During the 2002 Billboard Music Awards, Cher had a message for critics who are always predicting the imminent demise of her career: "F— ’em." While it may have offended some people who saw the show, which was carried live by Fox, the singer’s rejoinder does not fit the Federal Communications Commission’s definition of indecency.
What Cher said did not amount to "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." Cher was not describing sexual activities; she was expressing anger.
So was the FCC when it nevertheless concluded Cher’s remark was indecent, one of several arbitrary decisions that recently prompted the major broadcast networks to ask a federal appeals court to overturn the commission’s TV censorship policy. Since "contemporary community standards for the broadcast medium" are whatever the FCC says they are, the commissioners feel free to translate their own gut reactions into legal mandates, with results that defy logic and chill speech.
The FCC itself has suggested isolated uses of "the F-word" as an expletive or intensifier do not qualify as indecency, which is barred from the airwaves between 6 a.m. and 10 p.m. In 2003 the commission rejected a complaint about Bono’s description of receiving a Golden Globe Award as "f—ing brilliant," finding that "in the context presented here" the offending word "did not describe sexual or excretory organs or activities."
The following year, the FCC reversed the dismissal. "Given the core meaning of the ‘F-word,’" it decided, "any use of that word or a variation, in any context, inherently has a sexual connotation."
Since the Bono decisions came after Cher’s F-bomb, the FCC magnanimously refrained from fining the Fox stations that carried the Billboard Music Awards. "This case … illustrates the difficulty in making the distinction between expletives on the one hand and descriptions or depictions on the other," it said.
Now broadcasters are on notice that if they let a celebrity utter any form of "the F-word" during a live awards show, they will be on the hook for fines that could add up to millions of dollars. But if Cher had said exactly the same thing on a morning news program, that would have been OK. Maybe.
In March the FCC said CBS had illegally aired indecency when its "Early Show" carried an interview with a "Survivor: Vanuatu" runner-up who called another contestant "a bulls—ter." Last month, apparently in response to the networks’ lawsuit, the commission changed its mind, saying it had been too blithe about interfering with the editorial judgment of TV journalists. Although the commissioners have rejected the expletive/description distinction as "wholly artificial," they seem confident they can distinguish between real news coverage, such as a network’s interview with a star from one of its own primetime shows, and entertainment, such as the live broadcast of an awards ceremony.
The FCC’s hairsplitting is especially absurd because it applies only to broadcast programming, even though close to nine out of 10 U.S. households have cable or satellite TV. In a brief supporting the networks’ lawsuit, the Progress & Freedom Foundation and the Center for Democracy & Technology note that the proliferation of video delivery methods, including the Internet and DVDs by mail as well as various kinds of TV, undermines the special constitutional status of broadcasting, which supposedly merits less First Amendment protection because of its "uniquely pervasive presence."
The brief suggests this trend, combined with existing technologies that allow parents to control what their kids see, augur a future in which household standards that vary from family to family replace "community standards" determined by the idiosyncrasies of FCC commissioners or complaints from one or two pressure groups. For those of us who think public officials should not be paid to ponder Cher’s tirades or Janet Jackson’s right breast, that future can’t come soon enough.