I stated before that I wanted this post to be about the recent Second Circuit Court ruling on "inadvertent" obscenities, and the efforts of the Parents Television Council and other organizations to "sanitize" television – broadcast and cable – so that it is all suitable for children. For me, the most annoying part of the PTC's activities is that while they scream from the rooftops about the lack of suitable family programming, they don't do a damned thing about it, so there's a bit of news on that here as well. Anyway, this post runs a bit long to say the least.
The Court Decision: On Monday June 4 a divided panel of the United States Court of Appeals for the Second ruled two to one against the FCC policy of levying fines for "fleeting expletives" or "blurted obscenities." The suit, filed by the four major networks – ABC, CBS, FOX and NBC – relates to incidents including the 2002 Billboard Awards, broadcast by FOX, and the 2003 Golden Globes where U2 lead singer Bono said "this is fucking brilliant." To bolster their case the FCC also cited incidents on the CBS Early Show and ABC's NYPD Blue.
The three judge panel stated that "We find the FCC's new policy sanctioning 'fleeting expletives' is arbitrary and capricious under the Administrative Procedures Act for failing to articulate a reasoned basis for its change in policy." They sent the order back to the FCC to develop a rule that was consistent with the court ruling, but they were dubious that such a rule could be created that would live up to the standard set by the court. Judge Rosemary Pooler wrote, "We are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the commission can adequately respond to the constitutional and statutory challenges raised by the networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the commission can set forth an analysis. While we fully expect the networks to raise the same arguments they have raised to this court if the commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go not further than this opinion." She also wrote that "We are skeptical [sic] that the commission can provide a reasoned explanation for its 'fleeting expletive' regime that would pass constitutional muster," and "We question whether the F.C.C.'s indecency test can survive First Amendment scrutiny."
The new policy referred to by the court reversed the policy in place from 1975 to 2004, under which neither of the incidents at the Billboard Music Awards – or presumably the other incidents cited by the FCC – would have been considered obscene. FOX had argued that "without adequate explanation or even acknowledgment, the FCC has abandoned the restrained understanding of indecency that served the public for three decades." They also stated that the new policy was applied arbitrarily with "exceptions when the word might be justified in context." One case mentioned was the case of Saving Private Ryan where the FCC found the use of language acceptable (although at the time of the movie`s second broadcast, a huge number of affiliates were so unsure of the FCC position that they refused to air the movie from fear that they would be fined if they did.)
Needless to say, reaction from both sides of the issue was swift and polarized. Needless to say the networks were pleased with the decision. Fox released the following statement: "We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment. Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home." On the other hand FCC chairman Kevin Martin, in an extensive statement said "I completely disagree with the Court's ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that 'shit' and 'fuck' are fine to say on broadcast television during the hours when children are most likely to be in the audience. The court even says the Commission is 'divorced from reality.' It is the New York court, not the Commission, that is divorced from reality in concluding that the word 'fuck' does not invoke a sexual connotation." In fact an industry spokesman who declined to be named told the LA Times that they would continue to use delays to censor language: "It just means on the rare occasions where we might make a mistake or error despite our best efforts, it's going to be harder for the commission to cite that as indecency."
There was also reaction from groups who were not direct parties to the appeal. The response of the Parents Television Council (an intervener on the case) was typically overwrought. In the organization's news release on the matter PTC President Tim Winter stated in a bit of logic that is difficult to comprehend that "By a mere 2-1 margin, the Second Circuit Court of Appeals has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry." He also stated that "The industry was able to forum-shop and find two federal judges in New York City to impose their will on the nation. The Court's decision runs contrary to nearly 80 years of jurisprudence about the publicly-owned airwaves, not to mention the overwhelming sense of the nation. Community decency standards should not be decided by two judges in New York." He finished by stating that, "We believe the two judges on the Second Circuit Court are wrong, and we urge the FCC to appeal this case to the U.S. Supreme Court. We also urge the public to speak up on this matter, contacting their congressional representatives and the White House too, and make their opinions known." Surprisingly (to me at least) Senator Daniel Inouye of Hawaii, who is Chairman of the Senate Commerce Committee (and a man who has probably used "fuck" and or "shit" as a non-sexual exclamation, even if it was only when his arm was blown off) also called on the FCC to appeal to the Supreme Court.
