Fining the Blues
THE FEDERAL Communications Commission is in a tough spot when it comes to enforcing the law against broadcast indecency. Determining what crosses the line from acceptable to indecent and therefore can't be broadcast before 10 p.m. isn't easy in an increasingly coarse culture. As network programming has become racier and more graphic, the FCC has been deluged with complaints in recent years, understandably so. Parental controls such as the V-chip can help shield children from inappropriate programs, but they aren't always effective; sports and awards shows, for example, aren't rated in advance.
At the same time, the theory that allows broadcasters to be fined for such speech consistent with the First Amendment -- that "uniquely pervasive presence" of broadcast media "in the lives of all Americans" -- seems increasingly obsolete in an age when the overwhelming majority of American households (more than 85 percent) get their television programming via cable or satellite -- receiving numerous channels that aren't subject to indecency rules. As a result, a single profanity uttered on one (broadcast) channel can result in a multimillion-dollar fine, while worse language spoken at the very same time on another (cable) channel is exempt from regulation.
Last week the FCC once again ventured into this politically, legally and emotionally charged territory, ruling on complaints involving nearly 50 programs broadcast between February 2002 and March 2005 and signaling a renewed zeal for indecency enforcement under its new Republican chairman, Kevin J. Martin. The commission upheld a $550,000 fine against CBS for Janet Jackson's infamous "wardrobe malfunction" in which her breast was exposed during the 2004 Super Bowl halftime show, and it levied a record $3.6 million fine against the same network for an episode of the drama "Without a Trace" that featured what the commission called a "teen sex orgy."
One particularly disturbing aspect of the ruling involved a Martin Scorsese-produced documentary, "The Blues: Godfathers and Sons," broadcast by a community college public television station in San Mateo, Calif. The documentary included scenes in which musicians and a producer used numerous profanities. The FCC, citing a previous decision that profanity in "Saving Private Ryan" would not subject broadcasters to indecency fines, noted that "in rare contexts, language that is presumptively profane" will still be allowed "where it is demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance."
But the commissioners didn't find that standard was satisfied in the case of the documentary, whose educational purpose, it said, "could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives." Really? How do they know better than, say, Mr. Scorsese? As commissioner Jonathan S. Adelstein, a Democrat, wrote in dissenting, "It is certain to strike fear into the hearts of news and documentary makers, and broadcasters that air them, which could chill the future expression of constitutionally protected speech." This is a dangerous kind of line-drawing -- one better left to filmmakers, or even television executives, than government bureaucrats.