Who Does The PTC Hate This Week – October 26, 2008

I confess that sometimes I get complacent about the PTC. Like I did this past month or so. It's the little things that drive you towards this. The vague hope that maybe they are sated, for lack of a better term. Alternately the sense that maybe they're losing steam. Certainly the continuing failure to update the "Misrated" column gives a hint of that. Of course they just might not be able to find interns to slave for them, what with the election and all that. And of course there's the repetitive nature of the thing. I mean how many times can you write about their vendettas against South Park and Rescue Men and Two And A Half Men and My Name Is Earl and just about everything that Seth McFarlane has created. And of course there's always the sense that they've gone about as far as they can go in the stupidity sweepstakes.

And just when you think that can't go any dumber, they get a little bit stupider.

I'm not sure how they're going to top their latest descent into the moronic. In a press release dated October 22^nd the PTC announced to the world – and more importantly to their 1.3 million members and assorted hangers-on – that they were filing an obscenity complaint against one of their perpetual targets, Two And A Half Men. According to the press release, the October 20^th episode "crossed the indecency line." In his statement announcing the complaint PTC President Tim Winter stated, "The shocking episode included a strip club scene that lasts three full minutes and features up close shots of a leading character being 'serviced' by a stripper complete with moaning and other sexual references. The scene was in no way 'fleeting' or accidental; rather, it was specifically written into this scripted program."

At this point gentle (and not so gentle) readers I would refer you to the PTC's "Worst of the Week" page for that very episode. Why? Well the PTC has supplied a clip of the very scene that they are claiming is so indecent that it is worthy of a complaint to the FCC by the PTC and its 1.3 million easily offended members (and assorted hangers on). For those of you using Internet Explorer or Google Chrome, just click the "Play" button on the Player; those of you using Firefox and Safari click the link that says download the clip. Go ahead and do that, I'll wait.

Doh de Doh de Doh Doh Dooooh.

Okay, are we all back? Have we taken care of any uh, side effects, that this scene might have provoked in we poor easily corrupted human males? Good. That is what the PTC currently thinks is indecent! I'm not sure how they get there to be honest with you. The setting is the world's most chaste strip club. The "stripper" in question is wearing more clothes than many women wear on the beach. She is not "Charlotte Ross nude" – the subject of the infamous FCC NYPD Blue decision which is currently under appeal. We are not seeing the "curve of her naked breasts" which was the cause of a PTC complaint about an episode of Las Vegas. No one in the scene is using any of the seven words you can't use on TV including the ones that you've been able to use for a while now. All of the participants in the scene are above the age of consent, which seems to have been the basis for the FCC fine in the Without A Trace "teen orgy" case, nor is it a simulation of a "sexual act" as most of us would be inclined to define it and as the FCC seems to have defined it in that same decision. It is certainly not of the standard of the bachelor party scene from the reality series Married By America which earned FOX an FCC fine. No, to quote the description from the "Worst of the Week" page (because it has the most comprehensive description of the scene that supposedly crossed the indecency line): "The episode begins with Charlie running into teenager Jake's former 5^th grade teacher, Dolores Pasternak. Dolores suffered a nervous breakdown and lost her teaching job after Charlie dumped her, and now works as an exotic dancer known as Desiree Bush. She chews out Charlie for ruining her life. In a rare moment of guilt, Charlie feels responsible for Ms. Paternak's misfortunes and decides to help her. Charlie visits the strip club where she works, bringing his brother Alan along. Once at the strip club, Charlie asks a dancer onstage, 'When does Ms. Bush come out?' The dancer replies, 'Whenever Ben Franklin comes out.' Charlie clarifies, 'I mean Desiree Bush.' He turns and recognizes Dolores' rear waving in front of his face. Dolores/Desiree refuses to talk to Charlie unless he pays for a private dance, whereupon Charlie offers to buy one for Alan. Once in the private room, Dolores bumps and grinds on top of Alan, who moans in pleasure: 'Whoo, doggies!' As she straddles Alan he stops her: 'Excuse me, I've got to readjust. I'm playing ring toss with my car keys.' She mounts him again, tosses her head back and sticks her chest out while Charlie offers to hire her as Jake's tutor. When she asks if Alan agrees with the proposal he squeaks, 'Oh…yes. Yes. YES!'" According to the PTC, "This scene was not just sexually suggestive -- it actually depicted a borderline sexual act. The graphic lap dance crosses the line into indecency." Oh puh-lease! Borderline sexual act? Graphic lap dance?! Maybe to an Islamic mullah, but for the rest of us it's hardly the stuff of arousal to sexual excitement. To be sure the script is full of double entendres, and even single entendres but that's pretty much expected of Two And A Half Men, and besides while it may be done in a way that offends good taste it is most assuredly not done in a way that offends the legal definitions of indecency.

Not surprisingly the mainstream media has not picked up on this story, and to be honest with you I'm not sure that they should if only because they can't give it the sort of ridicule that it truly deserves. I've only found two news items about the complaint. One is from OneNewsNow.com, "a division of the American Family News Network" and a website that has stories about whether Obama "supports the radical homosexual agenda espoused by one of his fundraising co-chairs," or how "there would be no mention of resurrecting the 'Fairness Doctrine' if talk radio were dominated by liberals." (The latter is one of those things that makes anyone with a bit of knowledge burst out laughing; the old and now discontinued "Fairness Doctrine" was established in law with the "Red Lion Decision" before the Supreme Court which essentially allowed regulation of the airwaves by the FCC because of the "scarcity of frequencies." Decry the basis of the Fairness Doctrine and weaken Red Lion and incidentally the case of people like the PTC. Click this link to read about Red Lion.) Obviously they drank buckets full of the cheap Kool-Aid substitute. The other news report is from TVNewsday which essentially reprints the PTC press release without comment. However broadening my search a bit further I came upon this from Tom Jicha, TV critic for the South Florida Sun-Sentinal and fellow PTC hater: "The Parents Television Council, which has been having trouble getting its name in the paper because of all the political news, announced it is filing a complaint with the FCC over Monday's episode of Two and a Half Men. The scene in dispute involved Jon Cryer's character getting a fairly explicit strip club lap dance. As it played out, I thought to myself, the Moral Mafia is going to get all worked up--no pun intended--over this. They never disappoint. They are still bringing up Janet Jackson's Super Bowl wardrobe malfunction, largely because it was the last time anyone paid them serious attention. The Super Bowl, they had a point. That was an ambush. But anyone who doesn't know by now that Two and a Half Men is the raciest (and funniest) show on TV shouldn't be allowed near a remote control. This complaint, like almost all the other thousands the PTC and their fellow travelers file, will get nowhere but it will win them some attention that will help in fund-raising, which is what this is all about." He's right of course (except that I didn't find the scene all that racy but then I'm a Canadian and we're made of and used to stronger stuff) but really, the very fact that they even think they have grounds to complain makes it noteworthy in the annals of PTC intolerance.

I'm only going to give brief mention to the PTC's current Worst on Cable. It's another attack on the BBC America presentation of Skins which originally aired on Britain's E4, a satellite station owned by Channel 4, a broadcast network that is known for its cutting edge dramas. The series subsequently aired on the broadcast channel. The particular episode that the PTC found objectionable was a second season episode called Sketch, in which a teenage girl develops a major infatuation of Maxxie – an openly gay male character that goes to the point of stalking. When Maxxie gives her slight encouragement – he asks if she's "single" intending to set her up with his friend Anwar her obsession takes off, to the point where she sneaks into his room and masturbates on his bed upt to the time when he comes home at which point she hides under his bed and apparently stays there all night. Later, when she does surrender her virginity to Anwar, it is apparent from the way the scene is shot (as seen in the clip that accompanies the article) that the only enjoyment she gets out of the act comes from looking at a picture of Anwar and Maxxie, and presumably imagining that it is Maxxie who is making love to her rather than Anwar copulating with her. Having described the situation in explicit detail, the PTC doesn't seem to have many placed to take it. They don't even enter into their usual diatribe demanding Cable Choice and asking why the public is "forced to subsidize" programming such as this. Instead they latch onto something in an "inside look" type commentary that aired during the episode: "Incredibly, during an "inside look" at the show that aired during a commercial break, one of the actors made the audacious claim that '[Skins] is a very true-to-life program.' Only on TV are stalking, hiding in other people's rooms watching them undress, and masturbating in other people's beds considered 'true-to-life.'" But of course the character of Sketch is emotionally damaged – something that the PTC writer admits in his piece – and if there's one thing that we know from "real life" it is that stalkers exist and they are people who are emotionally damaged, and that they do things that go far beyond "hiding in other people's rooms watching them undress, and masturbating in other people's beds." But of course the PTC expects Sketch to be portrayed as though she were emotionally stable even after admitting that she isn't emotionally stable. And this is used as evidence that "Increasingly, on shows like Gossip Girl and Skins, sex is treated as a weapon, a tool girls must use to manipulate men at the expense of their own body. In this toxic media environment, sexual deviance is routinely pawned off as normal." But of course in Skins at least, that isn't the case; Sketch's activities, her "sexual deviance" as the PTC puts it, is most assuredly not portrayed as normal but rather the acts of a disturbed person.

