Issue 103, Winter 2006/2007

In FCC v. Pacifica (1978), the Supreme Court created an exemption to First Amendment law when it upheld the authority of the Federal Communications Commission to regulate “indecent” broadcast material, defined as “language that describes, in terms patently offensive … sexual or excretory activities and organs.” However, the Court cautioned the FCC to “exercise [its] authority with the utmost restraint, lest we inhibit constitutional rights.”

But the agency abandoned restraint after a “wardrobe malfunction” exposed Super Bowl audiences to a half-second glimpse of Janet Jackson’s breast. The incident cost CBS $550,000 (20 affiliate stations each paid the maximum $27,500 fine). As if that weren’t sufficient, last summer Congress increased the maximum fine ten-fold.

The FCC bases its approach on the assumption that “Americans have become more concerned” with indecent material on television because complaints rose “from fewer than 50 in 2000 to approximately 1.4 million in 2004.”

But this statistic is both irrelevant and misleading: irrelevant because popular opinion does not trump the right to free speech, and misleading because FCC policy drastically inflates the tally of complaints by counting one letter sent to five agency staff as five separate complaints.

The surge in numbers also corresponds with the Parents Television Council’s campaign to flood the agency with mass emails and form letters. Over 99% of the complaints in 2004 and 2005 were generated by the PTC, which has been described as “an automated complaint factory.”

For example, the FCC says it received 159 letters about a 2003 episode of Married By America, for which it fined Fox a whopping $1.2 million. However, all but three of the complaints were identical.

Under new rules, even “fleeting expletives” are fair game for penalties – well, sometimes. The FCC let ABC off the hook for a broadcast of Saving Private Ryan that included the word “fuck,” deciding that it was “integral to the film’s objective” of portraying soldiers’ experiences. But the same word was deemed unacceptable in Martin Scorsese’s documentary, The Blues. Message to broadcasters: when unsure, censor yourselves (and they do).

The expansion of FCC decency guidelines and the chilling effects of their inconsistent application – particularly on non-profit broadcasters who cannot afford to dispute, let alone pay, a fine – are good reasons to question whether the censorship regime established by the “fleeting expletive” rule, and by Pacifica in general, is acceptable today. The facts that the Court relied on 18 years ago to justify speech restrictions no longer hold true, such as the “uniquely pervasive” nature of broadcast television: cable and satellite have diluted the effect of broadcast television, and the V-chip has enabled those who care about broadcast decency to eliminate the likelihood of exposure to unwelcome material.

In a case now pending in the U.S. Court of Appeals in New York, NCAC has joined free speech advocacy organizations, broadcasters, filmmakers, performers, and writers to protest the FCC’s approach and urge a review of its authority to censor constitutionally protected speech.