FCC v. Fox--Broadcast Indency

If the Carcieri case, argued on Nov. 3, is replete with issues of substance that will determine the future of Tribal and State relations, the Fox case is full of such surrealistic questions and issues that one can barely keep a straight face when reading through the case and the Petition for a Writ of Certiorari. Maybe the Justices decided they needed a good laugh or, more likely, some intellectual diversion because of the "weightiness" of the other cases this term. In a nutshell, this case has to do with indecency in television (and radio) broadcasts. Well, more specifically, it has to do with the FCC's authority to ban or to punish certain broadcast outlets for the broadcast of "fleeting" expletives that came across their airwaves. These "fleeting" expletives are normally spoken by interviewees on the spur of the moment when the TV station puts a microphone in their face and asks their reaction to something. I will give the "juicy" quotations below, so be patient, but first I want to say a word about how the world has changed since even these potentially indecent words were broadcast (2002-2003).

The world has changed because of YouTube. Now almost anyone who is computer savvy, and most kids under the age of 10 have a high-enough computer IQ to find YouTube and play it to their heart's content, has almost limitless exposure to free "indecent" material. For example, one of the segments on YouTube I especially like is from the 2007 movie Charlie Wilson's War. Entitled "Hoffman is Pissed," this video presents the unforgettable scene where we meet CIA agent Gust Avrakotos (played by Philip Seymour Hoffman). In a scene lasting fewer than three minutes, and which was probably responsible for his getting an nomination for Best Supporting Actor, Hoffman laces his dialogue with no fewer than a dozen uses of the "F-word" (I will actually have courage to say what that mysterious word is below). The scene depicts some amazing acting. But, it isn't banned and it is readily available to everyone. Once we turn from YouTube to the facts of this case, you wonder if we are trying to ban the game Candyland because the things depicted on the board aren't good for children's teeth.

To the Facts

Fox Television broadcast the 2002 Billboard Music Awards at 8 p.m. eastern standard time on Dec. 9, 2002. Oh, by the way, the FCC only has authority over "indecent" language on the airwaves between 6 a.m. and 10 p.m. (I suppose that means 6 a.m. eastern to 10 p.m. pacific, but I am not sure--why not include HI in this? After all, there are kids there, too. Or Alaska. There are, as we now know, at least 5 Palin kids running around there...). In any case, during that Fox-broadcast show, the entertainer Cher received an "Artist Achievement Award." In her acceptance speech, she said:

"I've had unbelievable support in my life and I've worked really hard. I've had great people to work with. Oh, yeah, you know what? I've also had critics for the last 40 years saying that I was on my way out every year. Right. So fuck 'em. I still have a job and they don't."

Sounds pretty bad, huh? Well, it gets even worse. The next year Fox broadcast the 2003 Billboard Music Awards beginning at 8 p.m. eastern time on December 10, 2003. Nicole Richie and Paris Hilton, two young women whom everyone wants to emulate, had this exchange on the air:

"Paris Hilton: Now Nicole, remember, this is a live show, watch the bad language.

Nicole Richie: Okay, God.

Paris Hilton: It feels so good to be standing here tonight.

Nicole Richie: Yeah, instead of standing in mud and [audio blocked]. Why do they even call it “The Simple Life?” Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Does Paris's first comment mean that Nicole is known for her "four-letter word" outbursts? Actually, in answer to Ms. Richie's question, I personally have never attempted to extricate cow dung from a Prada purse. In fact, I don't know anyone who has tried, but maybe she has...

Getting to the "Law" of the Case

Under 14 USC sec 1464 it is unlawful to "utter any obscene, indecent, or profane language by means of radio communication." It also applies to TV. This is the big provision, friends. The FCC, of course, has glossed these words with thousands of their own, since Congress authorized it to write regulations to flesh out, so to speak, what "obscene, indecent or profane language" is. The Supreme Court upheld the constitutionality of the FCC's authority to regulate indecent broadcasts in FCC v. Pacifica Foundation, 438 US 726 (1978). At issue in Pacifica was the midday radio broadcast of George Carlin's monologue "Filthy Words." Here is the YouTube video of that obscene speech. Actually, it is a hilarious response to all the litigation from the early 1980s, which gives hundreds of potentially "obscene terms." I have never laughed so hard. Here is his "Seven Words" video.

Well, armed with the Pacifica decision, the FCC passed a series of regulations that tried to come to grips with what obscenity is on the airwaves. The basic approach is to differentiate between single, contextless epithets and epithets "in context." Well, I don't want to get into the details of this, because it really isn't very interesting. In any case, the FCC decided that Fox Television violated the statute by allowing these scenes on their network. Why? Applying the framework set out in its 2001 Industry Guidance, the FCC concluded that the expletives aired during the Billboard Music Awards were sexual or excretory references that fell within the subject-matter scope of the indeceny definition. Because of their subject matter, even "fleeting" expletives of this kind are to be banned. After all, the "S-word" does seem to refer to excrement. Hm. Why isn't "snot" a prohibited word? It, like shit, is something the body gets rid of naturally, and indeed, it can be pretty offensive when someone walks around with snot hanging out of his nose...

In any case, a divided panel of the Second Circuit (489 F3d 444 (2007)) held that the policy of the FCC which penalized "fleeting expletives" was arbitrary and capricious. The Supreme Court, if it can keep from laughing, will review this decision. I suppose it will probably growl a bit, possibly uphold the Second Circuit, and emphasize the importance of keeping "pure" or "pristine" airwaves so that vulnerable children's ears aren't assaulted by indecent language. In that regard, the Court will be acting like our secular high priest. But, everyone knows, yes everyone, that this case is more surreal than real--since the expletives are not only all around us, but are becoming more and more present because of the omnipresence of YouTube and the Internet.

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