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. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin’s monologue if you haven’t done so already!)

In the last post, I discussed the FCC’s 2004 rule on indecency, which altered its previous policy, mainly on the word “fuck.” For something to be indecent, it has to, first, refer to sexual or excretory activities. And, second, it has to be patently offensive, in context, according to contemporary community standards. This second prong (heh-heh) involves analyzing (1) the explicitness or graphic nature of the description of sexual or excretory activities, (2) whether the material dwells on or repeats the description of these activities at length, and (3) whether it appears to pander or titillate or was presented for its shock value.

On the first prong, the FCC found that “fuck,” in any form, always referred to sexual activities. And on the second prong, the FCC applied its three criteria and determined that its use on a nationally televised awards show was indeed patently offensive. (As an alternative ground, the FCC held that “fuck” was profane, another prohibited category.) Therefore, the material was “indecent,” and thus banned by the statute, even if it was only mentioned once and accidentally. (The previous policy had announced that isolated occurrences were of no regulatory concern.) Nonetheless, the FCC declined to assess a fine, because it was announcing a change of policy and thought the regulated community ought to have more notice before being fined — among other reasons, lest there be a chilling effect on speech.

That was the 2004 policy. About two years later, in March 2006, to give greater guidance to the regulated community, the FCC released a lengthy document analyzing dozens of particular cases, representing thousands of complaints. The document was divided into three parts: (1) cases where it found indecency or profanity and proposed monetary fines against the licensees, (2) cases where it found indecency or profanity but didn’t propose fines, and (3) cases where it didn’t find indecency or profanity. Here are some examples — I’ll focus on the ones involving speech rather than visual depictions of sex.

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    34 Comments

    1. Laura(southernxyl) says:

      “On the first prong, the FCC found that “fuck,” in any form, always referred to sexual activities.”

      Well, that right there is stupid.

      SNAFU goes back to WWII, right? FUBAR goes back to the 80′s at least. Unless you have a very strange view of sex, those f-words don’t refer to sexual activities.

    2. Soronel Haetir says:

      Laura(southernxyl),

      You forget that agencies like the FCC are populated by the easily aggreved. Agencies pander to those who want to talk with them.

    3. Don't Panic says:

      There was a stand-up half-hour special on Comedy Central where a comedian has a bit about his foreign-born mother mixing up the sounds ‘f’ and ‘p’. So, predictably, this gets around to profanity. The joke is that his mother would pronounce the word as ‘puck’.

      That word was bleeped out…

    4. http://volokh.com/?exclude=davidb says:

      The FCC is so quaint. This whole thing is really howlingly funny.

    5. AJK says:

      I guess we can only hope that technological innovations will continue to make these FCC rulings more and more irrelevant.

    6. Dave N says:

      Don’t Panic,

      And because the FCC (thankfully) does not regulate cable, the bit is either funnier or breathtakingly stupid–but I am not sure which.

    7. Oren says:


      The FCC is so quaint. This whole thing is really howlingly funny.

      I would agree except for the stations that risk getting canned because some dude a live sporting event said a naughty word.

    8. Cornellian says:

      and determined that its use on a nationally televised awards show was indeed patently offensive.

      Yeah, I definitely hide under my bed for at least 30 minutes after hearing the “F” word because it’s so shocking to my delicate Victorian sensibilities.

      Now if you’ll excuse me I’ll go back to writing those letters to the FCC protesting shows that display women wearing low necklines and skirts above the knee.

    9. Soronel Haetir says:


      Now if you’ll excuse me I’ll go back to writing those letters to the FCC protesting shows that display women wearing low necklines and skirts above the

      knee.

      Oh come on, we can be more prudish than that. It should be a death penalty offense to show ankles on TV.

      penalu

    10. Cornellian says:

      Oh come on, we can be more prudish than that. It should be a death penalty offense to show ankles on TV.

      Knowing the FCC, they will rule that it is more acceptable to televise the execution than to televise those bare ankles.

    11. Thoughtful says:

      Laura said:

      [Somin]“On the first prong, the FCC found that “fuck,” in any form, always referred to sexual activities.”

      “Well, that right there is stupid. ”

      She could have made her point stronger, if with less delicacy, by noting that it is fucking stupid…

    12. Roger Schlafly says:

      The FCC is just following popular opinion. If you really want to hear the 7 dirty words so badly, just get cable TV, or satellite TV, or buy DVDs, or get an internet connection.