Finally we turn to the PTC's TV Trends column. This time around the Council takes another run at demonizing anyone who dares to appeal an FCC decision that the PTC agrees with. The target this time around is NewsCorp President Peter Chernin. Chernin was recently given the Media Institute's Freedom of Speech Award – or as the PTC puts it, "the Media Institute's so-called 'Freedom of Speech' award." I want to start this part of this post with the conclusion that the writer of this latest screed offers: "Peter Chernin and his fellow media oligarchs claim that their 'First Amendment rights' are in jeopardy. Given the use to which they are already putting their freedoms – and the public's airwaves -- one may legitimately ask: if the Supreme Court rules in favor of Fox and allows it to air whatever offensive and harmful material it wishes, can America's cultural suicide be far behind?" Beyond the fact that I love how the writer puts the words "First Amendment rights" in quotes, as if such rights are an illusion or somehow non-existent for Chernin or the "media oligarchs" or maybe just the broadcast media in general, I have to wonder at a culture so fragile that someone saying "fuck" or "shit" on TV in the heat of the moment will lead to "America's cultural suicide." Because that of course is the issue that the PTC writer is so incensed about, the upcoming Supreme Court appeal of the "fleeting obscenities" ruling by the Second Circuit Court.

But let's go back to the beginning of the article. Chernin had made a speech after accepting the Media Institute Freedom of Speech award which was reported in Broadcast & Cable. The PTC claims that in that speech Chernins said that "the regulation of indecent and obscene entertainment programming on broadcast TV will somehow automatically lead to the overthrow of the democratic process in American politics." As usual this is a case of the PTC deliberately misinterpreting someone's words because what was actually said does not aid their cause. Here is the relevant portion of what Chernin said, as reported by Broadcast & Cable. He begins by noting the coincidence that the FOX case and the US elections are being held on the same day:

Chernin said the coincidence of the two events was appropriate. "The Fox case, if successful, is an affirmation of the First Amendment. The election is an affirmation of our democratic process. And the two are inextricably intertwined. The First Amendment is central to our democratic process because it ensures a full and open dialogue about the candidates for office. Without the First Amendment, our democracy could not be sustained," he said.

"While a case with Cher and Nicole Richie at its center is probably not one we would have chosen to argue before the Supreme Court," said Chernin, "we don't get to pick our cases. In fact, if anyone had told me that my company would be before the U.S. Supreme Court defending inane comments by Cher and Nicole Ritchie, I would have said, 'You're crazy.' But I would contend that the nature of this speech, and who said it, makes absolutely no difference."

That's because Chernin called the heart of the case "an absolute threat to the First Amendment. It hinges on utterances that were unscripted on live television. If we are found in violation, just think about the radical ramifications for live programming – from news, to politics, to sports. In fact, to every live broadcast television event. The effect would be appalling."

"As a media company," said Chernin, "we have not just a right but a responsibility to stand up to the government when it crosses that First Amendment line in the sand – even if the content we are defending is in bad taste. And in the indecency context, that line has not only been crossed, it has been obliterated," he said.

Now I may be blind, but I don't see anything like what the PTC claimed was in his speech in this article. You know, the part about "the regulation of indecent and obscene entertainment programming on broadcast TV will somehow automatically lead to the overthrow of the democratic process in American politics."

Of course for the PTC what a finding for FOX in this case will mean is a blanket permission to "allow any kind of language on TV, in any amount and at any time of day." But Chernin is clear in his statement that this is not what this case is about: "It hinges on utterances that were unscripted on live television. If we are found in violation, just think about the radical ramifications for live programming – from news, to politics, to sports. In fact, to every live broadcast television event." And in fact that is the context of the case. The court is dealing with a sudden and arbitrary change in a policy that had been in place essentially since the beginning of the FCC's ability to deal with "indecent" content – the understanding that from time to time people on a live broadcast might forget themselves and say a word that under most circumstances would not be allowed, or that such a word might inadvertently be picked up on a microphone.

Then again, to the PTC, FOX is a veritable cess pool of unacceptable content, worse even than the other broadcast networks. The PTC says of this, "Clearly, Peter Chernin has an extremely high opinion of the programming that his networks currently air. In such a context, it is fair to ask: if Fox is demanding the 'right' to air anything it wants, any time it wants, what are the contributions the network currently makes to American culture and civil discourse?" They give as an example – inevitably given the PTC's attitude toward Seth MacFarlane – a couple of scenes from recent episodes of American Dad and Family Guy. I won't go into details except to mention a comment in parentheses at the end of the excerpts: "Of course, if Fox gets its way, "f******" – and every other profanity -- will never be bleeped again." Not true, as we've seen from Chernin's previous statement. However I will counter with what Peter Chernin said in his speech:

Chernin conceded some of the content Fox was defending in this and other cases "is not particularly tasteful," citing "expletives, the brief nudity, carefully placed whipped cream, and, of course, the pixels." He said he would not have allowed his kids when they were younger to watch some of those shows. But he also said Fox would "fight to the end for our ability to put occasionally controversial, offensive, and even tasteless content on the air."

That doesn't mean Fox doesn't make mistakes, he said, but the alternative is a media "ruled by fear of crossing an ambiguous line. Then, he says, the product becomes "less vital and more homogenous," viewers will have less choice, programming that is "provocative and accurately reflects our society will be compromised," and the First Amendment would be chipped away "until it becomes toothless."

The writer of this piece goes to great lengths to attack Chernin's position as being not just ill-formed but elitist and therefore invalid. Part of this is pointing out that the Media Institutes Board of Trustees are "oligarchs" by thoughtfully providing a link to the Institute web page that lists the members of the Board, most of whom are executives at various media companies ranging from Time Warner and NBC Universal to Belo Corporation and Clear Channel. They don't distinguish between the political viewpoints of the various companies or their executives – which I suspect is far more diverse than the political viewpoints of the leaders of the PTC – but that omission is most likely an attempt to make it seem that they all hold a unitary view. The use of the term Oligarchy – rule by a self determined elite who decides what is and isn't good for you – is a keystone for the PTC's argument on this issue since it allows them to paint it as "The People", as defined and given voice by the PTC, versus the evil elite. In fact they come right out and say it:

The entertainment industry often claims that the Parents Television Council is a tiny minority unrepresentative of most Americans, and that therefore our actions in advocating modest limits on indecency should be ignored. But considering that approximately 90% of everything Americans see, hear or read in the media is ultimately controlled by a few dozen network presidents and corporate chairmen, and possibly a few hundred more writers and producers, such a claim rings false. The PTC would willingly wager that our more than 1.3 million members are more in tune with the thoughts and feelings of average Americans than are a tiny clique of media bosses and their so-called 'creative' lackeys.

Obviously the matter of the PTC's so-called "modest limits on indecency" is questionable given the subjects of the their most recent campaigns (The Today Show "obscenity", the Survivor penis, and the Two And A Half Men lap dance) but I have serious doubts that the PTC's 1.3 million members is truly in tune with the majority of the 305.1 million people in the United States.

The PTC takes a very definite leap in logic in "proving" that the American public supports the action of the FCC in levying the fine against FOX on the "fleeting obscenity" issue. See if you can follow this (Emphasis is theirs):

The position held by Peter Chernin and his media cronies is that the U.S. government, following mandates from a Congress elected by the American people, should not enforce the common-sense standards of decency that the overwhelming majority of Americans want. That the overwhelming majority of Americans do want such common-sense standards of decency in entertainment is undeniable; in 2006, the people's elected representatives in the United States Congress passed the Broadcast Decency Enforcement Act, increasing FCC fines for indecent content on broadcast TV. The House of Representatives voted in favor of this measure by a 10-1 margin; the Senate passed it unanimously.

But, because such measures do not meet with the approval of Peter Chernin and his fellow multi-millionaire moguls who control broadcast, cable and satellite television, radio networks, film studios, music companies, newspapers, magazines, and book publishing firms, these bosses demand that the law be overturned. The desires of average Americans be damned, say the Overlords of Media; anything that would limit the entertainment industry's "freedom" to make more obscene profits by deluging Americans with indecent and offensive content must not be allowed.

