Obscenity Indecency Profanity WTF? Regulation of Offensive Content

How Did We Get Here?

Let’s start with the law United States Code Title 18, section 1464 prohibits obscene, indecent, or profane material in broadcasting The FCC has defined “indecent” as: material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.

How does the FCC decide if material is indecent? Indecency findings involve two fundamental determinations. –First, the material alleged to be indecent must fall within the subject matter scope of the FCC’s indecency definition—that is, the material must describe or depict sexual or excretory organs or activities. –Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

How does the FCC decide if material is indecent? The FCC has articulated three primary factors that are weighed in determining whether material is “patently offensive” –whether the description or depiction is explicit or graphic –whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs –whether the material appears to pander or is used to titillate or shock But it has often been unclear how those factors are balanced

35 Years in 3 ½ Minutes The Pacifica Case (1978) –Bright line interpretation, seven words –Safe harbor –FCC promises “narrow” enforcement 1987 reinterpretation & Action for Children’s Television appeals –The introduction of “context” The 2001 Policy Statement –The FCC tries to explain “context” Bono & Janet & the PTC –The power of the web to mobilize true believers –Fuck is always sexual, thus always within the definition –Fleeting instances may no longer be a defense –The importance of audience expectations? –What words are profane? Saving Private Ryan –Context gets a little murky The March 2006 Television Orders –Context gets a lot muddier

The March 2006 Orders FCC clears out a backlog of indecency complaints…some rejected, some upheld, and some upheld but no punishment (because they were pre-2004) Two Billboard Music Awards shows (Cher, Hilton & Richie) The Early Show –A new word for the “inherently” list –Narrows news exception? The Blues: Godfathers & Sons –Findings of indecency will apply only when there’s a complaint, not to other stations airing the same program –And one complaint is enough

The Fox Case In a nutshell—the Court ruled in 2012 that the Commission’s changed analysis violated broadcasters’ right to know in advance what content might be illegal. The FCC then had two choices: –Keep the policy as is, enforcing in future and awaiting a court challenge solely on the 1 st Amendment issue –Reconsider and perhaps revise the policy

The (Still Open) FCC Inquiry What constitutes broadcast indecency: a fleeting expletive? Or only egregious instances of repeated vulgarity? Similar question regarding nudity? Other issues—CBI comment raises the desirability of extending the principle from the William Penn U/KIGC case…student stations are different

WDBJ…a six-figure “oops!”? WDBJ aired a story in a 6 p.m. newscast about a former adult film star who had joined a local volunteer rescue squad. Story included 3 seconds of graphic sexual images in the far edge of the screen from an adult film website. The $325,000 fine “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.” –Travis LeBlanc, Chief of the FCC’s Enforcement Bureau.

And sooooooooo…