FCC Crackdown on Profanity, Indecency Marks Shift in Policy, Robinson Says

Prof. Glen Robinson

Last March, the Federal Communications Commission (FCC) ordered CBS Broadcasting Inc. and its affiliate networks to forfeit $3.35 million for airing Janet Jackson's infamous "wardrobe malfunction," in which the singer's breast was exposed during the 2004 NFL Super Bowl halftime show. At the same time the FCC issued an "omnibus order" that fined networks and stations for airing "indecent" and "profane" material. Now the networks are fighting back in two cases- CBS v. FCC and Fox Television Stations et al v. FCC -that challenge the Commission's ruling in the Second and Third U.S. Circuit Courts of Appeal.

According to U.Va. law professor and former FCC Commissioner Glen Robinson, these hefty fines embody a new trend in the FCC's efforts to curb offensive material broadcast by television and radio stations. Robinson, a David and Mary Harrison Distinguished Professor of Law, offered some candid insight to these issues at an informal luncheon hosted by the American Constitution Society of Law and Policy Nov. 8 at the Law School. He explained that the FCC appears to have fundamentally modified its approach to enforcing a statute in the U.S. Code (§ 1464) that permits the government to punish anyone who "utters obscene, indecent, or profane" language on publicly aired programs.

Until 2000, the FCC pursued fines against talk radio that followed a pattern of provocative programming.

"It was Howard Stern, Infinity Broadcasting, and other Howard Stern clones-people who were deliberately tweaking the FCC's nose with smarmy sexual innuendo," said Robinson, who has drafted amicus briefs for both CBS and Fox Television . "Something snaps politically after about 2001 and [the FCC] starts enforcing with a vengeance."

In 2004 the FCC's fines reached all-time high at more than $8 million, some of which penalized mainstream television networks for having aired overtly sexual content. "Without a Trace," a well-regarded primetime series, provoked the FCC's ire and a massive fine when it aired a pixilated teenage sex scenario.

The FCC now looks at television shows like "Will & Grace," "NYPD Blue," and "Alias," in addition to educational programming, movies, and live events for even single uses of objectionable language or material. For example, the commission has targeted unscripted curse words uttered by celebrities such as Bono and Cher as indecent. Both made offhand use of the "F-word" in publicly televised appearances.

"The FCC decided that the single use of that word is not only indecent, but it's profane, and that's the beginning of this new jurisprudence of profanity," Robinson said. "The FCC wants to shore up this idea that there's something inherently bad about even a single use of the 'F-word.' It has done the same thing with the 'S-word.'

"What I can't quite figure out," Robinson wondered, "is what mileage [the FCC] thinks it's getting" by punishing these cases on the grounds of profanity, since the application of the profanity rule seems to be the same as for the indecency rule. By selectively relying on the context in which offensive words are spoken, the FCC has refrained from restricting broadcasts of the World War II drama "Saving Private Ryan."

"All hell would break loose if they went after a program that is as distinguished and honored as that [one]," he explained, because "there it's part of the artistic value of the program." In contrast, the FCC concluded that ABC's immensely popular police drama "NYPD Blue" was unnecessarily provocative. "So it's okay [to curse] in war movies, but not in cop films-this just doesn't make any sense at all," Robinson said. Thus, the FCC has drawn a blurry line regarding contexts in which profanity is appropriate while also claiming that unintended curses are nearly always profane.

"We are so far beyond Pacifica," Robinson said, referring to the 1978 landmark case in which the Supreme Court ruled a graphic monologue by George Carlin to be indecent ( FCC v. Pacifica Foundation ). In that case, a teenager was exposed to Carlin's vulgar entertainment style when a radio station broadcast a bit entitled "Seven Filthy Words" during a weekday afternoon. The Court ruled that patently offensive words dealing with sex and excretion can be regulated simply because of their content. The opinion gave independent standing to indecency, as opposed to obscenity; the government could totally suppress obscenity, but could only regulate what time and place indecent material like Carlin's shtick could air. However, Robinson explained that the FCC has drastically expanded the relatively narrow ruling of Pacifica and that it may soon need to be rehashed by the Supreme Court in order to clarify the relationship between free speech and indecency.

Robinson recalled a case in which a Vermont public radio station recently blocked one fringe candidate from joining an on-air political debate because he had used a curse word in a prior broadcast. The radio station ostensibly feared being fined if the candidate made a repeat performance.

"Now many of those little radio stations who are risk-averse are going to be using this [law]…for not carrying colorful characters," Robinson suggested.

He also speculated that a variety of advocacy groups, such as Morality in Media and the Parents Television Council, may have successfully made the issue of "family values" in network television a concern for many Americans. Both groups have organized massive write-in campaigns that encourage the FCC to monitor the content of mainstream broadcasting more aggressively.

"Beyond the constitutional dynamics, there's really a political movement," he said. Although the FCC has pointed to the massive number of citizen complaints to justify its actions, "The complaints are being orchestrated by e-mail campaigns....They'll tell you that you don't even have to see [an offensive broadcast], just send in a letter....It's part of a 'let's clean up the media' movement."

In the Superbowl case, the fact that CBS may not even be responsible for Jackson's flash of nudity did not stop the FCC from imposing the largest fine in history, Robinson said. Supreme Court precedent holds that speech may not be sanctioned except where the speaker is shown to be at fault.

Regarding the legal future of indecency regulation and the FCC, Robinson conjectured that the FCC might seek to bring cable television and satellite radio within its indecency regulations. After all, he noted, "85 percent of Americans receive their programming via cable or satellite, as opposed to over-the-air broadcasting. Because these are subscription services they aren't covered by indecency regulations, though it isn't clear why the indecency law-assuming it is constitutionally ok-should turn on an act of subscription."

Students at the talk also discussed their involvement in collaborating with the Thomas Jefferson Center for the Protection of Free Expression to produce an amicus brief for a profanity case.