On the other side, the Center For Creative Voices in Media (also an intervener in the case) released a statement that said "These overly broad and arbitrary Commission decisions put creative, challenging, controversial, non-homogenized broadcast television programming at risk. In many cases, the very kinds of television programs that parents want their children to watch – high quality documentaries, histories, and dramas – were affected. Thus, the chilling effect of these now-overturned Commission decisions harmed not only media artists, but the American public." They were also quick to castigate Chairman Martin's statements: "he mischaracterizes the decision repeatedly, vilifying the Court for saying that broadcast profanity is 'not indecent' and 'fine to say' when in fact the court said nothing of the sort. Instead, what the Court decided was that Martin's FCC had failed to rationally justify its substantial expansion of the definition of what constituted 'indecency,' and that its decisions were so 'arbitrary and capricious,' and such an abuse of discretion, that they were unlawful."
Big Brother butt out:The Center For Creative Voices in Media recently publicized a poll taken by the organization Television Watch (of which the Center is a member) in which 1,000 Americans were given the following statements and asked the following question:
THE GOVERNMENT, through the courts, is seeking greater authority to regulate the content of broadcast programming offered by television networks such as NBC, CBS, ABC and FOX. They say the television networks have gone too far in what they show, and argue that increased government involvement is necessary to protect children from seeing potentially offensive material.
OTHERS argue that more government regulation is not the answer. They say television viewing is an issue of personal responsibility, and that parents have numerous tools such as show ratings, content warnings and the V-Chip to make informed decisions about what their children watch. Ultimately, they believe parents, not government, should make the decisions about which television programs their children will be permitted to have access to and watch.
Having now heard both sides of the argument, do you believe the courts should side with…
Those Who Want Parents To Decide What Their Kids Should Or Should Not Be Watching On TV – 744 or 74.4%
The Government And Grant Them More Control Over Television Content – 227 or 22.7%
Don't Know/Refused (Do Not Read) – 29 or 2.9%
Although I have not been able to find the poll results at the Television Watch website they also mention that fully two thirds of American households do not have children under the age of 18. TV Watch Executive Director Jim Dyke stated, "Government officials should spend more time helping parents understand the information available to make smart decisions and the technology available to enforce those decisions, rather than trying to decide what we all can or cannot watch on our own TV sets. Across the board, regardless of age, race, income, education, location, or political philosophy, the majority of Americans believe PARENTS, not the government, should make the decisions about what their families watch." This of course contradicts a poll publicized by the PTC in March, which was criticised by many (including me) for faulty methodology, specifically for being one sided and for using a general poll to ask questions that were relevant only to people with children under the age of 18.
Real "Family Friendly" TV: I've mentioned the Association of National Advertisers' Family Friendly Programming Forum, and specifically their Script Development Fund as an organization that doesn't merely criticise the broadcast networks for inappropriate programming – real and imagined – but actually does something about it by funding the development of scripts. According to a report in The Hollywood Reporter the 2007-08 season will be the first time that shows whose script development was funded by the Forum will be on each night of the week (excepting Saturdays when only FOX programs new material in the form of Cops and America's Most Wanted. The new shows that the Fund is supporting are NBC's Chuck and Bionic Woman and the CW's Life Is Wild. These shows join ABC's Ugly Betty, Brothers and Sisters and Notes From The Underbelly, NBC's Friday Night Lights and The CW's Everybody Hates Chris. Pat Gentile, national programming director for Proctor & Gamble, which is a member of the Family Friendly Programming Forum stated "We're pretty proud (of having a show on Sunday-Friday nights). One of the key elements we tried as an organization was to provide optional programming to families every day of the week, with the best-case scenario within (primetime). The key is, if you have the whole family watching quality television during that time, from both an advertising perspective and network perspective, you have the whole element there." In other words, supporting family friendly programming alternatives is good for business. For what it's worth (not much in my own opinion) it should be noted that several of the current shows that the FFPF has supported through their Script Development Fund have at various times been attacked by the PTC as their "Worst Show of the Week" and none gets the "coveted" green light in the PTC's evaluation of shows. Not that this is a bad thing at all. Despite the PTC "Family Friendly" does not necessarily mean puerile.
