“The FCC Won’t Let Me Be”: Indecency in Media

Wednesday, October 31, 2012, by Teresa Cook

It can happen to anyone. Sometimes our mouths say things before our brains can warn us that it might not be appropriate. The latest victim was Academy Award winner Tom Hanks who let the “F-word” slip on Good Morning America.  At the 2011 Academy Awards, winner Melissa Leo famously became the first person to “drop the F-bomb” during her Oscar acceptance speech.

However this is not a new issue. The Supreme Court first addressed offensive language in media in 1978 when Comedian George Carlin’s famous “Filthy Words” monologue was aired on the radio uncensored. In FCC v. Pacifica Foundation, the Supremes upheld the FCC’s sanction against the radio station that aired the indecent monologue. The FCC’s authority to issue such sanctions comes from Title 18 U.S.C. § 1464 which bans the broadcast of “any obscene, indecent, or profane language.”

The important issue was whether the broadcaster’s First Amendment right to free speech was greater than the public interest in protecting people, particularly children, from being unwillingly bombarded by obscenity. Relying on a previous case that declared that broadcast media receives the most limited First Amendment protection because of its “uniquely pervasive presence in the lives of all Americans”, the Court held that the radio’s station’s First Amendment rights were not violated.

The Court in Pacifica was careful in stating that their holding was narrow because of the repetitive nature of the Carlin monologue and the fact that it was airing during a time of day that children would be likely to be listening. The issue of whether a sanction for a “fleeting expletive” would violation First Amendment rights was specifically left open.

In the 30+ years since Pacifica the FCC has continued to broaden their standard of indecent and obscene material.

As of this year there is still no ruling from the Court on the question left open in FCC v. Pacifica Foundation; whether a sanction for a “fleeting expletive” would violate the constitutional right to free speech.

FCC v. Fox TV Stations was expected to be the case that resolved this issue because it involved two airings of the Billboard Music Awards in which celebrities, reality star Nicole Richie and musician Cher, used swear words during the live broadcasts. The case first reached the Supreme Court in 2009 when it was remanded back to the Second Circuit for resolution of administrative issues. While the First Amendment was a key issue of debate in all of the previous decisions, including their own 2009 opinion, the Supreme Court again exercised constitution avoidance and resolved the case without answering the First Amendment issue when it returned to the Court for the second time. The opinion released June 2012 held that the sanctions against Fox were unconstitutional but under the Fifth Amendment and not the First. It was determined that the FCC’s standards of indecency was too vague and did not give the broadcaster fair notice over whether a “fleeting expletive” in a live broadcast would be actionably indecent. Again, the Court was careful to say that their holding was narrow and left the First Amendment issue open.

So what will happen to the Tom Hanks and Melissa Leos of the world? One of the FCC’s first reactions was to issue a new standard, the “Golden Globe Order” in response to an “F-bomb” by singer Bono, that state in no uncertain terms that a single isolated use of a swear word even in a live broadcast would be actionable.

Whatever the next case may be involving fleeting expletives, the “Golden Globe Order” eliminates the vagueness problem and perhaps the First Amendment issue will finally be resolved.

Until the human brain is able to keep up with our mouths, I guarantee that someone will “drop the f-bomb” on television, and who knows, it could be you!