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TV Wants Clear Rules on What's a Bad Word

As they make shows edgier to compete with cable, broadcasters say the FCC's decisions have been inconsistent.

April 30, 2006|Jim Puzzanghera | Times Staff Writer

WASHINGTON — Indecency on broadcast television is mostly a word game.

There are the S-word and the F-word and all their creative variations. But the legal battle that began this month between the four major networks and the Federal Communications Commission revolves around an I-word that is disturbing in its own way to TV executives: inconsistency.

Why, they wonder, did the FCC allow the F-word and the S-word in the airing of Steven Spielberg's "Saving Private Ryan," but rule that the same words in the Martin Scorsese documentary, "The Blues: Godfathers and Sons," were indecent?

Why did the FCC say in 2003 that the F-word was OK if used as an adjective, then several months later change course and say there was no acceptable grammatical construction?

"At one time I could explain indecency to you in seven words," said Washington communications attorney John Crigler. "Now I need seven volumes."

Frustrated by that growing complexity and confusion, the broadcast TV networks showed rare unity in filing notices of appeal April 14 alleging that a March 15 ruling by the FCC was unconstitutional.

In so doing, networks executives knowingly embarked on what probably will be a long legal struggle. But their goal -- bringing more clarity to what they describe as the increasingly blurry and outdated world of federal indecency rules -- was key, several said, to assuring the continued viability of the broadcast TV business.

This new battle has been long anticipated, and the stakes are high for broadcast networks in their competition with edgier shows on cable and satellite television, which are not regulated by the FCC because they do not use public airwaves and they require paid subscriptions.

Three network executives, who did not want to be named because of the looming litigation, lament that the current unpredictability is having a chilling effect on writers and producers.

"There are lines that are being drawn that make no sense," said one of the executives. "You can say 'poop' but ... you can't say 'bulls...' 'Poop' clearly means excrement.... 'Bulls...' clearly doesn't, but the FCC has pretty arbitrarily decided it does."

The last time the Supreme Court ruled on broadcast indecency was nearly three decades ago, before the explosive growth of cable TV and the advent of the V-chip technology that allows parents to block some objectionable programs.

The networks and the media conglomerates that own them intend to argue that by affording consumers more control over what they watch, such developments have lessened the need for strict censorship.

Former FCC Commissioner Kathleen Q. Abernathy, a Republican who stepped down in December, said it would help the commission if federal judges weighed in again.

"It's very, very difficult to engage in this kind of line drawing," Abernathy said, calling indecency cases the most difficult she handled in 4 1/2 years on the commission. "I think you do need further court guidance."

But some question how much guidance the courts can offer in the subjective area of indecency, which is based on amorphous concepts such as "contemporary community standards." As times keep changing, defining indecency requires a constant rethinking of the idea of knowing it when you see it.

"These are tough issues, and I'm not sure there's a great answer in how to deal with them," said Douglas Lichtman, a telecommunications law expert at the University of Chicago. Of the networks' recent rules challenges, he said, "I don't think this will lead to some great clarifying judgment from the courts."

A review of the 1978 Supreme Court precedent on broadcast indecency illustrates some of the challenges the courts will face.

The case, FCC vs. Pacifica Foundation, involved the radio broadcast of a George Carlin comedy routine about seven "filthy words" you could never say on TV. The court ruled that the routine's broadcast wasn't protected by the 1st Amendment and that the FCC had the right to impose sanctions on the broadcaster.

But the case was narrowly decided, 5-4, and contained a maze of concurring opinions. The court ruled it was clear that Carlin's repeated and intentional use of the seven words, including the F-word and S-word, were indecent. But the court said that context was "all important" and depended on a "host of variables," including whether children were apt to be listening.

The ruling specifically left unclear whether a fleeting use of an obscenity, inadvertently blurted out over the air, also was indecent.

The muddiness of the issue was apparent when Justice John Paul Stevens concluded the majority opinion by quoting another justice, who said, "nuisance may be merely a right thing in the wrong place -- like a pig in the parlor instead of the barnyard."

"We simply hold," Stevens wrote, "that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."

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