Another notch in the First Amendment

Our official nannies are at it again: The FCC issues more fines against supposed indecency today and upholds the Janet Jackson decision. The official press release, written at your expense, says:

In these decisions, the Commission addresses complaints about nearly 50 television programs broadcast between February 2002 and March 2005. The decisions respond to the public’s growing concern about the content of television programming.

“The public’s growing concern” is a downright lie. It responds to convenient pressure campaigns from the right-wing religious nuts of the so-called Parents Television Council et al. The PR continues:

The Commission also finds episodes of “Without a Trace” and “The Surreal Life 2,” which contained numerous graphic, sexual images, to be impermissible under the Commission’s indecency standard. The Omnibus Order also finds indecent the broadcast of a movie containing a graphic rape scene and a talk show featuring a female guest who appeared in an open front dress. Finally, the Commission finds indecent and profane several television programs containing offensive language.

I’m just digging into the orders now but note that they made rare complaints against Spanish-language shows.

: Incredibly, Oprah gets off. She described exactly the same things Howard Stern got fined for: describing oral-anal sex. But the FCC decided that Oprah is OK:

The material is not presented in a vulgar manner and is not used to pander to or titillate the audience. Rather, it is designed to inform viewers about an important topic. To the extent that the material is shocking, it is due to the existence of such practices among teenagers rather than the vulgarity or explicitness of the sexual depictions or descriptions.

: The FCC added “shit” to “fuck” as legally profane:

For example, we hold that a single use of the word “shit” and its variants (the “S-Word”) in the contexts presented is both indecent and profane. However, we do not propose adverse action in these cases because we have not previously announced this conclusion.

[Note: I just corrected this section. When I first read that, I thought we couldn't even say "the s-word" per se, but I now think I misread that so I corrected it minutes after writing it.]

When they went over the profanity barrier with their finding against the F-word at the Golden Globes, many legal bloggers warned that this is a slick slope that will surely start to touch on hate speech, for what is more profane and offensive in this country than the N-word. They recognize that slope but go skiing on it anyway:

…given the sensitive First Amendment implications in this area, we establish a presumption that our regulation of profane language will be limited to the universe of words that are sexual or excretory in nature or are derived from such terms. As our regulation of profane language is based on a nuisance rationale similar to that which forms the basis for indecency regulation, we believe that the same limitation on the scope of our regulation is appropriate and rests upon sound constitutional footing. Although we recognize that additional words, such as language conveying racial or religious epithets, are considered offensive by most Americans, we intend to avoid extending the bounds of profanity to reach such language given constitutional considerations.

So calling someone a dirty name is protected but saying “fuck” is not. In what universe is that logical? Theirs.

Thus the FCC puts itself in the position of official national critic and editor. They decide what we can think and say:

We conclude below that certain vulgar sexual or excretory terms are so grossly offensive to members of the public that they amount to a nuisance and are presumptively profane. We reserve that distinction for the most offensive words in the English language, the broadcast of which are likely to shock the viewer and disturb the peace and quiet of the home. We also note, however, that in rare cases, language that is presumptively profane will not be found to be profane where it is demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.

: Pixelation will not make you any safer. They go after The Surreal Life for pixelated breasts.

: Cher causes action for the Billboard Awards:

Cher states, “People have been telling me I’m on the way out every year, right? So fuck ‘em.”

No, they fuck you, Cher.

: Ditto Nicole Richie:

Ms. Richie uttered the “F-Word” and the “S-Word.” Fox does not dispute that the “S-Word” refers to excrement.

Stipulated, your honor. The dialogue:

Paris Hilton: Now Nicole, remember, this is a live show, watch the bad language.
Nicole Richie: Okay, God.
Paris Hilton: It feels so good to be standing here tonight.
Nicole Richie: Yeah, instead of standing in mud and cow[blocked]. 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.

In both these cases, they didn’t post a fine because the FCC’s orders in these areas came after these utterances. But they still zapped them as indecent.

