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FCC erratically enforces unclear obscenity standards


This news story was published on January 24, 2012.
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McClatchy-Tribune News Service –

In a relatively light moment during recent arguments at the U.S. Supreme Court, Associate Justice Elena Kagan neatly summed up the problem with the Federal Communications Commission’s current system for controlling allegedly indecent material on over-the-air television and radio.

“The way that this policy seems to work,” she said, “it’s like nobody can use dirty words or nudity except for Steven Spielberg (laughter in the room), and that there’s a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that’s a serious First Amendment issue.”

The Supreme Court is considering this issue and Fifth Amendment issues in two related cases: FCC v. Fox Television Stations Inc. and FCC v. ABC Inc. A decision is expected by June.

Justice Kagan’s remark was judiciously restrained. In truth, the FCC’s current enforcement approach is unclear, unpredictable and often laughably inconsistent. It violates freedom of speech guarantees of the First Amendment and due process guarantees of the Fifth Amendment. The court should invalidate the commission’s current system, forcing the FCC to see if it can devise a different process that squares with the U.S. Constitution.

The reference to Steven Spielberg was no coincidence. Multiple uses of variations of the f-word and the s-word were not indecent in prime-time network broadcasts of Mr. Spielberg’s movie “Saving Private Ryan,” the FCC said. But the same words spoken in “The Blues,” a seven-part public television documentary on the history of blues music, were declared indecent.

Full-frontal nudity in network broadcasts of Mr. Spielberg’s “Schindler’s List” was not indecent, the FCC said, but partial nudity in an episode of the much-honored television series “NYPD Blue” was deemed indecent — although only when it aired between 9 p.m. and 10 p.m. in the Central time zone.

The FCC’s current indecency regime gives a government agency the power to make subjective judgments about which words, sequences and images are artistically necessary and which are not. To the FCC, the dialogue, acting, editing, cinematography and storytelling of Mr. Spielberg’s works made their nudity and profanity artistically necessary.

But after analyzing their scripts, lighting, shots, pacing and camera angles of “The Blues” and “NYPD Blue,” the agency declared their nudity and profanity to be artistically unnecessary. Therefore, they were indecent and subject to fines of up to $325,000 per word or image — per station.

ABC and its affiliated stations, for example, were fined more than $1 million for a brief 10th-season sequence of “NYPD Blue” dramatizing an awkward situation that arose the morning after long-suffering Detective Andy Sipowicz found love with a female colleague.

The FCC’s vague standards, erratic artistic assessments and excessive fines have fostered fear and chilled free expression. Language in documentaries about soldiers fighting in Iraq and battling post-traumatic stress disorder at home was sanitized for fear of FCC sanctions. A commercial TV station in Portland, Ore., avoided live coverage of a controversial local news event, fearing that an open microphone might pick up an expletive. Phoenix TV stations decided against live coverage of a memorial service for Pat Tillman, a former NFL player killed by friendly fire while serving in Afghanistan, anticipating profanity from Mr. Tillman’s anguished family members.

Obscenity enjoys no First Amendment protection. But some of the court briefs supporting broadcasters make persuasive arguments that now there is no justification for government to police TV and radio signals for indecency—if there ever was.

Broadcast channels, for example, are neither uniquely pervasive nor uniquely accessible to children, the reasons cited in the court’s 1978 Pacifica opinion for restricting broadcasters’ free speech. In 90 percent of American homes, those channels arrive via cable wires and satellite dishes alongside unregulated basic and premium channels.

And thanks to a wide range of blocking circuits in televisions, remotes and set-top boxes, parents who want to limit the media diets of their children don’t need the FCC to do it for them.

The Supreme Court may not rule out indecency regulation entirely, but the system in place today is unacceptable. As the Second Circuit Court of Appeals put it, “We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s current policy fails constitutional scrutiny.”

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