Current.org | What's indecent now?

The FCC and indecency
What the #%@& is
off-limits now?

Originally published in Current, April 26, 2004
By Jeremy Egner

"So, can we say 'suck'?"

That's what Fresh Air co-executive producer Danny Miller asked attorney Steve Schaffer. Miller was calling because emerging star Nellie McKay uses the word in a song excerpted in the program's review of her album Get Away From Me.

No, said Schaffer. No "suck." Though McKay was insulting somebody and not talking about sex, the word's sexual connections make it a no-no in the new landscape of media regulation. Miller cut out the offending word and spliced it in backwards, leaving alert Fresh Air listeners to wonder why McKay would think something "skcus."

Schaffer, like many communications lawyers, was wary of the FCC's rapidly shifting use of indecency and profanity rules, signaled by its March 18 decision on an NBC broadcast of the 2003 Golden Globes.

The commissioners overruled an earlier decision by its enforcement bureau that rock star Bono's on-air comment — "this is really, really fucking brilliant" — was not indecent. The bureau found the remark acceptable because it was fleeting--an exculpatory quality as outlined in a 1987 decision involving Pacifica--and did not describe or depict a sexual or excretory act, which has been the standard for indecency since the more famous 1978 "Filthy Words" verdict, also against Pacifica.

But the commissioners came down on the Bono case after reviewing it at the request of the Parents Television Council. The commissioners rejected the "isolated or fleeting" exception. The f-word, they said, "invariably invokes a coarse sexual image," which qualifies as a depiction. Furthermore, the commission found Bono's f-bomb profane, a descriptor historically reserved for blasphemous (irreverent to God) utterances. The 10 p.m. to 6 a.m. "safe harbor" for broadcasting indecent content still applies.

Bills in the Senate and House would let the commission punish broadcasters with maximum fines ranging from $275,000 to $500,000 per violation — 10 to 20 times the present level of fines--and make it easier for it to revoke broadcast licenses. Infinity and Clear Channel have been hit with record fines. But public broadcasters are not exempt as the FCC put all licensees on notice that even one broadcast of a profane word or phrase could merit a fine, and they'll determine what is profane case by case.

This unsettles communications lawyers representing pubcasters who could ill-afford a six-figure fine. Schaffer's D.C.-based firm, Schwartz, Woods & Miller, sent clients a memo advising them to "carefully review programming policies" and run edited versions of documentaries "unless you are willing to be a test case on whether context can excuse what would otherwise be deemed indecent or profane."

"Zero tolerance is the new standard," the memo advises.
John Crigler, a Washington attorney who successfully appealed a 2001 FCC indecency fine against KBOO in Portland, Ore., says airing programs far better than Howard Stern's doesn't make a station any less vulnerable.

"It may even be entertaining to see large commercial groups get spanked," he says. "But [pubcasters] would be foolish to think this standard will only be applied to Stern."

"Can you believe we're discussing this?"

As a result of the Bono ruling, broadcasters have two red flags to watch out for — not counting obscenity, which is not immediately at issue.

Indecency: As defined by the Pacifica case, it's material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." The "community" is generally interpreted by the commission as "the national community as a whole," and the "standards" are as vague as ever.
Profanity: The FCC said in the Bono decision it's commonly defined as "vulgar, irreverent or coarse language" but officially cites a definition from a 1972 case that reads, in part ". . . language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." To that, the commission added that it "will also consider under the definition of 'profanity' the 'f-word' and those words (or variants thereof) that are as highly offensive as the 'f-word.'"

And which words are those? The open-ended ruling against offensiveness has attorneys preaching absolute caution. It could greatly expand the commission's jurisdiction, Crigler says, and the elimination of the "informal or fleeting" excuse means the stakes are higher. The FCC "used to cut people some slack, but now that's gone," Crigler says. "One word will do you."

Attorneys say the new profanity standard, with its call for "case-by-case" analysis, especially has a chilling effect on free speech in that it leaves programmers afraid to air things that should be legal. The upshot, Schaffer says, is "adults are wasting an incredible amount of time discussing words they should be able to say."

"We've had calls asking, can we say 'tit?'" his colleague, Larry Miller, says. "We're looking at each other saying, 'can you believe we're discussing this in a law firm?'"

Among the first to be chilled was PBS, which put sanitized versions of programs on the default "hard feeds" on its satellite. Uncut offensive language, as in this month's Prime Suspect 6: The Last Witness, was available to stations on the optional soft feed.

Fresh Air will edit a pivotal Sweeny Todd lyric for an upcoming broadcast, Miller says, because it includes "shit." The program aired the line in the past because its artistic value was such that Fresh Air producers were willing to endure calls from offended listeners. "Now," says Miller, "I don't think we could ask stations to take the risk."

Fight or fright?

David Tillotson, who represented Pacifica in the "Filthy Words" case, filed his own petition for reconsideration of the Bono ruling with the commission. He criticized "cowardly" broadcasters and communications lawyers who bow to what he considers a legally faulty ruling. "Public broadcasters more than anyone should be standing up for the right to be creative," he tells Current. (NBC, which aired the 2003 Golden Globes, is challenging the Bono ruling.)

Tillotson doesn't represent big public stations, but says any pubcaster who runs afoul of the FCC should press the issue and force a day in court. He predicts no federal attorney would bother suing a pubcaster but acknowledged there is a remote risk a station might have to defend itself.

That's enough for Schaffer to recommend caution. "It's one thing to have the courage of your conviction and quite another to have to pay legal fees," says Schaffer. He and others will continue to counsel prevention as the best policy. Since broadcasters won't know exactly where the line is until they cross it, even coming close is risky.

"It's almost worse that you have to make your own decisions" about what to edit, Schaffer says.

Some might even say it skcus.

Web page posted April 26, 2004
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