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The F-Word and More: 'Did He Just Say That on the Radio?'
The FCC Seems Ready to Tolerate Certain Language Once Considered
Unacceptable
by Harry Cole
The FCC's indecency policy has taken a dramatic turn, first suggested in a decision in mid-2002 and most recently reinforced, in spades, in early October.
Lock the doors and get the kids away from the radios; for the time being, the commission appears prepared to tolerate the broadcast of certain language once considered unacceptable for broadcast.
Before addressing the most recent developments, let's take a quick look at the history of indecency regulation.
Carlin's Big Seven
For the last 30 years or so, the FCC has prohibited the broadcast of "indecent" matter in keeping with a standard first set down in the mid-1970s. The ban currently applies between 6 a.m. and 10 p.m. Under the standard, the commission defines "indecent" matter to be "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."
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Social mores may be changing, but many people
remain squeamish about such language, which is why The Man
at Radio World requires us to evade certain words in our column,
even now.
Another personal note comes to mind. During
the oral argument before the Supreme Court in the Pacifica
case - a case in which the focal point was a monologue stressing
seven particular words - none of those words was ever articulated.
When the first lawyer to argue that day stood
up and introduced himself, Chief Justice Burger stopped him
and said, "We are familiar with the facts of the case and
you may proceed directly to your argument," which everybody
in the courtroom took to mean, "I don't want you to say any
of those dirty words in my court."
And sure enough, the argument went on for
about 90 minutes, as I recall, without anybody saying any
of the seven. And when the court's decision was finally written,
it too did not include any of the words.
The court got around that by including a
transcript of the monologue as an addendum to the opinion.
- Harry Cole
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A popular misconception is that the FCC has ever singled out certain
words as plainly indecent and never acceptable on the air. The notion
presumably arises from the, er, seminal case in the area, which
involved the broadcast of a George Carlin monologue titled "Filthy
Words."
In that monologue, Carlin opined that there were seven particular words that, in his view, you couldn't say on the air. He spent about 10 minutes exploring those words, repeating them over and over in various contexts. They are so famous you can probably rattle them off. If you don't know them and want to, just do an Internet search under the words "Carlin" and "seven."
A station in New York City broadcast the Carlin monologue one afternoon in 1973, a complaint was filed by an accidental listener, and the rest is history. In response to the complaint, the FCC devised the first version of its current indecency policy and held that the broadcast of the Carlin monologue violated that policy.
The station appealed and convinced the U.S. Court of Appeals in D.C. that the commission's policy violated the First Amendment. Then, in a landmark decision that still reverberates through First Amendment and broadcast law, the Supreme Court held that the policy did not violate the First Amendment.
(Personal aside: Team Cole's Law participated in the briefing at the Supremes on behalf of Pacifica. While we remain morose and despondent that we lost, acquaintances have consoled us with the observation that it's probably not everybody who could convince four members of the Supreme Court that it's constitutional to say "c***sucker" on the radio.)
Because Carlin had focused on seven particular words, and since many folks probably never bothered to read the full text of the Supreme Court decision, the myth arose that the FCC had attached some special regulatory significance to those seven words, and that it was therefore very, very important to avoid using any of them on the air. As it turns out, though, the FCC did not single those seven words out for special attention.
To the contrary, as the definition spelled out above indicates, "indecency" encompassed any language or material depicts or describes sexual or excretory organs or activities in a patently offensive manner.
It's in the context
So what, you say?
Well, if you happened to listen to the original Carlin monologue,
or if you just listen to conversations around you in many public
places, you should realize that all seven of the Carlin words can
be, and often are, used in contexts that have nothing to do with
sexual or excretory organs or activities. And if they don't have
anything to do with such organs/activities, their use should not
technically be deemed to be "indecent" for the FCC's regulatory
purposes.
While that is a sound logical analysis, few broadcasters historically have been willing to roll the dice and permit their on-air staff to let loose with any of the seven words regardless of the context.
But that is likely to change in view of the recent decisions.
In June of 2002, the shift started with a decision involving certain comments made by a morning team on WGR(AM) in Buffalo, N.Y. The announcers apparently had a preternatural interest in hockey, and harbored particularly strong feelings, not necessarily favorable, toward the NHL. During their on-air discussions they repeatedly expressed the desire to "piss on" various teams, players and the league commissioner. They apparently also said, on the air, that it was okay to use the term "prick" (and particularly the phrase "sawed-off little prick").
A complaint was filed, and lo and behold, the commission concluded that the term "prick" (and its more specific variant, "sawed-off little prick") did not constitute indecency. The FCC bought the licensee's argument that those terms were used merely as a "vulgar insult," and not as anything describing or depicting sexual or excretory etc., etc.
Similarly, the FCC concluded that the term "piss on" (or its variants, "pissed at" and "pissed off") are "clearly not indecent" because they are merely "slang terms indicating of describing a sense of anger." And even when the FCC acknowledged that the morning team occasionally used the term "piss on" in connection with some urinal splashguards bearing the NHL logo which they had distributed to local bars and restaurants, the commission still found that that use was "not so graphic or explicit" as to constitute indecency.
Now fast forward to the January 2003 Golden Globe Awards, televised nationwide. Bono, lead singer for U-2, steps to the microphone and expresses his contentment in no uncertain terms: "This is really, really f***ing brilliant," and then "This is f***ing great." The remarks are broadcast. In roll the complaints, all 234 of them.
And in response, the commission sticks to the path it had started down in the Buffalo case. According to the FCC's October decision, Bono "used the term 'f***ing' as an adjective or expletive to emphasize an exclamation." (All you grammarians out there may beg to differ because Bono used the term not as an adjective, but as an adverb, to modify the adjectives "brilliant" and "great," but you get the point.) As far as the commission was concerned, "offensive language used as an insult rather than as a description of sexual or excretory activity or organs is not within the scope" of the indecency policy. The commission also noted that "fleeting and isolated remarks of this nature do not warrant commission action."
Now what?
What's the take-home message here?
It appears to us that the commission may, at long last, have come to understand the point that Carlin was making in his monologue.
Words are simply words. They're sounds to which we attach a variety of meanings. And while some words may be associated in some peoples' minds with bad or offensive notions, the fact is that those very same words may also be associated with a wide variety of benign notions, and may frequently be used in just such non-offensive contexts by a wide range of people.
So what should stations do in light of these developments?
Obviously, some caution is still probably advisable. While these decisions suggest that the commission is prepared to tolerate on-air language that might have been thought completely unacceptable even a couple of years ago, it is important not to underestimate the FCC's ability to change its mind in the face of public outcry.
So if on-air patter suddenly consists of nothing but "dirty" words, and if an influential segment of the public starts complaining big time, we would not be surprised to see this newly-articulated policy shrivel up pronto.
But that should not stop licensees from relaxing considerably on the use of certain previously taboo language, both in their announcers' banter and in the recordings they play. Again, the gist of the commission's recent decisions appears to be that if language is not used to describe or depict sexual or excretory organs or activities, that language will not constitute indecency.
Licensees should take that message to heart. In consultation with their communications counsel, licensees should be able to fashion some workable guidelines governing the use of this kind of language.
Harry Cole is a member of the law firm of Fletcher, Heald &
Hildreth, P.L.C. He can be reached at 703-812-0483 or on the Internet
at cole@fhhlaw.com
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