The FCC reaches for the mute button

From the Fall 2008 issue of The News Media & The Law, page 12.

Celebrities are generally not considered the best-behaved bunch. Recent years have ushered in a robust era of forgone underwear, DUIs, sex tapes and drug use. As much as stars have been entangled in legal troubles, it could almost seem ironic that one of the milder celebrities-behaving-badly incidents has turned into a Supreme Court case the use of swear words on a live television broadcast.

At the center of this story one finds Paris Hilton, best known as a Hollywood socialite with a cultivated reputation for ditz, who is perhaps not so dumb after all. Maybe she had an inkling of what was at stake when she admonished her friend, and co-star of the girls-on-the-farm reality show “The Simple Life,” Nicole Richie, while onstage at the 2003 Billboard Music Awards:

Hilton: “Now Nicole, remember, this is a live show, watch the bad language.”

Richie: “Okay, God.”

But Richie took the moment and ran with it, letting loose a string of curse words. Network censors only managed to “bleep” the first of three.

Hilton: “It feels so good to be standing here tonight.”

Richie: “Yeah, instead of standing in mud and . Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

And there it was, the nub of a dispute that would, in five years, wend its way up to the highest court. Richie’s off-the-cuff musings, along with a similarly worded shout out Cher gave to her detractors at the same awards show the year before (“So fuck ’em”!) are now the subject of a case due to be heard this fall. The Court will have the chance to resolve issues regarding what broadcasters characterize as the Federal Communication Commission’s uneven application of an unclear indecency policy that, in itself, burdens First Amendment-protected expression when it hears oral arguments in FCC v. Fox Television Stations on Election Day.

Whatever the court decides in FCC v. Fox, it will mark a new, crucial chapter in the saga of stiffening regulations since 2004, when the government delved anew into broadcast indecency rules. Although the Bush-era indecency crackdown has included action by both Republicans and Democrats, the parties tend to have different views when it comes to regulation.

“Republicans are generally in favor of personal freedom, but when it comes to broadcasting and indecency, this strikes at what they call ‘family values;’ there is an appeal to their party base,” said William Lee, a communications law professor at the University of Georgia’s Grady College of Journalism and Mass Communication. Democrats tend to shun strict regulation in favor of parental use of technology, he said, such as the V-chip, a device that allows parents to block unwanted television programming. 

“Under the Clinton years, the FCC did go after certain radio personalities Howard Stern was very much in the crosshairs of the Clinton FCC,” said Adam Candeub, professor and dat Michigan State University Law School. “[But] I think under Bush, the number of notices of apparent liability and the amounts assessed for fines have gone up. . . . It definitely represents an expansion.”

The Supreme Court last discussed the legality of broadcast indecency regulation at length in 1978’s FCC v. Pacifica. The Court’s opinion then focused on the nature of the broadcast at issue George Carlin’s “Seven Dirty Words” monologue, which was aired during daytime hours and found regulation was appropriate, even considering First Amendment concerns, because the broadcast consisted of repeated expletives amounting to a verbal “shock treatment.” The Court also reasoned that the pervasiveness of broadcasting as a medium and its wide accessibility warranted regulation.

With the continued convergence of media from broadcast to print to the Web it is unclear if the Supreme Court’s rationale in Pacifica, that indecency in broadcasting as opposed to cable or other media is uniquely pervasive and should be most heavily regulated, still rings true today. This might nudge the Supreme Court into articulating new standards in its FCC v. Fox opinion.

Proponents of greater First Amendment freedom hope the Court provides more clarity for broadcasters.

Over the last eight years the FCC has reneged on its own indecency regulation standards, increased fines, and as a result, created unclear standards that have a chilling effect even in broadcast news. Many of these changes can be attributed to the Bush administration, which outwardly praised and supported the indecency crackdown, and to the generally conservative political environment of the time.

Bono and evolving indecency

If only Janet Jackson had remembered to wear a bra.