: They now go after even PBS for “The Blues: Godfathers and Sons”

The complaint alleged that the broadcast, an episode of a prerecorded documentary series provided by the Public Broadcasting Service (“PBS”), contains numerous “obscenities,” including the “F-Word,” the “S-Word” and various derivatives of those words, in violation of the Commission’s rules restricting the broadcast of indecent material.

: Next is “The Pursuit of DB Cooper,” a movie with lots of the words the FCC can say but we can’t:

The movie contains numerous scenes in which the “S-Word” is used: a scene in which D.B. Cooper refers to an aborted disguise (“shit”); a flashback scene between Cooper and his then-commanding officer (“horseshit”); a scene between the insurance investigator pursuing Cooper and the investigator’s boss (“shit’); a café scene (“bullshit”); a scene between Cooper’s father and ex-wife in which she describes Cooper as having a “shit-eating grin;” a scene after a fire (“bullshit” used twice); a scene during which Cooper escapes from his pursuers by boarding a river raft (“oh, shit!”); and a scene in which a former crony of Cooper buys a used car (“bullshit”).

Mind you, they didn’t fine Saving Private Ryan but they do fine this. Again, the FCC has just made itself our national critic.

: NYPD Blue gets zapped for “dick,” “dickhead” and “bullshit.”

And on and on….

: AND: I read one long document (before going on Howard 100 News) but didn’t see the whopping, record-setting fine against every station possible for an orgy scene on CBS’ Without a Trace: $3.6 million. Add to that the 550K upheld for Janet Jackson and that comes out to $4.1 million.

Maybe CBS and Leslie Moonves would be better off using their attorneys to fight the FCC than Howard Stern.

  • Wise One

    I take an opposite view. Profanity, curses etc should not be acceptable in public speech. We can say a lot without colorful metaphores.

    In the heat of the moment standards can slip. But we should strive for high personal standards. Strong arguments do not need filty.

  • http://michaelzimmer.org Michael Zimmer

    They decide what we can think and say

    Um, no, they decide what will be fined if it’s said on broadcast TV (a power Congress can revoke if the public urged them to). In all, that really has no impact on what I or you can think and say (assuming you can make it through an interview on broadcast TV without swearing, and even then you won’t be fined, just the station).

    And I second Wise One’s note above.

  • Michael

    Most chilling is the fact that the FCC gives so much weight to a man (PTC leader Brent Bozell) who has admitted exaggerating and lying to further his cause (doesn’t the Ninth Commendment matter to him, or is “decency” more important?).

  • AEB

    Isn’t “The Surreal Life 2” on VH1, thus cable? Since when does pay TV fall under the public broadcast restrictions?

  • BW

    I don’t quite get it. Can someone interpret this – “For example, we hold that a single use of the word “shit” and its variants (the “S-Word”) in the contexts presented is both indecent and profane.” ? Jeff says it doesn’t mean you can’t literally say “the s-word” but how else can you read that?

    Anyway, I guess some people have a vague notion of what standards are, but it’s kinda funny to the rest of us. Imagine someone got offended when you wore a red shirt. You wouldn’t possibly be able to imagine how they could be so bothered. That’s how a lot of us feel about words. I’m glad I can go about my day and not have it be interrupted by me being offended all the time. What a drag that would be…

    BTW, I’ve heard those clips from Oprah – seems to me that the audience is giggling and whooping it up and being titillated. Also, it’s on during the perfect time for kids coming home from school to hear.

  • Jimmy

    This is rather chilling. If Brent Bozell and his ilk get their way we’ll be going back to the days of seperate beds for husbands and wives and TV shows like Leave it to Beaver. Granted, their is absolutely nothing wrong with the Beav if that’s what you like, but I am an adult and I enjoy shows that shouldn’t be watched by children, and yes sometimes a naughty word is appropriate on those shows. Hell, if they get their way Battlestar: Galactica will be fined for substituting “frack” for “fuck” because of its “intended” meaning. Thank God it and so many very good shows on cable. They’re safe for a little while longer.

    BTW, “The Surreal Life” only recently moved to cable. I believe SL2 was on one of the small networks at first (FOX, WB, UPN).

