Comments on the Indecency Decision – The PTC’s And Mine

As you might expect, the Parents Television Council's reaction to Monday's Second Circuit Court of Appeals ruling that the FCC's current indecency policy is unconstitutional because of its vague nature was hardly supportive of the decision. Far from it of course, they pretty much raked the Court over the coals for daring to try to even consider that the FCC's power in this area should be questioned. I find that the best way for me to express my views on the matter is to take from PTC President Tim Winter's statement on the court decision and then offer my own take on how Mr Winter's statement is at odds with my position (and the actual facts of the situation at least as I understand it).

Mr. Winter began his statement by saying that, "A three-judge panel in New York once again has authorized the broadcast networks unbridled use of the 'f-word' at any time of the day, even in front of children." Setting aside the fact that Mr. Winter uses the mane "Mew York almost as though it was a pejorative – as if being from New York is somehow out of touch with the "real America" – the claim that this decision authorized the "unbridled" use of certain profanities, including but not limited to "the f-word" is most likely inaccurate. This is an issue that I intend to delve into later.

He continued: "The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people." This is another example of Mr. Winter's gift for hyperbole, particularly the idea that the Court's opinion is somehow different from that of "an overwhelming majority of the American people." I am not sure what sort of evidence this statement is based upon. Tim Winter offers no statistical proof that the Court is substituting its opinion for that of the "overwhelming majority of the American public," I suspect because such statistical evidence doesn't exist. Mr. Winter simply assumes that he and his group of "over a million members" are representative of the majority of Americans. As for the notion that the Second Circuit Court of Appeals is substituting it's opinion for that of the Supreme Court, it is patently absurd. It was the Supreme Court itself which sent the case down to the Circuit Court level – Remanded it to them – to specifically consider the First Amendment implications of the FCC's current Indecency policy. Far from substituting their opinion for that of the Supreme Court in this decision the Second Circuit Court of Appeals is doing exactly what the Supreme Court required them to do when it remanded the case back to them to examine the First Amendment concerns. The Supreme Court did not examine those concerns when the case appeared before them initially because the original decision by the Second Circuit Court concerned itself with the question of whether the FCC 2004 change in policy was done in a "capricious and arbitrary manner." The Supreme Court limited itself exclusively to that aspect of the question.

As to the "opinion of Congress," as the background section of the Second Circuit's decision pointed out Congress's involvement in this matter is limited, at least as far as I can see. Congress passed the initial law that stated, "whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years or both" (Section 1464 of Title 18 US Code). And in 1960 Congress authorized the FCC to impose civil forfeitures for violations. And of course we know that Congress authorized the increase of fines for violations, as defined by the FCC, to the present levels. From my point of view Congress gave the FCC the authority to enforce section 1464 and determined the punishment. They had no part in determining what precisely that policy would consist of, whether it was the 1972 "seven words only" standard effectively set by the Pacifica decision or whether it is the current standard.

Mr. Winter continues: "Today's ruling comes as absolutely no surprise, given the hostile tenor of the judges during oral arguments. Members of the Second Circuit panel entered the courtroom that day wearing their intentions clearly on their sleeves." Not having been in the court I cannot comment on "tenor" of the judges during oral arguments, or whether or not they were "wearing their intentions clearly on their sleeves." I would like to suggest however that if their interrogation of the lawyers for the FCC was rather vigorous or rigorous it might be because they were seeking clarification on various points that they were familiar with, having previously adjudicated on this matter. (This was the same three judge panel – judges Rosemary Pooler, Pierre N. Leval, and Peter W. Hall – that rendered the previous decision in this matter). They had a working knowledge of the matter.

Again from Mr. Winter: "What does come as a surprise is the rationale of the opinion, which is devoid of reality. The Court's illogical analysis would require the overturning of virtually every law on our nation's books for lack of clarity." Three points. First the question under review by the Court is not a law, which is created by passage through a legislative body, it is a policy or set of rules which is set by a government agency. Second, the challenge is not to Section 1464, or indeed to the decision in Pacifica, it is to whether the policy which the FCC has adopted is sufficiently clear that a reasonable person would consistently know what was and was not actionable. Third, it is untrue that "virtually every law on our nation's books" would be overturned for lack of clarity. Most laws are written in such a way that a reasonable person does know what is and is not actionable. The current FCC policy is not.

"The broadcast decency law, which our nation's Highest Court has upheld, is clear: broadcasters must refrain from violating community standards of decency during hours when children are likely to be in the audience. The indecency law doesn't prohibit broadcasters from airing indecent material; it only requires that indecent material air outside the hours when children are likely to be in the audience." Uh not quite. First, there is no specific Broadcast Decency Law. There is, as mentioned Section 1464, but it is the FCC itself that established the rule concerning the time of day in which "indecent" language may be used. From the relevant part of the FCC website: "Consistent with a federal indecency statute and federal court decisions interpreting the statute, the Commission adopted a rule that broadcasts -- both on television and radio – that fit within the indecency definition and that are aired between 6:00 a.m. and 10:00 p.m. are prohibited and subject to indecency enforcement action." That part is clear, and that is the part that prevents what Tim Winter has called the "unbridled use of the 'f-word' at any time of the day;" the part which means that we will never hear Gordon Ramsay unbleeped unless we're in Britain (or Canada, but only if the show is one of the ones that he did in Britain). What we are dealing with and what the Second Circuit Court of Appeals ruled on was whether the policy which defines indecency is sufficiently clear.

One more statement from Tim Winter: "The FCC ruled that Fox violated the broadcast decency law when it aired the 'f-word" and "s-word' during live broadcasts of the 2002 and 2003 Billboard Music Awards shows." True. As we saw in the precious article however, the FCC also ruled that an interview on the Early Show which included the word "bullshitter" violated the broadcast decency law... and then ruled that it didn't because the word was used in the context of a "bona fide news interview." That would seem to indicate that the FCC is not entirely clear of the nature of their own policy, particularly as they stated at the time of the revised decision on the Early Show incident that there was no blanket news exemption from the FCC policy. The FCC, which ruled that the use of the "f-word" and "s-word" during the Billboard Music Awards on three occasions on a live TV show violated the broadcast decency law, also ruled that multiple uses of those same words in a broadcast of the movie Saving Private Ryan which aired before 10:00 p.m. did not violate the broadcast decency law because those words were "demonstrably essential to the nature of the artistic work" while at the same time the stating that the use of those words in the documentary The Blues was not.

The background section of the Second Court of Appeals decision illuminates the progression of the FCC's indecency policy as it progressed from a clear standard – Carlin's seven words – to the present standard. In the period between 1978 and 1987, when the "seven words" standard was adhered to, there was not a single enforcement action taken. The standard was clear. In 1987 the Commission, concerned that under the existing standard "patently offensive material was permissible as long as it avoided certain words," decided to adopt a contextual approach. At the same time however they maintained a policy of restraint. Single, "non-literal" uses of words that might otherwise be considered "indecent" were considered not to rise to the standard set in Pacifica. Repeatedly the FCC ruled following this standard. The Court's judgement cites a number of FCC rulings in which phrases like, "Speech that is indecent must involve more than an isolated use of an offensive word," or "The 'use of a single expletive' did not warrant further review 'in light of the isolated and accidental nature of the broadcast,'" were used. Even the FCC's 2001 "Industry Guidance" statement, which was an attempt to clarify a standard included a statement that "fleeting and isolated" expletives were not actionably indecent. They became "actionably indecent" when the FCC issued its so-called Golden Globes Order, which abandoned both the standard that "fleeting and isolated" expletives were non-actionable and there words such as "fuck" and "shit" could have a non-literal. Restraint had been abandoned.

There is a bitter irony in this abandonment of restraint. The men who wrote the Pacifica Decision were well aware of the need for restraint in applying whatever standard was to be used. Justice John Paul Stevens stated in the original Pacifica decision that "It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution." In their concurrent decision, Justices Lewis Powell and Harry Blackmun stated that the holding of the court "did not give the FCC 'an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes,'" nor did it "speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here." It seems that the current FCC policy does seem to have taken the position that the Commission has those rights. They also wrote that, "In addition, since the Commission may be expected to proceed cautiously, as it has in the past, I do not foresee an undue 'chilling' effect on broadcasters' exercise of their rights." The fact is that since the Golden Globes Order the FCC has not proceeded in a manner that these Justices would describe as cautiously, and the result has been a chilling effect on broadcasters.

