Artists to SCOTUS: FCC fleeting expletives policy is f*ed up

The Center for Creative Voices in Media has added its voice to those of the many organizations asking the United States Supreme Court to send the Federal Communications Commission's tortured "fleeting expletive" rules to the shredder. The artists' advocacy group's August 1st filing urges the Supremes to uphold the Second Circuit Court of Appeals' recent ruling that FCC sanctions levied against Fox TV for broadcasting some off-the-cuff potty talk were arbitrary and capricious. The FCC has appealed this decision and the high court will hear the case this fall. HangZhou Night Net

The FCC's policy "has left creators in a precarious position," warn CCVM attorneys Andrew Jay Schwartzman and Parul Desai, "since they no longer have the ability to determine accurately what type of expression constitutes indecent speech." Let's hope that the Big Nine listen to these wise words. But, even if they do, the regulatory ground upon which creators and broadcasters stand will still be wobbly.

The Blues' blues

In late 2006, the agency found Cher and Nicole Richie's use of the words "fuck" and "cow shit" during the broadcast of the Billboard Music Awards to be indecent. The Commission's down-but-not-out ruling did not fine Fox TV, but the Commission warned broadcasters that it now had a policy of zero tolerance for those words, even if said only once. This was new—in the past, the FCC had required repetition of these expletives before it would fine or cite a broadcaster.

The CCVM's August 1 Respondent brief draws from the non-profits' 2006 report "Big Chill: How the FCC's Indecency Decisions Stifle Free Expression, Threaten Quality Television, and Harm America's Children." The report describes disturbing instances that demonstrate that the Commission's enforcement actions do not make sense, and suppress TV that kids ought to able to watch.

To cite only one example: the FCC has yet to sensibly explain why in 2005 it found that the repeated use of the word "fuck" in the movie Saving Private Ryan was not indecent, yet decided that its use in Martin Scorsese's documentary The Blues was a problem. These actions, "leave creators in the dark as to how a finding of indecency would be avoided based on the merit of the program," the filing protests.

Actually, it's been dark for a long, long time.

Good golly Mrs. Molly

It should be noted that broadcasters have been struggling with the FCC's contorted obscenity/indecency policies for many years prior to the advent of the agency's new and legally-dubious fleeting expletive regimen. Once the Commission got the go-ahead in Pacifica v. FCC (1978) to throttle license holders for broadcasting cuss-words, it was probably only a matter of time before the agency would widen its enforcement net.

In 1986 the knock on the door came once again for Pacifica radio. The FCC informed the non-commercial FM network's lawyers that it had received complaints about Pacifica station KPFK in Los Angeles regarding its broadcast of Robert Chesley's award winning play: The Jerker. The drama focuses on the meditations of a man dying of AIDS. He talks about sex using, well, the kind of words you often hear when people talk about sex (perhaps somewhat more strongly due to the dying problem).

Three other stations received FCC notices as well. In 1988 the Commission issued Orders against these four license holders. What was new was that the agency now insisted that it would not just punish those that aired the "seven dirty words" of George Carlin renown, but would apply a "generic" definition when enforcing programming restrictions. This heightened protection would take place except during hours when there was no "reasonable risk" that children might be listening.

'What does this mean?' Pacifica's attorney fearfully inquired. It meant, the FCC's Mass Media Bureau officiously explained, that the agency would no longer sanction language or material "that depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." At least not during the day.

'What does that mean?' Pacifica's now trembling lawyers asked. This was no abstract query. Pacifica station WBAI in New York City, the outlet famously smacked for the Carlin broadcast, also aired an all-day reading of James Joyce's Ulysses annually. On June 16, 1904, one of the protagonists of this celebrated novel, Leopold Bloom, romps through the streets of Dublin with a friend, reflecting out loud on the more erotically pleasant aspects of his wife ("Molly wanting to do it at the window. Eight children he has anyway.")

Ever since the Joyce novel became popular, literature lovers have shared these passages on said date—"Bloomsday"—in New York City, or more recently had the option of spending the day listening to them read on WBAI.

To Pacifica's pleas for clarification, the FCC cited a U.S. judge, who declared that Ulysses could not be considered "dirt for dirt's sake." But the listener-supported network could not afford commercial-network-sized indecency fines, so insisted that it needed more than hints. In their absence, however, WBAI bravely continued to broadcast Bloomsday.

Garbage = garbage

While Pacifica struggled to get its legal bearings, a series of legislative battles and court cases ensued. In Action for Children's Television (ACT) vs. FCC (1988), a Federal appeals court ruled that the Commission had the power to establish a "safe harbor" period forbidding indecent broadcasts during the day. But, as Pacifica had complained, it had not adequately explained how it had come to this policy.

This decision enraged the recently deceased Senator Jesse Helms of North Carolina, who thought that any safe harbor offended simple human decency. "Garbage is garbage, no matter what the time of day or night it may be," Helms declared. On October 1, 1988, President Reagan signed "The Helms Amendment" into law, which effectively banned whatever the FCC called indecent from radio and television at all hours.

So, back to the judges went ACT, and in 1991, it got another appeals court to declare the Helms law unconstitutional. Congress, in response, passed the Public Telecommunications Act (PTA) in 1992; it established the safe harbor period of six am to midnight. Three years of FCC wrangling and court challenges later, Congress and the Commission settled on the no naughty words zone that persists to this day: six in the morning to ten pm.

As for Pacifica radio, in the midst of this legal chaos its attorneys sent out an advisory to the program directors of its five stations. "Keep reading the recent decisions by the FCC to get the flavor of FCC censorship," they advised in 1990. It appears from recent cases that, while "vulgar jokes" are out, frank discussions about public health were still permissible, the lawyers observed. "But the gray area involving sexual references in recordings, dramatic readings is still a very large area," they warned.

So while creative freedom lovers should hope for the best with the Supreme Court this fall, it's not as if everything was rational and square before the FCC added its "fleeting expletive" doctrine to the soup. These days, WBAI broadcasts "Bloomsday" from 7 pm "until the wee hours of the morning," as the station's Web site explains.

Further reading

See John Crigler and William J. Byrnes' excellent article, "Decency Redux: The Curious History of the New FCC Broadcast Indecency Policy," Catholic University Law Review, [38:329], 1989.