Commentary

America's Culture Czars

By Marjorie Heins

The Federal Communications Commission laid down the gauntlet last week with a blistering volume of new decisions that condemn a dozen TV shows for "indecency," profanity, or both. The question now is whether anyone will take up the challenge and ask a court of law to rule on the constitutionality of the agency's sweeping assertion of power to censor broadcasting.

The new indecency fines total more than $4 million, which is more, according to Broadcasting & Cable magazine, than all the TV shows that have previously been fined for indecency put together. (Most previous fines were against radio, not television.) The targets ranged from the famous Super Bowl "wardrobe malfunction" of 2004 to the punishment of a California educational TV station for broadcasting the PBS documentary "The Blues," directed by Martin Scorsese.

Among the more striking rulings were:

• Scorsese's documentary, which includes interviews of blues musicians, is indecent and profane because the musicians use variations on what the Commission delicately describes as the "F-word" and the "S-word." "The Blues," according to our federal culture czars, does not fit within the "Saving Private Ryan" exception that they have developed for situations where deleting swear words "would have altered the nature of the artistic work and diminished the power, realism, and immediacy of the film experience." Scorsese's artistic purpose, say the FCC commissioners, could have been fulfilled "without the repeated broadcast of expletives."

• The term "bullshit" is profane and indecent, but "dickhead" is not (both were heard on an episode of "NYPD Blue"). The hairsplitting here makes for humorous reading, until one realizes that this is our government suppressing words and ideas that are protected by the First Amendment.

The FCC's power to suppress whatever it considers indecent in broadcast television and radio - but not in cable, satellite, print, or cyberspace - derives from a combination of political and historical circumstances. Because the airwaves are a public resource, and broadcast licenses are thought to be a public trust, courts and Congress have long assumed that broadcasting gets less First Amendment protection than other media. In the 1970s, when the Supreme Court upheld the FCC's power to censor "indecency" in the famous "seven dirty words" case (FCC v. Pacifica), perhaps it seemed natural that there should be some extra restraints - beyond the obscenity law that applies to everyone - on the immensely popular, pervasive, and powerful mass medium known as broadcasting.

The Supreme Court in the Pacifica case seized on the "invasiveness" of the medium, and its ready accessibility to children, as extra reasons to allow government censorship of what was clearly First Amendment-protected expression. But of course, many media are "invasive" and accessible to children, and in the near-30 years since Pacifica, the arrival of cable, satellite, and the Internet have made the FCC's censorship of the airwaves even more anomalous and constitutionally suspect than before. Some argue that this means the FCC's broad and vague "indecency" standard (which has now been supplemented by separate rulings on "profanity") should extend to cable and satellite as well. But Congress and the FCC know this would be unconstitutional, and for good reason: the specter of such a far-reaching government censorship scheme would turn the First Amendment upside-down.

Meanwhile, the FCC continues to levy fines and lay down cultural judgments about traditional broadcast programming, without its censorship decisions being tested in court. How do they manage this feat? How do they get away with telling Martin Scorsese or the directors of "NYPD Blue" that their artistic choices are wrong?

The agency's power over license renewals and transfers means that broadcasters rarely want to challenge indecency rulings in court. Media companies may rattle their sabers, but at the end of the day, they usually settle with the Commission. In one instance back in the 1990s when a radio company (Evergreen Media) did go to court, it ended up settling in exchange for what turned out to be an empty promise by the Commission to put greater specificity into its indecency definition.

The problem, of course, is that the definition turns on what is "patently offensive" according to "contemporary community standards for the broadcast medium." It's hard to get much less specific than that.

In addition, the Commission levies its fines by way of a procedure called a Notice of Apparent Liability, or "NAL." Broadcasters faced with an NAL must challenge it through the agency's appeals process before going to court. And this appeals process can take years. Even after the appeal is decided, the broadcaster is supposed to wait for the Department of Justice to bring an action to collect the fine rather than seeking judicial review directly.

One artist whose work was deemed indecent by our cultural commissars a few years ago did take the FCC to court, but her case was dismissed on the ground that an appeal of the indecency ruling was still pending at the agency. Rap and performance artist Sarah Jones wasn't even a party to the FCC proceeding, but her song "Your Revolution" - an earthy critique of misogynist male rappers - had been deemed indecent by the tone-deaf FCC in 2001. Jones appealed the dismissal of her federal court case, but, just coincidentally, the agency rendered its own decision on appeal right before the government was due to file its brief in the federal appellate court. Now, the FCC said, "Your Revolution" isn't indecent after all. This fortuitously-timed ruling was clearly designed to "moot" the federal court case, and leave the FCC free once more to police the airwaves for subversive words and naughty thoughts.

This is not to say that our government should have no role in regulating broadcasting - or other elements of the mass media, for that matter. Just as the consolidation of media ownership inevitably limits the range of available reporting, analysis, and entertainment, so decisions on how broadcast frequencies are used profoundly affect Americans' ability to exchange ideas and get the information they need to function as citizens of a democracy. The government therefore has an important structural role in assuring that diverse voices - not all of them large and for-profit - get to communicate over the air. What it should not have is any role at all in suppressing constitutionally protected words, ideas, or images that five politically appointed commissioners decide are offensive.

Both CBS and NBC have vowed to challenge these new rulings in court, but it remains to be seen whether their current intent will survive administrative agency attrition, politics, and the need to stay in the FCC's good graces.

FCC commissioners frequently write separate statements when releasing high-profile rulings. Commissioner Jonathan Adelstein took the opportunity to warn of the constitutional dangers lurking in the agency's most recent decisions. By abandoning a more "restrained enforcement policy," he said, the Commission "endangers the very authority we so delicately retain to enforce broadcast indecency rules." Translation: some of these latest rulings are so radical that they beg for not only a judicial reversal, but a judicial re-thinking of the entire FCC censorship regime.

Let us hope that if not CBS and NBC, then Martin Scorsese will have the wherewithal to go to court and rein in this renegade bureaucracy.

March 21, 2006

Update: In April 2006, Fox Television Stations and CBS Broadcasting filed a Petition for Review of the FCC's March 21, 2006 decisions in the U.S. Court of Appeals for the Second Circuit. See FCC Faces Judicial Challenges to Its "Indecency" Regime. In November 2006, FEPP filed a brief on behalf of 20 organizations, including the Screen Actors Guild, the Directors Guild, and American Public Media, arguing that the FCC's indecency regime is unconstitutional. In June 2007 the Second Circuit struck down the new FCC rule banning even "fleeting expletives" from the airwaves on the ground that it was "arbitrary and capricious," in violation of the federal Administrative Procedure Act.

In 2008, the Supreme Court agreed to review the case; it subsequently ruled that the fleeting expletives rule is not "arbitrary and capricious," and sent the case back to the Second Circuit for ruling on the First Amendment issue. In July 2010, the Second Circuit ruled that the FCC's indecency policy is unconstitutionally vague. See FCC's Censorship of "Indecency" is Unconstitutional.

On June 27, 2011, the Supreme Court granted the government's petition for review of the Court of Appeals ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.