Transcript Bono and Spielberg and Cher: Oh my.

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)
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Bright line interpretation, seven words
Safe harbor
FCC promises “narrow” enforcement
• 1987 reinterpretation & Action for Children’s Television appeals
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The introduction of “context”
• The 2001 Policy Statement
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The FCC tries to explain “context”
• Bono & Janet & the PTC
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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
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Context gets a little murky
• The March 2006 Television Orders
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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 1st
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…