Morality in Media's Comments against the Enforcement Bureau's 'Golden Globes' decision
Morality in Media filed the Comments below (4 December 2003) in support of the Parents Television Council’s Application for Review of the FCC Enforcement Bureau’s Memorandum and Order (File Number EB-03-IH-0110) concerning alleged violations of the Federal Broadcast Indecency Law (18 USC 1464) during NBC Television’s “Golden Globes” broadcast.
The Alliance Defense Fund, American Family Association, American Mothers, Inc., Concerned Women for America, Family Research Council, Focus on the Family, and the Kids First Coalition co-signed the Comments with Morality in Media.
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
In the Matter of )
)
Complaints Against Various ) File No. EB-03-IH-0110
Broadcast Licensees )
Regarding Their Airing of the )
"Golden Globe Awards" Program )
To the Commission
COMMENTS IN SUPPORT OF THE
APPLICATION FOR REVIEW
Introduction
Parents Television Council has submitted an Application for Review requesting the Commission to reverse the Enforcement Bureau's Order in the "Golden Globe Awards" proceeding (Memorandum & Order, File Number, EB-03-IH-0110, decided October 3, 2003, hereinafter, Memorandum). In that proceeding, the Commission's Enforcement Bureau concluded that various broadcast TV stations did not violate the broadcast indecency law by airing the word "f--k--g" during a live telecast of the "Golden Globe Awards" program.
In part, the Bureau justified its conclusion by noting, "we have previously found that fleeting and isolated remarks of this nature do not warrant Commission action" (Memorandum at p.3), particularly "within the context of live and spontaneous programming" (at p.3 at n.16).
The Memorandum also stated (at p.3):
"As a threshold matter, the material aired during the Golden Globe Awards program does not describe or depict sexual or excretory activities and organs. The word 'fucking' may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or activities. Rather, the performer used the word 'fucking' as an adjective or expletive to emphasize an exclamation. Indeed, in similar circumstances, we have found that offensive language used as an insult rather than as a description of sexual or excretory activity or organs is not within the scope of the Commission's prohibition of indecent program content." [Emphasis ours]
It is one thing for the Commission to determine that the frequency with which a vulgarism for sexual or excretory activities or organs is used, the nature of the program (live or recorded) in which it is used, and how it is used (as an adjective, expletive, insult or description) are variables in determining whether programming is indecent. It is quite another for the Commission to determine that a fleeting or isolated use of a vuglarism for sexual or excretory activities or organs (especially in the context of a live or spontaneous program) or even repetitive use of the f-word, if used as an "adjective" (as in, "That c-ks-ker is the best in the business") or as an "expletive to emphasize an exclamation" (as in, "Holy s-t, I won!") or as an "insult" (as in, "You low-down motherf--k-r"), does not per se fall within the Commission's prohibition.
The latter determination is not only a radical departure from FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (hereinafter, Pacifica); it is also a departure from common sense.
For all practical purposes, FCC v. Pacifica has been 'overruled'
If our reading of the Memorandum is correct, it would appear that the Pacifica decision has for all practical purposes been "overruled," because in Pacifica George Carlin was "merely using words to satirize as harmless and essentially silly our attitudes towards those words" (Pacifica, at 730). In fact, one of Carlin's uses of the s-word was similar to the use of the f-word during the Golden Globe Award program. At one point during his monologue, Carlin stated, "S-t, I won the Grammy, man, for the comedy album" (Pacifica, at 752).
Nowhere did the Commission or the Pacifica Court attempt to distinguish between the various uses that "humorist" Carlin made of the seven "dirty words." In its declaratory order (56 FCC 94, released 2/21/75), the Commission noted that the Carlin monologue consisted of a:
"comedy routine, frequently interrupted by laughter from the audience, and that it was almost always totally devoted to the use of words as 'shit' and 'fuck,' as well as 'cocksucker,' 'motherfucker,' 'piss,' and 'cunt'... Thereafter, there is repeated use of the words 'shit' and 'fuck' in a manner designed to draw laughter from his audience. ... (p.95)
"We believe that patently offensive language, such as that involved in the Carlin broadcast, should be governed by principles which are analogous to those found in cases relating to public nuisances, Williams v. District of Columbia, 419 F.2d 638 (en banc 1969)…The law of nuisance does not say…that no one shall maintain a pigsty; it simply says that no one shall maintain a pigsty in an inappropriate place, such as a residential neighborhood. (p.98)….
"the Commission concludes that words such as 'fuck,' 'shit,' 'piss,' 'motherfucker,' 'cocksucker,' 'cunt,' and 'tit' depict sexual and excretory activities and organs in a manner patently offensive by contemporary community standards for the broadcast medium and are accordingly 'indecent.' (p.99) [Emphasis ours]
In describing the Commission's action, the Pacifica Court said (at 739):
"The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent." [Emphasis ours]
In other words, it was the "dirty words" themselves that were the problem, not any particular use or uses that Carlin made of those words in his monologue.
In rejecting the contention that "prurient appeal is an essential component of indecent language" (at 741), the Pacifica Court said (at 741, n.16):
"'"Similarly, regardless of whether the '4-letter words' and sexual description set forth in 'Lady Chatterly's Lover'…made the book obscene for mailing purposes, the utterance of such words or the depiction of sexual activity on radio or TV would raise similar public interest and Section 1464 questions."'" [Emphasis ours]
In rejecting the contention that the Commission's indecency definition was overbroad, the Pacifica Court stated (at 743):
"the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities." [Emphasis ours]
The Pacifica Court continued (at 743, n.18):
"A requirement that indecent language be avoided will have its primary effect on the form rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by less offensive language." [Emphasis ours]
In other words, a restriction on "4-letter words" used as "adjectives" or as "expletives" or as "insults" will have its primary effect on the form rather than the content of communication.
In concluding that indecency can be regulated in the broadcast medium, the Pacifica Court distinguished its holding in Cohen v. California, 403 U.S. 15 (1971), in which the Court held that criminal sanctions could not be imposed on a man who walked into a courthouse wearing a jacket "emblazoned with the words 'F-k the Draft'". The Pacifica Court said in part:
"Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant."
Even today, few first graders would understand what the f-word means—even if used to "describe sexual or excretory organs or activities" (Memorandum, at p.3). The problem, as the Pacifica Court saw it, was not how the word was used, but rather where and when it was used.
In emphasizing the narrowness of its holding, the Pacifica Court had this to say:
"This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction…" [Emphasis ours]
Applying the Pacifica Court's understanding of "indecent," a single use of the f-word as an "adjective" or "expletive" or "insult" can be indecent—depending on the "context" (at 750). But on October 3, 2003, the Enforcement Bureau decided that as long as gutter language is used only as an "expletive," it can be used repeatedly in any program without fear of sanction.
In his concurring opinion, Justice Powell had this to say in Pacifica (at 758):
"The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the youthful prurient interest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts." [Emphasis ours]
In its October 3 Memorandum, the Enforcement Bureau concluded that unless language is used as a verbal representation (i.e., as a "description of sexual or excretory activity or organs"), it is not within the scope of the Commission's indecency prohibition.
The indecency definition: as understood in light of Pacifica;
As understood by the FCC's Enforcement Bureau
The FCC's definition of indecency has remained substantially unchanged since the Pacifica decision. For broadcast programming to be "indecent," the language must, in context, depict or describe, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs. [Emphasis ours]
We emphasize for the broadcast medium because in Pacifica the Supreme Court said that two characteristics of the broadcast medium justified regulation of indecent programming:
"First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen not only in public, but also in the privacy of the home…Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected content…Second, broadcasting is uniquely accessible to children, even those too young to read." (Pacifica at p.448-449)
One would think that in determining whether programming is "patently offensive," the Commission would take into consideration that citizens are assaulted by broadcast indecency in the home and that large numbers of children are in the audience between 6 a.m. and 10 p.m.
One would think that in applying contemporary community standards for the broadcast medium, the FCC would take into consideration the many opinion polls indicating that large majorities of the American people are concerned about and offended by TV sex and vulgarity.
One would think that the FCC would be mindful of the growing body of evidence that children are adversely affected by the vulgarity and sex they hear and view on broadcast TV.
But if the Enforcement Bureau were doing what "one would think," how do we explain why, since Pacifica, the FCC has never fined a broadcast TV network affiliate for airing indecent programming that was provided by one of the networks (ABC, CBS, FOX, NBC, UPN & WB)?
Part of the explanation is that since Pacifica, the Bureau has generally refused to act on indecency complaints that do not include a tape or transcript of the program; and most TV viewers aren't taping programs when unexpectedly assaulted by indecent programming.
The Bureau also refuses to lift a finger to obtain a tape of a program—even though virtually all broadcast TV network programming is taped by the networks or by program producers.
The Bureau also refuses to monitor programming on its own initiative, even when it has grounds to do so—for example, when it receives complaints about a program or when a program generates media coverage describing (often in detail) the content of programming.
The Bureau's provide-a-tape-or-transcript-or-we-won't-act-policy, however, is clearly not the whole problem. Over the decades, many viewers and organizations have sent tapes or transcripts of TV network programs to the FCC—but to no avail.