  • al hill

    you know this just plain Bullshit ,, we need to all get to gether and find a way to get these guys under control again

  • http://airwave64.blogspot.com Frank

    Just yesterday Oprah had a a guest describing sexual abuse. The guest was talking in great detail about how her grandmother used to slip her hand down her pants while in the family car.

    I doubt the FCC was listening.

  • Tom

    I don’t get how Without a Trace gets fined since it airs at 10PM unless this episode aired at a earlier time on another night. The FCC states that you can’t say or air certain things between 6AM and 10PM. Media companies really need to fight these fines instead of paying lobbyists to get cable and satellite radio regulated by the FCC. Also, I really don’t want to go to Oprah to get indecent content. I can’t believe that this woman hasn’t gotten one fine yet.

  • Mitch

    It is not chilling. It is we the people, through our elected officials, regulating our airwaves. CBS/Fox/NBC/ABC are not required to use the broadcast airwaves anymore. They choose to…for free. And with that comes responsibility. If the public wants to hear shit and fuck on their airwaves they will vote for a party that will staff the FCC accordingly. I’d love to see a party run on that platform: “Vote for us! We’ll give you shit and fuck!”

    I work at one of the aforementioned networks and this is a frequent topic in our office. The thing I’ve noticed is that the Stern fans all think this is an outrage. The rest of it know it’s the price we pay for access to the spectrum.

  • Kat

    I don’t think Without a Trace has anything to do with time–isn’t it some kind of hard porn teenage sex orgy that has no place on TV at any time? Unless you’re some kind of pervert that gets your jollies from such crap, and then you should have to pay to watch it on your private airwaves.

  • Ben

    Mitch if you all know that it is “the price you pay for access to the spectrum” then why is the NAB pushing for the standards to be applied to cable tv and satellite radio?

  • John

    Jeff:

    Any comments on this article from the FMQB website about Howard Stern’s remarks on Sean Hannity’s radio show Tuesday?

    When Stern was asked by a caller about the gag order, he confirmed it by admitting, “That’s right. I believe in censoring anyone who is my enemy.” He also added, “I believe in censorship when it benefits me.”

    With all the support you’ve given Howard as being the champion of free speech on the airwaves, doesn’t this strike you as a just a little bit hypocritcial? Or is “free speech for me, but not for thee” OK when it involves Stern?

  • Mitch

    Ben,

    I object to that and don’t think it would stand up in the courts. There is a key difference though, which is the use of the public spectrum. I’d be curious though to see a poll of how the public feels about regulating content on cable. Since most don’t know the difference between broadcast and cable, I suspect most would be in favor of it.

    When I said the rest of us, I should have been more clear that I was referring to the group of people in my office that agree with my position from a political point of view, not because they’re network employees.

    I’m actually a libertarian on this issue. I think the spectrum should be privatized, but as long as it continues to be owned by the people, it should be regulated by us.

  • AEB

    John, there is a big difference between a private entity/company censoring itself vs. the government.

    If Comcast refuses to carry Sopranos b/c of the language, then that is their choice – I can always opt for another service (Dish, DirecTV) or buy the DVDs. We control this via our wallets.

    If the government prohibits programming like Sopranos, then I’m stuck with the whims of the state-run nanny.

  • John

    AEB –

    You’re right that what the FCC censors and what Mel Karmazan censors or what Lowery Mays censors are different issues. My point is don’t hold someone up as a bastion of the Free Speech movement, when in their eyes censoreship is relative, and hinges on whether or not it benefits them.

    Hannity supports Stern and Opie & Anthony because he realizes FCC limitations on indecency grounds can lead to censorship on political speech grounds, even though his defense of extreme radio angers some of his listener base. Stern’s argument seems to be “Those with the power make the rules” and he was the power for over 15 years at Infinity Broadcasting. He’s not against silencing people on the radio per se, he’s just angry there’s a higher power that can censor him, and it just so happens to be the FCC. That’s not a winning argument when you’re trying to persuade people to your point of view.