The notion of "vagueness" is vital in the question of "chill." If there were a total "zero tolerance" policy on every use of "the f-word" and "the s-word" and some of the most explicit words referring to male and female genitalia then that might be sufficiently clear, but we've seen that this is not the case. Those words in Saving Private Ryan (a situation that might rise to the level of "verbal shock treatment" that Justices Powell and Blackmun were talking about) are acceptable; a singular use of one of those words in a live Awards program in the heat of the moment is indecent. A "bona fide" news interview gives one the freedom to use one of these words (but presumably not the use of a number of these words), but the definition of "bona fide news interview" is so amorphous that broadcasters self-censor themselves by not covering events for fear that someone will say a bad word. And we haven't even touched on words that "escape" being censored. "Pissed off" are acceptable despite "piss" being an excretory activity. "Screw you" and "he's full of crap" are fine in spite of the fact that we all know that "screw" in this case stands in for "fuck" and "crap" means "shit." And of course the Second Circuit Court's decision mentions "dick" and "dickhead" as being acceptable. At least for now. Because here's the thing: the current FCC policy is reminiscent of Justice Potter Stewart's famous statement that hard core pornography is hard to define, but "I know it when I see it." Which is fine so long as you have the same person evaluating what is and isn't pornography, or in this case what is and isn't "indecent." The problem arises, as we've seen, when the person or people evaluating things change and bring with them their own standards. "Pissed off" may be acceptable to the current regulators but not to some future regulator. The definition of a "bona fide news interview," which is now so vague that broadcasters refuse to cover some events live for fear of being fined, may change so that virtually any use of the forbidden words is acceptable... or banned.

I am not a lawyer nor do I have any training in law (and I'm not an American so my sensibilities on such matters are shaped by what is legal here in Canada), but it seems to me that the ruling of the Second Court of Appeal makes more sense than the arguments that the PTC and similar groups of "social conservatives" are making against it. In discussing issues of personal rights, as much clarity as is possible is needed. The current FCC policy doesn't meet that standard of clarity and either needs to be scrapped or replaced by a policy that provides a standard of clarity that will not only be understandable for broadcasters but remain clear for years to come, regardless of who is applying that standard. Since I do believe that this case will make its way back to the Supreme Court we shall have to see what the Justices of that body have to say. The current decision is not an attack on the fundamental basis of censorship policy – the Pacifica Decision – because the Court of Appeals felt itself bound by that decision and that it was beyond its scope to overrule that decision. This decision will probably not give Justice Clarence Thomas the opportunity to examine and possibly overturn both the Pacifica and Red Lion decisions – the cases upon which FCC authority in regulating broadcasting rests. Hopefully, when all is said and done it will result in a sensible and comprehensible policy, something which the current FCC policy has long since ceased to be.

FCC Indecency Policy Struck Down

A three judge panel of the Second Circuit Court of Appeals yesterday struck down the current FCC Indecency Policy on the grounds that it violates the First Amendment of the US Constitution by being too vague, "creating a chilling effect that goes far beyond the fleeting expletives at issue here." The decision appears to be unanimous (there is no indication in the ruling of any dissent). The text of the decision can be found here (it is a .pdf file).

In the background portion of the decision the Court discusses the origins of the FCC's power to impose fines and otherwise punish broadcasters from presenting "obscene, indecent or profane language by means of radio communications." Special attention is paid tho the Pacifica case, and the lower court ruling that overturned the initial ruling, which found the FCC's definition to be "vague and overbroad." That ruling noted that "the Commission's definition of indecent speech would prohibit 'the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.' Such a result, the Court concluded, amounted to unconstitutional censorship." The Pacifica Case went to the Supreme Court which upheld the FCC's ability to censor. Writing for the Majority Justice John Paul Stevens explained that Broadcasting received the most restrictive First Amendment protection, "because of its 'uniquely pervasive presence in the lives of all Americans.'" Nevertheless the majority in the Pacifica ruling pointed out that their holding was narrow in scope: '"[N]uisance may be merely a right thing in the wrong place, – like a pig in the parlor instead of the barnyard. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."' In their separate concurring opinion, Justices Blackmun and Powell wrote that the ruling, "did not give the FCC 'an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes,'" nor did it, '"speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here." They accepted that the FCC would proceed in a cautious manner which would minimize the chilling effect of the ruling.

Subsequently the Commission did act in such a manner, initially restricting their enforcement to the specific words in the Carlin monologue. In 1987 the policy changed on the grounds that "under the prior standard, patently offensive material was permissible as long as it avoided certain words. This, the Commission concluded, 'made neither legal nor policy sense.'" Instead they adopted a contextual standard. Nevertheless enforcement was still restrained. In various rulings the FCC held that (1) single use of an expletive "should not call for us to act under the holding of Pacifica;" that (2) "Speech that is indecent must involve more than an isolated use of an offensive word;" and that (3) "the single utterance of the F-word not indecent because it was a 'fleeting and isolated utterance which, within the context of live and spontaneous programming, does not warrant a Commission sanction.'" In 2001 the Commission issued a policy statement to put its indecency standard in more detail. In it the FCC stated that "an indecency finding involved the following two determinations: (1) whether the material 'describe[s] or depict[s] sexual or excretory organs or activities'; and (2) whether the broadcast is 'patently offensive as measured by contemporary community standards for the broadcast medium. The FCC further explained that it considered the following three factors in determining whether a broadcast is patently offensive: (1) 'the explicitness or graphic nature of the description or depiction'; (2) 'whether the material dwells on or repeats at length' the description or depiction; and (3) 'whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.'" One thing that was explicitly stated in the policy was that "fleeting and isolated" expletives were not actionably indecent (emphasis mine).

The policy outlined in 2001 was changed in 2004. Following the 2003 Golden Globes, when Bono of U2 said "this is really, really, fucking brilliant. Really, really, great." The FCC held for the first time ever that "a single, nonliteral use of an expletive (a socalled 'fleeting expletive') could be actionably indecent." They also held that "the F-word" "inherently has a sexual connotation," and "concluded that the fleeting and isolated use of the word was irrelevant and overruled all prior decisions in which fleeting use of an expletive was held per se not indecent." The Commission also held that the broadcast was "profane" abandoning the previous interpretation which defined "profane" in terms of blasphemy. The Commission also abandoned the policy whereby fines would be levied on a per program basis and instead began treating each licensee's broadcast of a program as a separate violation, thereby multiplying the amount the Commission could collect in fines. This occurred at the same time that the maximum fine was increased by a factor of 10, from $32,500 to $325,000.

The next step along the way was the FCC's 2006 Omnibus Order which was a blanket settling of complaints – most of them generated by pressure groups like the Parent's Television Council – between early 2002 and early 2005. Four cases stood out in the Omnibus Order as examples of "fleeting expletives;" the 2002 and 2003 Billboard Music Awards, various episodes of NYPD Blue and an interview (with a contestant on Survivor) during The Early Show. The Billboard Music Awards case revolved around two separate speeches in which the words "fuck" and "shit" were used, while both the episodes of NYPD Blue and the Early Show interview dealt with the words "bullshit" and "bullshitter." The FCC claimed that the Omnibus Order would "provide substantial guidance to broadcasters and the public" about what would be considered indecent. The networks and several affiliates appealed these portions of the Omnibus Order to the Second Circuit Court of Appeals. In response the FCC requested a voluntary remand of the court, and later in 2006 produced the Remand Order which reaffirmed its decision on the Billboard Music Awards, but dismissed its fines on NYPD Blue on procedural grounds and reversed its finding on the Early Show case on the grounds that it took place during a "bona fide news interview." The Commission further stated that they "did 'not take the position that any occurrence of an expletive is indecent or profane under its rules,' allowing that expletives that were 'integral' to an artistic work or occurring during a 'bona fide news interview' might not run afoul of the indecency standard." However they stated that there was no "outright news exemption from our indecency rules."

This decision led to a second appeal of the ruling by the networks, in which the Second Circuit Court of Appeals overturned the 2004 FCC policy change on the grounds that the change was "arbitrary and capricious" in that the reasons for the change had not been adequately explained, and further that "the FCC's justification for the policy – that children could be harmed by hearing even one fleeting expletive (the so-called 'first blow' theory) – bore 'no rational connection to the Commission's actual policy,' because the FCC had not instituted a blanket ban on expletives." This was the ruling that was overturned by the Supreme Court in 2009 in a 5-4 decision. However the Supreme Court did not address the First Amendment concerns in the case and remanded the case back to the Second Circuit Court to examine that aspect of the case.

In the Discussion portion of the decision the Court addressed four major issues. In the first section they examined the idea of the "uniquely pervasive presence in the live of all Americans" that Broadcast media in general and Television in particular had which was the basis for the current restrictions of First Amendment rights when it comes to Television. They pointed out that "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control.... The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.... ("The number of suppliers of online video and audio is almost limitless."). As the FCC itself acknowledges, "[c]hildren today live in a media environment that is dramatically different from the one in which their parents and grandparents grew up decades ago." The Court also noted that technology, in the form of the V-Chip and the ability to block unwanted channels. However the Court was bound by the Supreme Court precedent – the Pacifica Decision – "regardless of whether it reflects today's realities." However, even though bound by Pacifica, there was room for interpretation. The FCC claimed that the Pacifica decision permits it to "exercise broad regulatory authority to sanction indecent speech. In its view, the Carlin monologue was only the most extreme example of a large category of indecent speech that the FCC can constitutionally prohibit." The Networks on the other hand hold that the decision established the limits of the FCC's ability to regulate; "In other words, they believe that only when indecent speech rises to the level of 'verbal shock treatment,' exemplified by the Carlin monologue, can the FCC impose a civil forfeiture." Regardless of where the actual limit of the FCC's ability to regulate falls, the Court held that the FCC's indecency policy is unconstitutional because it is impermissibly vague.