The logic is so faulty that it is laughable. Setting aside the fact that the Broadcast Decency Enforcement Act of 2005 (not 2006) does not deal with the definition of indecent or obscene content but rather with increasing fines for content defined by the FCC as being obscene or indecent, we are supposed to believe that that the "overwhelming majority of Americans" want this because their elected representatives voted for it en masse. This is, of course because the Representatives and Senators all asked everyone in their states whether or not they should vote for this measure. This is at best fallacious logic on the PTC's part. Let's set aside the dangers that the increased fines pose in terms of creating a chill in terms of what can be broadcast, as described in an article by Garrison Keillor in Salon in September 2005. Let's even set aside the views of the Ayn Rand Center for Individual Rights (yeah I'm shocked that I'm citing them but it's a worthwhile quote) which wrote:

The Broadcast Decency Enforcement Act, which increases the fines for the broadcast of "obscene, indecent, and profane language," is itself an indecent obscenity.

The FCC's power to regulate any speech is a violation of the right to free speech. The First Amendment clearly states: "Congress shall make no law . . . abridging the freedom of speech, or of the press." Such freedom requires that the airwaves, like the printing press, be used in complete freedom – any way their owners wish (short of libel, fraud and the like). Just as each individual should determine what he sees or hears, so each media company should determine what it broadcasts.

Parents – not media professionals or government bureaucrats – are the ones who have the responsibility for supervising what their children see and hear in the media. If people find a program objectionable, they are free to turn it off. It is as simple as that.

Instead, let's get back to the facts of the case that the Supreme Court will be hearing on November 4^th. The focus of the case is on the actions of the FCC in rewriting a policy that had been in place for over 50 years. In doing so, and not adequately explaining why it had abandoned this policy, the FCC was acting in violation of the Administrative Procedures which prohibits "arbitrary and capricious" behaviour by government agencies. In other words the FCC, an agency of the U.S. Government acted contrary to the laws of the United States. That this is a First Amendment question is obvious, but it is first and foremost a question of abuse of power.

It is actually my opinion that the position supported by the PTC is losing rather than gaining strength. Certainly that's the case amongst powerful people. Congressman John Dingel of Michigan of the House Commerce Committee wrote in a December 2007 letter to Kevin Martin FCC, 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." In August of this year former FCC Chairmen Newton Minnow and Mark Fowler along with five other former officials of the Commission wrote in an amicus brief for the Supreme Court, "The indecency controls that began as a limited tool for reining in a small number of provocative broadcast personalities and irresponsible licensees have become a rallying cry for a revival of Nineteenth Century Comstockery," and they added that "Broadcasting is no longer unique and it is time for the Court to bring its views of the electronic media into alignment with contemporary technological and social reality." In September former FCC Chairman Michael Powell stated at a National Press Club Event that he had been wrong in approving the policy change: "It was a terrible mistake and I voted for it." He also said at the same event that the agency's regulation of broadcast decency had "gone way too far—we are dancing with the limits of the Constitution." But perhaps the most interesting position on this comes from Supreme Court Justice John Paul Stephens, who wrote the majority decision in FCC v Pacifica and is still a member of the court. In 2002, in a concurrent opinion on ACLU v Ashcroft Stephens wrote, "As a judge, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing."

I don't pretend to know how the Supreme Court will rule on the "Fleeting Obscenities" case, although I obviously know how I would like them to rule (and I also know that this would not have been an issue in Canada). I do know that I found the PTC's rhetoric in this piece to be typically self-important and sneering and in a very real way dangerous. It's not something to be looked at complacently.

Who Does The PTC Hate This Month – October 2008

It's been a while since I've done one of these pieces. Part of the problem – or my lack of motivation, I'm not sure which – was that there wasn't much that I considered new and exciting. The PTC files an Amicus Brief on a case even as they criticize others for filing an Amicus Brief that they disagree with? Yawn. The PTC takes credit for something that they had little – no I take that back, nothing – to do with. Same old same old. The PTC gives out one of its awards to a company that it likes and announces the selection of a new board member. Okay, whatever. The PTC tries to use its supposed one million members "who hold a variety of political positions" (and wasn't that written poorly; that suggests that all 1.3 million hold some sort of political office rather than holding political opinions – and I still think the vast majority are Republicans) calling for a focus on TV decency and cable choice. Ho-hum, BORING!

No, for me the big thing has been the absence of really new stuff. The shows that they have been taking a rip over the past couple of months, for the most part, have been reruns. Sometimes in fact they are shows that were previously ripped by the PTC for pretty much the same thing that they're being ripped for this time around. Probably the most blatant example is part of the PTC's vendetta against Seth MacFarlane's Family Guy. Last week the PTC did one of their Worst Shows on TV pieces on the Star Wars satire episode of Family Guy. The interesting thing here was that the PTC stated in their article, "When Fox originally aired the Family Guy's parody episode of Star Wars entitled, "Blue Harvest," it managed to avoid being named Worst TV Show of the Week only by topping our Misrated column. The September 21^st rerun at 9:00 p.m. ET, however, did not escape the PTC's scrutiny and has been named Worst TV Show of the Week for being just as raunchy the second time around." They go further than this; from what I can recall of the original Misrated piece (and as usual with the PTC there are no links unless it's something they want to link to) a considerable amount the new review wsa cut and pasted from the original PTC piece. Summer is an off time everyone, including I presume, the PTC.

I've got a couple of good stories on the PTC's efforts to get the FCC to fine networks for perceived violations of decency regulations. I was going to start with the more recent incident first and deal with the event that I am going to talk about now only parenthetically but there are a couple of rather interesting developments on this front that I really want to delve into. According to an article from Ars Technica, "On September 11, host Matt Lauer asked daredevil Hans Lange what his reaction was to crash-parachuting into a mountain wall from thousands of feet in the air. 'I was pretty angry with myself,' Lange replied. 'I was like... wahhhh! Holy shit!'" The offending word was removed from tape delayed versions of the episode that aired outside the Eastern Time Zone. Despite this fact the PTC was predictably incensed. In a press release dated the same day as the incident, PTC president Tim Winter slammed NBC for "its arrogance in choosing not to bleep this profanity, and for its arrogance in choosing not to apologize to its viewers, many of whom included children. NBC continues to show a clear pattern of contempt for the broadcast decency law by airing yet another unbleeped profanity on its morning show. The PTC is filing an indecency complaint and is urging its members to speak out about NBC's utter disregard for decency over the public airwaves." They further said, "NBC could have prevented the 's-word' from being aired by using a 5-second delay, but it clearly didn't want to. NBC obviously thought that the 's-word' was inappropriate to air since it scrubbed the word from broadcasts to the Central, Mountain and Pacific Time zones. So why then does NBC believe they can sweep this under the rug for those families in the Eastern Time zone?" They concluded by saying, "The public is entitled to the expectation that television is not going to assault their families during certain times of day and NBC violated that expectation again. We hope viewers speak out about this and we hope the network is held accountable." There was then the usual link to an email form letter for people in the Eastern Time Zone to use to protest the obscenity – without actually requiring the people who were "offended" to have been watching the offensive incident. It was standard PTC stuff right down to rousing the masses to arms regardless of whether or not they had a right to feel offended because they didn't see the actual event, although it was enough for Ars Technica to email "a representative of the PTC asking whether it was appropriate to encourage people who may not have viewed the program to file complaints about it. We also asked how this Today Show episode harms TV watchers, especially those who did not see the interview." Needless to say they received no reply.

The Ars Technica article did include some interesting tidbits which to my mind casts a pall on the whole decision-making process at the FCC. And no, it was not the New York Times editorial board coming out in favour of the Second Circuit Court decision that is under review by the Supreme Court, saying that the FCC policy, "...seriously infringes on free speech." No, the most interesting aspect is a statement for Michael Powell who was one of the commission members who voted for the new policy! Powell, the son of General Colin Powell, and currently John McCain's top technology adviser was an and FCC Commissioner from November 1997 until January 2001 and Chairman of the FCC from January, 2001 until January, 2005. According to a second Ars Technica story, in a wide ranging criticism of the FCC at the National Press Club event that was part of George Mason University's Information Economy Project on September 16^th, Powell stated that the decision on the event that provoked the current wave of indecency prosecutions – Bono's appearance at the Golden Globes – was "a terrible mistake and I voted for it." Going beyond that Powell, who generally holds libertarian views with regards to censorship, stated that the FCC's regulation of broadcast decency has "gone way too far—we are dancing with the limits of the Constitution." According to the Ars Technica article, "If Bono's exclamation was 'indecent,' Powell opined, then the agency had in effect adopted a strict-liability rule, leaving 'no rational principle' for distinguishing 'indecent' from innocent expletives, with the result that enforcement 'becomes terribly political.'" Part of the problem lies with the lack of court opinions on the matter of broadcast decency since the Pacifica Case, despite significant changes in technogy. For Powell however the major point was theso-called "pervasive" nature of broadcast TV. According to Powell, "My kids have no idea what a 'broadcast channel' is. The idea that the First Amendment changes as you go up the dial is silly." He further stated that "the outrage and pressure the FCC faced in the Bono case, and later in the wake of Janet Jackson's Super Bowl 'wardrobe malfunction,' proved that parents themselves were more than capable of penalizing broadcasters who aired inappropriate content during family programming."

