By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
"When one looks at the tortured rationale for finding broadcasting uniquely undeserving of First Amendment protection, one gains new respect for the founding fathers' fears. . . . We certainly should turn off, tune out, walk away, and raise our voices when disturbed by what is peddled to us. But we should think twice before allowing the government the discretion to filter information to us as they see fit, for the King always takes his ransom."
Michael Powell accepting the Freedom of Speech Award, October 20, 1999
"I don't know that I want the government as my nanny. I still have never understood why something as simple as turning it off . . . [is] not part of the answer."
Michael Powell at his first press conference as FCC chairman, February 6, 2001
"For the first time, the Commission has applied the profanity section of the statute for the broadcast of this highly offensive word, an application I fully support. . . . A clear line has been crossed and the government has no choice but to act."
Turns out Janet's boob was important after all. Before February, the Federal Communications Commission hadn't been trying to be the airwaves' nanny much. In the previous four years, it had issued 26 "notices of apparent liability" (i.e., "we're thinking about a fine") to TV and radio stations, and only 13 actual "forfeiture orders," six of them during the Clinton administration's final year. There was only one forfeiture order in 2003: for an episode of shock jocks Deminski and Doyle's radio show, the first time the commission members agreed that they have the right to revoke a station's license for indecency. Not that they've ever done it.
Now, abruptly, the FCC is frantically following its mandate to bar "obscene, profane and indecent language" from "radio communication." Those adjectives seem more like a rhetorical flourish in the U.S. Code than specific categories, but the difference between indecency, obscenity, and profanity has become a real question.
It's almost impossible to prove that broadcasts on public airwaves are obscene by the statutory definition: They have to describe sexual conduct "in a patently offensive way," appeal to prurient interests as a whole, and lack serious literary, political, artistic, or scientific value. And anything accused of obscenity becomes a cause célèbre anyway, so the FCC usually sticks to "indecent." The aforementioned Deminski and Doyle episode, broadcast January 9, 2002, on Detroit's WKRK, included an exceptionally gross call-in catalog of sexual practices with "cute" nicknames. The commission fined WKRK's parent company, Infinity Broadcasting, the statutory max of $27,500 (Infinity's 2002 advertising revenues, incidentally, were $3.8 billion). But even fire-breathing commissioner Michael J. Copps, who regularly dissents from FCC judgments on the grounds that they're nowhere near harsh enough, went no further than calling it "vulgar and disgusting indecency."
And what, exactly, is indecency? The commission's working definition is that it has to do with matters sexual or excretory and is "patently offensive" by "contemporary community standards"not the community where it was broadcast, but "that of an average broadcast viewer or listener," whatever that means. Indecency can't be barred altogether from broadcast radio and television, either (at least in the 10 p.m.-to-6 a.m. "safe harbor" period), since it's protected by the First Amendment.
In practice, this has meant for years that radio stations don't need to worry too much about censoring what they play at night. It's also historically meant that classic-rock stations often haven't bothered to bleep out, e.g., Pink Floyd's "do-goody-good bullshit" and the Who's "who the fuck are you?" even during the day, on the grounds that the former isn't used in the excretory sense, and the latter isn't used in the sexual sense. The FCC hasn't sustained a fine for playing an indecent record since 2000. (The proposed fine for a station that played the clean version of Eminem's "The Real Slim Shady" got a lot of press, but was eventually dropped.)
The laissez-faire era ended March 18, when Powell's FCC issued a memo about Bono saying "really fucking brilliant" on last year's Golden Globe awards: It declared that the rules are different now, and overturned its own Enforcement Bureau's decision that Bono's slip was no big deal. Just to underscore its authority, on the same day the commission proposed two other fines and upheld a third.
The memo also announced an official meaning for the third taboo, "profanity": a catchall for anything the FCC doesn't like that isn't quite obscene or indecent and happens between 6 a.m. and 10 p.m. "Profanity" is a peculiar word choice, actually, since it implies that something sacred is being profaned. In fact, "profane" is unusual enough in this context that the commission resorted to a definition from the rather obscure 1972 case Tallman v. United States: "construable as denoting 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." (If anyone gets annoyed by anything, it's profane!)
Commissioner Kathleen Q. Abernathy's opinion notes that "the FCC has never used this definition in any analysis of 'profane' content, let alone the use of expletives," and cites a Mass Media Bureau pronouncement that "[p]rofanity that does not fall under [indecency or obscenity] is fully protected by the First Amendment and cannot be regulated." But, she writes, "the law has now changed and all licensees are on notice that even isolated and fleeting broadcasts of the F-word may violate our restrictions on indecency and profanity." All of the commissioners' individual comments schoolmarmishly substitute "the F-word" for "fuck."