The FCC, freed of ‘indecency’: a boon for free speech or free rein to bad behavior?

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On July 13, the U.S. Court of Appeals for the 2nd Circuit, directed by the Supreme Court to address the 1st Amendment issues in Federal Communications Commission vs. Fox Television Stations, et al. — a case that has to do with the sort of “fleeting expletives” that occasionally escape the mouths of overexcited participants in televised live events — found the FCC’s indecency guidelines to be “unconstitutionally vague” Now, until the commission can formulate new guidelines that are satisfactorily less vague, or the Supreme Court weighs in again, we are in a state of regulatory free-fall in which most of the already few rules that applied to content on broadcast TV have been suspended. The fear, or the hope, depending on where you stand in the culture wars, is that anything can happen now.

The decision of the appeals court seems a sensible one, the very word “indecency” being itself vague and mutable and therefore applicable to varying political ends; even when interpreted with goodwill, inconsistencies will necessarily creep in. And to levy multimillion-dollar fines for accidental transgressions that in most households would merit dropping a quarter in the swear jar is not work for grown-ups. It’s like writing someone a ticket because his fly is open.

At the same time, I can sympathize with those displeased with this decision, which essentially extends the 10 p.m. to 6 a.m. “safe harbor” — during which networks were already legally free to air pretty much anything less than outright pornography — to the whole broadcast day. (“For parents and families around the country, this ruling is nothing less than a slap in their face,” said Tim Winter of the Parents Television Council). And while I do not expect that, say, Jon Cryer’s bare backside is something you are going to have to explain to your kids any time soon, the tone of broadcast television, which is the only sort of TV whose content the FCC is empowered to regulate, has steadily lowered in recent years. Whether this is in response to the ruder climes of cable or to a generational shift toward the gross and explicit, I can’t say, but I am old enough to be sort of amazed by it, if not exactly surprised.

It’s true that the FCC’s ill-defined and unevenly applied standards are something less than helpful. (“By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means,” the appeals court held, “the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.”) But it also seems to me that broadcasters shouldn’t need that much help, that these things are actually fairly obvious. You work out where the limits are, and if you’re really not sure, you take half a step back.

Indeed, allowing for periodic shifts in the political winds, and notwithstanding the odd scandal and ostentatious mega-fine ( Janet Jackson wardrobe malfunction, Bono F-bomb, “full dorsal nudity” on “ NYPD Blue”), the networks have a pretty good idea of what they can get away with, how large a segment of the audience they can afford to offend, and how seriously they can test their testiest sponsors. Still, if you get into the habit of pushing boundaries, every once in a while you wake the giant, and he goes for his club.

If we should not discriminate between art and garbage when applying the 1st Amendment, we should nevertheless remain mindful of the difference between the two, and remember that the defense of the former is routinely used as a cover for the latter. There is art in television, but there are a lot of cheap effects too. Material represented as “adult” is often better described as juvenile.

Penis jokes abound. Sex, or the lack of sex, seems to be what everyone — scripted and unscripted characters alike — thinks about and talks about whenever they are not solving crimes or saving lives or working in public relations, and sometimes while they are. Even in the milder reaches of broadcast TV you regularly hear words that writers at this paper are forbidden by policy to use.

My objections to such things are not moral so much as they are environmental and social. They are rooted in the fact that, although the airwaves appear to be the property of the networks who occupy them in apparent unyielding perpetuity, they are a licensed (not even a leased) public trust that belongs to you and me — not a marketplace but a city park, a town square that broadcasters inhabit at no charge in supposed exchange for serving the “public interest, convenience and necessity.” (In practice, the public to a broadcaster is mainly a commodity to deliver to its sponsors.) And as in any commonly held or occupied space, regard for others, and other sensibilities, ought to be the order of the day. We may be living in a time when the line between the public and the private has blurred, but most people still know how they’re expected to act in a crowd.

Some argue that broadcast television needs to be able to compete with cable television on cable’s looser terms. That might have some commercial merit, but it’s a narrow view of storytelling that confuses surface with substance and edginess with ideas. There are more important things than bad words and unclad bodies that make cable series uniquely attractive: They’re creator-driven, the seasons are manageably short; they can survive on a smaller audience and so explore less obvious subject matter less obviously. If you’re watching TV and think, “What this show needs is some profanity, nudity and unusually graphic violence,” you are probably not watching a very good show: It has failed creatively to make its case.

According to the FCC and with all respect to George Carlin, there are no words that are “always unlawful.” Even so, there are reasons we ration their use. To say that they’re only words, as profanity’s apologists sometimes will, gets it backward. Words are powerful — they charm, they wound, they ennoble and debase — but like the sword the pen is said to overpower, they grow dull with overuse. It’s good to hold a few back and to choose them carefully.