Bono, the Culture Wars, and a Profane Decision: the Fcc's Reversal of Course on Indecency Determinations and Its New Path on Profanity

• Publication year: 2004
• Citation: Vol. 28 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 1FALL 2004

Bono, the Culture Wars, and a Profane Decision: The FCC's Reversal of Course on Indecency Determinations and Its New Path on Profanity

Clay Calvert(fn*)

Introduction

The United States Supreme Court has rendered numerous high-profile opinions in the past thirty-five years regarding variations of the word "fuck." Paul Robert Cohen's anti-draft jacket,(fn1) Gregory Hess's threatening promise,(fn2) George Carlin's satirical monologue,(fn3) and Barbara Susan Papish's newspaper headline(fn4) quickly come to mind.

These now-aging opinions address important First Amendment(fn5) issues of free speech, such as protection of political dissent,(fn6) that continue to carry importance today. It is, however, a March 2004 ruling by the Federal Communications Commission ("FCC")-not the nation's highest court-that may turn out to be the most important decision on the use of the word "fuck," and offensive language in general, in several decades.(fn7) In its Memorandum Opinion and Order, the FCC reversed an October 2003 ruling(fn8) and held that the use of the phrase "this is really, really fucking brilliant"(fn9) by Bono, lead singer for the Irish rock group U2, during the 2003 Golden Globe Awards television program constituted "material in violation of the applicable indecency and profanity prohibitions."(fn10)

What is particularly striking about the Memorandum Opinion and Order issued by the five FCC commissioners(fn11) is not the mere act of reversing a decision; the FCC has reversed prior opinions involving indecency determinations.(fn12) Rather, its significance rests on several grounds, including the Commission's decision to:1. embark on an unexplored and "new approach to profanity"(fn13) that no longer limits the statutory meaning of the term "profane language"(fn14) to "blasphemy or divine imprecation,"(fn15) but significantly expands it to cover words such as "fuck" and variants thereof that are "highly offensive;"(fn16) 2. reverse course and declare as "not good law"(fn17) a string of earlier cases in which the FCC had held that isolated, fleeting, and otherwise unanticipated uses and broadcasts of the word "fuck" were not indecent; and 3. include technological advances-in particular, "[t]he ease with which broadcasters today can block even fleeting words in a live broadcast"(fn18)-as a factor in indecency determinations while excluding from that now-clouded calculus whether the broadcast of a word like "fuck" is unintentional.

The implications of these changes are profound. In particular, the FCC has given itself two separate avenues-indecency and profanity- for censoring offensive speech where it previously used only the former for this task.(fn19) An entirely new body of "profane language" guidelines must be developed for this uncharted territory.(fn20) Unfortunately, the guidelines will be formulated by the FCC in a "climate of Janet Jackson-induced(fn21) hypersensitivity"(fn22) and legislative hysteria-hysteria fanned by a presidential election year-that has already produced several bills designed to punish broadcasters. Those bills include the Broadcast Decency Enforcement Act of 2004,(fn23) which was approved by the U.S. House of Representatives in March 2004,(fn24) and the Clean Airways Act,(fn25) which has yet to move forward in the House. In such an atmosphere, parent-pandering politicos will give First Amendment interests short shrift when profanity guidelines are devised.

Beyond its impact on the regulation of profanity, the long-term implications of Golden Globes II(fn26) on live sports broadcasts may be immense. In particular, the FCC made it clear that "a single and gratuitous use of a vulgar expletive"(fn27) is actionable as indecent speech, even if the broadcast of the word was unintentional. The FCC rests its conclusion on "[t]he ease with which broadcasters today can block even fleeting words in a live broadcast."(fn28) In the process of reaching this conclusion, the FCC declared as no longer valid two of its earlier unpublished staff decisions that held that fleeting uses of the word "motherfucker" during sports broadcasts were not indecent.(fn29) This creates the very real possibility of monetary liability for broadcasters who unexpectedly catch a coach or player screaming an expletive from the sidelines or who allow fans' chants of "bullshit" to go out over the airwaves.(fn30) To avoid such liability, broadcasters might end live broadcasts and choose to air sporting events with ten-second delays. In fact, CBS considered such an option in March 2004.(fn31) The phrase "live sports broadcasts" thus would become an oxymoron; real-time coverage would be relegated to the ashcan of television history.