Even after Richie’s televised colorful assessment of life on a farm, the major catalyst for indecency regulation changes happened in 2004, when Jackson’s wardrobe “malfunctioned,” as it were, during her concert in the Super Bowl halftime show. Singer Justin Timberlake tugged at her bodice at the end of their duet, on live television, and a flap of fabric came down, briefly exposing her breast.

After this, the FCC made two big changes that First Amendment advocates decried it renounced its policy that “fleeting expletives” were not objectionable, and increased fines for indecent broadcasts.

The FCC waffled on its long-held position that expletives that were not repeated should not be fined. The Commission’s enforcement bureau had ruled, for instance, that stations should not be fined for U2 singer Bono’s statement on live television that winning a Golden Globe award was “fucking brilliant.” The bureau reasoned that it was a single utterance that did not refer to a sexual act, as is required by indecency law.

The FCC’s current rules allow it to regulate indecent but constitutionally protected broadcast material between 6 a.m. and 10 p.m., defined as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”

Accordingly, the enforcement bureau initially ruled that Bono’s exclamation did not refer to sexual activity, but was merely used as an intensifier in the phrase.

But in response to public complaint, the FCC overruled its bureau, departed from its own precedent, and determined that the broadcast was indecent because even “fleeting expletives” could now be considered actionable.

Former Chairman Michael Powell, who headed the FCC at the time, said in a Sept. 16, 2008 telecommunications policy forum that “the FCC blinked” at pressure to change its initial ruling.

“It was a terrible mistake,” Powell said, “and I voted for it.”

Four years later, the reverberations of that vote are now heading up the steps of the Supreme Court.

“When the Bono and Janet Jackson incidents happened in 2004, an election year, the big issue that Republicans were starting to stoke was the ‘culture war,’” said Jonathan Rintels, executive director of the Center for Creative Voices in Media, which filed a brief as an intervenor, or third party, in the FCC v. Fox case. “From our perspective, that was a politically-driven point of view to appeal to people that were talking about the coarseness of the culture and about the incidents being evidence of its deterioration. So Powell completely played into that.”

FCC ups the ante

Meanwhile, with the FCC radically reshaping its regulations, Congress set to work upping the financial ante for broadcasters who violated them, with the enthusiastic backing of the White House.

“Up until the Bush administration, FCC fines for the most part were very minimal and only imposed on one station,” Lee, the University of Georgia professor, said. Under Powell, the commission changed the way it calculated fines and began assessing them on every station affiliate of a network that carried an indecent program, regardless of whether anyone in the particular affiliate’s area saw or was offended by the broadcast (the FCC later softened that policy, and now only fines those stations that are subject to legitimate complaints).

Congress then passed the Broadcast Decency Enforcement Act of 2005, which changed the maximum amount of fines the FCC could assess. President Bush signed the law, bumping up the fine for impermissibly showing indecent, obscene or profane content, from $32,500 to $325,000 per violation.

“[For] some broadcasters … it’s relatively painless for them when they violate decency standards. And so the Congress decided to join the administration and do something about it,” Bush said in his accompanying remarks. “And so the bill I’m about to sign, the Broadcast Decency Enforcement Act, increases tenfold the penalty that the FCC can impose, to $325,000. The Congress got serious. And I appreciate their hard work on this measure.”

He also noted that as part of the executive branch, it was both the FCC chairman’s duty, and his own, to ensure that the FCC imposes stiff penalties on indecent programming.

Even with all that was going on, it was the financial hit that got the litigation rolling in.

“I think it’s the size of the fines that really caused the broadcasters to say, ‘We’ve gone along with your flaky rulings, but now we’re talking about real money,’” Lee said.

After the FCC’s reversal on the Bono incident, broadcasters including Fox, CBS, and ABC began to challenge various Commission findings of indecency. Eventually, two major cases ended up in the federal appellate courts.

