The Volokh Conspiracy - FCC v. Fox Television Stations, Part IV: The FCC's new standards in action.

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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1. Sanctionable indecency or profanity

Video Musicales (2002), WSJU-TV, San Juan, Puerto Rico. One of the songs played on this show was from the album Fatal Fantassy and featured the group Trebol Clan. But, just to show how uncool the FCC is, they spelled "Fantasy" instead of "Fantassy," and it looks like they think the song title is "Feat, Trebol, Clan" rather than "feat. [featuring] Trebol Clan." Anyway, the lyrics, translated from Spanish, go like this:

When I had been barely born, I instantly knew where I had come from. Since then until I grew up, I have always yearned to be inside a similar hole. In elementary school they called me Mr. Cormer. In intermediate school they called me "little masturbator" because this is where my vice of rubbing myself incessantly began.

Hmm, I guess it loses something in the translation. (Their translation of another song from the same album, played on the same show, features "I will give it to you through the ass.") Anyway, here, the FCC had no trouble finding that this referred to sexual activity, and as to the "patently offensive" prong, satisfied the conditions of dwelling on the material and pandering/titillating.

This section of the opinion also reveals that "the buttocks . . . are sexual and excretory organs."
The Blues: Godfathers and Sons (2004), KCSM-TV, San Mateo, Calif. This show was a documentary containing "the 'F-Word,' the 'S-Word' and various derivatives of those words." Here, the FCC was unimpressed by the claim that the language was necessary to "provide a window" into the world of the subjects of the documentary, "all of which becomes an educational experience for the viewer." The FCC used this opportunity to hold that not only the "F-Word," but also the "S-Word," because of their "core meanings," "inherently [have] sexual or excretory connotations" and therefore satisfy the first prong of the indecency definition. "Use of the 'S-Word,'" they wrote, "invariably invokes a coarse excretory image" (emphasis added).

As an alternative holding, they held that, moving on to the "profanity" prohibition, "the 'S-Word' is a vulgar excretory term so grossly offensive to members of the public that it amounts to a nuisance and is presumptively profane." The presumption of profanity can be rebutted, but "only in unusual circumstances . . . not present here." (By way of comparison, the FCC stated that "this case is unlike Saving Private Ryan, where the offensive words really were necessary for the film experience.)
The Pursuit of D.B. Cooper (2003), KTVI-TV, St. Louis, Mo. Same analysis here, where an auto mechanic says he will have someone's car running "slicker 'n owl shit" and "smoother 'n owl shit." In addition to "owl shit," there was also "bullshit," and "shit" generally. All of these fell within the "shit" category described above.

2. Indecency or profanity that is not sanctioned

The 2002 Billboard Music Awards (2002), Fox stations. This is where Cher said, "People have been telling me I'm on the way out every year, right? So fuck 'em." This was found indecent, but not sanctioned because it was broadcast under the previous regime, where isolated uses weren't sanctionable.
The 2003 Billboard Music Awards (2003), Fox stations. This is where Nicole Richie talked about "get[ting] cow shit out of a Prada purse." Same analysis as the Cher quote. One of the offending words was bleeped out; the FCC noted specially that Fox could have delayed the broadcast long enough to be able to bleep out all the occurrences.
NYPD Blue (2003), ABC network. Several episodes of this show involved the words "dick," "dickhead," and "bullshit." Follow carefully now: "'[B]ullshit,' whether used literally or metaphorically, is a vulgar reference to the product of excretory activity" and therefore satisfies the first indecency prong. Same goes for "dick" and "dickhead," which are references to a sexual organ. However, because the "S-Word" is just so vulgar and graphic (always invoking a coarse excretory imagine, for instance in the philosophical book by Harry Frankfurt!), "bullshit" ends up also satisfying the "patently offensive" prong, whereas "dick" and "dickhead" just aren't "sufficiently vulgar, explicit, or graphic."

Again, while "mere dramatic effect does not justify use of patently offensive expletives," this case is still unlike Saving Private Ryan, where it was necessary! Go figure.