The second section of the Discussion examined the vagueness of the policy. The Court cited various precedents on what constitutes vagueness ("A law or regulation is impermissibly vague if it does not 'give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.'") and points out that the US Constitution places a special burden on laws to be clear ("'[A] law or regulation that "threatens to inhibit the exercise of constitutionally protected rights," such as the right of free speech, will generally be subject to a more stringent vagueness test.'"). Rejecting arguments put forward by both the Networks and the FCC related to specific justifications of their position on the vagueness of the FCC ruling (most involved Reno v ACLU which ruled the Communications Decency Act to be unconstitutionally vague) the Court turned to specific cases. In the 2001 Industry Guidance, the FCC "explained that an indecency finding involved the following two determinations: (1) whether the material 'describe[s] or depict[s] sexual or excretory organs or activities'; and (2) whether the broadcast is 'patently offensive as measured by contemporary community standards for the broadcast medium.'" This lead in turn to a definition of "patently offensive;" "whether a broadcast is patently offensive depends on the following three factors: (1) 'the explicitness or graphic nature of the description or depiction'; (2) 'whether the material dwells on or repeats at length' the description or depiction; and (3) 'whether the

material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.'" The Court agreed with the Networks, who claimed that the policy was impermissibly vague and that the FCC's subsequent decisions added to the confusion as to what would be considered indecent. The Court cited the NYPD Blue episode in which the word "bullshit" was found to be "patently offensive", but noted that the words "dick" and "dickhead" were not found to be offensive, as were phrases like "pissed off," up yours," "kiss my ass," and "wiping his ass." "[I]n each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word 'bullshit' is indecent because it is 'vulgar, graphic and explicit' while the words 'dickhead' was not indecent because it was 'not sufficiently vulgar, explicit, or graphic.'" According to the Court this did not give sufficient guidance of how the Commission would rule in the future. The Court noted that in the nine years following the Pacifica decision, when the "seven words" included in George Carlin's monologue were the specific definition of what was and was not prohibited, there was not one indecency complain for language. The Court argued that at least in part this was because broadcasters knew exactly what was banned. The FCC has argued that while the "seven words" list was ineffective; broadcasters simply found other ways to depict the banned material without using the specific words that were banned. "In other words, because the FCC cannot anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the FCC needs the maximum amount of flexibility to be able to decide what is indecent." This creates the vague indiscernible standard that the Court finds unconstitutional. "If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC's indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it."

The Court also looked at the question of those occasions when use of the prohibited, and also found it to be vague. Those cases are during "bona fide" news, and in the case of "artistic necessity," where "fleeting expletives are permissible if they are 'demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.'" In determining this the FCC "considers whether the material has any social, scientific or artistic value." In short, the commission sets itself up as an arbiter of what is and isn't art, and what is and isn't necessary or essential to that being of social, scientific or artistic value. Thus the use of words like "fuck" and "shit" in the movie Saving Private Ryan were "demonstrably essential to the nature of the artistic work," but the use of the same words in the documentary The Blues were not. Similarly it is left to the Commission to decide what is a "bona fide news interview" given the statement that no outright news exemption exists. According to the Court this results in a policy that "even the FCC cannot articulate or apply consistently." This was pointed out in the fine for the word "Bullshitter" used during the interview on the Early Show. In the Omnibus Order the word was considered actionable and fines were levied, but in the Remand Order it was considered to be part of a "bona fide news interview" and thus exempt from the policy. The Court pointed out that "With the FCC's indiscernible standards come the risk that such standards will be enforced in a discriminatory manner. The vagueness doctrine is intended, in part, to avoid that risk. If government officials are permitted to make decisions on an 'ad hoc' basis, there is a risk that those decisions will reflect the officials' subjective biases. Thus, in the licensing context, the Supreme Court has consistently rejected regulations that give government officials too much discretion because 'such discretion has the potential for becoming a means of suppressing a particular point of view.'"

The third section of the discussion looks at the question of whether the current policy has had the effect of chilling free speech. The answer is that there is ample evidence that the current policy has indeed had a chilling effect on free speech. The Court cited several examples both on a local and national level. These included several CBS affiliates who refused to air a repeat of the documentary 9/11 because some of the footage included firefighters using expletives and the affiliates couldn't be sure that, following the Golden Globes Order, they wouldn't be fined for airing it. Another example dealt with live broadcasts. In the 2003 Billboard Awards broadcast, FOX had taken the precaution of prescreening scripted remarks and included a delay system to bleep expletives. However Nicole Ritchie, a scheduled presenter, departed from her script and used three expletives in rapid succession. The person in charge of bleeping the remarks caught the first one, but while he was bleeping the first the other two slipped through. The FCC suggested that the network use "a more effective screening system" (according to FOX, implementing an audio delay system for all live programming would cost the network $16 million per year) but the Court noted that short of giving up live broadcasting no system is 100% effective. There is ample evidence that stations are refusing to air news or public affairs programming for fear that they will incur fines, remembering that there is no blanket news exemption, meaning that it feels that this is a discretionary, case by case judgement. There have been cases of stations refusing to cover political debates because one or more of the participants has had a history of using expletives and at least one station has stated that it will not air direct to air news coverage except in cases that "effect matters of public safety or convenience." TV networks have decided not to air episodes of shows that don't contain expletives but which do contain references to other matters related to sex or sexuality out of fears that this material might be defined as indecent. According to the Court, "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment."

For the reasons covered in the discussion sections of the opinion, the three judge panel of the Second Circuit Court of Appeals – the same three judges panel that had previously ruled that the policy change was arbitrary and capricious – struck down the FCC's Indecency Policy. While stating that they did suggest that the FCC could not develop a policy that would meet Constitutional scrutiny, they did state that the existing policy does fail in this respect.

I'll give my views on this case, together with the views of the Parents Television Council – which reacted pretty much exactly as you'd expect them to react – in my next post. Suffice it to say the PTC and I don't agree on anything in this matter...except maybe that the judges are based in New York, and our opinions of the significance of that is entirely different.

Who Does The PTC Hate Now

It's been a while since I've written one of these PTC pieces, and there's a reason. They make me ill. Oh, I don't mean that I want to vomit when writing one or anything like that (most of the time at least), but I usually end up spending too much time on them - because there's only a short length of time that I can look at their site - and feeling that my time could have been spent in so many more productive pursuits...like having a nap or picking lint out of my navel. At times like this it's even worse because while I clearly don't agree with the PTC, their methods, or their views on what is and isn't acceptable on television today, I have to confess that there are times when I sort of agree with what they're saying; there are shows out there with content that I find objectionable, and that I think would be better if they were in a later time slot. The difference is that if there's something that I don't like or find objectionable, I say that I don't like it and find it objectionable; I make no effort to impose my views on you or anyone else. The PTC in their neverending, and increasingly irrelevant and unsuccessful efforts to become America's national nanny not only tells you that they don't like something and find it objectionable but claim to speak for you. So let me make it clear, right now, that I don't like the PTC and I find them objectionable.

The big thing of course – and the reason why I'm writing this – is that the PTC has fired up the "big complaint machine" to go after one of the organization's favourite targets, Seth McFarland and Family Guy and the March 8^th episode of the show in particular. A piece headlined Fox's Family Guy Spreads Filth on YOUR Airwaves on the PTC website leads directly to their pre-written email complaint set up. All you have to do is fill in your name, address and email and click the "Sign & Submit FCC Complaint" button. You don't even have to inconvenience yourself by watching the episode, or even reading the content that "you," through the medium of the PTC, are complaining about. There is a link to an article (which is filled with the usual level of invective from the PTC, and includes words such as "showered audiences in filth," "pump their sewage into YOUR living room," and "shows that corrupt YOUR kids and YOUR culture") and documentation in the letter that "you" are sending to the FCC, but the way the letter is laid out, the documentation is hidden unless you deliberately scroll down on that part of the page. In other words you don't actually have to know what you're complaining about in order to complain about it. And it is entirely possible that a lot of them don't.

So what is the PTC complaining about? Well here's the text of the documentation part of the PTC article:

In one scene, husband Peter lies in bed, his naked rear exposed. A horse enters and licks Peter's rear, as Peter moans in pleasure. "Mmm, what made you come around, Lois? I love you so much. I love you so much, Lois," Peter groans. The FCC has the DUTY to enforce the law and fine Fox for this gross violation of broadcast decency standards.

Among other atrocities in the episode, Peter warns his family that "some of the milk in the fridge is not milk, it's horse sperm," whereupon Baby Stewie eats cereal covered with the "milk"; Peter's gay lover greets him with news that he has arranged a gay "eleven-way" orgy; and Peter helps his son Chris with math homework:

"One trick I used to use is turning things into a word problem. For example, if there are three glory holes in the bathroom at the club and 28 guys at the circuit party. How many rotations of guys will it take before everybody's had a turn? Nine, with a remainder of Brent…Brent can't fit in the glory hole, and that's why we all like Brent."

