This is part of a series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last week, FCC v. Fox Television Stations.
The FCC’s opinion is short. Recall the relevant sections of the Communications Act of 1934 — basically, § 326, which prohibits the FCC from censoring program material, and 18 U.S.C. § 1464, which prohibits obscenity and indecency. (Those sections are quoted and explained in
the first installment of this series.) The Commission’s rules thus prevent obscenity at all times, and indecency from 6 a.m. to 10 p.m. This is because the FCC’s definition of “indecency” refers to the composition of the audience, so a broadcast that’s indecent at 5 p.m. might not be indecent at midnight:
The Commission defines indecent speech as language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.
(Note that the FCC states here that, even though indecency regulation has been upheld, “the First Amendment is a critical constitutional limitation that demands that, in such determinations, we proceed cautiously and with appropriate restraint.”)
Let’s start with Step 1, whether the material describes “sexual or excretory organs or activities.” Even though NBC’s use of the “F-Word” was “as an intensifier,” the FCC said that, “given the core meaning of the ‘F-Word,’ any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition.”
So that’s a significant step. “Fuck” always has an inherent sexual meaning. Let’s just pause and ask ourselves whether that describes our own experience with the use of that word. Now let’s move on to Step 2, whether the material is “patently offensive.” We have to look at the context; and “context,” says the FCC, means the full context in which the material appears, so we consider:
(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.
Here, says the FCC, the word “fuck” is always patently offensive:
The “F-Word” is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse sexual image. The use of the “F-Word” here, on a nationally telecast awards ceremony, was shocking and gratuitous.
Wow. Invariably. By “contemporary community standards.” Hmm. Moreover, the fact that this was unintentional is irrelevant; it has the same effect of exposing children. “Our action today furthers our responsibility to safeguard the well-being of the nation’s children from the most objectionable, most offensive language.”
Interestingly, the FCC notes that NBC was on notice that this could happen — just the previous year, Cher had said “fuck ’em” during the broadcast of the Billboard Awards Ceremony, and Bono himself had said “fuck” during the 1994 Grammys! So basically, entertainment award ceremonies are perilous grounds. The FCC also remarked, by way of support, that technological advances — a delay and bleep system — make it possible to avoid broadcasting offending words now.
The FCC, with this opinion, retracted its previously held view that “isolated or fleeting broadcasts of the ‘F-Word’ such as that here are not indecent or would not be acted upon.” (It said this in a series of 1987 cases including one involving, like the 1975 case, the Pacifica Foundation.)
Also interesting here is an independent ground for the opinion: the word is “profane” language, which is also prohibited under the same statute, 18 U.S.C. § 1464. (This holding is also a change from previous policy, which had demanded some blasphemous religious context, like darning someone to heck.) This actually seems like a more defensible ground than their main ground. In fact, it seems pretty reasonable to say that isolated uses of “fuck” are profane and therefore prohibited by the statute. (Though whether the statute is constitutional to the extent it does that is another matter.)
Because this was a change of policy, the FCC decided not to enforce the statute against NBC and the other broadcasters. (Under NLRB v. Wyman-Gordon Co., that makes this proceeding an invalid rulemaking, though one the agency can rely on in the future… but that’s another story.) The FCC closed by noting that the decision “is not inconsistent with the Supreme Court ruling in Pacifica,” which “explicitly left open the issue of whether an occasional expletive could be considered indecent.”
The main opinion was followed by the statement of Chairman Michael K. Powell (Colin Powell’s son, by the way), supporting the new use of the profanity section, noting that he wouldn’t have supported a retroactive fine, and urging caution in the use of enforcement lest free speech be chilled. Jonathan Adelstein wrote in support of the profanity argument, said that “fuck” was offensive “whether it is used as an adjective, adverb, verb or gerund,” and, like the others, said that a fine would have been inappropriate — even though assessing a fine was his “strong preference here.”
O.K., weren’t there at least some dissents here? Yes, two Commissioners approved in part and dissented in part. First, there was Michael Copps, who dissented on the grounds that a fine should have been assessed. Same goes for the last separate statement, by Kevin J. Martin.