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.