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November 06, 2008

A Case of Indecent Exposure

The Supreme Court is currently debating whether We the People are deprived of an irreplaceable First Amendment right when the f-word is stricken from broadcast TV shows aired between the hours of 6 and 10 pm. Traditionally the FCC has regulated the use of profanity and nudity during prime time to allow families to watch TV without being involuntarily confronted with age inappropriate fare. A rare example of indecency enforcement occurred in February when the FCC fined Fox TV for airing a risque reality TV show. The government has been slow to prosecute claims of indecency, going after only the most egregious offenders in markets where viewers lodged vociferous complaints. Typically, enforcement is both difficult and expensive:

In yesterday's order, the FCC turned down a Fox claim that said the April 7, 2003, show -- which featured digitally obscured nudity and whipped-cream-covered strippers -- was not indecent.

...The "Married by America" ruling is the second issued by the FCC in the past month that took years to complete. The FCC proposed the fine against Fox in October 2004, and Fox responded that December, meaning it took the agency more than three years to reach yesterday's decision.

In late January, the FCC proposed a total of $1.43 million in fines against 52 ABC-owned and -affiliated stations for airing a Feb. 25, 2003, episode of "NYPD Blue" that featured full female dorsal nudity and the side of one bare breast.

It took nearly five years from broadcast to FCC decision, but less than a month for the FCC to turn down ABC's response and order a reduced payment of $1.24 million against 45 stations, again omitting markets that had not complained about the program. ABC paid the fines but is appealing the FCC's decision to the U.S. Court of Appeals for the 2nd Circuit in New York.

The government maintains that though free expression is an important Constitutional right, the home should be a refuge and parents should not be forced to take extreme measures to protect children from adult oriented fare which violates community standards. This makes sense if you think about it, though such rationales face steep resistance in a world where any principled argument is inevitably branded intolerant. But is it truly intolerant to assert there may be some minimal standard of speech and behavior; and if that standard is violated reasonable people have a right to be offended?

If certain behavior isn't accepted among adults at the office, in the classroom, or on the street; why must parents be forced to take special measures to protect children in their own homes? Clearly there is some consensus (and has been for quite some time) that this behavior offends the sensibilities of enough reasonable adults that society has deemed it off limits? Is there no permissible limit on an individual's absolute and unfettered "right" to offend?

If this standard is relaxed or eliminated entirely, what prevents human nature from pushing the boundaries (which has been the result every time an impediment of this sort has been removed):

In FCC v. Pacifica Foundation, this Court upheld the Constitutionality of the FCC’s authority to regulate indecent broadcasts. At issue in Pacifica was the midday radio broadcast of George Carlin’s monologue “Filthy Words.” Responding to a listener complaint, the Commission determined that the broadcast violated Section 1464. In reaching that conclusion, it applied a “concept of ‘indecent’ [that] is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.”

As the Court observed, “[t]he Commission’s decision rested entirely on a nuisance rationale under which context is all-important,” and that “requires consideration of a host of variables.” In rejecting a constitutional challenge to the Commission’s enforcement of Section 1464, the Court explained “of all forms of communication, it is broadcasting that has received the most limited First Amendment
protection.” That is in part because “the broadcast media have established a uniquely pervasive presence in the lives of all Americans”
in that “material presented over the airwaves confronts the citizen, not only in public, but also in the privacy
of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” In addition, the Court emphasized, “broadcasting is uniquely accessible to children, even those too young to read,” and the broadcast of indecent language can “enlarge[] a child’s vocabulary in an instant.”
The Court concluded that “the government’s interest in the well-being of its youth and in supporting parents’ claim to authority in their own household justified the regulation of otherwise protected expression.” The Court rejected the contention that “one may avoid further offense by turning off the radio when he hears indecent
language,” comparing it to “saying that the remedy for an assault is to run away after the first blow.”

The respondents' riposte is nothing if not circular. In their less than compelling argument, the f-word is rendered inoffensive by the context in which it is used. Its status - that of a mere modifier concatenated to the end of two consecutive "really's" - strips it of its original sexual connotation. If one accepts the respondents' argument, the word "f**king" appears to have neither any literal meaning, nor to serve any purpose, whatsoever. It is the semantic equivalent of "quite",; as in:

"That's really, really f**king brilliant."

