In a 5-4 decision, the Supreme Court half-heartedly prolonged the futile game of “whack-a-mole” that the federal government continues to play in policing indecency — a process best defined by Justice Potter Stewart’s famous 1964 pronouncement on “hardcore” pornography: “I know it when I see it.”
With conservative Justice Antonin Scalia writing for the majority, the court threw out a lower court’s ruling about use of “fleeting expletives,” triggered by exclamations from Bono, Cher and Nicole Richie at live award shows. Yet with six justices separately weighing in with opinions and the media landscape evolving, it’s hard to escape a sense that this whole debate — especially as it pertains to regulating a lonely island of broadcasters within a media free-fire zone — is operating on borrowed time.
In fact, the most interesting opinion came not from Scalia but Justice Stephen Breyer, who in his lengthy dissent concluded that the Federal Communications Commission decision to fine Fox Television Stations was indeed “arbitrary, capricious and an abuse of discretion.” He also noted that the FCC is intended to maintain broadcast regulation “that does not bend too readily before the political winds” and is based upon “more than the personal preferences of the decisionmakers.”
The question of indecency, however, has always been politicized, and avoiding the word “arbitrary” is where cultural crusaders’ whole argument breaks down.
Once, broadcasters could easily be held to a higher standard, given their uniquely pervasive role. Today, they are increasingly lost amid a sea of voices — louder than most, perhaps, but for the vast majority of consumers who receive their TV through cable or a satellite dish, that’s a distinction without much of a difference.
Indecency guidelines, moreover, have historically been couched in the cloak of protecting children — shielding them from potentially offensive images and utterances. Yet minors have shrunk to a minuscule component of the broadcast audience, lured away by kid-friendly cable channels, DVDs and the screening device of digital-video recorders, allowing any parent paying the slightest attention to dictate much of the menu that their children consume.
The indecency wars have nevertheless raged on — fueled by political expediency (becoming the Clinton administration’s “family values” issue) on both the left and the right. In addition, there’s inevitably the occasional high-profile eruption (Janet Jackson’s breast? During the Super Bowl!) to galvanize the attention of an easily distracted media.
Granted, watching the Supreme Court and FCC uncomfortably wrestle with the issue has provided no shortage of entertainment through the years. In 1978, for example, there was the famous case regarding a radio station that played George Carlin’s “Seven Dirty Words” routine. The court’s ruling established that broadcasters could be fined for airing racy material outside a “safe harbor” when children weren’t apt to be watching or listening.
As a sign of how standards evolve, though, even Carlin felt compelled to later revisit and revise the original list — noting that a word such as “cocksucker” really didn’t belong, consisting as it did of two halves that, individually, were at worst merely suggestive.
The periodic sideshow of broadcast indecency appears destined to continue for at least a while longer. Still, with apologies to Bono and his Golden Globes miscue, at this late stage in the game, those perpetuating the brouhaha are a long ways away from fucking brilliant.