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such a nasty woman | by maryann johanson

question of the day: How much should the federal government censor American broadcast television?


Here’s what the Federal Communications Commission says about “Indecent Broadcast Restrictions”:

The FCC has defined broadcast indecency as “language or 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.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.

The courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.

Consistent with a federal indecency statute and federal court decisions interpreting the statute, the Commission adopted a rule that broadcasts — both on television and radio — that fit within the indecency definition and that are aired between 6:00 a.m. and 10:00 p.m. are prohibited and subject to indecency enforcement action.

(Read more about the FCC’s take on obscenity, indecency, and profanity at FCC.gov.)
Now, some people think that those restrictions are themselves indecent, and they’ve brought the matter to the U.S. Supreme Court, which issued a ruling this week that probably isn’t going to help clear up the issue. From The New York Times:

The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet.

In 1978, in Federal Communications Commission v. Pacifica Foundation, the court said the government could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.

Neither point still holds, lawyers for two networks told the justices. The case, Federal Communications Commission v. Fox Television Stations, No. 10-1293, arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama “NYPD Blue” on ABC.

Justice Antonin Scalia, who in other settings has been hostile to government regulation of speech, said there was value in holding the line here.

“This has a symbolic value,” he said, “just as we require a certain modicum of dress for the people that attend this court.”

“These are public airwaves,” Justice Scalia went on, adding: “I’m not sure it even has to relate to juveniles, to tell you the truth.”

The FCC has jurisdiction over only the public airwaves, so it has no power to tell cablecasters what they may or may not air. It seems to me, however, from my own TV-watching experience, that most cable networks tend to adhere to the general spirit of the FCC guidelines; even the premium cable channels tend not to air R-rated films in the daytime. (Although it’s been years since I had regular access to a premium movie channel, so perhaps this has changed.)

On the other hand:

“One cannot tell what’s indecent and what isn’t,” Justice Ruth Bader Ginsburg said, referring to the agency as “the censor.”

The commission has, for instance, said that swearing in “Saving Private Ryan,” the Steven Spielberg war movie, was not indecent, while swearing by blues masters in a music documentary produced by Martin Scorsese was indecent. Nudity in “Schindler’s List,” another Spielberg movie, was allowed, but a few seconds of partial nudity in “NYPD Blue” was not.

Justice Elena Kagan offered a summary of the state of federal regulation in this area. “The way that this policy seems to work,” she said, “it’s like nobody can use dirty words or nudity except for Steven Spielberg.”


Of course, there are many other FCC mandates that are flouted that no one seems to get upset about… like the one about educational television for children. If people are genuinely so concerned about children’s wellbeing — which is at least the professed motive for some who are for tightly enforcing the current regulations — where are the lawsuits about all the FCC-mandated educational programming for kids that’s missing from TV?

And anyone familiar with British broadcast television can tell you that fleeting nudity, random swear words — lots of shits, few fucks — and very adult themes are all over primetime programming, and the world appears not to have come to an end.

What do you think? How much should the federal government censor American broadcast television? Is it a moot point, since broadcast TV is clearly on its way out, or at least on its way to being much less culturally influential?

(If you have a suggestion for a QOTD, feel free to email me. Responses to this QOTD sent by email will be ignored; please post your responses here.)

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