Sunday, July 18, 2010

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.

No comments: