The Indecent Quest for Decency
Monday, July 31 , 2006 | Miscellaneous
I'm not much of a political commentator. Most political issues just don't affect me. And, in the best traditions of America, if it doesn't affect me, I don't worry about it. I'm kidding with that last remark, but seriously, debating political issues is usually about as productive as debating abortion, or the death-penalty, or the existence of God or the Flying Spaghetti Monster, so I don't waste my time with it. I have my opinions, but I tend to keep them to myself (which is to say I bombard my wife with them, but spare everyone else). But I have to say something about what is going on with the FCC and "decency" standards—I'm sure you've been reading about it, too. This will probably be a tad bit "rambling" so hang with me...
Let's start at the beginning. Well, not the beginning, but the beginning of what has caused the current situation. I was watching the Superbowl in 2004 and saw the now notorious half-time show wherein Janet Jackson had the "wardrobe malfunction" that resulted in an exposed breast. My wife and kids (7 and 6 at the time) were watching with me. Now, I'm the first to admit that it's entirely likely that my wife and I have raised more resilient kids that the average American parents. But, our kids were not scarred or traumatized by witnessing the incident, nor will they be adversely affected for life—it takes more than a beautiful woman wearing a nipple guard to affect my kids. I remember that half-time show vividly, for only minutes before the notorious breast exposure, I had remarked to my wife that Kid Rock's performance, during which he was wearing an American Flag—not a shirt styled like the American Flag, but a real American Flag—in which he had cut a hole in the center and was wearing over his head much like a Mexican poncho, was bound to stir controversy. It was, after all, rather disrespectful, considering that our nation was at war and that the Superbowl is America's premiere sporting event. Now, don't get me wrong—I support Kid Rock's right to cut a hole in the American flag and wear it like a Mexican poncho during the half-time show of the 2004 Superbowl, but I disagree with his decision to do so (yeah, I know, Voltaire, thanks for contributing). But, by the end of the half-time show, I can honestly say that I was more offended by Kid Rock's wardrobe than by Janet Jackson's wardrobe "malfunction" (which is not to say that I was offended by Kid Rock's wardrobe...).
The preceding incident has been repeatedly cited over the last couple years as a justification for "cracking down on indecency". And cracking down is exactly what is happening. Just last month, on June 15th, President Bush signed into law a bill raising the maximum FCC indecency fine tenfold, from $32,500 to $325,000. This is a per incident fine. The bill signed into law by President Bush on June 15th includes a provision which is intended to cap the fine amount at $3 million per incident per day, but "lawyers", it is said, disagree on whether there is enough "wiggle room" in the law's language to allow the FCC to impose fines running into the tens of millions of dollars—and that is still per incident per day.
The FCC indecency rules apply to broadcast radio and TV (which is why cable channels are not, at least not yet, affected) airing between the hours of 6am and 10pm. And note that it is typically the individual station(s) that actually broadcast the program that are fined—not the network (except in the case of some, but not all, live broadcasts). Also note that the speaker is not usually fined, but, once again, the station that actually broadcasts.
As I said earlier, I have kids. And while I don't want my kids being bombarded all day long with the F-bomb or S-word, I've got to be honest—they've heard me use those words—they are, after all, just words (for FSM's sake). I mention the F-bomb and S-word (to those of you not practiced in the art of euphemism that's "fuck" and "shit") because those two words, and derivations thereof like "bullshit", are words that are according to the FCC "presumptively profane." And for those of you who like interpreting such absurd things as legal documents, federal legislation, and administrative regulations, I'll point out that the FCC has pronounced that presumptively profane language will be determined to be not profane only in "rare cases" 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", and that this exception will be applicable only in "unusual circumstances."
The FCC limits its definition of "indecency" and "profanity" to material that depict "sexual or excretory organs or activities," and language that is "sexual or excretory in nature or [is] derived from such terms." Interestingly, racial epithets, religious slurs and plain old insults are, by definition, not profane. Specifically not profane, by the FCC standards, are the following: "faggot", "jew-boy", "nigger", "cracker", "guinea", "slant-eye", you get the point.
What has brought all this to my attentions are two recent news stories concerning PBS. First is the story that this week, PBS will be filing arguments with the FCC in support of a California public television station that is appealing a $15,000 fine levied over the airing of an episode of the Martin Scorsese documentary "The Blues." "The Blues." I mean, we're not exactly talking about the critically-acclaimed 2005 documentary "Inside Deep Throat." We're talking "The Blues," with episodes directed by the likes of Scorsese himself, Clint Eastwood, Mike Figgis (Cold Creek Manor, Leaving Las Vegas), and Mark Levin (Protocols of Zion), among others.
Second is the story that PBS has concerns over their plans to air the highly anticipated seven-part documentary "The War" by noted documentary filmmaker Ken Burns. The source of PBS' concerns? First person interviews with World War II veterans sharing their experiences during the war. Yeah, that would be bad for kids to hear—World War II veterans telling their stories in their own words. But, in the current climate, PBS is justly concerned.
The real problem for broadcasters is that the FCC rulings and guidelines are not easily interpreted or applied. The bottom line is that despite references to "community standards" in the FCC pronouncements of the standards it applies to complaints concerning decency, the fact remains that it is the FCC Commissioners who decide those "community standards" and therefore, whether the commission finds a broadcast to be indecent or profane depends on the subjective judgment of the commissioners. This is how you wind up with results as disparate as these: (1) the "single" use of the word "bullshit" on NYPD Blue was deemed profane; (2) the "multiple" uses of the "F-word" and "S-word" in the PBS/Martin Scorsese documentary was deemed profane; (3) the "repeated" use of the "F-word" and "S-word" in the movie "Saving Private Ryan" was deemed not profane. Like I said, it all comes down to the subjective judgment of 5 Commissioners.
You might be saying, "what's the big deal? 'Saving Private Ryan' was okay so why wouldn't the Ken Burns documentary on WWII be okay?" Well who the hell knows—that's the whole point! It's not like the FCC is willing to pre-screen a program and pass judgment (or even give an opinion) as to the programs indecency or profanity. And, at a maximum fine of $325,000 per incident (per station), how can a non-profit like PBS take the risk? Of course, they could air the program after 10pm, but that would significantly diminish their audience, and then there's the "time-zone" issue (the program has to air after 10pm in all time zones).
This whole situation is indicative of a disturbing trend I like to refer to as the "lowest common denominator principle." Most often, it's seen in the guise of schools that refuse to fail students who, well, fail, or in the soccer leagues where every player gets a trophy, whether they've won anything or not. In this situation it means that ultimately, the only standard of decency which will suffice is one in which no one gets offended (and I must say that I personally find that idea offensive). I submit that that standard is not only unachievable, but patently unreasonable (especially when you take into account the process by which the FCC investigates indecency and profanity, but that's another argument).
Now, I understand completely that this is a question of degrees. A former law professor of mine used to say, and I'm paraphrasing, "somewhere a line must be drawn; cases that fall close to the line will make the line look arbitrary, which of course any such line is." As I've said repeatedly, I have kids and don't want them bombarded with inappropriate subject matter or language. I agree that we need a line and that the line must be drawn somewhere. But when PBS is seriously concerned about airing a Ken Burns documentary on "decency" grounds, something is terribly wrong.
And don't think for one second that I'm being obsessive and unreasonable (I was going to say "paranoid" but I find that anyone who actually uses the word "paranoid" invariably sounds paranoid—why is that?). The FCC, earlier this month, requested tapes from broadcasters of live sporting events that "might" include vulgar or profane remarks from spectators, coaches or athletes. At least one TV executive has voiced concerns that it "looks like they (the FCC) want to end live broadcast TV."
My personal credo has always been "to each his own, just leave me alone." But you know, leaving me alone also means letting me decide for myself what is or isn't indecent and what is or isn't appropriate for my kids (see "lowest common denominator principle" above). I guess I just get a little "pissed off" (not profane according to the FCC when "used as part of a slang expression that means 'angry'") when anyone else tries to impose their standards on me. Of course, in the best traditions of America, that should probably piss us all off.
The FCC, the Federal Communications Commission, decided all by itself that radio and television were the only two parts of American life not protected by the free speech provisions of the First Amendment to the Constitution.
I'd like to repeat that because it sounds vaguely important: The FCC, an appointed body, not elected, answerable only to the President, decided on its own that radio and television were the only two parts of American life not protected by the free speech provisions of the First Amendment to the Constitution!
Why did they decide that? Because they got a letter from a reverend in Mississippi! A reverend Donald Wildman in Mississippi heard something on the radio that he didn't like...
Well reverend, did anyone ever tell you that there are two knobs on the radio? Two knobs on the radio! Of course, I'm sure the reverend isn't too comfortable with anything that has two knobs on it...
Well hey, reverend, there are two knobs on the radio! One of the turns the radio off, the other changes the station! Imagine that, reverend! You can actually change the station! It's called freedom of choice, and it's one of the principles this country was founded on! Look it up in the library, reverend, if you have any of them left when you've finished burning all the books!"
-George Carlin, What Am I Doing In New Jersey? (HBO, 1988)
I fully understand that you may have a different opinion on this matter than I do. That's fine. I respect the fact that you may have struggled with what can be a difficult issue and may have reached a different conclusion that I have. I respect your right to have your own opinion.
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