Community Standards for whom?

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Background: Over-the-air television and radio (as opposed to cable and satellite) are subject to more invasive regulations than any other form of media in the United States.  The traditional rationale has been tied to the means of distribution:

• The airwaves (electromagnetic spectrum) are a scarce public resource.
• Government regulates access to and use of this public resource at the technical level (i.e. not everyone can own a radio station) as a matter of public interest, convenience, and necessity.
• As the regulator of access, Government can set whatever standards it likes to measure whether a particular use of the airwaves is truly in the public interest.
• The regulator can cut off access to the airwaves (deny or revoke a license to broadcast) when a particular use no longer serves the public interest.

Tensions have existed from the very beginning of radio regulation, thanks to the competing interests of "effective regulation" and the First Amendment.  The Telecommunications Act of 1934 simultaneously prohibited both broadcasts of "obscene, indecent, or profane" materials (18 U.S.C. 1464) and FCC censorship or prior restraint of broadcast content (47 U.S.C. 326).  The end result is that the FCC cannot issue a list of "banned words" in advance of actual broadcasts (notwithstanding George Carlin's famous monologue, "Filthy Words"), but it can take action in response to complaints from the public.

The Supreme Court has ruled that "obscene" speech has no value in society and is not entitled to the protections of the First Amendment.  Miller v. California sets forth the current definition for obscene content:

• depicts sexual conduct in a patently offensive manner
• lacks any scientific, literary, artistic, or political value, and
• taken as a whole, appeals to the prurient interest as measured by contemporary community standards.

As you might imagine, it's awfully hard to find honest-to-goodness examples of obscene material. Once something is classified as obscene, however, the government may prohibit its distribution or broadcast, no questions asked.

Indecent speech, however, is a different creature.  Pacifica Foundation v. FCC places the regulation of indecent speech squarely within the law of nuisance -- "a right thing in the wrong place, like a pig in the parlor instead of the barnyard."  Pacifica, of course, is better known as the "Seven Dirty Words" case, the debate over a mid-afternoon broadcast of George Carlin's monologue "Filthy Words" in the context of a debate on language and society and the single complaint by an offended listener who claimed to have heard the monologue while driving in the car with his adolescent child. 

The FCC initially determined that the monologue was not obscene (since it fails the "prurience" test) but instead "indecent" -- "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs."  The Commission also found that the time of broadcast was relevant, since children (particularly unattended children) were likely to be in the audience.  The Supreme Court upheld the FCC's basic ruling -- the broadcast was indecent not simply for its content, but instead for the entire context, including specifically the time of day.  Following the first wave of culture wars in the late 1980s, the FCC finally settled on a "safe harbor" for broadcast indecency between 10:00 p.m. and 6:00 a.m. -- times when unattended minors are not likely to be in the audience.

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Analysis: Fast forward to 2003 and the Golden Globe awards, presented live (real-time) on NBC prime time television.  In receiving an award, Bono exclaimed "This is really, really, f------ brilliant."  In response to complaints, the FCC enforcement bureau ruled that the broadcast, while potentially offensive, did not meet the standard of indecent speech.  I found that response to be perfectly reasonable -- the f-word was used as an "emphasis" word in an extemporaneous setting, not repeated or dwelled upon for shock value, and certainly not in a sexual manner.  The FCC reversed its staff's recommendation, instead finding that the use was both indecent and profane. 

Among other things, the FCC declares that the f-word "invariably invokes a coarse sexual image" -- 40-grit sandpaper? -- quite at odds with standard contemporary usage as an intensifier in most settings. The Commission then reversed decades of decisions (primarily made during the Howard Stern era, mind you) that took no action against isolated, fleeting uses of the f-word.  Up to now, indecent speech was measured by and in its context -- not simply a dictionary definition, but an investigation of actual usage.  Now, the f-word is indecent per se, no matter what the context. 

The Commission then goes on to redefine "profanity."  Traditionally, in the broadcasting context, profane speech was limited to blasphemy and "divine imprecation" -- it would be profane to say (and literally intend that) "Goddamnit."  Since this country isn't (yet) run by a "christian" conservative analog to the Taliban, there haven't been many "blasphemy" complaints filed against broadcasters.  Follow a "strict constructionist" model that gives effect to every word, the FCC adopted a new definition of profane speech -- "certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."  This maneuver took some real work, as the FCC went all the way back to a dusty 1972 federal appellate court opinion to find that mouthful of a definition. 

The Golden Globes opinion, and the commissioners' remarks, are clearly intended to put broadcasters on notice that the FCC is relying heavily on the self-appointed arbiters of social morality to determine what should or should not be heard or seen over the air.  Of course, sex is still the primary bugaboo.  Although profanity now is any language that "provokes violent resentment," words and depictions of violence itself are not likely to be profane.  (If a broadcast depiction or description of violence made you violent in return, that speech would of course be prohibited entirely under the doctrine of "fighting words.")

In some respects, I would have been more comfortable if the Commission found Bono's conduct "profane" but not "indecent."  I can understand the logic in adopting a definition that comes closer to common connotations of "profanity."  At the same time, I'd prefer to have a context limitation (like the former "fleeting and isolated incident" formulation) to protect my well-intentioned broadcasting colleagues who will, from time to time, let something slip through. 

As for the current Live8 complaint, it's pretty cut-and-dried under the precedent set by the Golden Globes opinion.  Any use of the f-word invariably calls to mind a coarse sexual act and is automatically indecent and profane.  Now that everyone's supposed to be on notice of the new enforcement model, ABC and its affiliates have no excuse -- context and simple human error aren't taken into account.  The only question is how hard the hammer will fall for the benefit of protecting the children of America -- the kids who had never heard "Who Are You" on one of the 8 pre-approved syndicated radio formats left in the country and were therefore scarred by the Live8 experience. 

Argh.