Court Considers Leash:Regulating the FCC

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Profanity takes center stage as the United States Supreme Court reviews a case regarding the use of four-letter obscenities on broadcast television. Specifically, the court is considering whether the Federal Communications Commission (FCC) crossed the line when it began issuing hundreds of thousands of dollars worth of fines for any on-air use of the words “fuck” and “shit.” This will be the first time in 30 years that a decision will be made regarding regulations over television content. The last time the high court contemplated these issues was in 1978.
The controversy began after two live broadcasts of the Billboard Music Awards on Fox aired profanity. In 2002, the singer Cher said “[expletive] ‘em.” The following year, Nicole Richie asked the audience: “Have you ever tried to get cow [expletive] out of a Prada purse? It’s not so [expletive] simple.”
The FCC found these segments to be indecent. Although they did not issue any fines at the time, they did note that new regulations regarding fleeting expletives reflected a change in policy.
The FCC, which regulates all television and radio broadcasts, bans all obscene, indecent and profane materials that are aired, especially between the hours of 6 a.m. and 10 p.m. Obscene materials are off-limits at all times. However, indecent and profane material is protected by the first amendment.
Although the FCC does not police all violations, it does respond to documented complaints made by the public. After a complaint is made, the FCC investigates each claim and if sufficient evidence is provided, action is taken. Because of their reliance on the public for information regarding violations, the FCC has become one branch of the Washington bureaucracy that is susceptible to public pressures. In this case, the FCC felt heat from right-wing conservatives who argued that even “fleeting” indecencies are unacceptable over airwaves during hours when children are likely to be watching.
The case was first heard by the United States Court of Appeals for the Second Circuit, which ultimately rejected the FCC ruling that uses of profanity in live TV programming was in fact indecent. The court stated that the FCC did not offer a “reasoned explanation” for its sudden change of policy in 2004, ruling that such changes were “arbitrary and capricious.” They went on to say that “[they] are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the FCC can adequately respond to the constitutional and statutory challenged raised by the networks.”
The main doubts come from the fact that up until 2004, one-time, brief usages of the so-called profane words were overlooked as slips in judgment. However, during the Bush administration and after feeling the heat from conservatives, the FCC stopped looking at violations of indecency laws on a larger scale and began punishing every use of the word, even in unscripted broadcasts. The courts rightfully viewed this as an unreasonable departure from past precedent, except to brown-nose an already overly restrictive administration. The court eventually returned the case to the federal commission in order to allow it time to explain its reasoning further.
The past four years have been especially brutal for the First Amendment. With a conservative administration that holds “national security” and “family values” above individual rights, there has been a witch-hunt for any and all those who even barely threaten its interests. In 2006, Congress agreed to stiffen penalties against broadcast indecency, raising the maximum fine from $32,000 to $325,000 per indiscretion.
The lawyers for the broadcast networks focused on how widespread the use of certain four-letter words are today and how their frequent usage often has little or no relationship to their base meanings (the FCC emphasizes banning such obscenities if they relate to sexual or excretory functions).
On the other side, the argument relied on the dangers of “snowballing”— that is, if profanity on broadcast television is justified, soon parents will find the use of the f-word and other exclamations on Sesame Street and children’s cartoons. This theory is ridiculous and ultimately an attempt by right-wing Christians to further restrict the First Amendment rights of Americans.
Understandably, the FCC already regulates indecency on scripted broadcast television and radio, but blaming networks for the outbursts of people on live broadcasts seems over the top. Furthermore, the basis of its argument is discredited due to the fact that it accepts certain kinds of indecency, but not others. For example, violent statements and images are not regulated by the FCC and are still considered acceptable by the same American public that complains about sex and language on TV.
I guess conservatives are ok with blood, gore and war, but one slip of the f-word and all hell breaks loose. These clues indicate that those filing complaints are more concerned about protecting an agenda rather than American children.
Despite the obvious importance of the issue, I’m left wondering why Americans are dwelling on brief usages of cuss words rather than the economy, the war in Iraq and civil rights. At this point, all one can do is sit and watch how the highest court in the land decides between protecting freedom of speech and causing a “nuisance” to one obviously bored group of citizens.

Lila Kooklan is a fourth-year political science major. She can be reached at lkooklan@uci.edu.

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