Martin unleashes wrath on appeals court
The chairman’s choice of words in his reactionary reaction statement said it all.
No, I’m not talking about the liberal use of “fuck” and “shit” in the statement issued Monday by Federal Communications Commission chairman Kevin Martin after a federal appeals court decision tore apart the commission’s rationale, or lack thereof, for its recent indecency policy decisions.
The most loaded words in the statement, which did include four “fucks” and three “shits” and was attributed to Martin rather than the full commission, were the repeated references to “the New York Court” and the sensational assertion that “Hollywood will be able to say anything they want, whenever they want” now that the 2nd Circuit Court of Appeals has taken a hard look at some of the nonsensical decisions that have eminated from the FCC during the past few years under Martin’s stewardship and that of his predecessor, Michael Powell.
Martin’s statement in response to the legal smackdown in the 40-page decision issued by court Monday was highly unusual for the chairman of an august federal regulatory body, veteran FCC watchers say. The focus on the court’s Gotham locale bordered on “name-calling,” in the view of Andrew Schwartzman, head of the D.C.-based Media Access Project policy watchdog group. Schwartzman’s guess is that the FCC’s next stop is Congress, throwing lawmakers the election-year red meat of asking it for legislative cover to protect children from bad language on TV and bad “New York” court decisions.
Martin seemed aghast that “the New York court” had the temerity to raise the common-sense argument that in fact colorful, if salty, language has seeped into everyday vernacular and that not every reference to “fuck” and “shit” are actually referring to the act of intercourse or defecation.
THE COURT TOOK to task the FCC’s puritanical argument that in every instance, the use of “fuck” has a sexual connotation, and therefore falls under the definition of the FCC’s indency standard, namely language that paints a picture of “sexual or excretory activites or organs.” The court went so far as to call the FCC “divorced from reality” on this issue, which further stoked Martin’s ire.
“I find it hard to believe that the New York court would tell American families that ‘shit’ and ‘fuck’ are fine to say on broadcast television during the hours when children are most likely to be in the audience,” Martin’s statement said.
However, as the appellate court decision noted more than once, the FCC isn’t willing to fight a bare-knuckle First Amendment battle over four-letter words uttered in the context of news programming. And if there’s a big fuss raised about a patriotic war movie from an Oscar-winning director, i.e. ABC’s 2004 telecast of “Saving Private Ryan,” well then “fuck” on broadcast TV is OK because to edit them out would have “alterted the nature of the artistic work and diminished the power, realism and immediatcy of the film experience for viewers,” in the FCC’s twisted logic. But let a bluesman use a colorful colloquialism in a PBS documentary, i.e. Martin Scorsese’s “The Blues,” well, that’s worthy of a fine, as the FCC decided last year.
Aside from the comedic value of the conservative FCC commish getting into a dither about the New York-Hollywood axis of media evil, the 2nd Circuit’s 40-page decision raised numerous red flags about FCC’s recent indecency policy decisions even for those of us who have watched the indecency jihad gather steam for the past few years, ignited by Janet Jackson’s wardrobe malfunction at the 2004 Super Bowl.
MONDAY’S COURT DECISION stemmed from Fox’s appeal of the FCC’s ruling last year that two instances of “fleeting expletives” let loose by celebs appearing on the net’s 2002 and 2003 telecasts of the Billboard Music Awards — one “fuck” from Cher and a “shit” and a “fucking” the following year from Nicole Richie. But the FCC’s real legal problem stems from its 2004 decision during Powell’s regime, that the use of “fucking” by Bono during NBC’s 2003 Golden Globes telecast also constituted indecent speech.
The commission’s decision on the Bono-Golden Globes F-bomb came in the wake of the hand-wringing and election-year rhetoric over the Super Bowl incident. But three years later, the cooler heads on the appellate court noted that the decision to declare the ad-lib utterances of celebs on awards shows amounted to a “radical” shift in FCC policy, one that was undertaken without any legal explanation, let alone justification.
The landmark Pacifica Foundation case involving George Carlin’s “Filthy Words” monologue that has governed FCC indecency policy for the past 30 years anticipated the problem of a F-bomb or two being let loose during a live broadcast. The Supreme Court in its 1978 Pacifica decision noted that it would be “inequitable” to consider such instances indecent speech because the broadcaster did not have sufficient time to react.
Citing Carlin’s famous “seven dirty words you can’t say on TV” routine, the high court justices in the 5-4 Pacifica decision stressed that broadcast indecency had to amount to “verbal shock treatment,”or deliberate and repetitive use of words deemed patently offensive by contemporary community standards. The high court reasoned that no children were likely to be scarred for life by a one-off F-bomb on an awards show or sports telecast.
As cited in Monday’s court decision, the FCC in its Golden Globes decision simply concluded that the old interpretation of laying off isolated expletives was “no longer good law.” The appeals court on Monday told the FCC to give it all a re-think and come back with a bit more explanation is to why that once-good law has gone so bad for one particular Washington commission.