3. No indecency or profanity

This section involves a number of different shows, where characters are "kissing, caressing and rubbing against each other" accompanied by off-camera music and without "depictions of sexual organs"; an episode of Will and Grace that involves the gag of people adjusting Grace's breasts upward as she heads off on a date; a character on Two and a Half Men hitting on a female doctor while she's holding his scrotum in her hand; an episode of The Oprah Winfrey Show where an expert on teen sex discusses "tossed salad" and "booty calls"; a political advertisement referring to a judicial candidate's ruling in a case involving rape and sodomy; various shows featuring the words "bitch," "slut," "ass," "damn," "hell," and others; an episode of Family Guy in which "penis" and euphemisms therefor are repeated; an episode of The Simpsons where Mr. Burns goes to a strip club... you get the picture.

In one of the separate opinions (most of which I'm not summarizing here), Commissioner Deborah Tate suggested that the cartoon nature of The Simpsons shouldn't necessary count against a finding of indecency.

Well, that's the FCC's take on what its new policy means. On the one hand, it's good that they actually gave concrete guidance to the regulated community, and declined to fine broadcasters operating under the previous regime. On the other hand, looking at these applications really gives one a sense of how arbitrary these things are. "Bullshit" is patently offensive because, as a variant of "shit," is inherently excretory and highly vulgar, while "dick" and "dickhead" are not because, even though they're variants of the sexual term "dick," they're not sufficiently vulgar? Mere use of vulgar words for dramatic effect isn't enough... unless it's Saving Private Ryan?

In any event, this is where matters stood when the FCC v. Fox Television Stations case was heard. In the next post, though, I'm going to talk about the general issue of what an agency has to do, as a matter of administrative law, to justify itself when it changes policy.

(hide most of this post)

