Published Articles

September 25th, 2004

Heightened Enforcement - and What to Do About It

New developments in indecency law are changing the way media executives and artists do business. Until now, broadcasters and artists could argue that certain questionable content was not indecent in light of the context of the challenged utterances. However, recent changes in the law suggest that context may no longer matter, thereby removing an important defense to a Federal Communications Commission (FCC) complaint. The result has been a surge in self-censorship. Fines, too, have increased dramatically: in the first six months of 2004, broadcasters were fined over $1.5 million as compared to a mere $247,500 in fines levied between January 2001 and October 2003. What can broadcasters and artists do to defend against allegations of indecency in this shifting regulatory environment? Here's a rundown of the law and some steps to consider.

What Is Indecent Content?

Federal law regulates the broadcast of "obscene, indecent or profane" language. Obscene language, which is defined as language that "appeals to the prurient interest in sex" and "which taken as a whole, has no serious literary, artistic, political or scientific value," is not protected by the First Amendment and may not be broadcast at any time on public airwaves. Indecent and profane language, on the other hand, is entitled to limited First Amendment protection and may be broadcast on public airwaves subject to certain time restrictions. When is language indecent or profane? Broadcasters and artists still look to the U.S. Supreme Court's 1978 decision in F.C.C. v. Pacifica Foundation -- the notorious seven "filthy words" case -- for guidance. In Pacifica, the FCC fined a radio station for broadcasting George Carlin's famous rumination on the words you can't use in broadcasting (Carlin cited "shit, piss, fuck, cunt, cocksucker, motherfucker and tits"). Pacifica argued that because Carlin's monologue was not "obscene," the FCC's action was impermissible censorship barred by the First Amendment.

The Court ruled for the FCC. The Court agreed with the FCC's determination that Carlin's monologue contained "indecent" language and held that because of the "uniquely pervasive presence [of the broadcast media] in the lives of all Americans" and because "broadcasting is uniquely accessible to children" the FCC may constitutionally regulate indecent broadcasts. In its attempt to define indecent content, however, the Court said indecency "is largely a function of context - it cannot be adequately judged in the abstract." Recognizing that "context is all-important," the Court adopted the FCC's definition of indecency applied in its decision in the Filthy Words case, which remains the FCC's guiding principle today: indecent language in broadcasting is language that describes "sexual or excretory activities or organs" and is deemed "patently offensive as measured by contemporary community standards."

Current Law

Current law prohibits broadcasters from airing "indecent material" between the hours of 6:00 a.m. and 10:00 p.m., when such material is presumed to be accessible to children. While Congress is poised to increase fines to as much as $250,000 per indecent utterance, violations are presently subject to a fine of $32,500. In the case of networks, the fine may be multiplied by each station that aired the indecent material. The FCC does not currently monitor broadcasters for indecent content, but rather relies solely on listener complaints as a first step to bringing an indecency proceeding.

Super Bowl Incident Alters Indecency Enforcement

Indecency enforcement changed dramatically as a result of Janet Jackson's "wardrobe malfunction" at the 2004 Super Bowl. The vehicle for the change was the 2003 Golden Globe Awards. Bono, while accepting his Golden Globe award, had blurted out: "This is really, really fucking brilliant." Prior to the Super Bowl, the FCC ruled that Bono's exclamation, while "unfortunate," was not indecent or profane. The FCC said that in the context of Bono's full statement the word "fucking" was used as an "exclamative" adjective rather than to describe sexual or excretory functions. As such, his exclamation was protected by the First Amendment. However, after the political fallout from the Super Bowl, the FCC reversed itself and found that Bono's statement was, in fact, indecent and profane.

In reversing, the FCC rejected NBC's argument that Bono's use of "fucking" (as an "intensifier") be considered in context: "[G]iven 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 . . . our indecency definition." The FCC also found the word "fucking," as used by Bono, to be patently offensive under contemporary community standards for the broadcast medium, because the word "invariably invokes a coarse sexual image." Finally, the FCC deemed Bono's utterance "profane" within the meaning of the indecency statute -- the first time the FCC had applied the "profanity" section of 18 U.S.C. 1464 to support a finding of a violation. The FCC defined profanity as: "denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language that is so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

The import of the Golden Globe Order is that the f-word is by definition patently offensive under contemporary community standards, and there can be no context where the use of this word is not indecent. What's more, the Golden Globe Order affects the entire spectrum of broadcasting, including non-entertainment programming, such as news. The FCC noted that "NBC does not claim that there was any political, scientific or other independent value of use of the word here, or any other factors to mitigate its offensiveness." Although this statement implies there could be a non-indecent usage of the word in broadcasting, the Commission also said "[t]his is not to suggest that the fact that a broadcast had a social or political value would necessarily render use of the "F-word" permissible." In its conclusion, the FCC warned broadcasters that serious multiple violations of its indecency rules may not only result in fines for each indecent utterance, but may also lead to license revocation proceedings.

Recent Developments

Broadcasters have reacted to the changing regulatory environment with both increased self-regulation and legal challenges. For example, the broadcast of the funeral of NFL player Pat Tillman (killed in Iraq) was halted when friends and family used profanity in their eulogies. NBC recently eliminated a shot in ER of a women's bare breast during a medical procedure; and dimmed a sex scene on NYPD Blue. And Fox has ordered the producers of The Casino to recut all 13 episodes of the series with a view to purging provocative scenes. Finally, the National Association of Broadcasters recently proposed an Industry Code of Conduct on indecency (much like the industry-imposed MPAA rating system). The goal: to prevent further government entanglement in regulating speech. Such broadcaster self-censorship would have been much less likely under pre-Golden Globe Award indecency law. Broadcasters have also challenged the Golden Globe Order. The ACLU, NBC and others have filed a Petition for Reconsideration with the FCC, arguing that if news providers are not granted an exemption, the Golden Globes Order marks the end of live news broadcasts. As we went to press, the challenge had not yet been resolved.

Steps Broadcasters Can Take to Reduce the Risk of Fines

Since fines, if any, are levied against the broadcaster and not against individual artists, broadcasters should not rely on talent in live entertainment or news situations to determine whether a particular turn of a phrase will violate the indecency law. (Note to artists: Congress is contemplating passing legislation fining you for indecent utterances on public airwaves; and you still may have to pay back broadcasters under the "implied indemnity" laws of various states.)
In any case, broadcasters of live entertainment and news should work with talent to reduce the risk of an indecency law violation. Here are three steps to consider.

  1. Time-delay system. The most effective way for broadcasters to eliminate potential exposure to fines is to institute a time-delay system on all live broadcasts, as CBS did for the 2004 Grammy Awards. A time-delay system for vetting live performances and news would determine whether certain words may trigger FCC scrutiny. Excising or "bleeping" those words -- prior to broadcast -- would be an effective prophylactic.
  2. Written policy and checklist. In addition to a time-delay system, broadcasters should also consider creating a written policy on indecent language for all talent (including news broadcasters). Such a policy would prohibit not only the "seven dirty" words, but other words or types of words that create risk as well (e.g., any compound word that includes "fuck"). A good policy would include a checklist talent and news broadcasters could study.
  3. Indemnity. Although broadcasters could attempt to require talent to pay them back ("indemnify" them) for any fines incurred as a result of a performance, they should keep in mind that indemnity provisions in contracts may alienate talent and discourage their participation in award shows and other special events.


Conclusion

By abandoning the context analysis for a certain category of words and breathing life into the separate prohibition on profanity in the indecency statute, the FCC has created a strict liability rule for the broadcasting of those words. This new rule eliminates artistic or editorial judgment on context for what could be an ever-increasing list of words. And although the FCC said its decision was limited to the f-word and that the status of other words would be decided on a case-by-case basis, broadcasters will be loath to explore the parameters of indecency or profanity at the risk of becoming a test case. In sum, the Golden Globe Order puts broadcasters on notice that the use of the other six "filthy" words addressed in Pacifica, and possibly other related words, may engender large fines.

Author(s): Lisa E. Davis