Also present at the event was Powell's immediate predecessor as FCC Chairman William Kennard, who served from 1997 to 2001. Although he didn't speak directly to the question of the case before the Supreme Court, he did offer some sense as to at least some of the reasons behind it. According to Kennard a great deal of the problems the FCC faces today stem from the politicization of appointments to the agency dating from a deal that President Clinton made with Senator Trent Lott to allow Republicans to make appointments to boards. According to Kennard, the result is that the agency is becoming demoralized, with political appointees treating the agency's career staff as, "'cannon fodder'—servants to be worked to the bone at best, and at worst, potential troublemakers with their own agendas." It was the professional staff of the FCC who pushed to maintain the status quo (no action on isolated use of profanities – the so-called "fleeting expletive"), and the appointed board members who caved in to pressure who created the current situation, previously described by former FCC heads Newton Minnow and Mark Fowler as "a rallying cry for a revival of Nineteenth Century Comstockery." Ars Technica summed up Kennard's position on the current direction of the FCC by noting that, "Decision-making has become more predictable...as the views of commissioners now tend to reflect those of their patrons on Capitol Hill. As a result, policy-making had also become more contentious and partisan."

I suppose we should turn now to the absurd. On September 30^th, the PTC released a press release demanding that their 1.3 million members inundate the FCC with complaints about nudity on the CBS series Survivor. In typically hysterical PTC rhetoric the organization claimed that it was all part of a nefarious plot on the part of CBS: "Unsatisfied with the growing volume of indecent material on live broadcasts, CBS has once again decided to violate the public trust, this time by including an unedited shot of a penis on Survivor. Although this instance was brief, it was nonetheless shocking and purposeful. Unfortunately, with the number of people inside the network reviewing every frame of video, CBS knew full well of this nudity and elected to include it anyway." The event occurred on the show's second episode which was broadcast as part of the two hour Survivor premiere event on September 25^th. The first reports of the reports of the appearance of the portion of the portion of the male anatomy in question surfaced a day or two after the episode, around September 27^th. It wasn't much of an appearance in either sense of the word – we aren't talking Ron Jeremy or Milton Berle here kiddies – since the penis popped in and out of the boxer shorts of contestant Marcus Lehman for less time than Janet Jackson's nipple was exposed, and it wasn't as immediately obvious that it was the head of a penis as it was that we were seeing Janet Jackson's nipple.

Now here's the sort of interesting (but not very) part. I didn't see it. I watched the show and I didn't see it. Jackie Schnoop, who recaps Survivor for TVSquad as well as her own blog watched the show a lot closer than I did and didn't see it. Hal Boedeker, TV critic of the Orlando Sun watched the episode pretty closely and he didn't see it. More to the point, if we are to believe a CBS statement that is included in Boedeker's article, the editors at CBS and Mark Burnett's production company didn't see it either. Here's the CBS statement: "This was a completely unintentional, inadvertent and fleeting incident that was virtually undetectable when viewed in real time. In the first 24 hours after the broadcast, before freeze-frame images were widely posted online, we received one viewer comment from the 13 million who watched the telecast."

And you know what? I don't think that anyone at the PTC saw it either! Yeah, that's right I think that they missed it too. Look at the time line. The episode aired on September 25^th. If the image of Lehman's wee-wee was so offensive and blatant you would expected them to launch an immediate demand for CBS's license the way they did over the Hans Lange incident, but it was all quiet on the PTC front. After Googling "Survivor + penis" the first reference (NSFW) I was able to find was dated September 27^th. That reference included both still photos and a slow motion (in other words not real time) video clip of the incident (and as I said, NSFW) in a continuous loop. So in other words it took the PTC five days to get outraged by this incident which was supposedly irreparably scarring to every young person who saw the show. Nevertheless the PTC feels empowered to demand an apology from CBS and "as outlined in the FCC consent decree, to take immediate steps to identify who edited the scene into the broadcast and hold that person or those people accountable." Ah well, at least this penis – uh – flap delivered a memorable quote: "CBS's decision to hide behind excuses that the incident was 'fleeting' and didn't generate an immediate flood of complaints is the epitome of irresponsibly [sic]. The number of 'fleeting' penises we expect to see on broadcast television is zero."

Turning from the ridiculous to the merely moronic, it's time to look at the PTC's Worst Show of The Week. The current one is the FOX series Bones. According to the PTC, the October 1^st episode of the show is the worst of the week because of "excessive gore and implied violence." The scene (one scene!) that earned the show this accolade was described in detail more graphic than you'd actually see on the episode by the PTC as follows: "The October 1^st episode began with office workers riding an elevator up a metropolitan high rise. As the elevator car rattles violently, a dismembered, decomposed leg wearing fashionable black pumps falls from overhead. Later, forensic anthropologist, Dr. Temperance 'Bones' Brennan, and her colleague, Dr. Camille Saroyan, inspect the elevator shaft. The camera lingers on hunks of tissue plastered on the wall. 'I'm gonna need a spatula to scrape off all the flesh and the organs,' Dr. Saroyan announces dryly. Dr. Brennan replies, 'The bones are in hundreds of pieces. I want them bagged.' Putrid blood and liquid fester around a severed hand resting on top of the car. The doctors turn their flashlights upward and illuminate the dead woman's remains smeared along the length of the elevator shaft." Having watched the episode (I confess that I'm a confirmed fan of Bones – and many of the other forensic series, but like NCIS, Bones has a personality and a sense of humour that the CSI franchise shows lack – at least intentionally), I have to tell you that that is written in a way that makes it sound a lot worse than it was. And even the PTC admits, "Admittedly, the rest of the show is relatively tame, but it should be noted that the series' goriest material consistently airs at the beginning of the (nonexistent – BM) Family Hour." In other words the PTC objects to the discovery of the bodies. And as the PTC points out, "Unfortunately, parents have little recourse if they wish their children to avoid such scenes while channel surfing." Well except for, you know, changing the channel, turning the TV off, knowing enough not to turn to FOX if the object to the program, setting up the V-Chip to block shows like that. Yeah, parents have virtually no recourse at all in this situation.

But of course the PTC uses this to promote the "bigger issue" – violence on TV. According to the PTC, "Over the years, crime procedurals have contributed to the nearly 100,000 acts of violence that children watch before the age of 18. The consensus within the scientific community affirms that there is a relationship between children who watch violent programming and their aggressive behavior in later life. There is also evidence that watching such programming leads to desensitization towards violence and fear of becoming a victim among child viewers. This past spring, the FCC urged lawmakers to consider regulations that would restrict violent programs to late-evening hours, when fewer children watch television." Of course they don't bother to tell us over how many years the phrase "over the years" means, or whether all of those "100,000 acts of violence that children watch before the age of 18" occurred during the times when children are most likely to be watching TV – the first two hours of prime time. Unsurprisingly (since it is the favoured bastion of the Social Conservative) they echo the current leadership of the FCC in demanding more restrict when violent acts can be seen and the power to levy fines – and of course what constitutes a finable "event" will be left up to the FCC to define. Because that has worked so well with language and nudity.

The PTC doesn't offer a way to check previous Worst Show on Cable in the same way that they do with the worst show on Broadcast TV. Currently the worst show on Cable is an episode of South Park although the current link on the PTC website says that the show is It's Always Sunny In Philadelphia. Neither of these is a surprise of course but a couple of weeks ago the show was the BBC America series Skins which originally appeared on the British network Channel 4. The description on the IMDB page for the shows says, "The story of a group of British teens who are trying to grow up and find love and happiness despite questionable parenting and teachers who more want to be friends (and lovers) rather than authority figures." And that of course is exactly what the PTC objected too. I'm not going to go into their points item by item – mainly because I can't find them. Rather I bring this up because it illustrates the "throw out the baby with the bathwater" problem that is central to the PTC's demands for "cable choice." The PTC would have their members demand that they "not be forced to subsidize" shows that they object to and be able to cancel their subscription to channels that show them. But here is a show that is on a channel which the PTC doesn't ordinarily object to and by most objective standards airs a lot more good material than objectionable. More to the point they air a great many shows that are of high quality by any measure. Are cable subscribers supposed to forego the good programming On BBC America and other networks because they object to the (PTC defined) "bad shows?" Or perhaps the PTC would like to extend cable choice to its ultimate end point where viewers can pick and choose which individual programs they will "subsidize." And here I thought that this is hwy we have advertisers and ratings.

