The US Supreme Court’s Decision Upholding The FCC’s Fining Broadcasters When The Wrong ‘F’ and ‘S’ Words Get Uttered Simply Treats Adults As Children

Philip M. Stone April 29, 2009

What a difference in culture the Atlantic Ocean can make. In Switzerland, where ftm is produced, the public broadcaster has shown such US cable TV shows as the Sopranos and Deadwood with dual soundtrack – the viewer could choose the original English or the national language – and there was no national furor over how every other word seemed to be the “F” word.

But what if those HBO shows had been produced by one of the US terrestrial networks? Well, for one thing none of that swearing would have been there, Tony Soprano would have had his mouth washed out with soap before every episode played – and the realism that made that show such a hit would just plain never have  been there.

Luckily for foreign TV buyers whose public appreciates reality when they watch it after 9 p.m. when children should be asleep, the Federal Communications Commission doesn’t control content on American cable channels. That’s probably one reason there is so much US cable programming on European public airwaves. Sure, there is “Lost”  “House” Gray’s Anatomy” and other big terrestrial hits, but earthy US cable fair does real well also in Europe because their producers  and the cable networks  that cablecast their work  don’t have to worry about the meddlesome FCC treating everyone like children.

So it really is a bitter pill for Americans to swallow that the US Supreme Court fudged the whole Constitutional issue in a decision Tuesday upholding the FCC’s “fleeting expletive" fine policy. It means American TV viewers are going to continue to be treated like children with daddy – the FCC – ready to hit broadcasters with big fines if even one single off-the-cuff expletive gets out of the cupboard.

The decision leaves TV broadcasters in a vast wasteland of not knowing where they really stand. The Supreme Court says the FCC is applying its authority ok in fining broadcasters when even one bad word slips out during a live broadcast (which is why so many US live programs these days are really live plus a few seconds) and that decision overturned a Manhattan Federal Appeals Court that had ruled the FCCs policy as arbitrary and capricious.

The Supreme Court specifically said the policy was not arbitrary and capricious; indeed Justice Anton Scalia said the enforcement activity was “entirely rational”. The bottom line in Scalia’s summing up of the court’s 5-4 decision that was on conservative-liberal lines, “Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning.”

And a prime example of why broadcasters don’t really know where they stand is because while the FCC decided to crack down on live shows when artists such as Cher and Bono let loose with the F-Word during award shows and the like, but the FCC said nothing when Steven Spielberg’s award-winning Saving Private Ryan aired several times on network TV with all its F-words left in.  

The Justice Department, arguing for the FCC before the Supreme Court, tried to give some clarity.  It said the FCC determines whether language is indecent by how it is  used to titillate or pander to an audience, thus Saving Private Ryan’s many F-Words were okay within that movie’s context, but Cher and Bono were not within an Award show’s context. That would make it sound as though Tony soprano’s language should be ok on terrestrial TV, but it’s not going to happen!

The Supreme Court fudged the whole issue because it chose to decide whether administratively the FCC was carrying out its policies in an acceptable manner, rather than deciding whether the policies the FCC was upholding were in fact constitutionally valid under free speech. That Manhattan Appeals Court may now have to look at what the Fox Network, that had broadcast one of those award shows, calls “the fundamental constitutional issues at the heart of this case.”

It was the FCC under the Bush Administration that started handing out severe fines for the one-off F-word utterances, so might it be possible that an Obama FCC might not be so tough? Julius Genachoski, tapped by Obama to be his FCC chairman, had talked during the election campaign  more about how families could use current technology such as the V-chip to monitor programs, rather than the FCC policing the airwaves.

But Acting FCC Chairman Michael Copps, a Democrat, boasted the decision was “a big win for American families.”  He went on, “The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The Court's decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves. "

So there’s really no real clue to where the Obama Administration will come down on foul language and nudity, but there are plenty of lobby groups out there pressuring that the Bush Administration’s policies continue.

And remember Janet Jackson’s wardrobe malfunction during the 2004 Super Bowl for which the FCC fined CBS $550,000 for less than one second of boob-tube – well that case is on appeal to the Supreme Court but it had taken a back seat to the F-Word case. The thinking seems to be in Washington that Tuesday’s decision does not bode well for a positive outcome for that case, either.

As another culture shock we could tell you about the soft-porn movies that play regularly on European terrestrial TV (let alone hard-core on cable) well after when the kiddies should be in bed, but that would probably just upset American readers too much, at least those who believe their government should treat them as adults.