    13. Philistine says:


      If you really want to hear the 7 dirty words so badly, just get cable TV, or satellite TV, or buy DVDs, or get an internet connection.


      Or walk outside in the city. Or any high school. Or go to a sporting event. Or….

    14. sk says:

      “The FCC is just following popular opinion. If you really want to hear the 7 dirty words so badly, just get cable TV, or satellite TV, or buy DVDs, or get an internet connection.”

      Quite right. What’s all the sneering pretentiousness about?

      Where should the line be?

      At the word fuck?

      At graphic depiction of sex?

      At graphic depiction of anal sex?

      At graphic depiction of forced sex (i.e. rape)?

      If you accept any line at all, you are accepting an arbitrary line by definition. It is not sophisticated to draw the line at a different place from your neighbors (or from the folks at the FCC)-its simply an arbitrary difference of opinion. You aren’t wiser, or smarter, or more mature to want to hear fuck on broadcast tv. You don’t have a higher appreciation for art, or freedom of expression, or intellectual achievement. You just have a different standard of dirty language acceptance.

      The FCC doesn’t exist to please you personally. Watch cable and surf the interet if you’re so interested in hearing fuck. Your argument comes down to ‘I like to hear fuck, and my neighbors don’t. Ergo, I’m better than they are.’

      Get over yourselves.

      Sk

    15. Sasha Volokh says:

      Roger Schlafly, Sk: A wise man once told me that “reductio ad absurdum” doesn’t work as an argument if the person you’re arguing with is willing to be absurd! So, here goes:

      First, as a policy matter, I think there’s no good reason to regulate broadcast content any differently than cable content. If something is allowable on TNT or USA or Bravo or The Discovery Channel or what have you, it should be allowable on broadcast. The standard reasons for different treatment don’t hold up: the “scarcity rationale” doesn’t distinguish broadcast from any other economic good; the “intrusion into the home” rationale doesn’t work because you’re the one who chooses to bring the TV or radio into your home and turn it on; the “children” rationale is the only one that can arguably work, but if so, that still doesn’t distinguish cable. So this first argument just argues for uniformity as between broadcast and non-broadcast.

      Second, as a moral matter, I think that this uniform level should be speech-protective. Just as under Cohen v. California, you can wear a jacket that says “Fuck the Draft,” and I presume you’re also able to say “fuck” on the street (there’s probably a case about that?), you should be able to say “fuck” on TV. (The constitutional argument of course isn’t a moral argument; but I think that in this case, the constitutional standard tracks morality — governments are morally required to allow “fuck” on the street or on your jacket.) Same with any language. Otherwise, I would demand more censorship of language on the street, just for consistency.

      As for depictions of activity, again, the only rationale that possibly holds up is the protection of children. There _might_ be some tenable lines here, probably related to sex (on the same theory as access to pornography by minors), but it still probably doesn’t justify different levels of regulation for broadcast, non-broadcast, and stuff that people can do in plain view behind their windows.

    16. David Drake says:

      The problem with the decision is the (presumably) spontaneous utterance in an unscripted program. That’s what makes the decision stupid. And of course, the fact that “fuck” is a general purpose expletive and its use as a sexual term is probably quite low statistically.

      The FCC would be on solid ground if the studio scripted a a sitcom with the offensive words, rather than the current double-entendre acompanied by jiggle and leer.

    17. Oren says:

      The FCC doesn’t exist to please you personally. Watch cable and surf the interet if you’re so interested in hearing fuck. Your argument comes down to ‘I like to hear fuck, and my neighbors don’t. Ergo, I’m better than they are.’

      Except that the argument works exactly in reverse as well, my neighbor says “I don’t like to here fuck and my neighbor does”.

      Given that we’ve already spent untold billions mandating v-chips in all new TVs for the last decade or so, why not err on the side of allowing everything and letting each household block what they want to block.

      The free market is wonderful. If you could get sufficient eyeballs watching graphic depictions of sex, that means (shock!), people want to see graphic depictions of sex. According to SK, that doesn’t make those people any wiser or more mature, but according to ratings, advertisers will pay good money.

    18. Oren says:

      Damnit, Sasha, both first and better thought out. Just to point out, your “As for depictions of activity, again, the only rationale that possibly holds up is the protection of children.” falls flat with the advent of the v-chip.