  • http://www.filmbuffonline.com Rich Drees

    Kat wrote: “I don’t think Without a Trace has anything to do with time–isn’t it some kind of hard porn teenage sex orgy that has no place on TV at any time? Unless you’re some kind of pervert that gets your jollies from such crap, and then you should have to pay to watch it on your private airwaves.”

    I noticed you used the phrase “isn’t it” before you threw around some inflamatory language about what you are suppossing the fined scene in question contains. Rather a disengenious arguement, in my own analysis and opinion.

    Also, I’m sure that going by what most folks would consider the standard definition of “hard porn teenage sex orgy,” such a scene would never pass a network’s internal Standards & Practices department. Now, I don’t watch WITHOUT A TRACE myself, I can’t attest to it for certain, but I feel confident that at no time did the show feature a scene showing actual shots of a 16-year old girl being subjected to a bit of DVDA penetration. Of course, if you have any video tape to the contrary, I’d be willing to view your evidence.

    And by the way, I thought that community standards were supposed to be the qualifier for whether something was obscene or not. With some 20.3 million viewers, WITHOUT A TRACE is one of the top rated shows in the country. I believe the community has spoken, and it is not represented by the likes of Brent Bozell.

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  • Ben Sparks

    >>> AEB Says:
    >>> March 16th, 2006 at 12:19 am
    >>>
    >>> John, there is a big difference between a private
    >>> entity/company censoring itself vs. the government.

    howard stern didn’t like when CBS dumped him. that was “censorship”… they were messing with his first amendement rights.

    and that is fine… but based on his interview with hannity… will jarvis please stop tagging this nonsense as “howard stern”

    howard stern could give a flying fuck about free speech.

  • Jim S

    First, Kat’s post makes it sound like the entire show Without a Trace is some kind of porn show. Is that really how she meant it to read? If so, is she really that ignorant? I do watch the show and don’t think I’ve missed an episode. And I can’t think of anything that should earn it the FCC’s disapproval.

  • http://oodja.blogspot.com Jersey Exile

    When “obscene” acts occur on crime shows like Without a Trace, they are almost always performed by the lawbreakers, who by the end of the hour are hunted down, apprehended, and brought to justice. The procedural crime drama does not threaten the moral fabric of American society, but instead confirms it — viewers are validated in their belief that every crime can be solved, no matter how sick and twisted, and that our world is governed by a fundamental sense of justice which ensures that evildoers will always get what they deserve. Concerned citizens like Kat have always dogged the heels of the crime genre in print and on the airwaves, conveniently ignoring the fact that the “obscenity” in these works is carefully circumscribed and clearly marked as undesirable behavior.

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  • Kat

    I don’t think anyone said Without a Trace is always about kiddy porn–the episode in question that AP described as a teen orgy was the one which garnered the fine. Child porn is illegal, let alone indecent.

  • http://www.filmbuffonline.com Rich Drees

    Kat wrote- “the episode in question that AP described as a teen orgy…”

    So now you’re resorting to heresay? (OK, I am, as the Brits would say, taking the piss here a bit with that comment…)

    What I think this comes down to is one’s personal definition of pornography. Kat, if I may put words in your mouth, gives the impression that merely the suggestion of the real-world fact that many teens have sex is automatically child pornography, regardless of the fact that eighteen and nineteen year olds are still technically teens but are legally allowed to engage in the porn business.

    I think most others here would argue that child pornography would somehow involve the graphic depiction of genitalia probably combined with thrusting, penetration and assorted squirting fluids, bodily or otherwise. Somehow, I doubt this is what CBS aired.

    Kat’s definition would sweep everything from PORKY’S to Shakespeare’s ROMEO AND JULIET under the “Child Porn” banner. The other definition which I offered would only apply to things like those Traci Lords movies that were banned once she revealed that she had been underaged at the time of their production.

  • http://oodja.blogspot.com Jersey Exile

    Kat,

    Even legal pornographers in the United States know better than to produce shows involving underage actors. The Without a Trace episode in question violated no laws, nor did it even depict any actual underage sex acts — CBS was fined merely because the show “suggested” such activity. Simulated sex is not sex, just as simulated murder is not in fact murder (surprising, I know!).