The other part of the explanation (as we see it) is that the Enforcement Bureau in significant measure ignores the Pacifica case and applies a definition of indecency that is all too similar to the "patently offensive" sexual conduct prong of the adult obscenity test. When the Bureau talks about "indecency," what it really means is "hardcore indecency" or "public lewdness."
We hasten to add that since Pacifica, the FCC's definition of broadcast indecency, on its face, is similar to the second prong of the adult obscenity test set forth in Miller v. California, 413 U.S. 15 (1973). Beneath the surface, however, there are two important differences.
First, obscenity laws can be violated even when the material is distributed only to consenting adults [Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 57-58 (1973)]; and children are not to be included in determining community standards unless there is "evidence that children were the intended recipients of the materials at issue…or that petitioner had reason to know children were likely to receive the materials" [Pinkus v. U.S., 98 S.Ct. 1808, at 1812 (1978)].
In contrast, broadcast TV programming reaches into virtually every American home (where most citizens do not welcome gutter language and sex talk that not too long ago would have been heard only in a locker room) and is uniquely accessible to children, even those too young to read.
Just because something is not "patently offensive" for obscenity law purposes, therefore, does not mean it isn't "patently offensive" for purposes of the broadcast indecency law.
Second, to be obscene for adults, the sexual conduct must be "hard-core" (Miller, at 27). The obscenity test also has three prongs—to the end that obscenity laws prohibit only "'hard-core' pornography" (Miller, at 29).
To be "indecent" within the meaning of 18 U.S.C. 1464, however, programming does not have to be "hardcore." Nor does it have to be prurient, lewd or lascivious. See, e.g., Pacifica, 438 U.S. at 738-741. As the Supreme Court said in Pacifica (at 740): "the normal definition of 'indecent' merely refers to nonconformance with accepted standards of morality."
And applying the rationale enunciated in Pacifica, the determination of what constitutes accepted standards of morality is to be made with the privacy of the home and children in mind.
Conclusion
The Pacifica Court (at 748-749) likened broadcast indecency to a physical "assault:"
"To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow."
In a March 1993 editorial, Electronic Media had this to say about "much of modern TV":
"The days when TV programmers considered themselves guests in the viewers living room are long gone. Instead, much of modern TV...deliberately adopts a provocative, in-your-face style...Now, it behaves more like a common mugger."
Just as a cop on the beat cannot prevent every mugging, so the Commission cannot prevent every violation of the broadcast indecency law. But when cops do their jobs well, there is less crime; and when the FCC begins to do its job well, there will be less broadcast indecency.
Instead of taking steps to reduce broadcast indecency, the Enforcement Bureau has once again defined indecency down and, in the process, extended a broad invitation to broadcasters to fill the public airwaves with dirty words so long as they don't use the words in the proscribed fashion—or use the words too often, even if the use falls within the proscription.
In Pacifica (at p.750) the Supreme Court noted that the "Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables." For example, in determining whether noise constitutes a public nuisance, the loudness of the noise, duration or frequency of the noise, cause of the noise (e.g., commercial advertising or revelry), nature of the neighborhood (e.g., residential or commercial), and time of day are variables to be considered. How foolish it would be for public officials to determine as a hard and fast rule that it is permissible for a person to make a loud noise in a residential neighborhood, regardless of decibels and time of day, as long as the noise isn't of long duration or frequent or, no matter how long or frequent, isn't the result of revelry.
For the foregoing reasons, the Application for Review should be granted, and the Commission should make clear that while the frequency with which vulgarisms for sexual or excretory activities are used, the nature of the program (live or recorded) in which used, and how used (e.g., as an adjective, expletive, insult or description) are "variables" to be considered in determining whether programming is indecent. Such words can still be actionable even though used infrequently and in a live program or as adjectives, expletives or insults.
Respectfully submitted,
December 3, 2003
By:
Robert W. Peters, Esq.
President of Morality in Media, Inc.
Signing on behalf of the following organizations:
Morality in Media, Inc.
475 Riverside Drive, Ste. 239
New York, NY 10115
(212) 870-3222
American Family Association
P.O. Drawer 2440
Tupelo, MS 38803
(601) 844-5036
Concerned Women for America
1015 Fifteenth St., NW, Ste. 1100
Washington, DC 20005
(202) 488-7000
Family Research Council
801 G Street, NW
Washington, DC 20001
(202) 393-2100
Focus on the Family
8605 Explorer Drive
Colorado Springs, CO 80920
(719) 531-3400
Kids First Coalition
919 Prince Street
Alexandria, VA 22314
(703) 548-6799