      In a previous thread, one poster talked about the “attractive nuisance” of dirty TV, analogizing it to an unfenced pool. We’ve fenced it. Not only did we fence it, we made it illegal to sell a pool without a fence already built in.

    19. Soronel Haetir says:


      Knowing the FCC, they will rule that it is more acceptable to televise the execution than to televise those bare ankles.

      Executions are, after all, an important state function.

      As for shows with graphic sex and advertising I can just see “This cum shot brought to you by KY.”

    20. martinned says:


      Where should the line be?

      At the word fuck?

      At graphic depiction of sex?

      At graphic depiction of anal sex?

      At graphic depiction of forced sex (i.e. rape)?

      Just to clear something up: Am I the only one who thinks it should be legal to broadcast Gaspar No

    21. sk says:

      “First, as a policy matter, I think there’s no good reason to regulate broadcast content any differently than cable content…

      As for depictions of activity, again, the only rationale that possibly holds up is the protection of children.

      And is cable regulated? If so, you accept the arbitrary line. And, if so, we are arguing”

      So just to be clear, you do accept a ‘censorship line,’ just like the FCC. The only difference is that you would draw the line differently.

      Which is ok. Where to draw the line is then a simple political argument, and political arguments are made-through political processes-all the time.

      But its not a logical line, and its not a legal line, and its not a constitutional line, and its not a principled line-its just a political disagreement.

      sk

      “Except that the argument works exactly in reverse as well, my neighbor says “I don’t like to here fuck and my neighbor does”. ”

      Of course it does. I vote democrat. My neighbor votes Republican. We disagree, and use the political process to sort it out.

      “First, as a policy matter, I think there’s no good reason to regulate broadcast content any differently than cable content.”

      And as a policy matter, I think there is. Who decides policy matters? The political process, or the Supreme Court?

      Oddly enough, I suspect I agree with most of you as a policy matter (censorship bad. Maximum freedoms good-though I have no problem with not hearing fuck on broadcast tv. I get enough of it in Deadwood. That’s actually a joke. I could take about 3 minutes of Deadwood, once).

      But in terms of constitutional argument, you are simply getting lazy. When Sasha says “As a policy matter, I think…” or “As a moral matter, I think…”. Or: ” As for depictions of activity, again, the only rationale that possibly holds up is the protection of children.”

      You are really saying “My line is different from your line. But my line is better (my opponents remind me of Victorian prudes). Therefore the Supreme Court should impose my line on you.” If it really is a ‘policy matter’ (as Sasha stated), then its a matter for policy makers-i.e. the FCC.

      Sk

    22. Roger Schlafly says:

      Sasha, maybe you don’t see any good reason for nonuniform TV standards, but most people want some control over the obscenity and offensive shows on their TV sets. Those cable TV stations do not even have uniform standards. Some bleep out the F-word, and some don’t. Some show nudity, and some don’t.

      The rules are not just for children. Many adults do not want to be unexpectedly bombarded with the F-word. People have been jailed for contempt because they used the F-word in court.

      The V-chip was a govt-mandated policy with no popular support. For various technical reasons, it was not what the people wanted. They want some common sense FCC regulations.

    23. martinned says:


      You are really saying “My line is different from your line. But my line is better (my opponents remind me of Victorian prudes). Therefore the Supreme Court should impose my line on you.” If it really is a ‘policy matter’ (as Sasha stated), then its a matter for policy makers-i.e. the FCC.

      Actually no. This “argument” is more frequently encountered in the abortion debate, but it’s nice to see it here as well…

      Who is imposing what on whom in either version of the proposed rule? A libertarian rule imposes very little on anyone. Just like Roe v Wade does not force anyone to have an abortion, the rule that actually does justice to the first amendment does not require anyone to say fuck or even to listen to someone on TV saying it.

      While one can argue about Roe, I’d say the policy question regarding how much free speech should be allowed on TV was settled long before TVs were even invented. Isn’t that great?

    24. Soronel Haetir says:

      Sk,

      AFAIK, cable is not regulated. At least not by the FCC. I suppose whatever local authority controls the cable co. might put in restrictions. Sattelite is even less regulated.

      Cable channels follow the patterns they do out of market regulations, going as far as advertisers will tolerate, not out of government regulation. HBO etc don’t have that limitation, they are limited by what their paying customers want/will tolerate and what they can negotiate with content producers.

      I’ve seen groups trying to convince FCC to regulate these sources but I’m pretty sure that FCC simply maintains they don’t have authority to do so. It would also be interesting to see Congress attempt such with sattelite, especially if the providers were to relocate their businesses outside the US. Hard to keep such signals from being accessible, and I can see it causing major issues if the US were to start knocking out commercial broadcast sattelites.

    25. martinned says:


      Those cable TV stations do not even have uniform standards. Some bleep out the F-word, and some don’t. Some show nudity, and some don’t.

      Isn’t free competition great? That way, TV stations, like shoes, come in all sorts and sizes.

    26. Oren says:


      Sasha, maybe you don’t see any good reason for nonuniform TV standards, but most people want some control over the obscenity and offensive shows on their TV sets. The rules are not just for children. Many adults do not want to be unexpectedly bombarded with the F-word.

      There is no reason that an adult cannot set the v-chip to prohibit mature content and lock himself out of it. No unexpected surprises there.


      The V-chip was a govt-mandated policy with no popular support. For various technical reasons, it was not what the people wanted. They want some common sense FCC regulations.

      It had massive popular support — it was going to finally empower parents to set the standards of what their children could see. The (adult) American public has every right to feel duped by the FCC that pushes filtering and then turns around and decides to regulate content to the lowest common denominator anyway.

    27. Oren says:


      AFAIK, cable is not regulated. At least not by the FCC. I suppose whatever local authority controls the cable co. might put in restrictions. Satellite is even less regulated.

      Cable &satellite are a bit odd since they are not vertically integrated in the way that broadcast is. ABC produces, airs and sell advertising for a show. Comedy Central, on the other hand, sells their channel to the cable/sat companies for a fixed per-subscriber fee, who then bundle it together and sell it to consumers.

      This puts those distribution companies in charge of decided what’s tame enough for the “basic lineup” and what has to be scrambled as a premium service.

    28. Don't Panic says:

      Dave N,

      That’s true, but I am going to have to disappoint because it was actually incredibly stupid – though at the same time really timely and kinda funny given the discussions here. Cable channels (despite the lack of FCC regulations) tend to self-censor to the same extent as broadcast, if not more so at times (at least from certain appearances), since there is a lot more opportunity to do so given the more ‘risky’ programming. I have never seen Blazing Saddles on ABC, but I have on a non-premium cable channel. It was not pretty.

    29. Sasha Volokh says:

      Sk: I haven’t been closely following the arguments of all the commenters here, so I’m just speaking for myself. But you’re making at least three errors here:

      (1) Just because a line has to be drawn — just because we don’t favor an absolutist “no censorship” line — doesn’t mean whatever line is drawn is arbitrary, not logical, and not principled. One can draw a principled line saying “all speech is O.K., but some depictions of conduct aren’t,” or similar — I’m not saying that’s the line I’d necessarily draw, but one can draw it, logically and principledly. Perhaps it turns out in fact that we resolve the line-drawing question by voting, but that tells us nothing about the possibility of drawing logical, principled lines.

      (2) I don’t recall ever saying that this wasn’t a matter for the political process — so far, I’ve just been describing the FCC’s views, and expressing the view that they’re stupid. In the FCC v. Fox Television Stations case, the only question at issue was whether the FCC was permissibly interpreting the Communications Act of 1934. (The First Amendment argument didn’t come up in that case.) The Supreme Court said it was, and I agree. So basically Congress made a decision in 1934, Congress hasn’t seen fit to revisit the issue since then, the political process has staffed the FCC, and the Court is only intervening to make sure that the FCC is within the bounds set by Congress. That’s all fine, nothing wrong here. But we can still say it’s stupid. We can express policy disagreements — or even moral disagreements — without implying that the political process is the wrong place to sort it out.

      (3) To the extent this involves constitutional issues like the First Amendment — an issue that _will_ come up in the case, though it wasn’t in the case this time around — it’s the Supreme Court deciding whether the regulation is permissible. The simple reason is that government regulation is constrained by the First Amendment, and our system, for better or worse, embodies judicial review. Now the First Amendment doesn’t necessarily draw an absolutist line; it may allow certain regulation of content; but just because that’s a matter of line-drawing doesn’t mean it’s necessarily a matter for the political process. The fact that the First Amendment applies, plus the fact that we’ve got judicial review, means that it’s one of those issues that the Court has to decide.

