A federal appeals court struck down a Federal Communications Commission policy last week that permitted them to fine broadcasters for allowing a single curse word on live television – the dreaded "fleeting expletive."
Following an incident in 2003 in which U2 singer Bono used the phrase "f---in' brilliant" during a live broadcast of the Golden Globe awards, the FCC decided that fleeting expletives could be indecent – a policy that was at the heart of the ruling against the FCC.
The Associated Press reported the 2nd U.S. Circuit Court of Appeals in New York wrote: "By prohibiting all ‘patently offensive' references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive."
In 1978, the U.S. Supreme Court ruled the FCC had the regulatory power to prohibit offensive broadcast material during certain hours.
The ruling was based on the idea that radio and broadcast television had a "uniquely pervasive presence in the lives of all Americans." But is this sentiment still applicable today?
Radio and television broadcasts are, unquestionably, still a major presence in the lives of Americans. Since the Supreme Court's 1978 ruling, however, new media (including the Internet) have flooded into American homes – media that, unlike broadcasting, have been deemed deserving of full First Amendment protection.
As former chairman of the FCC, Michael Powell, pointed out in a New York Times online forum, broadcasting in 1978 was a scarce medium without rival.
Powell wrote: "If the case for lesser speech protection for broadcasting was ever sound, that case is eviscerated today by the sheer abundance and accessibility of other media sources, which enjoy full Constitutional protection."
If the courts are going to allow censorship on the basis of indecency, it should not be variable. There should not be a First Amendment for broadcasting and another for other media.
Also at issue here, in addition to the regulatory imbalance, is the matter of content. The use of curse words on television awards shows and Janet Jackson's wardrobe malfunction at the Super Bowl have greatly incensed many people. This is often not the case with depictions of murder or aggravated assault, which are well represented on cable television.
Why the focus on language with a sexual connotation and body parts?
Perhaps celebrities should refrain from cursing at awards shows and make a reasonable effort to keep certain body parts covered in public.
However, the impact of a slipped curse word or a millisecond-long breast-baring seems negligible.
Should we presume that a child is more negatively affected by hearing the utterance of a curse word on the street than by witnessing a brutal beating? Given the uproar generated by the use of fleeting expletives on broadcast television and the relatively muted response to depictions of violence, it appears many people would resoundingly prefer the brutal beating.
It is, of course, reasonable to attempt to protect children from certain content, but we are not all kids. Censorship for children should not be done simply by diluting all media content to that which is deemed universally acceptable for all ages.
Most adults can (or at least should be able to) handle a few curse words, and likely would prefer not to be forced to watch Barney and Sponge Bob every day (though it is occasionally fun to indulge).
Media regulations, including the one at issue here, are wrongly based on a community standard.
Decisions about acceptable speech and media content are profoundly personal, and they vary from one person to another and from one family to another.
Parents, not the FCC, should make the ultimate decision regarding acceptable media content.
The FCC's policy on indecency, and its stance on fleeting expletives, is too vaguely drawn and open to the use of arbitrary punishment for violators.
The FCC should stop meddling with media content, especially if they are going to continue to implement ill-conceived, unbalanced and inconsistent policies.
Calls for less government currently echo from every corner of the country, yet the FCC's drive to impinge upon and distort the First Amendment continues unabated.
It is time we realize that we do not need a government regulatory agency to tell us what is indecent and when it is and is not acceptable to be on television or radio.
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