Who does the PTC hate this week?: I mean beside the Second Circuit Court. The PTC's Best of the Week is the Scripps Howard National Spelling Bee, which they describe as "entertaining, educational and a tremendous example of family entertainment," none of which I can argue with except to remind people that this is a one of event, and that you probably couldn't sustain a show like this for a full season.
Recently the PTC has taken to splitting their Worst of the Week between broadcast shows and cable programming. Their Broadcast Worst of the Week is The CW's Hidden Palms. According to the Council "Hidden Palms, premiered on May 30th in a cliché-ridden pilot filled with the typical Hollywood portrayal of teen life. Obscenely rich kids with no responsibly or parental supervision and unrealistic, consequence-free lives peppered with promiscuity, drinking, and various devious behaviors made up the bulk of the show." In the PTC's book that is enough for it to be called worst of the week (presumably this also includes the lead character's cross-dressing AA sponsor, or the lead character walking in on his mother and stepfather having sex). But what cinched the deal was this: "The first five minutes of the program (which airs in the 8 p.m. Family Hour) depicts a 15-year-old scholarly young man talking with his intoxicated father. After a few moments of listening to his father's ramblings, the young man asks his father for some privacy so that he can finish his studies. The father stands up, draws a handgun from his pants and shoots himself through the mouth, the camera showing the man pulling the trigger and graphically splattering his brains on the wall. The son simply stares in disbelief at what he has witnessed." This of course is the event that directly shapes the lead character's development – the reason why he goes into rehab (and therefore isn't around when his mother remarries and moves to Palm Springs) but all the PTC sees is the shock value: "It is bad enough that young viewers are exposed to the destructive and irresponsible behaviors depicted on Hidden Palms, but the impact that the father's violent suicide could have is inexcusable. That the TV networks value ratings over the minds of their young viewers is shown by the gory shock opening."
The Cable Worst of the Week is the return of The Simple Life (although the link that I clicked on to reach it still had last week's "worst", The Girls Next Door listed). In what the PTC describes as "this unreal reality show" Paris Hilton and Nicole Ritchie are "stranded" at a fat camp. The big objection seems to be the first episode's focus on enemas: "Needing to spice Paris and Nicole's hackneyed cluelessness, the show went to the toilet—literally. Paris and Nicole were required to perform enemas on the campers. The girls then lend support to their campers' bowel moments, with Paris and Nicole holding each camper's hand while they use a nearby outhouse. E!, never a network to blush from gratuitous and lewd sites [sic] and sounds, graphically depicts the enema procedure." The PTC uses this show – and their other cable "worsts" – to support their campaign for cable choice (which is one of the few positions of theirs that I do in fact agree with, although for far different reasons than they give) by saying that "While last season's premiere garnered just over a million viewers, E! knows that even if their shows lack ratings it doesn't matter. As long as every cable subscriber is forced to subsidize E!'s programming whether they watch it or not, E! will continue to abound in vulgarity." This is erroneous of course. While it is true that cable networks are paid by the cable and satellite companies for providing content, it is also true that these networks are still dependent on advertising revenues to make them profitable commercial enterprises. Every cable subscriber is not forced to subsidize E!'s programming, at least not to the point where the network can afford to run programming that does not bring in a profit from advertising revenues. It's not as if E! Network is saying "Screw the profit margin, let's run vulgar programs." The PTC cites the fact that last season's premiere of The Simple Life only drew just over a million viewers, but as everyone (except apparently the PTC) knows the mere fact that the show drew "just" a million viewers is less important than who those million viewers were, at least from an advertising point of view. E! Shows "vulgarity" for no other reason than the fact that "vulgarity" sells to an audience the network's advertisers want to reach.