    30. Fub says:

      Sasha Volokh wrote at 5.20.2009 10:26am:

      First, as a policy matter, I think there’s no good reason to regulate broadcast content any differently than cable content. …

      Second, as a moral matter, I think that this uniform level should be speech-protective. …

      I agree with both those points, but they also implicitly admit that 18 USC 1464 and its brethren are the problem.

      I would be more than happy to see all “communications decency” statutes repealed. But as long as they are on the books, the FCC will enforce them, and every censorious religious or political loon in the country will be glad to help them.

      Repeal the statutes, and the censorship will stop.

      Nothing prevents those favoring liberty and freedom of speech from using similar tactics to those who favor censorship. The censorship pressure groups use FCC indecency complaints. The forces of free speech could use FCC complaints to attack some licensees (usually religious broadcasters) instrumental in organizing the censorship faithful.

      I (or anybody reasonably familiar with broadcast regs, not just lawyers) know off the top of the head several perfectly legal ways to make any licensee have a very bad hair day with the FCC. I won’t reveal them in detail here, because I’m not organizing the revolution. But here is a clue: indecency complaints are not the only complaints that the FCC will act on. Homework hint: read 47 CFR part 73 carefully. If you can’t spot at least a half dozen ways to make a licensee tear his hair out, you’re not reading carefully enough.

    31. Oren says:


      Nothing prevents those favoring liberty and freedom of speech from using similar tactics to those who favor censorship. The censorship pressure groups use FCC indecency complaints.

      The problem here is similar to many political problems — there are a lot of people that feel very weakly about something (perhaps not even enough to swing their vote) up against a small number of people that feel very strongly (perhaps to the extent that they are willing to overlook all other issues when voting). The vocal minority tends to win in these situations because the majority really doesn’t care enough even though, in aggregate (multiplying the number of people times the amount each cares) they care more.

      This is why we have tariffs on sugar that benefit only Mississippi farmers while costing everyone else money — the few make a lot, we each lose only a few cents in higher sugar prices. There’s no way you are going to motivate the majority of people whose (shallow) interest in repealing the sugar tariffs to make an issue of it.

    32. Fub says:

      Oren wrote at 5.20.2009 5:15pm:

      The problem here is similar to many political problems — there are a lot of people that feel very weakly about something (perhaps not even enough to swing their vote) up against a small number of people that feel very strongly (perhaps to the extent that they are willing to overlook all other issues when voting). The vocal minority tends to win in these situations because the majority really doesn’t care enough even though, in aggregate (multiplying the number of people times the amount each cares) they care more.

      From all the whoopin’ and hollerin’ about FCC censorship at behest of the “religious right” over the years (from both anti-censorship libertarians on the right and also from the liberal left), I’d say at least a small number of people feel “very strongly” about it. What the cultural and religious censors know, and what their opposition doesn’t seem to understand, is that it takes no more than one (1) complaint to the FCC about some reg violations to bring down action.

      To say that the most vociferous and organized censorship opponents feel “very weakly” appears a gross mischaracterization. I think that they don’t have the first clue about fighting back effectively with better weapons of the same class that their opponents have, and aren’t interested in getting a clue. They’d rather rant and rave impotently on the defensive than bother to do something effective and take out some major assets of their opposition.

    33. Oren says:


      What the cultural and religious censors know, and what their opposition doesn’t seem to understand, is that it takes no more than one (1) complaint to the FCC about some reg violations to bring down action.

      Give me a break. 1 complaint *can* bring action but 100,000 form letters from the PTC carry much more weight.

    34. Fub says:

      Oren wrote at 5.22.2009 10:04am:

      Give me a break. 1 complaint *can* bring action but 100,000 form letters from the PTC carry much more weight.

      Maybe for indecency complaints that is the case, though I doubt it if the single complaint is about an actual broadcast and is verifiable with evidence.

      But for other types of violations, see this forfeiture order (DOC format). Although in that case the violations were discovered by a field inspection, knowing what to watch for, listen for, and ask for, can provide any citizen the information with which to spot a reg violation that the FCC will take very seriously. It isn’t rocket science.

      What we don’t know is why the station inspection occurred in that particular case. But a single well articulated and credible citizen complaint about any of the factual issues noted in the order would certainly cause the FCC to investigate. Plenty have. A very likely means of investigation is an inspection. Those aren’t fun even if it reveals that everything is in perfect regulatory order.

      Of course, what one complains about has to be actual and verifiable. But that’s the point.