United States Supreme Court Update

Federal Communications Commission v. Fox Television Stations

by Kristie Walsdorf

It’s a quiet Tuesday evening. It’s 8:00 p.m. You and the family have just finished eating dinner and are settling down in front of the television together to unwind and catch up on the day’s events. The kids are on the couch, you are in your easy chair with your feet up, remote in your hand. Having settled on a show everyone can agree on, like a mainstream popular network show, for instance, “Three and a Half Men” on CBS. When suddenly your face turns red, you pop out of the chair and grab the remote to change the channel before the kids register what just happened. The character on television just said “Damn, girl, that’s one beautiful ass” as a quick glimpse of a women’s nude buttocks is flashed over the screen while the characters are heading into the bedroom. What just happened, you ask yourself? It’s not after 10 p.m. You’re not watching a pay-for-view channel. “Three and a Half Men” is not R-rated. It’s early in the evening — not midnight, and you’re watching what some people get for free with an antenna!

Have you been here before? It seems more and more that situations like this keep occurring in our homes unexpectedly. We are bombarded with words such as “goddammit,” “pissed off” and “bastard” while watching ordinary television. It’s an awkward, potentially embarrassing and confusing situation for children to have to unexpectedly witness the kind of adult behavior we as parents generally shield our children from. In an effort to become more mainstream and attract and keep an audience, brief nudity and cuss words are being used on a regular basis without bleeps or blackouts in daily television today. How is this occurring and is it legal?

You may be surprised to learn that the law in place regulating radio and television does not specifically outline what is and is not illegal. In fact, even after the United States Supreme Court made its latest ruling on this issue the law is still vague. The governing national law makes it a crime for “whoever utters any obscene, indecent, or profane language” (18 U.S.C. §1464). Congress has instructed its regulating agency, the Federal Communication Commission (FCC) to apply this prohibition between 6:00 a.m. and 10:00 p.m. However, the FCC had not enforced that law until the 1970s when in 1987, the FCC brought suit against the network airing a comedy special. That program was a George Carlin special. What became known as the “seven filthy words” came under fire in FCC v. Pacifica, 438 US 726. While the Court agreed with the FCC that the seven filthy words were indecent, the Court did not go any further and explain with any certainty what else, if anything, was or was not obscene, indecent or profane. Instead, the Court went on to state that it was not ruling on what would happen in “isolated” cases of the use of potentially offensive words. Thus, out of that case evolved the ruling standard of so long as the word(s) or actions seen and heard were not “repetitive or were occasional” they were not actionable. In other words, an occasional nude scene or cuss word did not get anyone in trouble. Thus was born the evolution of mainstream media’s years of legally pushing the limits of their seemingly limitless boundaries on programming.

That is until the infamous Janet Jackson “nipple slip” at the Super Bowl. Now, it seemed, television had finally gone too far. In a flurry of cases, the FCC began issuing substantial fines on various offending programs. (Cher at the Billboard Music Awards quoted saying in a speech, f*** ’em; Nicole Richie at the Billboard Music Awards saying, “Have you ever tried to get cow s*** out of a Prada purse; the “NYPD Blue” nude buttocks scene). The networks challenged the FCC findings and argued against the substantial, million-dollar fines as censorship of their free speech rights under the First Amendment. The Court noted that the FCC, for years, had been turning the other cheek and not imposing fines in response to these many instances, thereby giving its indirect permission to keep airing the programs, including the brief and non-repetitive outbursts. The Court found, in effect, the networks did not have any real notice that what they were doing was illegal. In essence, the Court said, FCC, you have not stopped (fined) the numerous other instances of brief nudity and cussing in the years leading up to this point, so in this particular case, you can’t start now.

Although an interesting legal issue, it begs the question, what is too much and how far is too far. So the next time you and your loved ones sit down to watch, what you may believe is a benign reality show, such as “American Idol,” be aware that at any time Steven Tyler may drop an F*** bomb and the only one paying for it will be you explaining to your little one why Mr. Tyler has a potty mouth.

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