The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, April 14, 2004

FCC, Stern and the politics of the profane

The latest NAL - proposing the half million fine on Infinity (owned by Viacom) for Stern's Sphincterine broadcast - cites only indecency.

Ernest Miller discusses why they didn't cite him for profanity as well.

My guess is, they satisficed. Indecency was the tried and true - so why over-complicate. It isn't as if Infinity are going to fight the indecency allegation: they're almost certainly not going to fight at all.

The counter-example is the FCC revised ruling on the Bono Golden Globes fucking brilliant (March 19) which found against the broadcasters on both indecency and profanity.

The politics of profanity within the FCC is something I have yet to see properly explained. Perhaps, its use in the Bono case was a one-off: because the FCC were reversing their position on fleeting and non-descriptive uses of fuck; or to reserve the FCC's right to revive profanity as a ground for action; or just as a general frightener for the industry.

My feeling is that, within the FCC bureaucracy, profanity is viewed as pretty out there. Why else has the ground been left alone all these years? The connection of the word with religion was no doubt a consideration.

Perhaps Comstock Copps made such a nuisance of himself that the FCC lawyers decided to give him profanity in the Bono ruling, as a bloody shirt for him to wave about, but with the clear intention that that was the last time the ground would be used.

Powell - from all (and there's been a fair bit) I've written about him here - is a born Plaza-Toro - what about Abernathy, Martin and Adelstein? And their senior officials? I'm looking for a piece like Ken Auletta's New Yorker effort on Bush and the media describing the way the FCC at the top actually works.

It's clear that, even under the existing legislation, if the bureaucracy had been fired up with the Copps view on indecency, hundreds of millions in fines could have been levied on those broadcasting shock jocks. (The decision to fine per incident, rather than per show, evident in the most recent Stern NAL, required no new legislation - the FCC could have changed its policy years ago.)

Despite the furore in Congress over HR 3717/S2506, the real question is the policy of the FCC and the strength of its determination to carry that policy out. Powell evidently represents dither and business-as-usual - though with a personal inclination to free speech. Copps needs two other votes for a crusade; but also to galvanise the apparatchiks in the Enforcement Bureau [1]; and to secure the necessary budget to cover the extra workload.

It's a fascinating study in governmental process. Someone must be writing about it...

  1. The FCC site supplies a list of enforcement actions on indecency - none yet on profanity, that I could see.


There are clues to be had in the statements by individual Commissioners appended to FCC decisions - which are, as it were, the opinion of the court. I've tended not to bother with these statements too much. However...

Looking at the Bono decision (PDF) mentioned above, all five give a statement (rather unusual, I think, marking the exceptional nature of the decision).

Powell (p14) is by far the wuss-iest (from the point of view of the Comstock Crusader): he believes in the non-retrospectivity argument [1]; and he expresses a sensitivity on freedom of speech:
we must use our enforcement tools cautiously. As I have said since becoming a Commissioner, government action in this area can have a potential chilling effect on free speech.

It's something, given the screamfest Powell had to endure from the Kyle's Moms on the Hill the previous month.

Abernathy agrees on retrospectivity; but adds an odd passage on profanity, saying she supports the application of the 1972 Second Circuit decision in Tallman - which I have mentally flagged as dubious (I'm just saying...) - but refers to a document by the Mass Media Bureau of the FCC which
stated that "[p]rofanity that does not fall under one of the above two categories [indecency or obscenity] is fully protected by the First Amendment and cannot be regulated."

Ostensibly, this is to support her view on retropectivity; I get the feeling she's regretting going along on the (substantive) profanity point.

Copps says that the statute gives notice on the change of FCC opinion; he mentions forfeiture of licences, but deigns to indicate that, in this instance, he would be prepared to endorse a mere fine.

Martin agrees with Copps; whereas Copps preaches, Martin pouts:
How ironic that the majority relies on the Commission’s own failure to enforce its statutory mandate as the basis for NBC not knowing that the F-word is prohibited profanity.

Was he recruited from junior high?

Adelstein gives us an essay
Many studies show that the use of the F-word and other vulgarities is becoming more prevalent in our society, and in our media. Broadcasters have a responsibility to serve the public interest, and fail to meet it if they contribute to this trend.

Is this guy a kinder, gentler Copps? I hear the voice of Mr Mackey.

He goes on
By today’s action, the Commission steps up to its responsibility to enforce statutory and regulatory provisions restricting broadcast indecency and profanity.

Is that a dig at Powell? (The FCC were inactive on smut - even against their target of choice, Stern - for years before Powell became Chairman.)

A crunching non sequitur:
While we have historically interpreted "profane" to mean blasphemy, I support our application of the statute to the F-word, a highly offensive and commonly understood "profanity."

(OK, you know what he means, but Jeez...)

He's only getting started. Read - as they say - the whole thing. This is choice:
And its offensiveness does not depend on whether it is used as an adjective, adverb, verb or gerund.

Bonus points for the use of gerund. I sense a pop quiz coming on.

However, he does at least mention
literary, artistic, political or scientific value.

Though, as we've discussed before (eg March 19), this does not operate as an absolute defence to indecency (in the same way as it does against a charge of obscenity).

It seems, however, that he favoured the Copps/Martin position on retrospectivity, and joined Powell on the point only with the greatest reluctance.

(Adelstein's piece is pretty bad as prose: not much pride there. That gerund is a all hat, no cattle thing, I suspect.)

Connecting the dots, I'd say there was the making of a Copps/Martin/Adelstein majority in favour of joining the Comstock Crusade. But then, we don't take kindly to connecting dots around here...

  1. That prior Commission practice had been not to seek penalties under the head of indecency for fleeting and non-descriptive uses of words; nor under the head of profanity. So, it was unfair that broadcasters, relying on Commission practice, should be penalised. (The technical expression, I think, is estoppel.)

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