Another negative ramification of the FCC's new response to allegedly indecent and profane broadcast content may be a chilling effect(fn32) and a new wave of media self-censorship.(fn33) Some evidence suggests this already is taking place.(fn34) As the Rocky Mountain News reported in late March 2004 after interviewing a number of radio industry officials, there has been "a wave of self-censorship on a national and local level."(fn35) The National Association of Broadcasters even considered the adoption of a self-imposed "voluntary" code of conduct.(fn36) In today's world, the danger of self-censorship cannot be ignored. As Professor Lawrence Soley argues in his recent book on free speech, "businesses and corporations now pose a greater threat to free speech than does government."(fn37) Broadcasters may well kowtow and surrender content in order to prevent further FCC incursions into the realm of content and to avoid the loss of advertisers who shun association with radio chains and television owners that carry allegedly offensive expression.

Broadcasters also may be more willing to rapidly settle disputes with the FCC over alleged instances of indecent broadcasts rather than contest and fight the charges in the name of the First Amendment's protection of free speech. This certainly appeared to be the case in June 2004, when Clear Channel Communications entered into a record $1.75 million settlement over indecency complaints with the FCC.(fn38) The settlement came despite the fact that Andrew Levin, the chief legal officer for Clear Channel, told reporters that he "didn't agree that all the complaints were legally indecent."(fn39) As media writer Frank Ahrens of the Washington Post bluntly put it in describing the settlement, Clear Channel "has chosen a measure of capitulation."(fn40) Media industry analyst Gordon Hodge of Thomas Weisel Partners in San Francisco remarked that settlements like the one agreed to by Clear Channel could have a "chilling effect to the content."(fn41)

This article examines the FCC's vigorous new approach to indecency and profanity determinations, including both the legal issues and the greater cultural, political, economic, and social contexts in which that approach is developing. Part I describes the FCC's initial decision regarding the Golden Globes' 2003 broadcast and then compares it with the March 2004 reversal. In the process, Part I lays the historical framework for the FCC's power over indecent expression on the public airwaves. Part II then contextualizes the FCC's new course of action within the framework of the ongoing cultural wars and political battles in the United States and suggests that the FCC and Congress have unfairly singled out broadcasters for attack with an underinclusive(fn42) approach to addressing what supposedly ails the nation. Part III more thoroughly addresses the negative ramifications of the FCC's actions and argues that the Commission must temper its approach lest the contentious concept(fn43) of the "public interest,"(fn44) which has long been left to marketplace forces,(fn45) be dictated by the political forces that influence the five FCC commissioners(fn46) and inevitably shift with the hot-button cultural movement of the day.(fn47) Finally, the Conclusion calls for the FCC to abandon its new line of "profanity" enforcement and for Congress to cease being guided by election-year politics when it foists new obligations on the Commission.(fn48) First Amendment rights must not be sacrificed for the short-term political gain of pandering politicians.

Part I. One Word, One Broadcast, Two Decisions That Are Not the Same:(fn49) What's So "Brilliant" Now?

More than a quarter of a century has passed since the United States Supreme Court ruled in FCC v. Pacifica Foundation(fn50) that the Commission, acting under its public interest powers for the concern of protecting children, may restrict indecent speech broadcast during certain times of the day(fn51) without violating the First Amendment speech rights of broadcasters.(fn52) The Court reasoned that the broadcast of comedian George Carlin's twelve-minute "Filthy Words" monologue on the radio during the afternoon was "like a pig in the parlor instead of the barnyard."(fn53)

Since that time, the FCC has developed an entire regulatory enforcement scheme around the concept of indecent speech, which it currently defines as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities."(fn54) Whether material is patently offensive is a...