'OH FUDGE!" decent citizens exclaimed Monday, as a federal appeals court rejected the Federal Communications Commission's strict new enforcement policy on broadcasters that air "fleeting expletives." The court's decision, which dealt with several cases of isolated cusswords, prompted FCC Chairman Kevin J. Martin to warn of a "significant impact on our ability to enforce our indecency regime." But it is the FCC that has crossed a line -- by arbitrarily redefining its standards and taking an unrealistic view of barnyard epithets whose meanings and conjugations are familiar to most Americans.
The FCC's brief to regulate broadcast indecency is no joke. Although more than 80% of U.S. homes receive cable and satellite programming (not subject to FCC regulation), the most popular programming is still transmitted by broadcast signal, and taxpayers have a perceived right to programming on public airwaves that meets a reasonable standard of decency and fitness for family viewing. The commission has long held broadcasters liable for airing explicit and graphic material that "dwells on or repeats at length descriptions of sexual or excretory organs or activities" or "appears to pander or is used to titillate."
That began to change in 2003, after U2 frontman Bono blurted out the "f word" (gerundive form) during a live broadcast of the Golden Globe Awards on NBC. The FCC initially declined to pursue this offense but later reversed itself (under fire from politicians and pressure groups), declaring the word "one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language."
At least two of those adjectives are patently false: There are many more graphic and explicit ways to describe the act of sexual congress. More to the point, as the court noted, "in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities.' "
The court's ruling is not a license to fill the air with sailor talk, merely an acknowledgment that broadcasters should not be unduly punished for reflecting contemporary society. An interesting public interest argument went unexplored. If politicians use dirty language in public (as both President Bush and Vice President Dick Cheney have), don't the voters have a right to know that? The reality, of course, is that we \o7do\f7 know despite the best efforts of the broadcast regulator. The share of media subject to FCC oversight continues to shrink as consumers enjoy more choices in cable, satellite and Internet programming. But the commission may extend its dwindling usefulness by accepting the court's common-sense decision.