By Sarah Hastings Bowman
On June 21st, the U.S. Supreme Court made a ruling in FCC v. Fox regarding violations of the indecency standards the Federal Communications Commission is charged with upholding. While the Court did not impose an opinion regarding the legality of the FCC regulations, it did uphold the FCC’s authority and did provide a glaring reminder to the public to be vocal to the FCC and media outlets regarding what is considered “indecent” if the content on the airwaves is to be monitored at all.
The question before the Court was whether Fox had notice that the content of three broadcasts would be considered violations of the FCC standards. The Court correctly limited its opinion to the Due Process aspects of the Fox case; “the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy…”. However, in doing so, the Court recited the history of the FCC’s current standards and its authority to uphold them, and this history provides a reminder that celebrities are advocating for pushing the envelope on what is “indecent”.
The three incidents which are the subject of the case are a statement by Cher at the 2002 Billboard Music Awards, a statement by Nicole Richie in 2003 at the Billboard Music Awards, and a scene from NYPD Blue in 2003. The two celebrities appeared to intentionally use indecent language and the NYPD Blue episode contained nudity. Until these occurrences “fleeting expletives and fleeting nudity” had not been regulated by the FCC; the standard for regulation was “deliberate and repetitive use in a patently offensive manner…as measured by contemporary community standards for the broadcast medium”.
Basically, the fleeting occurrences were rare and often a part of a news interview the broadcasters were unable to edit out. But in the early years of the last decade, there has been a surge in celebrities and TV dramas (especially reality shows) that push the envelope on what language and content can be gotten away with in broadcasting. The FCC saw this and responded by changing its policy in the 2004 Golden Globes Order.
As reflected in the 2004 change, two primary concerns have always backed the FCC regulations: 1) the impact on child viewers and 2) whether content is “patently offensive as measured by contemporary community standards…[and/or] panders to and titillates the audience”. As the 2004 Golden Globes Order states, the concern is that hearing or seeing such content “could have enlarged a child’s vocabulary in an instant…even isolated broadcasts…could do so as well”. Yet, it is important to balance the concern for decent content with First Amendment rights.
The Court’s Due Process discussion of notice in this case touches on the importance of regulations not chilling protected speech, and this is a valid concern. Content need not be regulated to the point of striping away artistic value or having policies too vague that unnecessarily encourage discrimination of content. The Court provides a good example to consider: What is the difference between the nudity in Schindler’s List and the nudity in NYPD Blue episode in question? The easy answer is neither is appropriate for young children, but one is a horrific history lesson and the other is for titillating entertainment. These are aspects of free speech that must be considered and protected, but balanced with protecting children.
A second critical question to consider: part of the indecency standard definition is “as measured by contemporary community standards” – how is the community standard measured? When considering small communities such as the readership of the local newspaper, the “community standard” is fairly easy to ascertain, but when the national community standard is considered, the standard may be more difficult to assess, especially as technological advances have impacted what broadcasts are available to the public nationally. As the Court stated, it is argued that the standard upheld by the Court “should be overruled because the rationale…has been overtaken by technological change and wide availability of multiple other choices for listeners and viewers…[but] it is unnecessary to reconsider…at this time”. So, it is only a matter of time before the Court does take up the standards, and what information will they have to rule on the community standard?
Liberal celebrities and others who seek personal gains based on shock value have already shown they will continue to push the envelope on the FCC’s enforceable indecency standards and therefore shape community standards. Who will stand for what community standards ought to be? Rather than add another parental control or just turn off the TV or change the radio station and forget about it, the Christian Action League encourages citizens to do something that will have a significant impact. Contact the FCC when seeing or hearing something offensive on the air by going to: transition.fcc.gov/eb/oip/compl.html or searching the terms “fcc indecency complaint”. Phone calls can also be made to: 1-888-225-5322. Also, seek more information. Morality in Media at www.moralityinmedia.org and The Parents’ Television Council www.parentstv.org are good resources on this issue.
The Christian Action League’s concerns about FCC standards were recently sharpened in focus when its research on Human Trafficking and Sexual Servitude demonstrated that whatever is portrayed as decent in the media largely shapes society’s attitudes and either encourages or discourages exploitative behaviors. As the Christian Action League continues to fight against human trafficking in the Tar Heel state, it will also be advocating for a decent standards in the media. The two go hand in hand.