Okay, a quick visit to PTC's Misrated column, even though it's been left unchanged for a few weeks. The show – predictably enough – is Gossip Girl and the PTC article contains a couple of absurd bits of supposition and one outright fabrication in its demand that the show, which was rated TV-14 DL, have an "S" descriptor attached. Here's what the PTC objects to (with my snarky comments in parentheses). "The show opened with Serena and Dan waking up on the beach, apparently having "hooked up" the previous night, with Serena clad only in a bra. (Prove it. Short of seeing Serena bottomless – which would provoke other demands from the PTC – they can't.) Later, on a bus back from the Hamptons to Manhattan, Serena pulls Dan into the bus bathroom, kissing him passionately and presumably proceeding to other sexual activities. (Again, prove it. Oh wait, they said "presumably" which means that they aren't dealing with fact – or even what passes for it among the PTC and their acolytes – but with innuendo and smutty minds.)" But here's the real clanger: "The end of the episode, however, brings the truly appalling scene: Blair looks for her new boyfriend's stepmother Catherine. Blair finds Catherine and teenager Nate on the floor, among discarded items of clothing. Catherine's legs are wrapped around Nate's body and they move against one anther [sic] as they kiss. As Catherine is about 40 years old and Nate is about to begin his senior year of high school, the (mostly teen) audience is exposed to a scene of statutory rape." Uh no. The last time I checked, most high school seniors have passed their 17^th birthday. The show is set in New York City and – I checked this myself – the age of consent in New York states is 17. In Canada and much of the United States the age of consent is 16. So by any definition of statutory rape, Nate and Catherine are not guilty. As far as the scene itself, it's on the PTC's website. I watched it and if that's the worst the PTC can come up with all I can say is that they've obviously come up with a new way to define sex. We see a lot of Catherine's legs (at least I presume they're Catherine's) but everyone seems to have all the necessary clothing – Nate's pants are on and he's still wearing his T-shirt (though admittedly it's pulled up to his shoulders), and Catherine's breasts seem to be covered enough. In short they ain't doing it yet. Maybe this scene qualifies as "moderate sexual activity" which is the standard for the "S" descriptor in a TV-14 show but it seems pretty mild compared with some of the shows that are also rated TV-14 and also don't have the descriptor.

Finally, let's turn to a fellow traveller on this pseudo-crusade of mine against the PTC and their fellow travellers. I first found the link to this article by TVWeek's Joe Adalian thanks to the Creative Voices in Media blog and let's just say that it says all of the things that I've said and feel about the PTC. Adalian's basic point is that while the PTC claims that it does what it does as an organization "Because our children are watching," (the motto on the masthead of their website) the fact is, according to Adalian, "the PTC's actions and words too often have indicated that its real mission includes pushing for government-sanctioned censorship of the media and the elimination of any and all programming that conflicts with its far-right social and political philosophies. What's more, rather than working with networks to figure out ways to increase family-friendly programming and offer true protection to children, the PTC is obsessed with denouncing shows clearly aimed at adult audiences. The PTC doesn't want to make TV safe for kids. It wants to make it safe only for those shows that fit into its narrowly constructed worldview of what constitutes acceptable TV." Adalian cites a number of examples of the PTC condemning shows that may or may not be intended for audiences that include children. Most notable of these was the PTC demands that local CBS affiliates pre-empt the series Swingtown because it "undermines the institutions of marriage and family." Says Adalian: "It doesn't matter that "Swingtown" contained no obscene language or nudity. The fact that CBS aired the show at 10 p.m. in most of the country is irrelevant. Adult viewers simply shouldn't be able to watch this show, period, according to the cultural crusaders of the PTC." He notes that Fringe was named worst show of the week once for "because of an opening scene involving some flesh-melting" (deemed violent by the PTC, "icky" by Adalian, and derivative by those of us who saw Raiders of the Lost Ark during its theatrical first run). Another show named worst of the week was a tribute to American troops called America United, condemned because it "contained some randy humor, an appearance by a scantily clad Pamela Anderson and a performance by Snoop Dogg." (Just how "scantily clad" Pam Anderson was is a matter for debate; every frontal shot of her was covered by a superimposed phone number to call – we don't know if she was showing something she shouldn't, if someone at ABC decided not to take the chance that she might be showing something she shouldn't, or if ABC just didn't want to run the risk that someone at the PTC would protest because the thought she was showing something she shouldn't.)

But for Adalian, as for me, it is the hypocrisy of the PTC's aims that are difficult to deal with: "What's most irksome -- and dangerous -- about the PTC is the way it uses children as human shields to hide its real agenda. There's nothing wrong with any person or group declaring their disgust with what's on the small screen. It's part of what I do for a living, after all. But the PTC is being morally and intellectually dishonest by pretending that it's simply trying to protect kids. How are children helped when the PTC spends so much of its time railing against shows that clearly aren't intended for their eyes? How are America's families strengthened by an organization that wastes its time ginning up bogus outrage over a half-second shot of a penis on "Survivor" that could only be seen by viewers watching in HD and using the freeze-frame function of their DVRs? If the PTC really cared about kids, they'd spend as much time coaching parents on how new technologies can help them monitor their kids' viewing as they do trying to censor networks. Instead, the PTC regularly twists the technicalities of decades-old obscenity regulations to force networks to spend millions defending programming that is very clearly not obscene." But of course coaching parents on how "new technologies can help them monitor their kids' viewing" is exactly the opposite of what the PTC wants to do. We seen in every one of those "Misrated" columns that I've sited over the years that the PTC is in the business of convincing parents advertisers and probably the FCC itself that those new technologies don't work – don't protect kids from smut and violence and "icky" things – because the networks habitually and deliberately underrate their shows for reasons which I confess I don't understand at all. Could it be ....Satan?!

For Joe Adalian, and for myself, it is far easier to see sinister intent in the action of the PTC than it is in the broadcasters. Adalian points this out when he examines the PTC current obsession with cable TV and their demands for 'cable choice:' "In recent years, the organization has even started challenging cable, doing all it can to defame shows with even an ounce of edge. PTC founder L. Brent Bozell last month launched a verbal broadside against FX and its president, John Landgraf, because Mr. Bozell thought the network's Sons of Anarchy represented the 'gruesome unfolding of a pervert's mind onto a national television screen.' He denounced FX for being more concerned about artistic vision than the 'prospect of a 10-year-old boy finding a terrifying castration scene as he's flipping channels in his home.' Personally, I'd be more troubled by the irresponsibility of the parents of any 10-year-old who would allow their son to be channel surfing, unattended, at 10 o'clock at night. There's a reason Mr. Bozell and the folks at the PTC have broadened their attacks beyond broadcasters. They want Congress to require cable operators to offer channels on an a la carte basis. Their argument: Consumers shouldn't have to subsidize "filth" on channels they don't like. The problem, of course, is that a la carte would mean the death of numerous cable channels, and a severe restriction in programming budgets for those that survived. There would be far less choice for consumers, and far fewer outlets producing cutting-edge fare such as Sons of Anarchy." Of course by describing Sons of Anarchy as being cutting edge or having any artistic merit at all, the PTC would accuse Joe Adalian of being a typical elitist TV critic (or rather non-critic) who are, as a PTC writer put it, "heaping praise on the most extreme examples of graphic and gratuitous gore, sex and profanity.... [who] rather than responding to the obvious wishes and desires of their readers, persist in celebrating only the most disturbing programs on TV. And despite the fact that such critics work for outlets across the country, they share a nearly identical mind-set…one which rarely agrees with that of the viewers and readers in their local area."

In his summation Joe Adalian reiterates the point "It's not cable choice the PTC and its allies want. It's not even to shield kids from smut. It's control of what you get to watch." Or, as I've put it occasionally, if the PTC is indeed intent on "protecting the children" they must regard all Americans as children to be protecte, from what the PTC as parents considers "bad."

Who Does The PTC Hate This Week – August 15, 2008

I have been neglecting my self-appointed duty to tell you what the Parents Television Council finds objectionable. Perhaps that's partly because the PTC hasn't exactly been overly active of late. However a few things have cropped up over the past few days that I thought were worth mentioning. And unfortunately, to tell part of this story with full accuracy I am going to have to use a fleeting obscenity; a word that has appeared in this blog before, usually in connection with the PTC.

