Mass media and the law

The Internal Contradiction of the FCC's Current Indecency Standards

FCC indecency enforcement proceedings and the First Amendment: The programmers of television content have become increasingly comfortable with a certain degree of explicitness not formerly considered acceptable on the airwaves. But as cultural shifts occur with the passing of generations out of and into the focus of popular media's marketing targets, television has become a battleground for the values that separate generations. In this same mode, it has become a forum for the demonstration of division between classes and social ideologies as well. With generational changes, taboos over subjects which have been conservatively avoided in public in the past are constantly being shifted, reshaped or altogether eliminated. Television has reflected this changing cultural perspective by creating a greater allowance for content which is sexually or verbally explicit. According to a recent study: "Two of every three prime time shows include sexual content and these average 5.3 scenes per hour, involving both sexual talk and sexual behavior, as compared with 56% and 3.2 scenes per hour in the overall program sample. The difference is located almost entirely in talking about sex, inasmuch as both program samples (prime time vs. overall) contain the same proportions of sexual behavior (24% vs. 23%)." (Vorderer, 101)

The reaction which this has provoked from all manner of defender of the moral code has created an impression of such television content that suggests it is sociologically dangerous for youth to have access to such reflections of its cultural identity and interests. The attack which political activism groups, religious organizations and lawmakers have levied against sexually explicit television content has very much defined the current discourse over broadcast issues within the scope of the First Amendment.. The phenomenon wherein adults employ moral turpitude as a means to protecting children from negative media messages is one that is founded in a tradition of suppression. Fears that are expressed today regarding the damages of rap music, violent computer games and the sexual images on television "have their roots in nineteenth-century anxieties about the 'ill effects' of popular forms of amusement on the 'children of the lower classes'. These concerns stretch in an almost unbroken line through successive 'moral panics' in both Britain and America, once popular culture was transformed into urbanized commercial entertainment from the early Victorian years onwards" (Springhall, 1) Groups that have taken the time to voice concerns over the content of popular entertainment had in the past done so under the premise that such negative behaviors as those depicted in forms commonly observed by young people are inevitably to be the harbinger of a societal decay. This would particularly come into focus with the events occurring during the 2004 Super Bowl halftime show, which in violating certain expected norms of broadcasting decency, would invoke an outpouring of complaints for moral watchdog groups. With an FCC distinctly interested in enforcement matters as demonstrated by mounting hostilities between notorious radio shock jock Howard Stern and Chairman of the FCC (as well as son of the then Secretary of State Colin) Michael Powell, the famous 'wardrobe malfunction' would create new political will for aggressive indecency standards. With respect to the 'wardrobe malfunction,' "in the first case, CBS v. FCC, the FCC argued before the U.S. Court of Appeals in Philadelphia (3rd Cir.) that its imposition of a $550,000 fine on CBS for the 2004 Super Bowl halftime show that ended with Justin Timberlake ripping off part of Janet Jackson's costume and revealing her breast was a proper application of its indecency standard." (Schrimpf, 1 However, it would create a justification for a newfound intensification of the fines imposed upon others for violations of so- called obscenity standards with regard to sexual content, language or other allegedly objectionable materials. The fundamental inconsistency between the levying of exorbitant and elevating fines to repeat violators and the First Amendment rights of broadcasters is the arbitrary nature of the 'test' designed by the Supreme Court to determine the presence of obscenity. According to the informational site provided by the FCC itself, "the Supreme Court has established that, to be obscene, material must meet a three-pronged test: An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and the material, taken as a whole, must lack serious literary, artistic, political, or scientific value." (FCC, 1) The very notion that a government agency should be in the position of assessing whether a broadcast message has serious literary artistic, political or scientific value is a threat to freedom of expression. The construction of objective standards for the evaluation of such things may undermine the right of broadcasters to present information, ideas or images which are inconsistent with popular or mainstream values. This is a direct compromise of the conditions intended by the First Amendment, which denote that such assessments are inherently invalid.

Pros and Cons of the Current Policy: One of the greatest failures of the current policy is the manner in which obscenity violations are measured. The seemingly arbitrary ways that the FCC comes to identify violations which may be subjected to enormous fines illustrate the danger of moral prejudice. For instance, the undue influence of such moral watchdog groups as the Parents Television Council (PTC), who stimulate campaigns against specific targets may tend to impose FCC fines with an imbalance against those who run afoul of the particular group's values system. A recent example is the Fox Network's primetime animated series, The Family Guy, which is known for its edgy and sometimes obscene humor. The PTC's particular attention to an episode with explicit reference to homosexuality demonstrates the danger of the FCC's agenda. Indeed, "first-quarter complaints to the FCC in all categories increased by 246% over fourth-quarter 2008 to 245,241, the FCC said Tuesday, but that was driven by a whopping increase in indecency complaints in March." (Eggerton, 1) Further research reveals this to have been the result of a specific campaign designed to stimulate the submission of pre-filled complaint forms against the episode in question. Accordingly, research illustrates that "a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV's Family Guy." (Lasar, 1) This demonstrates the use of deeply suspect numerical assumptions in order to enforce FCC fines. The enormity of such fines is particularly incongruous when one considers the misimpression driving FCC policies. With the federal agency acting according to that which it perceives as the will of the people based on the frequency of complaints, it has truly attached a decision impacting countless viewers to the actions and values systems of specific action groups. This pattern of complaint increase surrounding events which have raised the hackles of moral watchdog groups is also revealed to be not just deeply biased but also empirically unreliable. So would this be demonstrated in the wake of the Jackson/Timberlake incident. So indicates Thierer (2009), who remarks that "in the first quarter of 2004 - the time when the Super Bowl incident with Janet Jackson occurred - the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter's FCC Quarterly Report." (Thierer, 1) The FCC has recognized that its policy decisions are based on unreliable data and yet have increased the severity of fines imposed upon broadcasters based on these findings. In spite of this clear drawback to the current approach, recent Supreme Court voting has sided with the FCC. The majority opinion would be written by the historically conservative Justice Scalia. His response is characterized by Stout (2009), who reports that "in layman's terms, 'arbitrary and capricious' action by a lower court or an agency means the action was totally unreasonable and in disregard of the facts. Justice Scalia wrote that the F.C.C. has the power under law to turn to more aggressive enforcement, if it wishes, and that it need not present empirical evidence of harm done to children by over-the-air dirty language. Indeed, he wrote, such empirical evidence is unattainable in any event." (Stout, 1) This sites the one aspect of the FCC approach that may be characterized as positive, which is that it awards it sufficient power to restrain broadcasting excesses. Recommendations for a New Policy: Beyond this, the policy should generally be regarded as negative for creating a test of indecency that is indefensible. A new policy would redefine obscenity in specific and concrete terms based on the availability of empirical evidence illustrating the negative impact levied upon viewers. In order for the FCC to consider an act, image, spoken word or concept as indecent and justifying the levying of an exorbitant fine, it must have been illustrated through presentable research that such are connected to negative sociological, cultural or political effects.