Okay, so the PTC wants the FCC to fine or sanction FOX for this show. The question is what do they find to be actionable in the scenes cited in their complaint? As far as I can tell the answer is that there is nothing. According to their website the FCC is, by law, charged with preventing the broadcast of obscene material and enforcing the prohibition against indecent or profane material between 6 a.m. and 10 p.m. Material that would be described as obscene according to the FCC definition. The FCC regulates "obscene, indecent, or profane" material and based on the FCC definitions it seems to me that the material cited by the Council does not meet the measure that the FCC has set for obscenity or indecency. Of course that's never stopped the PTC from filing complaints with the FCC in the past, and indeed the FCC has in the recent past – particularly during Kevin Martin's term as chairman – upheld complaints filed by the PTC and fined stations for material which previous commissions had either not found obscene or on which the commission had decided not to rule; nudity on NYPD Blue comes to mind immediately.

That isn't to say that the show isn't offensive to a lot of people. If I were Gay I probably wouldn't appreciate homosexuality being depicted as a lifestyle of anonymous sexual encounters – the reference to "glory holes" – or to promiscuous sexual behaviour – the "eleven way orgy." (I personally am offended that people named "Brent" are depicted as Gay men who are too large to fit through a "glory hole." I for one am not Gay. ;-) ) I'm not even going to touch on the question of the possibility that Stewie was eating cereal with horse semen beyond saying that based on consistency, not to mention taste, only a total moron would not know the difference between the two. However being offended by a show isn't justification for levying a fine on the show; it is justification for not watching the show.

Tied with their FCC complaint is a post in the PTC's TV Trends column called PTC To News Media: "Why Are You Not?" The title comes from a quote by Thoreau and refers to his conversation with Emerson when Thoreau was jailed over his refusal to pay his taxes in opposition to the Mexican War – Emerson: "Henry, why are you here?" Thoreau: "Why are you not?" It is more than a little incongruous for them to use that quote from Thoreau to attack the media in a battle to get government to issue a punitive fine on an issue of censorship, but then the PTC has shown any real understanding of irony. The gist of the column is that the news that the PTC was filing a complaint against FOX and The Family Guy episode was not reported "fairly." This seems to mean in a manner that was supportive of the PTC's aims and goals or failing that, neutral. According to the PTC there were a few news sources that "reported the PTC's request for enforcement of existing broadcast decency laws in a straightforward manner," including Broadcast & Cable, TVNewsday, and Communications Daily. It's worth noting that the outlets cited are all sites that report the news without commentary. And the PTC's complaint qualifies as news. But just because it is news does not mean that people don't have opinions on the subject and should not express them.

The PTC doesn't see it that way of course: "In fact, the much [sic] of the media's coverage was squarely in favor of Family Guy's harmful and offensive content – and took the opportunity to attack the PTC." But the PTC only cites five websites that were, "squarely in favor" and who taking "the opportunity to attack the PTC." The first is "The Hollywood Reporter's James Hibberd." One might assume means that Hibberd writes news articles for the trade paper, but in fact he does a blog for the Reporter website where he not only reports the news but often states his own opinion. Hibberd's article is not long but is ever so slightly mocking of the PTC, which is not unusual for him. (He most recently wrote an article on the PTC's outrage at the self-mastectomy scene in Nip/Tuck which is a cogent dismissal of the PTC and deserves to be read.) In this particular case Hibberd's sins are mocking PTC president Tim Winter – "there's nothing hotter than PTC president Tim Winter talking about graphic TV content" – then sneering (apparently one can sneer in print) "I know. I can't believe I missed Family Guy last week either" after running the PTC's own description of the episode objectionable content in the episode. Worst of all he quotes an interview from The Advocate in which Seth MacFarlane expresses his opinion of the PTC:

Oh, yeah. That's like getting hate mail from Hitler. They're literally terrible human beings. I've read their newsletter, I've visited their website, and they're just rotten to the core. For an organization that prides itself on Christian values – I mean, I'm an atheist, so what do I know? – they spend their entire day hating people. They can all suck my dick as far as I'm concerned.

They also object to Bob Sassone of TV Squad. For those who don't know, Bob has been a TV Squad blogger practically from the beginning of the site. He reviews TV shows and comments on news items. In short he is paid to express his opinions. In this particular article he wrote, "Actually, I was kinda shocked by the episode myself, but I'm always shocked by episodes of Family Guy. That's what makes it funny." That was enough to get him mentioned by the PTC. Celebrity gossip blogger and "self-proclaimed 'queen of all media'" Perez Hilton, who is in the business of expressing opinions, was also mentioned. The PTC said that in his article Hilton, "shrugged off the episode's content in his first sentence: 'Bestiality, orgies and babies eating sperm, oh my!'" and "went on to call the PTC's efforts "a waste of energy." Like Hibberd, Hilton uses the MacFarlane quote and repeats it (using the royal "we"), "The Parents Television Council can suck our dick!!!!"

Then there's what the PTC calls the "infinitely ignorable LA Rag Mag;" not really a "mag" or a "rag," just a website. According to the PTC the site "vomited forth the most vitriol" when describing the PTC as "some crazy Christian organization" with "1.3 million freedom hating members." They also objected to the opinion, expressed by the site, that, "We saw this episode and thought it was one of the funniest episodes we had ever seen. Yes, we did gasp at the sperm bottle consumption and the gay orgy scene." While the LA Rag Mag was factually incorrect in describing the PTC as "some crazy Christian organization" – the PTC is socially conservative but non-denominational – they do have every right to express their opinion that the PTC is "freedom hating." The LA Rag Mag also uses the MacFarlane's "objectionable" quote from The Advocate.

Perhaps the most puzzling reaction is to The Advocate because its article is perhaps the most balanced that the PTC cites. It is not given to opinion, supposedly what the PTC wants, with the PTC's complaint reported "in a straightforward manner." However they did offer MacFarlane's quote as a comment from the other side, which was enough – in the PTC's mind – to put The Advocate in the enemy camp, "implicitly defending Family Guy's offensive depictions of bestiality and babies eating sperm as 'off-the-wall animated comedy.'" But after declaring The Advocate to be the enemy they spend an entire paragraph being bewildered as to why they don't side with the PTC: "The Advocate's opposition to the PTC is odd, given that the Parents Television Council is not an anti-gay organization....The PTC's concern is solely that of protecting children from all graphic sexual content on TV, regardless of the genders or orientations of the individuals involved. Surely, gay parents and families are just as concerned about their children being exposed to graphic and gratuitous sexual content as are heterosexual parents."

Having "proven" that their FCC complaint against The Family Guy was not properly reported because a few outlets whose work frequently involves opinions said that they didn't see anything actionable about the episode, and dared to quote an interview by Seth MacFarlane in which he expressed an opinion of the PTC, the group turns to motive. And here is where they really seem to go off the deep end. Citing a pair of articles where the TV Trends writer "proved" that America's TV critics were "completely out of touch with the beliefs of average Americans" (articles which I examined and attempted to debunk in an earlier post) the writer then attempts to explain why members of the news media don't "properly" report on the PTC's complaint against The Family Guy. The media, they say, suffer from the "same defect" – they are totally out of touch with the beliefs of "average Americans." Their full explanation has to be read to be believed (the use of boldface here is mine; if I'm reading this right, the PTC is accusing the defenders of Seth MacFarlane of somehow benefitting financially as a result of defending him):

But what is truly of concern is this: those in the media are so invested emotionally (and perhaps financially) in defending Seth MacFarlane that none of them shows even the slightest concern about – or even interest in discussing -- the content of Family Guy itself.

The question must be asked: where are the reflective and intellectual qualities with which the nation's journalists are supposedly invested? Where is the news media willing to "speak truth to power," when the "power" is a multi-million-dollar Seth MacFarlane franchise? Is it truly the case that not a single one of these reporters believed that there is anything offensive in showing babies eating horse sperm on a Sunday night cartoon? Do none of America's media commentators believe there is anything indecent about describing "a gay eleven-way" in a show on at 8:00 p.m.? Are there no mainstream bloggers who think that mocking deaf children as "signing frantically" as they die is at all problematic? Is there nothing in this episode which any journalist, critic, or blogger found even mildly offensive or worthy of concern? Family Guy's doesn't content bother any of them? Really?

I am not a fan of The Family Guy. I don't watch the show and frankly some of the things that are described by both mainstream critics and bloggers were enough to persuade me that this show isn't for me. And yet I still defend it. In this case I defend it because even though the material may be offensive to some, it doesn't seem to me to meet any of the standards set by the FCC for censure, just as the episode of Las Vegas that they complained about to the FCC didn't seem to me to meet those standards. Mostly I defend it because this is a case of a small minority trying to decide what all other Americans should be allowed to watch. If every one of the PTC's alleged 1.3 million members were to sign a complaint form they would still be less than one-fifth of the 7.17 million people who watched that episode of Family Guy and quite clearly were not offended by the show, but of course there is no medium for them to make their case.