	[Sasha Volokh, May 19, 2009 at 9:40pm] Trackbacks FCC v. Fox Television Stations, Part IV: The FCC's new standards in action. 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. (show the rest of this post) 1. Sanctionable indecency or profanity Video Musicales (2002), WSJU-TV, San Juan, Puerto Rico. One of the songs played on this show was from the album Fatal Fantassy and featured the group Trebol Clan. But, just to show how uncool the FCC is, they spelled "Fantasy" instead of "Fantassy," and it looks like they think the song title is "Feat, Trebol, Clan" rather than "feat. [featuring] Trebol Clan." Anyway, the lyrics, translated from Spanish, go like this: When I had been barely born, I instantly knew where I had come from. Since then until I grew up, I have always yearned to be inside a similar hole. In elementary school they called me Mr. Cormer. In intermediate school they called me "little masturbator" because this is where my vice of rubbing myself incessantly began. Hmm, I guess it loses something in the translation. (Their translation of another song from the same album, played on the same show, features "I will give it to you through the ass.") Anyway, here, the FCC had no trouble finding that this referred to sexual activity, and as to the "patently offensive" prong, satisfied the conditions of dwelling on the material and pandering/titillating. This section of the opinion also reveals that "the buttocks . . . are sexual and excretory organs." The Blues: Godfathers and Sons (2004), KCSM-TV, San Mateo, Calif. This show was a documentary containing "the 'F-Word,' the 'S-Word' and various derivatives of those words." Here, the FCC was unimpressed by the claim that the language was necessary to "provide a window" into the world of the subjects of the documentary, "all of which becomes an educational experience for the viewer." The FCC used this opportunity to hold that not only the "F-Word," but also the "S-Word," because of their "core meanings," "inherently [have] sexual or excretory connotations" and therefore satisfy the first prong of the indecency definition. "Use of the 'S-Word,'" they wrote, "invariably invokes a coarse excretory image" (emphasis added). As an alternative holding, they held that, moving on to the "profanity" prohibition, "the 'S-Word' is a vulgar excretory term so grossly offensive to members of the public that it amounts to a nuisance and is presumptively profane." The presumption of profanity can be rebutted, but "only in unusual circumstances . . . not present here." (By way of comparison, the FCC stated that "this case is unlike Saving Private Ryan, where the offensive words really were necessary for the film experience.) The Pursuit of D.B. Cooper (2003), KTVI-TV, St. Louis, Mo. Same analysis here, where an auto mechanic says he will have someone's car running "slicker 'n owl shit" and "smoother 'n owl shit." In addition to "owl shit," there was also "bullshit," and "shit" generally. All of these fell within the "shit" category described above. 2. Indecency or profanity that is not sanctioned The 2002 Billboard Music Awards (2002), Fox stations. This is where Cher said, "People have been telling me I'm on the way out every year, right? So fuck 'em." This was found indecent, but not sanctioned because it was broadcast under the previous regime, where isolated uses weren't sanctionable. The 2003 Billboard Music Awards (2003), Fox stations. This is where Nicole Richie talked about "get[ting] cow shit out of a Prada purse." Same analysis as the Cher quote. One of the offending words was bleeped out; the FCC noted specially that Fox could have delayed the broadcast long enough to be able to bleep out all the occurrences. NYPD Blue (2003), ABC network. Several episodes of this show involved the words "dick," "dickhead," and "bullshit." Follow carefully now: "'[B]ullshit,' whether used literally or metaphorically, is a vulgar reference to the product of excretory activity" and therefore satisfies the first indecency prong. Same goes for "dick" and "dickhead," which are references to a sexual organ. However, because the "S-Word" is just so vulgar and graphic (always invoking a coarse excretory imagine, for instance in the philosophical book by Harry Frankfurt!), "bullshit" ends up also satisfying the "patently offensive" prong, whereas "dick" and "dickhead" just aren't "sufficiently vulgar, explicit, or graphic." Again, while "mere dramatic effect does not justify use of patently offensive expletives," this case is still unlike Saving Private Ryan, where it was necessary! Go figure. 3. No indecency or profanity This section involves a number of different shows, where characters are "kissing, caressing and rubbing against each other" accompanied by off-camera music and without "depictions of sexual organs"; an episode of Will and Grace that involves the gag of people adjusting Grace's breasts upward as she heads off on a date; a character on Two and a Half Men hitting on a female doctor while she's holding his scrotum in her hand; an episode of The Oprah Winfrey Show where an expert on teen sex discusses "tossed salad" and "booty calls"; a political advertisement referring to a judicial candidate's ruling in a case involving rape and sodomy; various shows featuring the words "bitch," "slut," "ass," "damn," "hell," and others; an episode of Family Guy in which "penis" and euphemisms therefor are repeated; an episode of The Simpsons where Mr. Burns goes to a strip club... you get the picture. In one of the separate opinions (most of which I'm not summarizing here), Commissioner Deborah Tate suggested that the cartoon nature of The Simpsons shouldn't necessary count against a finding of indecency. Well, that's the FCC's take on what its new policy means. On the one hand, it's good that they actually gave concrete guidance to the regulated community, and declined to fine broadcasters operating under the previous regime. On the other hand, looking at these applications really gives one a sense of how arbitrary these things are. "Bullshit" is patently offensive because, as a variant of "shit," is inherently excretory and highly vulgar, while "dick" and "dickhead" are not because, even though they're variants of the sexual term "dick," they're not sufficiently vulgar? Mere use of vulgar words for dramatic effect isn't enough... unless it's Saving Private Ryan? In any event, this is where matters stood when the FCC v. Fox Television Stations case was heard. In the next post, though, I'm going to talk about the general issue of what an agency has to do, as a matter of administrative law, to justify itself when it changes policy. (hide most of this post) Related Posts (on one page): FCC v. Fox Television Stations, Part IV: The FCC's new standards in action. FCC v. Fox Television Stations, Part III: Bono and the FCC's change of course. FCC v. Fox and the Demise of Local Broadcasting: FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case. FCC v. Fox Television Stations, Part I: The Late, Great George Carlin. Is Scalia's "F-Word" Opinion Good News for Obama? Glitteratae: Holy F-Word, Batman: