DECEMBER 3, 2008
On Election Day, as the Supreme Court was debating the Bush administration's decision to fine TV networks for broadcasting "fleeting utterances" of the words "fuck" and "shit," an obscenity scandal in Britain cast light on the question before the justices: Can a single expletive actually be considered indecent? Two British shock jocks, Russell Brand and Jonathan Ross, broadcast a tape of themselves on BBC radio leaving a harassing answering-machine message for Andrew Sachs, a 78-year-old actor who played Manuel, the waiter on "Fawlty Towers." Ross used the F-word to boast that Brand had had sex with Sachs's granddaughter, a 23-year-old Goth burlesque dancer, with Brand adding that the news could lead the actor to kill himself. The broadcast, which was heard by two million people, provoked a national uproar. Listeners filed more than 40, 000 complaints, and the prime minister and leader of the opposition condemned the pair, leading to the resignations of both Brand and the controller of BBC Radio 2.
It wasn't Ross's use of the F-word that enraged the public (he was suspended rather than fired) so much as it was his and Brand's sexist boasts and cruel taunting of a beloved, if fading, sitcom star. The Brand and Ross affair shows that it's not fleeting expletives that offend common decency but rather hateful or insulting speech. And the same lesson applies in the United States. None of the fleeting expletives that the Bush administration's Federal Communications Commission (FCC) has singled out in order to fine stations up to $325,000--such as Cher's declaration during a live broadcast of the 2002 Billboard Music Awards: "People have been telling me I'm on the way out every year, right? So fuck 'em"--have provoked any genuine national controversy at all. On the contrary, in 2003, 99.8 percent of all indecency complaints to the FCC were submitted by a single conservative interest group, the Parents Television Council.
At the Supreme Court argument, Justice Antonin Scalia lamented the "coarsening of manners," adding, "I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past." I share Scalia's concerns about the coarsening of public manners on television, but he is willfully denying the evidence that most Americans no longer view fleeting expletives as indecent. The Supreme Court has said that the FCC can only ban epithets that are considered genuinely offensive by contemporary community standards. For that reason, the justices should strike down the Bush FCC's fleeting expletive policy, and, if they don't, the Obama FCC should repeal it. But this suggests a real problem--the vulgarization of culture--without a clear legal, political, or even technological solution.
When it came to single expletives, the FCC used to be more lenient. Beginning in 1978, when the Supreme Court held, in FCC v. Pacifica Foundation, that George Carlin's "seven dirty words" monologue could be banned as indecent, the FCC has defined indecency narrowly. Purporting to be guided by national community standards, the FCC said expletives could only be banned if they graphically and repeatedly depicted sexual or excretory activities in a manner designed to shock or titillate. By contrast, "fleeting and isolated" epithets were not considered to be indecent. For example, when, at the Golden Globes in 2003, U2's Bono declared on air that his award was "really, really fucking brilliant," the FCC declined to issue a fine.
All that changed in 2004 when the Bush FCC decided that the F-word and the S- word always have a graphic meaning and that--except on news broadcasts--even a single use of either word can be banned as indecent. Under the new policy, the FCC reserves the right to evaluate each fleeting expletive in context, giving five unelected commissioners the power to decide whether a particular expletive was "essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance." This has led to a series of arbitrary judgments: ABC wasn't fined for broadcasting Saving Private Ryan, because the FCC decided that expletives were central to the message of the film, but an educational station was fined for broadcasting the PBS documentary "The Blues" because the expletives uttered by music producers weren't deemed necessary. (In reviewing episodes of "nypd Blue," the Solomonic commission found that "bullshit" was patently offensive, but "dickhead" was not.) And, while the FCC has decided to "proceed with the utmost restraint" when reviewing expletives on news broadcasts, it has not done so in the case of sports broadcasts, leading one commentator to call for a special exemption for professional athletes.
In addition to leading to arbitrary rulings, the fleeting expletives policy doesn't reflect the actual community standards of Americans, who are, for better or worse, increasingly tolerant of smutty television. A Gallup poll taken after Janet Jackson's "wardrobe malfunction" during the Super Bowl halftime show in 2004 found that the number of Americans who weren't offended by the fleeting glimpse of her bosom was greater than the number who were--despite the FCC's conclusion that the incident was patently offensive. Movies are also a reliable window onto community standards: PG-13 movies, available to children, often contain fleeting uses of the F-word. The FCC conclusion that the F-word always has a sexual connotation is belied by the conclusion of most Americans that it never has a sexual connotation, unless it's actually being used to describe sex.
At the same time that they are more tolerant of expletives, Americans (and Europeans) are less tolerant of sexual and racial bigotry. Don Imus's racist comments in 2007 about the "nappy-headed hos" on Rutgers's basketball team--one of the national scandals that provoked genuine outrage and an avalanche of real (as opposed to manufactured) complaints to the FCC--didn't trigger an official investigation because Imus didn't use the F-word. And, of course, a government committed to the First Amendment has no more business policing hate speech than expletives.
Although Justice Scalia's 1950s vision of American community standards is out of date, he's right to worry about the coarsening of public manners on television. So, if the government can't protect my two-year-old sons from sex, violence, and cursing on the networks, are there any other solutions? In an optimistic Supreme Court brief, the Center for Democracy and Technology (CDT) insists that technology can do the trick: "User empowerment" tools like the V- chip and digital video recorders can allow parents to filter all broadcast content that enters the home, and, as children increasingly access broadcast shows for free on the less-regulated Internet, Internet filters can protect their tender sensibilities, too. For all these reasons, the CDT argues, network television is no longer "uniquely pervasive" and accessible to children--the factors that led the Court in the 1970s to allow regulation of indecency in the first place.
I'm less optimistic. My two-year-olds won't be allowed to watch any television until they're older, but I still find it difficult to keep them away from the relentless assaults of the screen in public places--on airplanes, in restaurants, and at the doctor. The experience has helped me understand that the debates we like to discuss in terms of indecency are really about privacy--namely, how to protect ourselves from the unwanted intrusions of an increasingly ubiquitous digital culture. The government has no business enforcing norms of indecency that actual American communities no longer embrace. But, at the same time, that leaves those of us who are trying to carve out enclaves of respite from the intrusions of the screen more vulnerable than ever. As Barack Obama reminds us, the only solution, however imperfect, is to turn the television off.
Jeffrey Rosen is the legal affairs editor for The New Republic.
This article originally ran in the December 3, 2008 issue of the magazine.