More and more I have come to regard the PTC as the schoolyard bully who when challenged complains that he is being bullied. There is no doubt that the PTC does try to bully producers, advertisers, networks, TV critics, the media, and in a way even the public it claims to serve. In the case of critics and the media, the organization makes the claim that they are out of touch with the beliefs of "average Americans" which is why the TV critic is a disappearing breed, while those in the media who don't cover the PTC and their actions (specifically their FCC complaints) in a manner that the PTC wants them to then it is the media who "refuses to speak truth to power" that does the work of the evil Seth MacFarlane and presumably (by logicl extension) other producers and shows that the PTC finds objectionable in silencing or ridiculing the PTC before the public. And yet surely if the PTC really did represent the views of "average Americans" they would have more members and the audiences for shows that the PTC finds objectionable, like Family Guy, would decline rather than staying stable or growing. If the PTC is really representing the views of "average Americans" then why isn't their membership larger than the viewership of Family Guy? My conclusion is that they represent only themselves and that while average Americans may be concerned with sex and violence on TV their definitions of what is objectionable are radically different from the puritanical views of the PTC leadership and their members and that real average Americans are dealing with the situation on their own without the "help" of the PTC and without using the organizations "big complaint machine." But what do I know – I'm just a not particularly average Canadian.

PTC Officially Nuts

I mean we already knew that right? But if we needed any more confirmation it comes from Billboard, and just about every newspaper in North America.

The Parents Television Council is demanding that radio stations not play Britney Spears's new single If U Seek Amy. It seems that the PTC has determined that if you say the words fast (and you've got a smut focused mind like the PTC does) it sounds as you are spelling out a naughty word:

If U See Kay Me

The PTC is telling radio stations not to broadcast the song between the hours of 6 a.m. and 10 p.m. because the Council believes it would violate the Broadcast Decency Act. In the words of PTC president Tim Winter, "There is no misinterpreting the lyrics to this song, and it's certainly not about a girl named Amy. It's one thing for a song with these lyrics to be included on a CD so that fans who wish to hear it can do so, but it's an entirely different matter when this song is played over the publicly-owned airwaves, especially at a time when children are likely to be in the listening audience."

There's been no comment from Jive, the label that is releasing Britney's new CD Circus on which If U Seek Amy can be found, or from Spears's "people," but think they're grateful to the PTC for playing their part in publicizing the CD and the downloads of the song. According to the Billboard report published on Wednesday, If U Seek Amy, the track is 92 on the Billboard Pop 100 and had entered rotation on six top 40 radio stations, and had sold 107,000 copies digitally according to Nielsen SoundScan.

Note to Julius Genachowski: When you're confirmed as head of the FCC, treat any PTC complaints on this song with the respect they deserve. Remember, "sanity not censorship."

Out With The Old; In With The New

With the inauguration of Barack Obama as President of the United States, numerous Bush appointees submitted their resignations. And so we bid a not so fond farewell to Kevin Martin as Chairman of the Federal Communications Commission in the United States. Martin's management style at the FCC has been described by a Congressional Report as a, "heavy-handed, opaque, and non-collegial management style has created distrust, suspicion, and turmoil among the five current commissioners." Michigan Congressman John Dingell of the House Commerce Committee wrote to Martin in December 2007 stating that "given several events and proceedings over the past year, I am rapidly losing confidence that the commission has been conducting its affairs in an appropriate manner." Dingell also accused Martin of "keeping his fellow commissioners in the dark in an attempt to push through policy," and this, combined with his actions in cable industry proceedings and attempts to relax newpaper-broadcast cross-ownership restrictions, led Dingell to claims that Martins actions "lead to larger concerns as to the inclination and ability of the commission to perform its core mission: the implementation of federal law to serve the public interest." Of course Martin's actions in media censorship, which seem to reflect Bush administration policy are what concern us most at this blog. It is a sad and irresponsible record of increased fines and decisions which fly in the face of decades of procedures and precedents, that took attention away from the real and important work of the FCC.

The question of course is what can we expect from the Obama administration. The new president has selected Julius Genachowski, a former Harvard Law classmate of his who was one of the editors of the Harvard Law Review when Obama was the organization's president. Genachowski graduated magna cum laude from Columbia College of Columbia University with a BA in history and magna cum laude from Harvard Law School. Following law school he clerked for Supreme Court Justices William Brennan and David Souter. He worked for the committee investigating the Iran-Contra affair, and for Congressman Chuck Schumer. He was general counsel to Reed Hundt during his term as FCC chairman until 1996. In private business Genachowski worked for Barry Diller as Chief of Business Operations at IAC/InterActive Corporation. He has also been on the board of directors at Expedia, Hotels.com and Ticketmaster during his time with Diller. He is one of the founding partners of Rock Creek Ventures and LaunchBox Digital, and until his appointment is confirmed serves on the boards of The Motley Fool, Web.com, Mark Ecko Enterprises, and Beliefnet. He is also a special advisor to General Atlantic, and helped found the New Resource Bank, America's first commercial "green bank." During the election campaign he led on the Technology, Media and Telecommunications working group, and headed the Obama Transition Team's Technology, Innovation, and Government Reform Group. According to Wikipedia, Genachowski "advised and guided the Obama campaign's innovative use of technology and the Internet for grassroots engagement and participation."

Genachowski's major concern upon taking office will....not be "broadcast decency" (censorship) and First Amendment. In fact broadcast decency probably won't a major concern for the FCC Chairman, nor should it be. Despite the Parents Television Council and their perpetual complaints, broadcast decency is probably the least of what the FCC does. Undoubtedly Genachowski's first major challenge will be the Digital TV conversion and the possibility of delaying the transition from February 17^th to June 12^th. In fact a bill was introduced by Senator Jay Rockefeller earlier this month with the support of President Obama. According to eWeek.com, some two million Americans are still waiting for the $40 coupons that will defray the cost of purchasing the necessary converter boxes. Further, the National Television and Information Administration announced that funding for the $1.34 billion coupon program has at least temporarily been exhausted. According to Nielsen, in December 6.8% of American households were completely unready for the digital transition, with 11.5% of Hispanic households completely unready and 9.9% of households where the head of household was under 35. Clearly this is an issue that needs to be addressed immediately as opposed to the silliness of someone being seen on live TV giving Mickey Rourke the finger at the Golden Globes.

Other issues that will be confronting Julius Genachowski at the FCC include Net Neutrality, media consolidation, the availability of high speed internet services. On several of these issues we know where Genachowski stands thanks to what has been published in the Obama campaign's Technology and Innovation Plan which was largely Genachowski's work. There were three main points to the plan: open government, open networks and open markets. His involvement in the dot.com field has given him a special interest in net neutrality, the effort to prevent broadband service providers from discriminating against services that overlap with their own business concerns, such as voice over IP (VOIP). The expansion of affordable broadband access would be an attempt to usage up to the levels of other countries which are more advanced in this area. According to WebsiteOptimization.com, as of 2008 the United States was fifteenth in broadband penetration in terms of subscribers per 100 inhabitants (25.0 – Denmark, with 36.7 per 100 inhabitants was in first place), and fifth among G7 countries (Canada and the UK are the top G7 countries). In addition, as Ars Technica reports that "high speed" is still currently defined by the FCC as speeds greater than 200 kbps.

The question of open markets applies to media consolidation. According to Ars Technica, it is likely that a Genachowski FCC would not have approved the mergers between AT&T and BellSouth, or Sirius and XM Radio. As well the regulations regarding newspaper and television cross-ownership, relaxed in November 2007 by Kevin Martin, would not have been changed. There is also a sense that the new FCC chairman will not be as ready to pursue Martin's policy of trying to force cable companies to offer channels on an ala carte basis through a host of new regulations. These regulations have in turn led to a dozen lawsuits brought by the cable industry.

But as I have said, it is the issue of "broadcast decency" and First Amendment considerations related to it that will shape our impression of Julius Genachowski and his tenure as FCC chairman. For better or for worse – mostly for worse – it is this area where the popular perception of the FCC is formed, not in its administration of Net Neutrality, media consolidation, or definition of what constitutes high speed internet. And as we all know the Kevin Martin years – and to a lesser extent the Michael Powell years – were a period when decisions on these issues scarred that perception as the opinions of fringe groups like the American Family Association and the Parents Television Council were given far greater weight than in the past, and more fines were levied and the maximum size of the fines went up by a power of 10.

We know what the Parents Television Council wants. In their press release "congratulating" Julius Genachowski on his selection to be head of the FCC they stated that, "We call on the FCC to focus squarely on its legal obligation to uphold broadcast decency standards, despite the fact that the TV networks seem determined to ignore the written law, the intent of Congress, and the will of the American people at every turn. We also encourage the new FCC to continue to work toward ensuring consumers' access to the quality cable programming of their choice and to provide consumers and families the ability to choose and pay for only the TV programming they want coming into their homes." They reiterated this when they called on the Senate Commerce Committee to "ensure that Mr. Genachowki is questioned fully about his commitment to enforce federal broadcast decency law and to resolve the tens of thousands of indecency complaints received by the Commission before being confirmed." They can hope, but there is ample evidence that they won't get what they're hoping for. As we've already noted, Genachowski is viewed as not being a proponent of ala carte cable pricing, and is being seen as at least partly being pro-consumer in this aspect (not surprisingly; from experience I know that ala carte pricing tends to be more expensive for consumers than bundling of cable channels). But where does he, and the Obama administration, stand on "broadcast decency" (or censorship). There are some interesting clues, which would probably be regarded as negative by the PTC and others with their point of view but hopeful for those of us who believe that the Martin FCC has gone too far in this area.

