failing to articulate a reasoned basis for its change in policy. The U.S. Supreme Court took up the appeal and recently heard oral arguments in the case, but has not yet ruled. But, the briefing and oral arguments—and questions from the Justices—point out some of the problems in sorting out this policy.
The commission's main argument to the Supreme Court was that requiring the repeated utterance of an expletive before it will be considered indecent was inconsistent with its general approach to indecency enforcement that stresses the context in which the offending word is used. The commission explained that it was careful to look at the full context because explicit language in the context of a bona fide news broadcast might not be offensive, yet might be considered offensive under other circumstances. Automatically exempting the first instance of offensive material, the commission argued, forces viewers to take the "first blow" of the expletives regardless of whether they might escape further blows by removing themselves from the situation (i.e., changing the channel, turning the television off). Finally, it argued that the new policy was justified because to do otherwise would allow broadcasters to air expletives many times throughout the day, as long as they broadcast them one at a time.
In response, Fox argued that the FCC did not, and does not, give a reasoned explanation for its change in policy and that the FCC's policymaking and judgments are entitled to no deference because their "indecency regime poses grave constitutional issues." Fox argued that there was never a per se rule against fining fleeting expletives, but just a policy that it would be done sparingly and only when the use amounted to "verbal shock treatment," which the FCC has now abandoned. Rather than a greater focus on "context" as the FCC claimed, Fox argued that the FCC has modified its definition of indecent to find that certain words are presumptively indecent, to abandon the requirement of verbal shock treatment, and to "jettison their past sensitivity to the particular context of spontaneous and unexpected utterances during live broadcasts." In addition, Fox disputed the first blow theory, since the FCC has allowed certain expletives to be used in context (which would supposedly still constitute a first blow), and because children cannot be expected to make the contextual distinction between the use of an offensive word in "Saving Private Ryan" or Shakespeare and "NYPD Blue" or the "Billboard Music Awards." Fox also disputed that a mandatory tape-delay would solve all of the problems because smaller stations will not be able to easily swallow the additional costs and could be forced to simply refuse to broadcast. Fox pointed to a Vermont public radio station that refused to allow one Senate candidate to participate in a debate they were broadcasting because he had used expletives in a similar forum in the past and the station could not afford to risk a fine.
A group of former FCC commissioners and advisors to the FCC also piped in, sharply criticizing the FCC's current policing and its flawed use of "context." They argued that, rather than acting as a tool for limiting the reach of the indecency regime, as they believe it should, "context" has become the FCC's tool for expanding it, and doing so in a way that leaves broadcasters without any clear direction. For example, broadcasters are left to figure out why the "S word" is "essential" when it is part of a war film such as "Saving Private Ryan" but gratuitous when part of "NYPD Blue," a police drama set in New York City where such language is likely equally prevalent. The problems of "context" were also apparent during oral argument, when Justice Scalia opined that "profane" language might be okay if used in telling a bawdy joke. Finally, during oral argument, neither the Justices nor the lawyers used any "offensive" words, instead delicately referring to the "F Bomb" or "F-word" and "S-word." (Apparently, they don't want to get fined by the FCC, either!) With no mechanism for the issuance of advisory opinions by the FCC, what is a broadcaster to do?
Fleeting Images
In a similar attempt at curbing broadcast indecency, the FCC levied a $550,000 indecency fine against CBS for the infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show. In July 2008, the U.S. Court of Appeals for the Third Circuit threw out the indecency fine, finding that the FCC failed to prove that it had previously distinguished between fleeting expletives and fleeting images and that the FCC's new policy of including fleeting images within the scope of actionable indecency was arbitrary and capricious. That decision was recently appealed to the Supreme Court, which has not yet decided whether it will hear the case.
In another fleeting images case (although not a live event), in February 2008, the FCC issued an indecency forfeiture for $1.2 million for a 2003 broadcast of "NYPD Blue" in which bare buttocks were briefly shown. The network argued that the brief image of a woman's buttocks was shown in a nonsexual, not excretory context and was preceded by warnings and ratings. Nevertheless, the FCC found the image indecent. Thus, in both the fleeting expletives and fleeting images context, the FCC appears to have veered away from requiring that the material depict or describe sexual or excretory conduct. Another recent "fleeting images" incident might provide some insight. In a live post-game locker room interview, Fox inadvertently aired one player's "equipment" when his towel was not draped properly around him. It remains to be seen whether this "wardrobe malfunction" causes a similar uproar, despite the lack of sexual or excretory context of the material.
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