What's Up With Indecency? Part II

Gregg Skall
Comble Carlyle Sandridge & Rice, LLP

Having covered how we got to the current state of confusion in FCC indecency policy, let's look at some places where we might take a little guidance. A place to start is the 2001 FCC indecency policy.

Obscenity

First, remember that one can never broadcast obscenity. Obscene material, assuming we know it when we see it, is not constitutionally protected and its broadcast is never permitted. Indecent material, however, may be broadcast, but only during the safe harbor hours -- between 10p and 6a.

The definition of obscenity was established in the landmark Supreme Court case Miller v. California as a three-part test.

Obscenity Three-Part Test: The test requires that:

1. an average person, applying contemporary community standards, would find that the material, as a whole, appeals to the prurient interest;
2. the material depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable law; and
3. the material, taken as a whole, lacks serious literary, artistic, political or scientific value.

Okay, got that?

Indecency Analysis

In 2001, the FCC provided new guidance on its indecency policy. Relying on its Pacifica decision on the George Carlin "Seven Dirty Words" routine, it defined indecent speech as that "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 activities or organs." Indecent speech was provided a 10p to 6a. "safe harbor," justified as a properly tailored means for the government interest of protecting the welfare of children.

Thus, a finding of indecency involves at least two fundamental determinations.

1. First, the material alleged to be indecent must fall within the subject matter scope of the Commission's indecency definition -- that is, the material must describe or depict sexual or excretory organs or activities.
2. Second, the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

Note that the "community standards for the broadcast medium" criterion for whether material is patently offensive is not a local standard; it does not encompass any particular geographic area. Instead, the FCC considers whether it would offend an "average broadcast viewer or listener," not the sensibilities of any individual complainant.

In determining whether material is patently offensive, the full context in which the material appeared must be considered. The use of explicit sexual terms or descriptions alone is not sufficient. The determination of what is patently offensive has its own three-part test: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience.

This is an obviously difficult and dangerous guessing game. The two of the cases before the Supreme Court in Fox involved the broadcasts of the 2002 and 2003 Billboard Music Awards in which singers Cher and Nicole Richie each uttered a single expletive which arguably does not meet the context test and in another, ABC was hit with a $1.4 million fine after showing the bare bottom of actress Charlotte Ross in a 2003 episode of "NYPD Blue." (ABC argued that the episode wasn't indecent because Ms. Ross's derrière wasn't a "sexual organ" and there was no frontal nudity.)

Suffice it to say that broadcasters are now on notice that, despite the context test, a single spontaneous utterance or a single exposure of a part of the body normally covered may be considered indecent or profane, as in the Golden Globes cases. Unlike the test for indecency, the test for profanity is relatively simple: even an isolated use of the f-word – and now the s-word – in a broadcast is a presumptive violation. The burden falls on the licensee to show that the broadcast of one of these words is demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance. That burden is very high -- so far, only a single program, the feature film Saving Private Ryan, has been able to meet this standard. Apparently Martin Scorsese is not as prescient as Steven Spielberg. See the discussion of Martin Scorsese Presents the Blues in my last article.

Moreover, live news coverage and call-in shows require extra scrutiny. Anyone jumping in behind a news camera or in front of a microphone can imperil a broadcaster who is not fast enough on the seven-second delay kill button.

But what about other words that are spelled with only four (or five) letters. Generally, words that are not sexual or excretory terms are presumed not so grossly offensive to members of the public as to amount to a nuisance and thus not deemed indecent or profane. The Commission has said that a slip of "hell," "bitch," "slutty," and "damn" do not refer to sexual or excretory organs or activity and therefore fall outside the its indecency rules. Coarse expressions are not sufficiently vulgar, graphic, or explicit themselves to support a finding of patent offensiveness and do not rise to the level of offensiveness of the "F-Word" or "S-Word."

When it had the opportunity to rule on a group of complaints dealing with alleged indecent, or profane words and phrases − "hell," "damn," "bitch," "pissed off," "up yours," "ass," "for Christ's sake," "kiss my ass," "fire his ass," "ass is huge," and "wiping his ass" − the Commission concluded that, while these words and phrases are understandably upsetting to some, in the contexts used, they were not obscene, indecent or profane.

There are plenty of examples of speech that broadcasters should avoid. One of the worst cases, one that it would be hard for anyone to defend, occurred in January 2002 and the Commission held that it was actionably indecent. This is one that fulfills the phrase, "you know it when you see it,"

On January 9, 2002, two afternoon disk jockeys named Deminski and Doyle on WKRK/Detroit, talked for 30 minutes using the slang names and describing how to perform various graphically violent, female debasing sex acts. I will not repeat them, but you can read for yourself what they said by going to www.fcc.gov, put the names of the two DJs into the search box on the left, and look for the April 3rd, 2003 FCC decision which includes 11 pages of program transcripts.

Conclusion:

Clearly, the Supreme Court has done nothing to ease a broadcaster's concern over what is prohibited and what is permissible. Artistic freedom may remain the exclusive domain of Steven Spielberg, but there are a few principles that offer guidance.

Any station broadcasting material fed to them or covering a live event, taking on-air phone calls, conducting live interviews takes a risk that offending portions could be broadcast over their station and must make extra efforts to screen the programs, even when broadcast live.

Further, just being a network or syndication affiliate can subject a station to investigation, even if it did not carry the program. In at least one instance the Commission investigated every station affiliated with a network program when a complaint was filed against only one of them.

One thing is clear. The Supreme Court did nothing to make the broadcasters' balancing act any easier. It continues to be a challenge to develop creative programming without the perils of viewer and listener objections that draw FCC investigations. Every broadcaster needs to establish procedures that will protect against an unintended incident that could be considered an indecent broadcast outside the safe harbor.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.