"Broadcast decency" as an issue seems to cross party lines. While Kevin Martin is strongly associated with the issue, his Democratic colleague on the Commission, Michael Copps, has been strong on the issue as have Democratic Senators Jay Rockefeller and Daniel Inouye. Still broadcasters hope that Genchowksi's appointment will mean a return to the more restrained enforcement, and they have some reason for hope. Genachowski is after all a founding board member of Common Sense Media, a non-partisan organization focussing on "parental education and control issues." Common Sense Media's ten point mission statement may give a huge hint about the direction his administration of the FCC will take:

• We believe in media sanity, not censorship.
  
• We believe that media has truly become "the other parent" in our kids' lives, powerfully affecting their mental, physical, and social development.
  
• We believe in teaching our kids to be savvy media interpreters -- we can't cover their eyes but we can teach them to see.
  
• We believe parents should have a choice and a voice about the media our kids consume. Every family is different but all need information.
  
• We believe that the price for free and open media is a bit of extra homework for families. Parents need to know about media content and need to manage media use.
  
• We believe that through informed decision making, we can improve the media landscape one decision at a time.
  
• We believe appropriate regulations about right time, right place, and right manner exist. They need to be upheld by our elected and appointed leaders.
  
• We believe in age-appropriate media and that the media industry needs to act responsibly as it creates and markets content for each audience.
  
• We believe ratings systems should be independent and transparent for all media.
  
• We believe in diversity of programming and media ownership.
  

While I suppose that the statement about appropriate regulations about time, place and manner and the need to uphold these may be worrying, given the way tht the PTC has used the current "safe harbour" regulations to demand fines for shows that air after 10 p.m. (the safe harbour time) in some areas of the country and at 9 p.m. in the Central and Mountain time zones, it is also heartening that the organization advocates "sanity not censorship." As part of an article on Genachowski's appointment The Hollywood Reporter spoke to Common Sense Media CEO Jim Steyer: "'As a devoted dad, he will always take the interests of parents and kids into consideration when important decisions are made at the FCC,' Common Sense Media CEO Jim Steyer said in an interview. However, he said he expects Genachowski to avoid ideological fervor. 'Our motto is "sanity, not censorship,'" he said. "Julius is a First Amendment scholar and will be a great voice for sanity."

Certainly a visit to the Common Sense Media website is a far better experience than the PTC website. Set aside the whole question of web design a search for any TV show provides a far more helpful experience. They don't accept the proposition – common for the PTC – that content that the organization finds unacceptable totally destroys any relevance or quality that the show would have. Take for example Family Guy, a show that the PTC has consistently and repeatedly attacked as being practically too lewd to be seen on TV at any time is given a three star rating as far as being "any good" as well as a scale that shows how acceptable content is for kids (for Family Guy the "minimal acceptable age" given by the site is 14 – exactly what it's Parental Guideline rating is). In addition they have a section on parent and kid reviews, warnings about content in the areas of sex, message, violence and language, and probably most importantly a "Parents need to know" section that not only states what the reviewer thinks about the show but also discussion issues for parents watching shows with their kids (an example from the Family Guy review: "Families can talk about when politically correct attitudes are helpful and when they can be harmful. Peter Griffin's love of television above and beyond everything else could also be discussed -- is this the way anyone should look at the world?"). Where the PTC would – and does – judge every show based entirely on how much objectionable content there is in the show, Common Sense Media will acknowledge that while a show may be unsuitable for kids (although many TV-MA shows get a "minimal acceptable age" rating of 16) it can still be a great show.

I doubt that Julius Genachowski will adopt the suggestion made by TV Week columnist and deputy editor Josef Adalian that, "Ideally, Mr. Genachowski would declare the FCC is getting out of the business of regulating what broadcasters can and cannot air at certain hours. He would recognize the lunacy of trying to protect kids from so-called obscene content on a few channels when the rest of their media universe offers easy access to such content." On the other hand I sincerely believe – or maybe just hope – that someone who has had the experience with the FCC that he has had will recognise the damage that Kevin Martin has done to the FCC through his crusade on broadcast decency which has unleashed a climate of fear among network and local broadcasters. Broadcasters need to know that what was acceptable last year, or a decade ago or thirty years (and longer) ago is acceptable today. Under Martin the lines weren't clear – broadcasters were famously afraid to air Saving Private Ryan (for example) even though the movie had aired uncut a year before because they were afraid that doing so would lead to a fine of over $300,000. Hopefully, under Genachowski, complaints and situations will be evaluated on a case by case basis the way they were before Kevin Martin.

Who Does The PTC Hate THIS Week – November 13, 2008

What I thought was going to be a short one this time around for a couple of reasons. First, I spent Friday and Saturday getting my brother mostly moved out of my house and into his new (to him) home. And in typical Greg fashion, this meant loading and unloading a trailer late into the evening (the last load on Friday went out of here at 10 at night – you try loading a trailer from a garage with no lights into a trailer which obviously had no internal lights at that time of night). And also typically, in Greg's view I am totally incapable of doing even the simplest chores correctly. Oh well, at least I can reclaim the use of the HDTV and the PVR on a more regular basis than I could when he was around and watching what he wanted – usually whatever sports were in season.

The second reason why this is short – well okay, shorter – is because there seems to be something wrong with the links at the PTC's website, which affects one article and the video clips. Clicking on the link to the article CBS Breaks Its Decency Pledge: Part 2 of 2 gets an error message: "Microsoft VBScript compilation error '800a0409'." Clicking on the video links in the articles on Gossip Girl and Skins gets this message: "Directory Listing Denied This Virtual Directory does not allow contents to be listed." Clearly someone at the PTC isn't doing their coding properly. Now admittedly I think I can probably guess why the PTC thinks that CBS has broken its "Decency Pledge" – the words "F-word" on Big Brother, "fleeting penis" on Survivor, "lap dance" on Two And A Half Men, "consent decree" and probably "Supreme Court" will be prominent – but not actually being able to see this article to be able to ridicule it is probably the biggest loss in this. The video clips are a lesser loss – particularly the Gossip Girl clip, since this is American broadcast network TV after all – but at least in the case of Skins I'd like to see just how much there is that anyone outside the PTC would object to. Oh well, as the song says, "We'll have to muddle through somehow." Meanwhile, to the unpaid PTC intern who reads blogs for mentions of the organization a message: will you please tell your IT guys to be more careful in coding from now on!

Taking a slightly different approach than I have in most of these PTC posts I'm going to start with the Worst Broadcast Show Of The Week. It's Gossip Girl again, and for a reason that I inevitably find a bit perplexing. They start off by looking at the show's self-promotion as a risqué (or is it risky) show: "In its advertising for the program, the network has proudly flaunted legitimate criticism of the show, placing phrases like 'Very Bad for You,' 'Every Parent's Nightmare' and (the PTC's contribution) 'Mind-blowingly Inappropriate' on websites, magazine pages, buses and billboards everywhere." Of course the only quote that the PTC is willing to give a source for is their own, so we aren't even sure where those phrases come from. It could be organizations like the PTC, it could be a TV critic, or it could be The CW's own publicity machine. We don't know.

But then that's not the point of the PTC's piece, it is the November 3^rd episode, which the organization claims, "lived down to its billing." In the episode Blair, a high school senior with ambitions of going to Yale is serving as a chaperone for fifteen year-old Emma who is the daughter of "an elite Yale donor." Emma wants to lose her virginity – that night! It seems that Emma is as competitive with a girl named Muffy as Blair is with Serena (?) and Muffy has arranged to lose her virginity the same night, to the captain of her school's lacrosse team: "'They call him the De-Virginator!' Emma squeals." The article quotes Emma as saying, "I want Bacardi and a boy. This body's open for business!" It's cheesy dialogue but what I find difficult to swallow is the Council's interpretation of Blair's response: "Emma attempts to enlist Blair's help, but Blair is rightly concerned – about her own future: 'She determined to become a woman on my watch. And if I don't help pimp her out, she's going to character assassinate me to the dean.'" So in other words for Blair to be able to have Emma on her side, all she has to do is find a guy for Emma to have sex with, and make sure that no one finds out. This doesn't seem to me to be too difficult a thing to accomplish. And yet as the PTC points out, Blair doesn't help Emma lose her virginity but manages to persuade the younger girl that the "first time" needs to be about more than just being in a competition with Muffy: "Having sex for the first time shouldn't be part of a competition to beat Muffy the Lacrosstitute."

