Media: September 2010
The Decent Thing To Do
Fucking brilliant! Those two words uttered by U2’s Bono while accepting an award for “The Hands That Built America” on a January 2003 NBC broadcast of the Golden Globes sparked a battle with the Federal Communications Commission that lasted until July of this year.
Bono’s outburst came hot on the heels of similar utterances by Cher (“Well, fuck ’em!”) and Nicole Richie (“Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”) during live awards shows. The FCC took offense, ruling that the networks that aired the shows had violated its indecency policy.
But in July, a federal appeals court struck down the FCC’s indecency policy, calling it “unconstitutionally vague.”
“The score for today’s game is First Amendment one, censorship zero,” Andrew Jay Schwartzman, policy director of Media Access Project, said in a statement. “Media Access Project entered this case on behalf of writers, producers, directors and musicians [including the Future Of Music Coalition and the Center For Creative Voices In Media] because the FCC’s indecency rules are irredeemably vague and interfere with the creative process. Today’s decision vindicates that argument. The next stop is the Supreme Court, and we’re confident that the Justices will affirm this decision.”
The U.S. Court Of Appeals Of The Second Circuit did not, however, have the power to strike down the initial ruling – the 1978 Supreme Court decision regarding the FCC’s right to police the airwaves for objectionable content. That ruling was spurred by a Pacifica radio broadcast of George Carlin’s famous monologue, “Seven Words You Can Never Say On Television” (for the record, the list – which was Carlin’s, not the government’s – are shit, piss, fuck, cunt, cocksucker, motherfucker and tits.).
The FCC had used the FCC v. Pacifica Foundation decision as a hunting license when it started cracking under the Bush administration, deciding that profanity referring to sex or excrement was always considered indecent. (In 2004, Congress increased the maximum for each violation tenfold, to $350,000).
Fox, CBS and other television networks sued the FCC in 2006, claming that the FCC did not exlplain why it had changed its policy (previously, it had held that a single, non-literal use of an expletive was not considered indecent). The suit claimed FCC’s indecency policy was vague, and pointed out that the FCC had found ABC’s 2004 airing of the “shit” and “fuck”- peppered film “Saving Private Ryan” was not offensive, but somehow PBS’s airing of the same words in the documentary miniseries, “The Blues,” was.
In 2009, the Supreme Court ruled that the FCC could penalize networks for the occasional use of expletives, but did not rule on the constitutionality of the policy. The case was sent back to the Court of Appeals for the Second Circuit in New York, which ruled unanimously against the FCC in July.
The three-judge appeals court said FCC policy had had a chilling effect on protected speech. “Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose,” U.S. Circuit Judge Rosemary S. Pooler wrote. “Indeed, there is ample evidence in the record that the FCC’s indecency policy has chilled protected speech.”
Such restraints included a Pennsylvania TV station’s decision not to provide live coverage of news events unless public safety or convenience are affected, and a Vermont station’s decision to carry a political debate because one of the candidates had previously sworn on the air.
Whether the case will end up at the Supreme Court remains to be seen. But if it did, the FCC’s indecency policy could be struck down. FCC Chairman Julius Genachowski was vague, saying, “We’re reviewing the court’s decision in light of our commitment to protect children, empower parents, and uphold the First Amendment.”
Still pending are indecency cases involving the Steven Bochco drama “NYPD Blue,” which was fined by the FCC for showing seven seconds of a female rear end, Janet Jackson’s 2004 Super Bowl wardrobe malfunction, and a Fox reality show called “Married by America.” They probably won’t be decided until the Supreme Court rules on the current overturn of FCC policy.
In the meantime, look for broadcast TV to get more raunchy. Coming up this fall on CBS: a sitcom starring William Shatner, called “Shit My Dad Says.”
ODDS N SODS: Long-gone Chicago rock jock legend Patti Haze is now rockin’ hard on Chicago Radio Online. Haze, who lives Detroit, teams up with former Loop staffer Mitch Michaels as co-host of the Classic Rock Chicago format. Many other radio legends are hosting shows at the site – including Tommy Edwards, Fred Winston, Connie Szerszen, and Clark Weber. It’s the brainchild of Kurt Hanson and John Gehron of Chicago-based AccuRadio.com. Hear it for free at chicagoradioonline.com, or get the app . . . The Creative Loafing-owned Chicago Reader has chosen Geoff Doughtery to take over as associate publisher – an interesting choice considering that his Chi-Town Daily News and Chicago Current weren’t exactly sustainable. (He says it would have taken another year for CC to make it.) Doughtery says he’ll manage the weekly’s day-to-day operations and lead strategic projects. “The Reader‘s new owners are particularly interested in growing the business by finding new ways to serve our advertisers and readers,” he says. “Online initiatives are a big part of that.” Less surprising is Kiki Yablon‘s official move to editor, and Alison Draper to publisher. (Both had been in interim positions.) Let’s hope they can keep it together until some decent funding comes their way. Or pigs begin to fly.
— Cara Jepsen
