F*cked by the F*CC
Advertising Age says we are a nation not of red versus blue but of a "moral minority" versus an "edgy elite." And the moral minority is winning.
Let us recite the litany of America's new official religion: "This mad race to the bottom," in the pronouncement of one member of the Federal Communications Commission, began when Bono said "fucking brilliant" at the Golden Globes and when Janet Jackson's silver-studded globe invaded the family fun of the Super Bowl. Which begat politically panicked FCC chairman Michael Powell--Mr. Media Deregulation--suddenly embracing government regulation of content (read: censorship). Which begat a Congressional orgy of legislation to multiply broadcast indecency fines--from $27,500 to $275,000, then $500,000, then $3 million. Which begat Clear Channel's dropping Howard Stern from six stations. Which begat the FCC's fining Stern for the first time in six years. Which begat an NPR station's firing benign commentator Sandra Tsing Loh over an accidental F-word. Which begets well-chilled programmers' issuing dictums filled with newly forbidden words and slapping delays on shows of all sorts, taking the live out of life, the reality out of TV.
But this is bigger than just broadcast. This is a fight for the constitutional, political and cultural soul of the nation. And the man on the firing line is Howard Stern.
The FCC's "Parents' Place" on the web oh-so-helpfully explains the basics of obscenity, indecency and profanity to anyone who wants to summon its cultural cops. A primer:
§ Obscenity--which is not protected by the First Amendment--is sexual material that violates community standards, is patently offensive, appeals to prurient interest and, judged as a whole, lacks serious literary, artistic, political or scientific value.
§ Indecency--which, the Supreme Court has ruled, is protected by the First Amendment--is nonetheless fair game for FCC policing, thanks to the 1927 Radio Act and the 1978 Supreme Court ruling in the Pacifica case (a k a George Carlin's Seven Dirty Words). The FCC says indecency--"patently offensive sexual or excretory references"--cannot air in the "safe harbor" from 6 am to 10 pm, because children may hear. (Yale Law School Professor Jack Balkin explains that indecency is OK at night because "you can't reduce adults to the level of speech fit for children.")
§ Profanity is defined by the FCC as "personally reviling epithets" or "language so grossly offensive" as to "provoke violent resentment." The first time the FCC ever found anything profane was in March, when it reversed itself and ruled against Bono's "fucking brilliant." Now the F-word in any context or syntax is officially profane. That is wholly new.
The FCC has enforced these rules unevenly, proposing $4.5 million in fines since 1990, $2.5 million of that against Stern (with reports of another $1.5 million coming), according to the Center for Public Integrity. Reading one recent FCC finding against Stern is a testament to inconsistency: Infinity Broadcasting complained that the FCC condemned its star's explanation of the sexual colloquialisms "blumpkin" and "David Copperfield" (don't ask) but did not punish others' references to "giving head" and "finger-banging your boyfriend." The FCC also didn't buy Infinity's argument that "the range of acceptable topics and words for broadcast discussion has changed dramatically, especially in light of widespread media coverage of sex scandals involving President Clinton and the Roman Catholic Church." (Heh.)
Religious conservatives of both parties and such video vigilantes as Brent Bozell's Parents Television Council had been criticizing the FCC for being too lax. But then came the tipping point they were waiting for: The Breast. The FCC suddenly started fining again. And in Congress, lawmakers not only proposed raising fines to prohibitive heights but added more: fining speakers as well as broadcasters (who, before, got a warning and a chance to repent before being fined), requiring license review after three offenses, creating a safe harbor from violence and delaying FCC moves allowing media consolidation.
I asked Robert Corn-Revere--the First Amendment attorney who recently got Lenny Bruce pardoned and who litigated against the Communications Decency Act--about the constitutionality of current regulations and new legislation. He replied: "What constitutionality?... The FCC has done its best to prolong the longevity of this doctrine by keeping it out of court."
In compelling testimony before Congress, Corn-Revere pleaded for a long-overdue constitutional review of indecency policy. He complained that the FCC's indecency (and now profanity) standards evade the tests that courts grant for obscenity: The FCC judges a work not as a whole but by just one word; it judges not by the standard of an "average person" but by that of a child; and it short-circuits due process (Stern complains that his company settled $1.71 million in fines in 1995 only because the FCC was using it to hold licenses hostage). Finally, Corn-Revere says, the enforcement is inconsistent. No one knows where the line is.