One would think that the PTC would be happy about this – a character on the show talks someone else out of having casual sex, a victory for chastity or at least some version of virtue. Ah, but that would blunt the PTC's righteous indignation over this show – not to mention their efforts to promote a Rand Corporation study on the effects of "frequent exposure to TV sexual content." Instead, the PTC describes Blair's efforts to keep Emma a virgin as "the rankest hypocrisy on the part of the program"! Why? Because "Blair herself, though only a high school senior, has been shown to have had sex with multiple men in past episodes." Setting aside the fact that as a high school senior Blair is above the age of consent in most of the United States (17 is the age of consent in New York where the series is set – there are only about twelve states where the age of consent is 18, while in thirty states and Canada the age of consent is 16), the PTC is saying that Blair's admonitions to Emma about giving up her virginity is invalid because Blair herself is deemed by the PTC to be promiscuous. Of course, we don't know the circumstances of Blair's first sexual encounter; whether her admonitions were because her first time was a "special" romantic event (to her if not for the boy), or because she was in the equivalent of "a competition to beat Muffy the Lacrosstitute" and she has come to regret it since. No, Blair is a slut, and therefore using this character to warn Emma away from a too young first sexual experience (while at the same time protecting her potential entry to Yale) is "the rankest hypocrisy on the part of the program." And I for one find that attitude on the part of the PTC to be the rankest hypocrisy – it's not enough to offer a message against sexual activity at the age of 15, that message has to come from someone that the PTC deems to be "worthy."

When it comes to the Cable Worst Of The Week – another dip into BBC America's Skins – I suppose that the PTC has slightly more to be upset with. Now remember I haven't seen this series. In fact it airs on one of the premium movie channels (Super Channel) up here that I don't subscribe to. The episode in question, the fourth of the second season, deals with the relationship between Tony and Michelle. Tony was hit by a bus at the end of the first season while he was trying to regain his cell phone signal – he was talking to Michelle and trying to tell her he loved her. In this episode Michelle is trying to reignite the sexual part of their relationship, although Tony's memory has been hampered by the accident and he has developed erectile dysfunction. She also has to deal with Scarlett, her new step-sister, to whom she takes an immediate dislike. On a camping trip (onto which Scarlett has invited herself), Michelle has sex with Sid, Tony's best friend who has had a secret crush on her. They have sex which leads to an orgasm for Michelle – her first with a partner – in part because he's both grieving for Tony and has broken up with his long time girlfriend Cassie, who is in Scotland now (or so he thinks).

This is all pretty mature stuff of course, and the show is rated by BBC America as TV-MA, which means that parents who use the V-Chip shouldn't have any difficulty keeping their kids away from it while those who don't should at least know that with that rating it isn't something that their teenagers should be watching. The 10 p.m. Eastern time slot should also be a clue that this show isn't intended for most teenagers. Ah, but none of this matters to the PTC. To them the logical steps seem to be: TV show is about teenagers therefore the target audience must be made up entirely of teenagers. Thus they make sure to paint, in the most horrified of clarity – even if they have to make up some of the motives for the actions of the characters entirely out of their own filthy minds (and since they see the worst in every action on TV those minds are obviously filthy) – the depravity of the characters, and the writers and directors responsible for them. Thus we have this description of Michelle's desire to have sex with Tony: "Tony has recently been hit by a bus and suffered a head injury which affected his memory and bodily responses; but rather than being sympathetic and helpful, teenager Michelle's greatest concern is Tony's inability to have sex with her." They then go into some of the dialog, making sure to titillate by inserting the words that were covered up by the people at BBC America:

Michelle: "You used to say one (muted t**) was bigger than the other. Look at me, for (muted f***'s) sake!"

The topless Michelle straddles Tony, reaching inside his underwear. Her hand is seen moving about inside his shorts as she fondles him. Tony is unable to have an erection, causing Michelle to erupt in rage and slap him:

Michelle: "It's all (muted f*****) up forever… You bastard! What the (muted f***) were you doing in the road? You idiot! You (muted f******) idiot!"

One obvious interpretation of how this scene is written is that Michelle's "rage" at Tony has less to do with Tony's inability to perform than it does with Michelle's own inability to cope with Tony's sudden disability (and the fact that he is not able to act in the one area where their relationship seems to function best) and the unfairness of it all. Onto which is added her mother's new marriage and Michelle's new step-sister Scarlet. The PTC has something to say about this of course: "Michelle is graphically presented with evidence of her mother's sex life, as a workman drops a box containing her mother's vibrators and other sex toys (including a mechanical hand which "walks" about on its fingers). Michelle also watches as her new step-father gropes his own daughter Scarlet's rear, then gets into a hot tub with her, both of them naked." The latter description is probably the most genuinely shocking part of this as it implies an incestuous relationship between Scarlet and her father that apparently isn't dealt with in much more depth. Michelle having sex with Sid is dealt with by the PTC in a typical fashion: "Ultimately, Michelle does manage to quench her desires, though it is with Tony's best friend Sid: Michelle: 'Wasn't that the best night ever?...You made me come, Sid. Nobody's ever done that before!'" The PTC's interpretation of Michelle is that that she is obsessed with sex and is using Sid to satisfy her selfish desires. A different interpretation is that Sid and Michelle – the two people in the group closest to Tony – enter into this event emotionally overwrought by the changes in their friend, and their inability to cope with the changes that the accident has brought. But of course that's too deep for the PTC, or maybe just not tawdry enough.

Here is the PTC's conclusion on Skins. After again citing the Rand Corporation study on the effects of "frequent exposure to TV sexual content" they bring this up: "Skins is aimed directly at teen viewers; and BBC America is doing everything it can to promote the sex-filled program: 'Forget all the predictable controversy of Gossip Girl -- the cool kids have moved onto Skins!' blares one of the network's ads for the show. Given the scientifically documented influence that such programming has on teens, BBC America's continued enthusiasm for the program moves from economic self-interest into willful [sic] negligence." The claim that the show is "is aimed directly at teen viewers" would seem to be contradicted by the network's decision to give it a TV-MA rating which, as Wikipedia notes, means that "This program is not intended for children and therefore may not be suitable for children under the age of 17.... The program may contain extreme graphic violence, strong profanity, overt explicit sexual dialogue, nudity and/or strong sexual content." As for the ad for the show, it is troubling to an extent if it is indeed marketing the show to the teenage viewer. However, what isn't clear (at least not to me, since the only reference I have is to what the PTC says the ad says, and not to the visual imagery) is exactly who "the cool kids" refers to; is it – as the PTC claims – the teenaged viewing audience, or are they the characters on the show?

Since the PTC is making so much of it, it might be appropriate to look at the Rand Corporation study. Or rather what we're able to find out about the study. It was done for journal Pediatrics and published in the November 2008 edition. According to the study's fact sheet (which is where the link above goes to) the study used "data from a national longitudinal sample of youth 12–17 years old at initial sampling. The youth were interviewed first in the spring of 2001 and then reinterviewed one year and three years later. Researchers focused on 23 popular programs that were widely available on broadcast and cable television and contained high levels of sexual content (both depictions of sex as well as dialogue or discussion about sex). The shows included drama, comedy, reality, and animated programs." It was also stated that the study adjusted for other contributing factors, "including living in a single-parent household and engaging in problem behaviors such as skipping school." The researchers claimed that, "the proportion of teens who are likely to become pregnant or be responsible for a pregnancy in their teen years is two times greater among those who view high levels of televised sexual content (those in the 90th percentile) than among those who view low levels (those in the 10th percentile)." A graph provided with the fact sheet showed that the percentage of teens expected to become pregnant or be responsible for a pregnancy at the time of the final interview at age 16 was 5% at the low level and approximately 12% at the high levels. At age 20 at the time of the final interview the percentage for the low percentile group was 10% and for the high percentile group 25%. For the medium exposure group (the 50^th percentile) the figures were 7.5% at age 16 up to approximately 15% at age 20. One interesting aspect of the study is that the percentages for each group listed were roughly parallel throughout the age groups.

The study offered four recommendations:

• TV industry leaders should examine how programming can include messages to teens about the consequences of sexual activity.
  
• Media literacy instruction in middle and high schools can help teens think more critically about the relative absence of negative consequences of sex in TV portrayals and encourage thinking about alternative outcomes to those seen on TV.
  
• Training for pediatricians should include intensified efforts to teach about the effects of media exposure on children's health.
  
• Parents need to monitor their teens' TV viewing and provide education about the consequences of sex. Tools that can help them review television content may be helpful.
  

I can't imagine the PTC being overly enthusiastic about any of these recommendations, particularly the first, which seems to indicate that there is a way to present content that deals with sex and sexuality that goes beyond banning such programming regardless of when the show airs. Certainly they aren't particularly sympathetic to the existing tools that can help parents review and monitor teens TV viewing (the V-Chip being the prominent one), and one can scarcely expect them to embrace the idea of "media literacy instruction in middle and high schools" as a way to get teens to think critically about the depictions of sex in TV portrayals.

While there are aspects of this study that I would like to see more information on – specifically regarding sample size, socio-economic groupings (since teen pregnancy seems to be more common in poorer economic groups), availability or willingness to use contraceptives, and most notably the identities of the programs defined by the study as having high levels of sexual content – there seems to be some validity to the study, particularly when you consider a 2004 study by the Rand Corporation entitled Does Watching Sex on Television Influence Teens' Sexual Activity?
According to that study, there was a correlation between teens watching a lot of shows that contained sexual content – both depictions of sexual activity and sexual talk – and whether they have their first sexual activity in the next year. However there was also evidence of a correlation between shows that offered information about the risks of sexual activity. The study was based on the reactions of teenage viewers to an episode of Friends in which the efficacy of condoms is discussed (the episode is The One Where Rachel Tells...). The researchers drew an interesting conclusion: "The study did not find dramatic changes in teens' sexual knowledge or belief. However, it looked at only a single episode of television, and one that included the somewhat complicated message that condoms almost always work, but sometimes fail, and with huge consequences. The researchers concluded that entertainment shows that include portrayals of sexual risks and consequences can potentially have two beneficial effects on teen sexual awareness: They can teach accurate messages about sexual risks, and they can stimulate a conversation with adults that can reinforce those messages." Needless to say, it is likely that the PTC would condemn this episode of Friends for discussing sex at all.

Moving from sex to language, the PTC has released a new study that claims that the broadcast networks are airing an increasing amount of "harsh profanity." They certainly make this study sound scientific. According to the press release, "This Parents Television Council analysis of foul language on television is based on a comprehensive and exhaustive look at all primetime entertainment programming (sports and news programs excluded) on the major broadcast networks (ABC, CBS, Fox, NBC, CW, MyNetworkTV, UPN and WB) between 1998 and 2007. Every instance of unbleeped or partially-bleeped foul language selected for this analysis was recorded in and retrieved from the PTC's custom-designed Entertainment Tracking System (ETS) database and sorted by word, year, network and timeslot." It certainly sounds impressive and scientific, and the results sound shocking:

• In total, nearly 11,000 expletives (hell, damn, ass, piss, screw, bitch, bastard, suck, crap, shit, and fuck) were aired during primetime on broadcast TV in 2007 – nearly twice as many as in 1998.
  
• Milder expletives like hell, damn, crap, etc., are starting to take a back seat to harsher words. In 1998, 92% of the foul language on TV was comprised of milder expletives. In 2007, 74% of the foul language could be categorized as mild, however, more than a quarter of the expletives a child will hear on TV today will be some form of the f-word, s-word, or the b-word.
  
• The f-word aired only one time on primetime broadcast TV in all of 1998 – yet it appeared 1,147 times on primetime broadcast TV in 2007 on 184 different programs.
  
• The s-word, which appeared only two times in 1998, aired 364 times in 2007 on 133 different programs.
  
• Usage of the b-word on primetime television has increased 196% from 1998 to 2007 (431 to 1277). The number of programs using the b-word likewise increased from 103 in 1998 to 685 in 2007.
  
• The f-word first aired on a UPN show in 1998 at 8:00 p.m. In 1999, the number of times the f-word aired on broadcast television during primetime increased to 11.
  
• In 2007, 52% of the programs that contained the f-word and 55% of the programs that contained the s-word aired during the 8:00 p.m. Family Hour.
  
• In 2007, the f-word aired in 96 shows during the 8:00 p.m. hour. CBS and Fox accounted for almost 60% of all shows airing this expletive.
  
• In 1998, no shows on broadcast television aired the s-word at 8:00 p.m. or 9:00 p.m. By 2007, the s-word appeared in 73 shows at 8:00 p.m. and 52 shows at 9:00 p.m. Fox and ABC accounted for 77% of the shows airing the word during the 9:00 p.m. hour (46% and 31% respectively).
  
• Nearly a quarter (24%) of the programs that aired the f-word and 25% of the programs that aired the s-word in 2007 did not carry the L-descriptor, which would have triggered the mechanism in the V-chip to allow families who do not wish to be exposed to such content to block the programs from coming into their homes.
  
• In 2007, 29% of programs aired the b-word without an L-descriptor, which was more frequent than the f-word and s-word. This may indicate a growing comfort with the word in the networks' standards and practices departments and their failure to even recognize the word as offensive.
  

Okay what to say about this one. I mean besides "what the H-E-Double Hockey Sticks is the 'B-word?" Okay, how about this one; the PTC is full of 'S-word" on this one. For the most part we aren't hearing these words thanks in no small part to the actions of the networks and their standards and practices divisions in bleeping the most offensive words. Which they've been doing since even before the PTC was a gleam in Brent Bozell's eye by the way. But here's the big thing. The PTC notes an increase in the use of the "f-word" and the "s-word" between 1998 and 2007. Now what has happened in this time period? Well of course it's the rise of the reality shows. The degree to which these shows are "reality" is and has been debated from the time that Richard Hatch hit the beach in Pulau for that first episode of Survivor but the one thing that is obvious is that the people's words are their own, expletives and all. Given that these are real people the stark truth would seem to be that this is how people actually talk. And with one notable exception – which I'm certain was a result of the muffled nature of the word – those words are bleeped. With rare exceptions, such as Dr. Mark Greene saying "shit" on an episode of ER (at a time when that word is probably the only appropriate response – the man realises that he's going to die very soon), scripted programming doesn't even try to use the "harsh profanity" like the "s-word" and the "f-word" (not to mention the two "c-words") – I don't know about the "b-word."

But here's the big thing: the PTC complains that "nearly a quarter (24%) of the programs that aired the f-word and 25% of the programs that aired the s-word in 2007 did not carry the L-descriptor, which would have triggered the mechanism in the V-chip to allow families who do not wish to be exposed to such content to block the programs from coming into their homes." But remember that we still aren't actually hearing the words in question. We're hearing a bleep, or nothing at all as the word is edited out. Often we aren't even able to read the lips of person saying the words because their mouths have been blurred or pixellated. So why should there be an L-descriptor added to a show where the offensive words can't be heard or seen but only inferred? To my mind the broadcast networks – while they are increasingly airing shows that include profanities of various strengths including some like "crap" and "suck" that I don't consider to be expletives – are acting responsibly in this matter. The people who aren't acting responsibly are the PTC. This particular press release is designed to inflame their base with a mixture of scare tactics and misinformation.

And just to prove that people on live TV occasionally let a word slip out that they don't intend to, I present this clip from MSNBC's Morning Joe in which Joe Scarborough says "fuck you" and doesn't seem to realise that he has said it even though the other people in the interview react. This particular incident is of some importance because Scarborough has been a strong and vocal advocate of the FCC fines following the Janet Jackson incident, increased FCC fines for indecency, and just about any use of "the f-word." Indeed Glenn Greenwald of Salon.com goes into great detail about Scarborough's activism on this issue, concluding (erroneously as it turns out since MSNBC is a cable network and not subject to FCC fines) with the following: "Using Scarborough's outraged crusades from the past, one would have to conclude that it insufficient that he merely apologize for what he said, and instead, MSNBC must be severely fined for what Scarborough said – especially since it was heard during the morning when many of America's children could be watching. After all – as he so eloquently put it – 'what does it say about our FCC that we've come this far or you could say gone this far backward that somebody could say the "F" word on TV and get the federal government's approval?'" (In fact, although under no legal obligation to do so, MSNBC has imposed a seven second delay on the Morning Joe show.)

Update: The PTC reacted predictably to Scarborough's misstep, subsequent apology and the most importantly MSNBC's decision to put Morning Joe on a seven second delay. In a press release dated November 11 - but which didn't actually appear on the organization's website until November 13, Tim Winter of the PTC writes, "We applaud MSNBC for taking the necessary steps to prevent other mishaps like this in the future. Although this is a cable network that is not subject to the same decency standards as broadcast networks, millions of families are grateful for MSNBC’s decision to try to prevent inappropriate language from airing. Scarborough’s outburst apparently caught him by surprise as much as it did viewers and his co-hosts, as he offered a profuse and sincere apology as soon as he realized what he had done. He set a great example by immediately taking responsibility for his actions, and we applaud him for that. His example is rare. And that is what is so concerning: His example is so rare." And then the added a demand - sorry, a "call" for all networks to institue a several second delay on all their live programming: "If a several second tape delay is good enough for MSNBC, then NBC should follow suit with the Today show and its other live programming. In addition, we call on every cable and broadcast network to follow MSNBC’s example. Inappropriate and offensive language is wholly unnecessary and has no place on these programs. We are thankful that MSNBC is going to lead by example." Personally, I was both unimpressed and unsurprised by MSNBC's unforced decision to put Morning Joe on a seven second delay. I think that this sets a dangerous precedent that the PTC has already decided to exploit. Coming as it does while the Supreme Court is deliberating FOX v. FCC, it sends a dangerous message to those who would hand out fines for every occurance of the f-word, s-word or b-word (whatever that may be) and anything else that these pressure groups is "indecent" or "inappropriate and offensive" and that message is that we're willing to surrender our standards to placate you.