The Freakin' FCC: The Increasingly Incomprehensible Ban on Broadcast Indecency

By Jacob Sullum (Archive) · Wednesday, January 11, 2012

My daughters, who range in age from 5 to 18, watch TV programs and movies on DVDs, on smart phones, streaming from Netflix through our Wii, on video websites, on our DVR and on demand from AT&T U-verse. They do not know or care what "broadcast television" is, and they certainly do not perceive a categorical distinction between "over-the-air" channels and the rest.

But the Federal Communications Commission does, imposing a form of censorship on broadcast TV that would be clearly unconstitutional in any other context -- for the children, of course. A case the Supreme Court heard on Tuesday gives it an opportunity to renounce this obsolete doctrine once and for all.

Officially, the FCC punishes TV and radio stations for airing programs that "describe or depict sexual or excretory organs or activities" in a way that is "patently offensive as measured by contemporary community standards for the broadcast medium." But no one knows what that means until the commission rules, and even then it is impossible to extract clear guidelines from the FCC's highly subjective judgments.

The commission has decreed, for instance, that "f--k" is indecent when uttered by celebrities during live award shows -- whether exuberantly (Bono), angrily (Cher) or jokingly (Nicole Richie) -- and by blues musicians in a PBS documentary, but not by fictional soldiers in "Saving Private Ryan," where the expletives were, in the FCC's view, artistically justified. Likewise, fleeting partial nudity on "NYPD Blue" was indecent, while full frontal nudity in "Schindler's List" was not. Call it the Spielberg Rule.

The FCC insists on no "bulls--t" in a cop show but may allow it in "a bona fide news interview," although it emphasizes "there is no outright news exemption from our indecency rules." The commission can be surprisingly tolerant of a "dickhead" or an "ass," even when he is "pissed off." As the America Civil Liberties Union (ACLU) observes, such judgments are "simply a matter of taste, and the commissioners' efforts to rationalize their taste merely emphasize the arbitrary nature of the enterprise."

Since guessing wrong about the FCC's taste can cost broadcasters millions of dollars in fines and jeopardize their licenses, they tend to err on the side of restraint, which means much worthy material either is expurgated or never airs. The ACLU cites many such examples, including 9/11 documentaries, war reporting, political debates, live news coverage, novel readings, songs from Broadway shows and a critically acclaimed British police drama.

In 2010, the U.S. Court of Appeals for the 2nd Circuit concluded that "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." The court ruled that the FCC's indecency ban "violates the First Amendment because it is unconstitutionally vague."

Fox and the other TV networks challenging the ban are urging the Supreme Court not only to uphold the 2nd Circuit's decision but to reconsider the 1978 ruling that approved content-based regulation of broadcasting on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to children." Now that nine out of 10 households are served by cable, satellite or fiberoptic TV, and children commonly watch video from non-broadcast sources, it is hard to make that argument with a straight face.

Three decades ago, the court portrayed TV and radio signals as unwelcome visitors in people's homes. That description was never accurate, since receiving the programming carried by those signals required deliberate actions. It is even further from reality in today's entertainment market, which gives parents many tools for regulating what their kids watch.

During Tuesday's oral argument, Justice Samuel Alito worried that repealing the indecency ban would trigger an explosion of televised nudity and profanity, even while conceding that the rule applies to a ever-shrinking share of the video market. In fact, there are more child-friendly entertainment options than ever before, no thanks to the government's ham-handed interference. From a consumer's perspective, the FCC's weirdly selective censorship is not just unnecessary but increasingly incomprehensible.

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