One was the Fox case. In the opinion that the FCC appealed to the Supreme Court, the U.S. Court of Appeals in New York City (2nd Cir.) said that although no fine was assessed in the case, the FCC could not find the utterances actionably indecent because the Commission’s determination was pursuant to a policy change on so-called “fleeting expletives” that was not well-reasoned.

The other lawsuit related to the FCC’s $550,000 fine against CBS for the Janet Jackson incident, and the U.S. Court of Appeals in Philadelphia (3rd Cir.) threw out that fine for reasons similar to the Second Circuit’s.

It remains to be seen whether the Supreme Court will put an end to the long-simmering feud between broadcasters and the FCC.

The First Amendment fallout

In the wake of all the FCC’s changes, broadcasters have been left without a bold, clear line to follow in deciding what to air, because a determination of indecency depends on context. That has left many to self-censor for fear of being slapped with the new hefty fines, Rintels said.

For example, in the last few years, the FCC did not punish broadcasters for expletives broadcast during a segment on CBS’s Early Show and an airing of Steven Spielberg’s film “Saving Private Ryan,” but it fined for similar utterances during a broadcast of the Martin Scorsese documentary “The Blues: Godfathers and Sons” on a public educational channel.

Fox homed in on the point in its brief to the Supreme Court: “The FCC is not applying any predictable or even discernible standards. . . . [I]t is well-settled that the government cannot use such vague standards in regulating constitutionally protected speech.”

Rintels recalled that a Denver station canceled a PBS documentary on Marie Antoinette because one of the shots had a pen-and-ink drawing of a nude woman; several stations refused to air a documentary on the Sept. 11, 2001 attacks in which firefighters were filmed using expletives that morning at Ground Zero. “What the FCC has done is real and has a tangible impact, but so much of it is behind the scenes. This is not some kind of vague reference to a chilling effect. This is a very real chilling effect with actual examples,” Rintels said.

Even broadcast news, long considered the most protected from indecency fines, has been affected. Because it often runs live, a station’s risk of being fined for unexpected expletives caused tension in the editorial process, the National Association of Broadcasters wrote in its friend-of-the-court brief.

“Now, given the inherent ambiguity in the Commission’s decisions and the specter of significant fines and other penalties, broadcasters are hesitant to use audio and video of angry political demonstrations, or even structured political debate, interviews and conversations,” the NAB brief said. “The Commission’s new indecency policy, as a practical matter, threatens to make broadcast journalism less authentic, less insightful, and less thought-provoking.”

The FCC contends in its brief to the Supreme Court that its analysis is merely reliant on context. The nature of the regulation warrants a case-by-case analysis, the Commission wrote, and it had a strong rationale for departing from its own precedent on fleeting expletives: “The Commission gave several reasons for the change, including that the revised policy harmonized the treatment of expletives with the Commission’s general approach to indecency enforcement, under which context is ‘all-important,’ and no one factor is dispositive,” the brief said.

What the Court could do

It is unclear whether the Supreme Court will speak to pressing First Amendment issues in its ruling in Fox; after all, the precise question the court must answer deals with an administrative law issue. Under administrative law, federal agencies are permitted to change policies as long as they provide reasoned explanations for doing so actions that are not well-reasoned are referred to as “arbitrary and capricious.”

However, the relevant appellate decision answered the administrative law question, but contained dozens of pages of non-binding legal analysis stating that the FCC’s current indecency regime and its application are most likely unconstitutional in violation of the First Amendment. The Supreme Court may address constitutional issues and the permissibility of indecency regulation more generally, but it could also strictly limit its opinion to finding whether the policy change was sufficiently well-reasoned.

“If the Supreme Court revisits [previous indecency jurisprudence] and does an impact-based analysis of the First Amendment in broadcasting, then it will be revolutionary,” said Lili Levi, media law professor at the University of Miami School of Law.

First Amendment advocates hope the Supreme Court’s ruling will mark a return to more deference for constitutional interests.

“Previous FCC commissioners knew that they had to act with the utmost restraint; they were always conscious to not allow regulation to become a tool for censoring,” Rintels said. “That fear has come to pass.”