The first of these is a PTC press release expressing their outrage about something that happened on the August 5^th episode of Big Brother. According to the PTC, "During last night's broadcast, a woman named Libra was arguing with a man and said: 'Memphis was in the f***ing room!'" I'm shocked to have to say that on this one, the PTC was right – Libra did say "fucking" when she was arguing with Jesse. But here's the other thing though, I watch Big Brother including that particular episode and I don't remember her saying it. And I'm not the only one. In his August 6^th Programming Insider podcast Mark Berman's guest mentions that the PTC was protesting the use of "the word" and Berman was amazed, because he didn't hear it either. So, in an effort to discover whether she did or she didn't I asked the question at Jackie Schnoop's The (TV) Show Must Go On blog (the place to stop for Big Brother discussion). I got a reply from "Clementine" who pointed me to the appropriate clip of the show on YouTube (unfortunately the clip can't be embedded). The incident took place at around the ten minute mark of the clip. And sure enough, Libra does say "fucking." Just one thing though; I had to listen to the clip six or seven times before I could actually tell what she was saying. Now admittedly, I've been having some temporary hearing problems over the past little while, but even so it normally doesn't take me that long to pick out that word (and believe me I hear it often enough). What I think happened is that whoever was handling the editing at CBS simply missed the word – believed it was unintelligable. Why do I think so? Simply because the Big Brother Houseguests use the word "fucking" often and it has always been censored in the past. Indeed it was censored on numerous other occasions, so why let this one through unless the editor in question simply didn't hear the word. In other words, it wasn't even a simple case of human error but rather a case where someone was genuinely unable to determine what was being said.

Of course, that's not the way the PTC sees it. In their press release, which includes a link to a prepared form email that's all ready to be sent to the FCC, PTC President Tim Winter writes the following: "There is absolutely no justification for allowing an 'F-word' like this to air unedited on prime time broadcast television. There can be no question that this was an intentional act on the part of the network; someone actually had to edit the scene with the word into the show. Just this past November, CBS hypocritically entered into yet another consent decree with the Federal Communications Commission (FCC) promising not to air indecent material. But apparently, CBS will break its own formal promise – again. Last time it was to air a teen orgy; this time it is for the opportunity to air the 'F-word.' CBS' behavior is a direct result of the 2^nd Circuit Court of Appeals ruling on so-called fleeting profanity – a case that will be heard by the Supreme Court this fall. But let me be clear: Unlike the facts of that legal challenge, this was no live broadcast. It was an intentional airing of pre-packaged program that contained obscene language. The network's reprehensible decision to air it cannot go without consequence."

Well let's look at this in a couple of different ways. First, let's look at why the word aired. As I've said, there is a plausible explanation of how the how the word might have slipped by, namely that the person editing the episode either did not hear the word or misheard the word either as something else or couldn't be sure of the word that Libra said; in other words the word was unintelligible to him. The other aspect to consider though is Mr. Winter's interpretation of the 2^nd Circuit's ruling on fleeting profanity – not "so-called fleeting profanity" but actual fleeting profanity as defined by the FCC itself before the current administration. His interpretation of the ruling was that it only applies to live events. In his majority opinion on the Pacifica case (which the PTC is so fond of quoting), Justice Stevens wrote, "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 the case of an Elizabethan comedy of course one would be dealing with scripted, and one would presume previously recorded, material. Even in 1978, Stevens recognised that not all uses of expletives in pre-recorded programming would be actionable.

Worth noting at this point is a recent Amicus Brief submitted in the FCC appeal of the 2^nd Circuit Court of Appeals ruling to Supreme Court. The brief, was submitted by a number of former officials of the FCC including former chairmen Newton Minnow, Mark Fowler, and former acting chairman and longest serving appointee to the Commission James Quello. Quello was a commissioner at the time of the Pacifica case. In the Amicus Brief, the former FCC officials stated that "... we have been dismayed by a series of recent [FCC] decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a campaign of regulatory surveillance that will chill the production of all but the blandest of broadcast programming." Likening the current FCC's enforcement program to "a Victorian crusade" they stated that "To effectuate its new clean-up-the-airwaves policy, the Commission has radically expanded the definition of indecency beyond its original conception; magnified the penalties for even minor, ephemeral images or objectionable language; and targeted respected television programs, movies, and even noncommercial documentaries." While one would hardly describe Big Brother as a "respected television program" there could hardly be a better definition of "minor, ephemeral...objectionable language" than the incident in the episode of Big Brother.

(Actually the former commissioners went further than just calling on the Supreme Court to uphold the 2^nd Circuit Court ruling. According to Broadcast & Cable the Brief calls on the Court to remove the FCC from the business of regulating content. According to the article, "They said the court's work would be incomplete if it simply struck down the 'fleeting expletives' policy, arguing that the FCC's indecency calls in cases of nudity and nonfleeting profanity were inconsistent and that the commission was using 'context' as a 'talisman to ward off serious questions about the extreme subjectivity of the agency's determinations.'" They also argued that the basis of the original Pacifica decision – the uniquely pervasive nature of the broadcast medium – had ceased to exist in the era of the Internet and multi-channel video (by which I assume they mean cable TV). "It is time for the Court to bring its views of the electronic media into alignment with contemporary technological and social reality. As former regulators, we appreciate that the FCC is in an uncomfortable position, buffeted by the turbulent passions of anxious parents and threats from excited congressmen. But that is precisely why the matter must be taken out of the agency's hands entirely." Needless to say, the PTC is not pleased by the Brief.)

Of course you don't actually have to say or be seen to say bad words to arouse the ire of the PTC – not if you're Big Brother anyway. The series was described as "Misrated." This was before the August 5^th incident although that incident (which I still contend was an accident – they do happen you know no matter what the PTC thinks) although it did rate a mention – in boldface type no less – in the article. No, what the PTC objected to was words that you couldn't hear uttered by lips that you couldn't see. They claimed that the episode of July 31^st should have been rated TV-14L and state that there was no rating applied to the episode at all, something that I find extremely hard to believe. Anyway, here's what they have to say: "The episode's opening recap featured a shouting match between Jerry and Memphis. The latter was upset over Jerry attacking his character. 'You calling me a ______ (bleeped, blurred f***ing) womanizer?' Memphis asks. 'You wanna see me get ______ (bleeped, blurred f***ing) real? I'll get really real, old man!' Memphis' outburst was shown several times, each with another f-bomb. 'Are you out of your mind, old man?' Memphis shouts, 'Are you _____ (bleeped, blurred f***ing) out of your mind?' Later in the episode, Jerry strikes back at the four contestants who have ganged up on him. 'You think I'm going to kiss your ass? You guys _____ (bleeped, blurred f***) me, I'm gonna kiss your ass?...You come and jump on me with your friends. Four of you. Four of you on my ass. You want? All four, come on! Let's go and get it on. ____ (bleeped, blurred F***) ya!'" Now remember, you can't hear the word "fuck" and its variants, and a lip-reader couldn't pick up on it either because you can't see the people's lips (and they did a really good job of completely obliterating the lips). And yet here's what the PTC has to say: "Given the frequency and severity of the swearing, the show should have been rated TV-14 L." By the PTC "standards", the show clearly wasn't censored enough even though – as even they state you couldn't hear or see the words in question – so one has to ask, where exactly does it stop?

Swingtown yet again earns the "accolade" of worst show of the week. I won't go into detail on what the PTC states – since I don't watch the show I'm really not in a position to judge or to entirely contradict what the PTC position – however based entirely on what the PTC says and what the series producer has claimed about the show, the episode that the PTC is complaining about is concerned with the consequences of the protagonists' actions. The consequences of these actions include jealousy and the weakening of the familial bonds. And these are consequences that the characters are aware of. The PTC summarizes a scene between a father and his teenage daughter by saying: "Bruce attempts to scold Laurie for being involved with her older teacher, but when Laurie shoots back with 'What about what you two were doing?' Bruce realizes he and Susan have no moral ground to stand on. Bruce muses, 'No wonder our kids are off the rails. The buck stops here. We are taking back control of this family.'" The PTC ignores this business of consequences of course. Instead, in their conclusion they write, "By airing content intended for premium cable channels on network television, CBS has subjected families to topics that only adult couples should be discussing. And like so much of TV today, by suggesting that monogamy is stifling and, therefore, unhealthy, the show fails to promote positive exploration of sexuality within the confines of marriage." And yet surely scenes like the one they themselves quote are indicative that even the characters of the show are coming to realize that the lifestyle they've adopted is the unhealthy one rather than monogamy. But surely the most absurd thing is the assertion that, "by airing content intended for premium cable channels on network television, CBS has subjected families to topics that only adult couples should be discussing." They seem to be taking the truly absurd position that premium channels like Showtime and HBO are only subscribed to by families without children. Premium channels are available to all who are willing to pay for them... including families with children.