    Furthermore, Without a Trace airs at 9pm on CBS. If impressionable children are up watching this program, the fault lies not with the network but the negligent parents. Don’t hold what I can watch and what I can’t hostage to “protect” adolescents who shouldn’t be allowed to tune in and mollify crybabies like the PTC who don’t even view the stuff except to find fault with it.

  • http://www.filmbuffonline.com Rich Drees

    For a reminder of when a time when CBS actually stood up to the government and had a spine, go out and rent or buy GOOD NIGHT, AND GOOD LUCK.

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  • http://www.ochsenhirt.com Fred

    Concerned citizens like Kat have always dogged the heels of the crime genre in print and on the airwaves, conveniently ignoring the fact that the “obscenity” in these works is carefully circumscribed and clearly marked as undesirable behavior.

    The PTC even acknowledges this aspect of that episode of Without A Trace. They just don’t care.

    This episode’s theme does not glorify or glamorize teen orgies or promiscuity; quite the opposite. Viewers see first-hand how relationships and lives are destroyed by this reckless behavior. But CBS crossed a line by depicting teens in such sexually provocative situations. What’s even more disturbing is that CBS chose the holiday season to re-air this most graphic and gross episode of debauchery.

    As I noted on my blog, the PTC has updated ComplainBot, so that you can complain in detail about a show you haven’t actually seen.

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  • Kat

    Well, if reading about it is heresay, I guess I’m guilty.
    {By JENNIFER C. KERR
    Associated Press Writer
    WASHINGTON
    The government proposed a record fine of $3.6 million against dozens of CBS stations and affiliates Wednesday in a crackdown on what regulators called indecent television programming.
    The Federal Communications Commission said a network program, “Without a Trace,” that aired in December 2004 was indecent. It cited the graphic depiction of “teenage boys and girls participating in a sexual orgy.” }

  • http://www.filmbuffonline.com Rich Drees

    Interesting Kat, that you choose to rebutt a comment I admitted was said in jest, but won’t address the rule issue from your original statement- use of the term “hard core” is inflammatory, disengenuious and dilliberatelymisleading. Even the AP article you quote doesn’t even use that word.

    Please excuse any misspellings folks, as I’m a little tired and have just gotten in from an advance screening of V FOR VENDETTA- an interesting movie about a man who fights back against a government that has robbed people of their civil rights in the name of security and which is headed by a frothing religious fanatic.

  • Kat

    Isn’t your hero in Vendetta actually a lowlife scumbag of a terrorist? The 911 garbage said they were fighting back against our government. Are they your heroes ,too?
    I see the use of teenage children in an argy as hardcore porn. Period. You call it what you like, I choose to disagree.

  • http://www.filmbuffonline.com Rich Drees

    The English Crown considered the Founding Fathers terrorists. One man’s terrorist is another man’s freedom fighter, and it is up to history to make the distinction.

    Please note that in my description of the film in no way do I claim I admire the protagonist in the film, and to attempt to draw a comparison between the character of V and the 9/11 terrorists is rediculous and just exposes the fact that your lack of knowledge is no barrier to you having an opinion on something. The original source material for the film was written two decades before the 9/11 attacks as a reaction to Tatcher’s policies in Britain, so trying to make a connection with al-Queda is intellectually dishonest.

    So we disagree on what is hardcore porn. Fine. You’re welcome to not view anything you wish to avoid. However, given the ratings success of WITHOUT A TRACE, it seems that there are many, many people who would also disagree with you as well. I thought it was a conservative ideal to allow the marketplace to decide such matters. I guess that’s true only when the marketplace’s opinion happens to match your own opinion.

  • Roy

    Without A Trace (not counting the NCAA playoffs) airs Thursdays at 10, way off the restricted hours between 6 am and 10pm. Plus, the actors involved were definitely 18 and over.

    This is just the asshole FCC at work, and most voters let it happen because they got a hole in their heads, their heads in holes and getting fucked in the ass, all at once. Stern was DAMN SMART to leave terrestrial radio. Besides, what’s more offensive, the Superbowl scandal or Sept 11?
    Think about that.