You can't say that on television

BY ERIN K. O'NEILL

On the American Idol finale Wednesday night, about 10 seconds of the Black Eyed Peas performance was blocked out by the Idol logo. There was little doubt as to why: potential for indecent language or skin exposure sends networks running.

From Bono declaring winning a Grammy “F------ brilliant,” to Janet Jackson’s “wardrobe malfunction,” profanity and obscenity on the air have come a long way since George Carlin first joked about the Seven Words You Can’t Say On Television in 1973.  All content that airs on broadcast (not cable or satellite) television and radio between six in the morning and ten at night is subject to after-the-fact fines levied by the Federal Communications Commission.

Obsession over the cleanliness of the mouths and sartorial decisions of broadcast television characters is the domain of the FCC — a bureaucracy that has the power to make and enforce its own rules and regulations. In essence, the FCCis a law onto itself — a law that collides with the right to free speech. And the FCC is powerful; it can fine radio and television stations up to $325,000 per incidence of indecency.

The 2004 Super Bowl was the watershed for recent controversy. Yes, nine-sixteenths of a second of flashed female breast on live national television was worth a fine totaling $550,000 against CBS. The chilling effect on broadcasters was almost immediate. In one instance, 66 ABC affiliate stations declined to air “Saving Private Ryan” on Memorial Day in 2004 for fear of fines (the FCC later declared that the deluge of foul language in that film was not indecent). And in yet another incident, WABI radio in New York decided against airing a 50th anniversary reading of poet Allen Ginsberg’s “Howl,”  which opens with: “I saw the best minds of my generation destroyed by madness, starving hysterical naked….” Ironically, “Howl” was subject to a 1957 obscenity trial, where it was ruled to be not obscene.

The problem is with the FCC’s definition of indecency, in which indecency is 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 organs or activities.” Lawyers, lawmakers and bureaucrats could parse this definition, world without end, and come up with indeterminable numbers of interpretations. What is patently offensive? Whose community standard? What is material?

This definition does not exactly give broadcasters a how-to guide for avoiding indecency fines; it’s not as simple as “seven words” that you can’t say or a certain amount of sexual innuendo that will be tolerated. The standard is that there is no standard, except what is complained about that day.

There are other issues too. The FCC can apply fines retroactively. In 2008, the FCC fined ABC stations $1.1 million for a partial nude buttocks shot in an “NYPD Blue” episode that aired in 2003.

This kind of confusion in the area of free speech is beyond problematic. It is not that obscenity and indecency should not be regulated on the air — there is merit to the argument that protecting children and unwilling adults is necessary and even just. Considering that even the most conscientious parents sometimes have language slips around their kids , is a celebrity at an awards ceremony really going to pollute a child’s mind?  

Tending toward major fines for minor slip-ups during live broadcasts is ludicrous. The damage to young minds is so potentially small, and the chilling effect on free speech so large, that any benefit we as a society are getting from this practice of censorship is not worth the damage to our first amendment rights.

Even more damaging is that the FCC is an administrative, and not legislative, body — one that can make its own regulation without any public input or legislative oversight and one that is without the checks and balances of the three branches of government. The FCC needs to re-write their definition of indecency to make it less vague and provide guidance for broadcasters. There should be no confusion when it comes to the first amendment.

Erin K. O'Neill is an assistant director of photography for the Missourian and a master's degree candidate at the Missouri School of Journalism.

Published in the Columbia Missourian on Monday, June 1, 2009.