The PTC has been running their TV Trends column dutifully each week while I haven't been writing about them, but quite frankly their weekly Jeremiads have been the typical reactionary stuff we've come to expect from the author of these "think pieces." In the July 17^th column, for example, he expressed the opinion that supposedly child-friendly shows were dens of filth and inappropriate language. Proof? Hugh Hefner and his three Girl Next Door girlfriends were on Celebrity Family Feud against some actors from The Sopranos including Vincent Pastore ("Big Pussy" Bonpensiero.) and Hefner said "I think [the girls] are going to do very well against Big Pussy." Smutty double entendre of course – at least in the PTC's view. And there was "Busty Heart" crushing beer cans with her boobs on America's Got Talent (I'd be more upset that kids would try to imitate the sword swallower myself), and a singer supposedly singing "I Kissed A Girl" which supposedly were an "explicit endorsement of drunkenness and promiscuity." You can tell it was bad because they underlined it and put it in italics. If they could have bold-faced it without being to obvious you can bet they'd have done it. In the July 25^th column the writer goes on and on about TV's fixation with breasts. The writer states, "It is pathetic that a medium with the tremendous power which television possesses is willing to objectify one-half of the human race; but increasingly, remarks about breasts, scenes emphasizing breasts and even entire storylines about breasts are becoming commonplace on TV. Such a focus ignores intelligence, personality, charm, integrity and the entire host of human qualities, and essentially reduces women to objects valued only for their anatomy." Of course that doesn't stop the writer from going into exacting prurient detail about every specific incident, making sure to mention "the formerly clean" My Name Is Earl (which was also mentioned in the July 17^th column as the "increasingly raunchy" My Name Is Earl). In the current column, the writer is practically gloating over the failure of Swingtown in the ratings symbolized by the network decision to move the show to the Friday at 10 p.m. timeslot – "a day and time widely regarded within the entertainment industry as the Place Where Series Go To Die" (an assessment that ignores CBS's general success on that night, a success so great that CBS has been able to cancel shows that have won their time slot in the past two seasons: Close To Home and Moonlight) – and trumpets the decisions of major advertisers not to put commercials on the show. But yet again the writer lovingly delineates, in detail more graphic than anything actually seen on screen, the evil sexual misdeeds depicted on the show, and thoroughly doesn't get the nuances of the show, which as one of the writers pointed out included the fact that these people's actions have consequences that they don't foresee; not necessarily punishment but definitely consequences. But of course acknowledging that the show doesn't actually send "the messages Swingtown is sending to young viewers: marriage vows are meaningless; teachers kissing students is acceptable; and any kind of sex, with any number of people, has no consequences whatsoever." Nuance is lost on the PTC.

Finally (well not finally; there's a rather absurd study presented by the PTC on how TV is devaluing marital sex and emphasising premarital sex, extra-marital affairs, and perverted practices – of course being the PTC the methodology is incomprehensible and the study doesn't consider or worry about either context of nuance) we have the return of The Worst Show on Cable. For months, literally, the PTC was stuck calling a particular episode of Nip/Tuck the worst show on cable. Now they've gotten outraged by the latest episode of Saving Grace. Why? Well there's a "bigger picture" thing going on here which we'll get to but to illustrate the "big picture" badness they have to illustrate it with a specific incident. In this case it is a sex play scene in which Grace and her lover play with food. Of course the PTC lovingly describes the scene in explicit detail:

The episode opened with a shot of Ham's naked rear-end as he and Grace wake up on her living room floor, presumably after a night of drunken lovemaking. Grace tries to rouse Ham by smacking his buttocks, to which he mumbles, "Much harder." Grace obliges by licking a dirty fork clean and jabbing him with it. The couple then migrate to the kitchen, where Ham tells Grace that he has left his wife. Clearly upset, the commitment-phobic Grace sprays Ham with ketchup. Not to be outdone, Ham grabs Grace and shoves ice cubes down her panties. Grace responds by emptying a bottle of mustard on his chest. Clearly aroused, Grace straddles Ham, licks the condiments off of his body, and proclaims, "You taste like a corndog." Grace is then seen kneeling in front of Ham, licking the mustard and ketchup mixture off his abdomen. Ham reaches into the refrigerator and dumps milk all over her head. The couple finally collapse to the kitchen floor and began having sex. All of this occurred before the opening credits.

Now here's the big picture, in the words of the PTC itself: "Touted as a redemptive series chronicling a troubled female detective's struggle against her personal demons, the show's underlying positive themes are often undercut by over-the-top depictions of sex and drug use." So basically what the PTC is saying is that the eventual redemption of Grace Hanadarko's character is a "good" thing – a positive theme as they put it – but that theme is hurt by showing her the drug use, the alcohol abuse and the irresponsible sexual activities that are why she needs redemption. The thing is though, that if you simply say that Grace's activities are bad it doesn't have the impact of showing it. It's a standard dramatic maxim "show it, don't say it." But the PTC says "don't show it and don't even go into details in saying it." But of course it is perfectly alright for the PTC to show it – describe scenes in exquisite detail, and at least in the past show video clips of "bad" scenes from cable shows – rather than simply saying it – telling us that the show has explicit sex scenes and scenes of drug use. Anything is acceptable in their cause, the demand for cable choice. Cable choice is something that I agree with in principle but am realistic enough to understand that until every cable user has to use a specialized set-top box like the digital box I have on my TV. But even if you have cable choice available on your cable system, the fact that not every program on the cable channel represents "objectionable content." Do you throw out all of the "good" because of a little bit of the "bad?" (And by the way this description of "good" and "bad" is theirs not mine. Having seen several episodes of Saving Grace, my opinion is that the show is one of the better things on television, showing the complexities of a woman who seeks to escape the traumas in her life in a miasma of sensation – drugs, alcohol, and sex. The major question for me is not why she needs redemption but rather why God, through the mechanism of the angel Earl, has chosen to try to offer Grace the option of redemption. But then again I don't see things from the same obsessed single-minded perspective that the PTC adopts.)

Appeals Court Overturns “Nipplegate” Fine

In a unanimous decision a split panel of the United States Court of Appeal for the Third Circuit has overturned the fine levied against CBS for the incident at the 2004 Super Bowl in which Janet Jackson's right breast and nipple were exposed for "nine sixteenth of one second" before the cameras were able to turn away. In the decision, written by Judge Anthony J. Scirica, with a concurring opinion delivered by Justice Marjorie Rendell, the court found that the FCC acted "arbitrarily and capriciously" in its decision. (The complete decision, which also deals with the matter of whether CBS would have been liable for fines even if the FCC had not acted in an arbitrary and capricious manner, can be found here – this is a .pdf file) While acknowledging the FCC's authority to regulate indecent content, Judge Scirica pointed out that it had long practiced restrain in doing so: "During a span of nearly three decades, the Commission frequently declined to find broadcast programming indecent, its restraint punctuated only by a few occasions where programming contained indecent material so pervasive as to amount to 'shock treatment' for the audience. Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency." The decision of the court was that "Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS." (italics mine.)

While the FCC claimed that "its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission's enforcement history reveals that its policy on fleeting material was never so limited. The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy." But of course this is also a policy which the current FCC has chosen change in an arbitrary manner in their decision against FOX in the case of the Billboard Music Awards, a decision also overturned on appeal and currently being considered by the US Supreme Court.

For those, like the Parents Television Council which cite the Pacifica decision (when a station owned by the Pacifica Foundation aired a recording of George Carlin's "Filthy Words" monologue), the court pointed out that the FCC itself issued a clarification order covering live broadcasts: "Expressly acknowledging the forfeiture order's potential negative impact on broadcast coverage of live events where 'there is no opportunity for journalistic editing,' the FCC stated its intention to exclude such circumstances from the scope of actionable indecency." This is a point which the concurring decision on Pacifica, by Justices Powell and Blackmun emphasised: "Justices Powell and Blackmun concurred in the judgment, writing separately in part to reiterate the narrowness of the decision and to note the Court's holding did not '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.'" Judge Scirica's decision points to two cases after Pacifica (in 1983 and 1987) where the FCC ruled on cases where language was used that did not meet the "verbal shock treatment" standard. And while in 1987 the Commission did change its standard to "rely on the broader terms of its generic indecency standard, which defined indecent material as 'language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience.'" (again, italics mine). But this did not overturn the basic standard as stated in the clarification to Pacifica or the 1983 and 1987 cases (and in the Powell concurrence) related to isolated or fleeting material. In other words a policy had been established. This was reaffirmed in 2001 when the broadcast industry sought clarification of the FCC's policies on broadcast indecency, which the FCC provided in a policy statement. "The policy statement included multiple examples of FCC rulings as 'case comparisons' highlighting the factors that had proved significant in prior indecency determinations. One of the factors noted as leading to prior determinations that a program was not actionably indecent was the "fleeting or isolated" nature of potentially indecent material in the context of the overall broadcast." Indeed this was an even clearer assertion of the standard.