But if the word has no meaning other than to serve as a mild intensifier, this begs an interesting question. What speech right is infringed upon by requiring broadcasters to monitor and bleep it out? That which has no meaning, conveys no thought or idea. What speech is being prevented? Examine Bono's sentence without the supposedly inoffensive and consequently redundant intensifier. Is it fundamentally altered with the purportedly essential modifier removed?

"That's really, really brilliant."

The other examples cited in FCC vs. Fox are hardly more compelling as exemplars of vital and expressive speech:

Cher, on receiving a Lifetime Achievement Award:

I’ve had unbelievable support in my life and I’ve
worked really hard. I’ve had great people to work
with. Oh, yeah, you know what? I’ve also had critics
for the last 40 years saying that I was on my way out
every year. Right. So f**k ‘em. I still have a job
and they don’t.

Nicole Ritchie (notably, immediately after being warned to watch her language on a live broadcast):

Paris Hilton: It feels so good to be standing here tonight. Nicole Richie: Yeah, instead of standing in mud and [audio blocked].

Why do they even call it “The Simple
Life?” Have you ever tried to get cow s**t out of
a Prada purse? It’s not so f**king simple.

Again, we return to the tension between individual rights and the social contract. We all voluntarily surrender some rights in order to secure other rights or benefits which, as individuals, we would find it too arduous to guarantee: a defense of our borders, police, schools, a coherent and uniform legal system, roads and the like. To hear some big L libertarians talk, the world would be a far groovier place if we abolished government entirely and went all free market. This is sort of like going commando on that classy first date you're trying so hard to impress - it feels so liberating until she asks you up for a nightcap and you realize there just might be a few contingencies you failed to anticipate.

Perhaps some precious and indefinable right is lost when parents are able to turn on their televisions after dinner without wondering when Cher will start blithely dropping f-bombs on the kids right there in the Great Room or some dimwitted naturist with regrettable implants and a Dayglo nipple ring will begin cavorting about in a vat of non-dairy creamer (thus prompting questions about social policy we may prefer to defer until a more congenial moment in time).

If so, the Times will have to define it for me. Because although few of these things offend me on a personal level (I swear like a sailor) I don't understand why someone else's right to completely unrestrained and gratuitous crudity at all times outweighs the reasonable expectation that citizens living in a diverse society should exercise a reasonable level of restraint under limited circumstances?

We routinely exercise this type of restraint on the streets, in our workplaces, in stores and in classrooms all over America. If we do not, our fellow Americans are rightly offended and often we may even be arrested for disturbing the peace. The Times chooses to mislead in its portrayal of the FCC's handling of the case, as it so often does. Originally the FCC decided Bono's single use of the f-word was not offensive.

It was only after the repeated complaints of the public it serves - We the People - that the FCC responded by revisiting its decision. Journalists often complain that government should be more responsive to the public. This is a case where government did exactly that; slowly and with care and deliberation, and is being pilloried for doing so.

Policy questions are never easy. Balancing tests never are. But to claim "important speech rights" are being endangered when in the case at hand, the word being disputed is claimed to be inoffensive precisely because it has no meaning borders on the ludicrous. Either the word conveys meaning or it does not. The Times and other defenders of profanity will have to make up their minds.

Or more accurately, they will not because as always they will distort and talk around the issues; assuming that few will bother to read up on the facts of the instant case.

Posted by Cassandra at November 6, 2008 06:39 AM

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...some dimwitted naturist with regrettable implants and a Dayglo nipple ring will begin cavorting about in a vat of non-dairy creamer...

I find your continued misspelling of DayGlo® both reprehensible and personally offensive.

Please cancel my subscription and return the unused portion of the red mini.

Thank you.

Posted by: BillT at November 6, 2008 10:31 AM

Yanno, if they wanted to get rid of Paris, Nicole and the Olsen twins and keep the profanity, that is a trade I could live with.

Posted by: Cricket at November 6, 2008 11:12 AM

I misspelled "Stay-Puft" too, and it's my moniker.

So sue me :p

Posted by: Stay-puffed Marshmallow Man at November 6, 2008 01:26 PM

What's a Stay-Puft, a fluffy corset component?

Posted by: BillT at November 6, 2008 02:44 PM

Great Googly Moogly!

Not only did Sol rise over Mesopotamia, but I've had more than one occasion since The Day That Will Change Life, The Universe and Everything to LOL!

The next 2 to 4 years could possibly be great entertainment what with tossing eggs, tomatoes, and ectoplasmic slime at the Gozer administration and their media mermedons such as the NYT and Mr. I-Can't-Stop-My-Leg-Tinglies. Which BTW, made me spill my Mesopotamian Suds Lite I laughed so hard at the obviously demented fellow's ability to speak with both feet comfortably contained in his mouth and not realize that he'd once again exposed his inner idiot.

Anyway this could be quite entertaining as the inmates are now almost wholly in charge of the Asylum.

Keep your power dry and <Insert some inoffensive and meaningless word here> them if they can't take a joke.

Posted by: Zuul at November 6, 2008 02:57 PM

Dry power is always so much safer than wet power. Except for hydroelectric power. Which is wet.

So yes, keep you power dry. :)

Posted by: Don Brouhaha at November 6, 2008 03:39 PM

So you think it's easy typing with three digits per mitt Mr. Brouhaha?

Posted by: zuul at November 6, 2008 03:44 PM


Three digits per mitt x four mitts = 12 digits.

Should give you a decided advantage.

Posted by: BillT at November 6, 2008 04:32 PM


Windows has detected an error in the chair-to-keyboard interface.

Posted by: BillT at November 6, 2008 04:35 PM

One mitt is reserved for scratching.
One mitt is the liaison between Terra Firma and Arsa Firma.
One mitt is now required to anchor my food dish lest the Demigod Gozer administration decides to redistribute it to less fortunate demons...meaning...

I am left to communicate with three pointy little stubs.

The things I do for a better world. Hmmm... Maybe I can get a cabinet appointment?

Posted by: Zuul at November 6, 2008 08:59 PM

Sounds like you'd be perfect for Assistant Undersecretary to the Secretary of Assistance. Lemme check the resume again.

Ooop. Ineligible. You have one mitt grounded on Terra Firma instead of firmly grasping at Hope. Have you considered a career in the rapidly-expanding field of Industrial Food Preparation?

Hey -- best o' luck in your future endeavors!

Posted by: BillT at November 7, 2008 03:00 AM

The Thunder Run has linked to this post in the - Web Reconnaissance for 11/07/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

Posted by: David M at November 7, 2008 11:04 AM

"... full female dorsal nudity ..." Dorsal? Are we talking dolphins here?

Or was that one of those immoral porpoises?

Another thought on the infamous "f-word": breathes there a human over the age of 6 who has not heard it at least once so far? In the company of "persons of low degree", and at the other end of the spectrum, of soldiers in a combat zone, the word is so overused that it loses all its shock value. It's just another space-filler or intensifier.

But its use does indicate a flagging familiarity with the vast resources of the English language.

Thought for the day: If someone with Tourette syndrome had never heard any swear words or obscenities, what would he say?

Posted by: ZZMike at November 7, 2008 02:39 PM

That sounds like a question for "Ask Cassandra"....

Posted by: DL Sly at November 7, 2008 02:54 PM

"What is the sound of one Sly snarking?"


Hey! That was *rhetorical*!

Posted by: BillT at November 7, 2008 03:52 PM

Oh, sorry, I didn't study *rhetoricals* in school.
I was, however, part of a *focus* group for a fascinating lab experiment studying wild geese and their reactions to the application of neon pink spray paint......

Posted by: DL Sly at November 7, 2008 04:08 PM

I was, however, part of a *focus* group...

Dandy. Here we go with sex and relationships again...

Posted by: BillT at November 7, 2008 04:18 PM

One mitt is reserved for scratching.
One mitt is the liaison between Terra Firma and Arsa Firma.
One mitt is now required to anchor my food dish lest the Demigod Gozer administration decides to redistribute it to less fortunate demons...meaning...Zuul

That has such a Lord Of The Rings air about it.
It is only three mitts, Bill, so he has nine digits, just like nine-fingered Frodo.

It all fits!


Posted by: Cricket-the-Seer at November 7, 2008 09:37 PM

*frantically mushing the fainting couch in a manner befitting Genghis Khan at the Iditarod*




Posted by: BillT at November 8, 2008 07:15 AM