This policy changed just three years later when the Commission overturned a finding of their own enforcement bureau concerning Bono's statement at the 2003 Golden Globes in which he said "this is really, really fucking brilliant." While in its May 2004 decision the FCC "acknowledged the existence of its restrained enforcement policy for isolated or fleeting utterances, it overruled all of its prior cases holding such instances not actionable. ('While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the 'F-Word' such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.'). But the Commission made it clear that licensees could not be held liable for broadcasting fleeting or isolated indecent material prior to its Golden Globes decision." That would be three months after the Janet Jackson incident. And that's an important point in the current decision, even setting aside the Second Circuit Courts decision overturning the decision on the Golden Globes case: "Accordingly, we find the Commission's unsubstantiated contentions in this regard contradict the lengthy history of the Commission's restrained enforcement policy. While "an agency's interpretation of its own precedent is entitled to deference," Cassel v. FCC, 154 F.3d 478, 483 (D.C. Cir. 1998), deference is inappropriate where the agency's proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC's policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to Golden Globes, this was the policy in effect when the incident with Jackson and Timberlake occurred."

The court then went on to address the FCC's contention that the fleeting materials policy was limited to words rather than images, meaning that the Golden Globes decision would be inapplicable in this case. This relates to whether there was an adequate an explanation for changing its policy. The FCC holds that it had no prior policy on fleeting images and therefore did not have to provide an explanation, reasoned or not for their new policy. CBS contended that the FCC's indecency regime treated images and words alike "so the exception for fleeting material applied with equal force to words and images." The Third Circuit Court found that "The Commission's conclusion on the nature and scope of its indecency regime – including its fleeting material policy – is at odds with the history of its actions in regulating indecent broadcasts. In the nearly three decades between the Supreme Court's ruling in Pacifica and CBS's broadcast of the Halftime Show, the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. Instead, the FCC consistently applied identical standards and engaged in identical analyses when reviewing complaints of potential indecency whether the complaints were based on words or images." (again, italics mine.) They mention a 2000 decision rejecting a claim that nudity in the movie Schindler's List was indecent in which they said "the FCC noted 'nudity itself is not per se indecent' and applied the identical indecency test the agency used to review potentially indecent language. The Commission did not treat the nudity complaint differently – factually or legally – from a complaint for indecency based on a spoken utterance.... The Commission even referred in a footnote to its policy towards fleeting material, never suggesting the policy would be inapplicable because the offending broadcast content was an image rather than a word." The Court noted that the FCC policy was also upheld in a decision on the revocation of the license for WGBH Boston for broadcasting indecent material: "Among several 14 broadcasts at issue in WGBH were: (1) 'numerous episodes of Monty Python's Flying Circus, which allegedly consistently relie[d] primarily on scatology, immodesty, vulgarity, nudity, profanity and sacrilege for humor'; (2) 'a program entitled Rock Follies . . . which [the petitioner] describe[d] as vulgar and as containing profanity' including 'obscenities such as shit, bullshit, etc., and action indicating some sexually-oriented content in the program'; and (3) 'other programs which allegedly contained nudity and/or sexually-oriented material.'" In their argument, CBS provided several complaints accompanied by a corresponding reply letter rejecting the complaint. These incidents included "the early-evening broadcast of a female adult dancer at a strip club and alleges the broadcast contained visible scenes of the woman nude from the waist down revealing exposed buttocks and 'complete genital nudity' for approximately five to seven seconds," and "a Sunday-morning television broadcast of the movie Devices and Desires, which included "scenes of a topless woman in bed with her lover, with her breast very clearly exposed, several scenes of a topless woman running on the beach, and several scenes of a nude female corpse, with the breasts clearly exposed." While the FCC contended that these form letters were irrelevant since they "do not even explain the grounds for the staff's conclusions that the broadcasts were not indecent, much less rely on the 'fleeting' nature of any alleged nudity as a reason for rejecting the complaints," the court held that "the rejection letters illustrate that the FCC used the identical form letters and indecency analyses to address complaints of indecent nudity that it had long used to address complaints of indecent language." Accordingly the Court found that "In sum, the balance of the evidence weighs heavily against the FCC's contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission's entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission's exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion. Accordingly, we find the FCC's conclusion on this issue, even as an interpretation of its own policies and precedent, "counter to the evidence before the agency" and "so implausible that it could not be ascribed to a difference in view or the product of agency expertise."

One interesting point that the decision recorded was that it was nearly impossible to determine the actual number of complaints receive from "unorganized, individual viewers." According to the FCC, they received "an unprecedented number of complaints." However, in their brief CBS pointed out that "Of the 'over 542,000 complaints concerning the broadcast' the FCC claims to have received, over 85 percent are form complaints generated by single-interest groups. Approximately twenty percent of the complaints are duplicates, with some individual complaints appearing in the record up to 37 times." In other words the sort of thing that the Parents Television Council does all the time when they complain about "indecency.

Needless to say, the Parents Television Council is incensed by this decision. In a press release PTC president Tim Winter claimed that "Once again, a three-judge panel has hijacked the will of the American people – not to mention the intent of the Congress acting on behalf of the public interest – when it comes to indecent content on the public airwaves. While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court's opinion goes beyond judicial activism; it borders on judicial stupidity. If a striptease during the Super Bowl in front of 90 million people – including millions of children – doesn't fit the parameters of broadcast indecency, then what does? If the Court doesn't think that the event wasn't shocking enough, even though it was the single largest news story for weeks when the nation was at war, then what is shocking enough? By saying that the FCC still retains its power to regulate the public airwaves, this court shows that its ruling was merely to second-guess the FCC's decision to fine CBS. The Third Circuit Court is wrong, and we urge the FCC to appeal this case to the U.S. Supreme Court. We urge the public to speak up on this matter by contacting their congressional representatives and the White House too."

I can't help but wonder at the degree of legal "expertise" that Tim Winter brings to the table on this one. The question here isn't one of a "three-judge panel" hijacking the will of the American people, since it seems to me to be unclear what the "will of the American people" is in this case. The number of independent complaints on this case not generated by single interest groups is significant but would hardly seem to be overwhelming. The questions turns then to the matter of judicial activism. It seems that what the PTC is arguing for is a variant on that – regulatory commission activism if you will. The Court decision seems to be a well reasoned statement of both the facts in the case and the precedents up to the point of FCC clarification related to the Bono statement. There are ample examples provided that prove not only the existence of the FCC's prior policy related to "the 'fleeting or isolated' nature of potentially indecent material in the context of the overall broadcast," but also that policy had not been inclusive of fleeting examples of speech but also to nudity. And indeed far from what is implied by the PTC description of "a striptease during the Super Bowl," this was far more fleeting than previous examples, the duration being precisely "nine sixteenth of one second." The event which according to the PTC was shocking because "it was the single largest news story for weeks when the nation was at war" simply does not equate with the FCC's position at the time – as defined in Powell and Blackmun's concurrence to the original Pacifica Decision – that indecency must represent "verbal shock treatment," or in this case "visual shock treatment." Certainly this is the case given the duration or the nature of previous incidents which the FCC has chosen not to fine in the past. And remember this is even before factoring in the Second Circuit Court's 2007 overturning the FCC's decision on Bono. And of course one must ask to what degree it was groups like the PTC and its fellow travellers such as the American Family Association, and the politicians which they lobbied, that made this the "single largest news story for weeks" (and let's set aside this business of the nation being at war – by the time of the 2004 Super Bowl "major combat operations in Iraq" had been concluded for nine months and President Bush had declared "Mission Accomplished")? No, it seems clear that this doesn't represent "judicial activism" but rather a well thought out evaluation of precedent and policy and the degree to which the FCC itself overstepped its own boundaries.

In the end one is left to wonder how Justice John Paul Stevens would feel about the matter. It was his majority position in Pacifica that is constantly cited by the PTC as the justification for censoring even something so fleeting as this. In Pacifica Stevens wrote 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 other words, even at the time Justice Stevens recognised that there were circumstances in which the fleeting use of expletives could be broadcast. What he objected to in Pacifica was what has since come to be called the "verbal shock treatment" effect of something like the Carlin routine, or someone like Howard Stern. But even more interesting is the evolution of his opinion on Freedom of Speech which might have an effect on rulings in the current cases such as the appeal of the Second Circuit's decision on Bono or this case. In his dissent to the 2002 decision in ACLU v Ashcroft related to the Children On-line Protection Act (COPA), Stevens wrote, "As a judge, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing." If nothing else is true, it seems obvious to me that what Stevens intended in Pacifica is
neither what the PTC thinks he meant or what the current FCC has used it to justify. In any event, this issue will bear watching.