In finding indecent Bono’s slip at the 2003 Golden Globe awards and the unveiling at the 2004 Superbowl of Janet Jackson’s golden globe, the agency radically departed from two of the three central guidelines of its “Indecency Policy,” which had guided its decisions since 2001.
The agency acknowledged that it was abandoning one guideline when it overturned the ruling of its own enforcement bureau that Bono’s use of the “F-word” was too fleeting to justify sanctions. The indecency ruling in the Superbowl incident, based on an event lasting 19/32 of a second, again departed from the guideline that indecency rulings are justified only when the broadcast “dwells on or repeats at length” the offensive material.
But there was no explicit acknowledgement that another central guideline was also being abandoned. In the Bono case, the FCC said, “The use of the “F-Word” here, on a nationally telecast awards ceremony, was shocking and gratuitous.” But they made no finding as to “whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value” (my italics), abandoning another of the “principal factors that have proved significant in our decisions to date,” that the FCC had repeatedly cited as guidance from its Indecency Policy Statement.
Since the Bono decision, there has been an erratic, on-again-off-again assertion of both principles and confusion between material presented for shock value versus material which is merely shocking to some viewers.
In declaring in 2005 that “Saving Private Ryan” was not indecent, it tried to reassert criteria it had discarded in the Bono case.
Then in later findings, including the finding against San Mateo County Community College for airing Martin Scorsese’s PBS documentary “The Blues: Godfathers and Sons,” the FCC again abandoned a principle it had reasserted in the “Saving Private Ryan” case.
In the 2001 “Indecency Policy Statement,” issued as “Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency,” the FCC extracted, from its previous decisions, principles for the broadcast industry to follow:
The principal factors that have proved significant in our decisions to date are: (1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value. (My italics)
In that document, explicating the second factor under the heading:
Dwelling/Repetition versus Fleeting Reference,
the FCC says:
Repetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. In contrast, where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency. (My italics)
Explicating the third factor, under the heading:
Presented in a Pandering or Titillating Manner or for Shock Value,
the FCC says:
The apparent purpose for which material is presented can substantially affect whether it is deemed to be patently offensive as aired. In adverse indecency findings, the Commission has often cited the pandering or titillating character of the material broadcast as an exacerbating factor. Presentation for the shock value of the language used has also been cited. As Justice Powell stated in his opinion in the Supreme Court's decision affirming the Commission's determination that the broadcast of a comedy routine was indecent, “[T]he language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment.” FCC v. Pacifica Foundation, 438 U.S. 726, 757 (1978) (Powell, J., concurring in part and concurring in the judgment). On the other hand, the manner and purpose of a presentation may well preclude an indecency determination even though other factors, such as explicitness, might weigh in favor of an indecency finding. In the following cases, the decisions looked to the manner of presentation as a factor supporting a finding of indecency. (My italics)
The Bono and Jackson decisions departed from these guidelines.
In neither the Bono nor the Jackson cases was there a finding that the broadcaster chose or intended to present the “profoundly offensive” material that occasioned complaints.
The offensive material in both of these cases was acknowledged to be of a “fleeting nature” (the duration of Ms. Jackson’s exposure was said to be 19/32 of a second). In the Jackson case, the FCC said, “The fact that the exposure of Ms. Jackson’s breast was brief is … not dispositive” to a finding of indecency.
In the Bono case, the FCC acknowledged that it was abandoning its own policy, declaring it “no longer good law”:
While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the “F-Word” such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law. In Pacifica Foundation, Inc., 2 FCC Rcd 2698, 2699 (1987), for example, the Commission stated as follows: “If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” The staff has since found that the isolated or fleeting use of the “F-Word” is not indecent in situations arguably similar to that here. We now depart from this portion of the Commission’s 1987 Pacifica decision as well as all of the cases cited in notes 31 and 32 and any similar cases holding that isolated or fleeting use of the “F-Word” or a variant thereof in situations such as this is not indecent and conclude that such cases are not good law to that extent. We now clarify, as we have made clear with respect to complaints going beyond the use of expletives, that the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.
But in the “Saving Private Ryan” decision, issued in February of 2005, the FCC reaffirmed its reliance on what it had said was no longer good law:
In making indecency determinations, the Commission has indicated that the “full context in which the material appeared is critically important,” and has articulated three “principal factors” for its analysis: “(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” (FCC italics)
(Notice that this decision quotes verbatim the Indecency Policy Statement’s articulation of the three “principal factors.”)
The FCC implicitly acknowledged that the film’s material was shocking to viewers. They said:
The film, as aired by the ABC Network Stations on November 11, 2004, contains numerous expletives and other potentially offensive language generally as part of soldiers’ dialogue, some of which is cited by the Complainants. Such language includes: “fuck,” and its variations; “hell”; “ass” and “asshole”; “crap”; “son of a bitch”; “bastard”; “shit” and its variations, including “bullshit” and “shitty”; "prick”; and “pee.” For the purpose of this discussion, we will assume arguendo, that this material meets the first and second components to our analysis of whether it is patently offensive, in that at least some of the language is graphic and explicit, and is repeated throughout the course of the three and a half-hour broadcast of the film.
But, the agency said:Nevertheless, for the reasons discussed below, in light of the overall context in which this material is presented, we conclude that such findings with respect to the first two factors are outweighed in this instance by the third component of the analysis. For the following reasons, here, the complained-of material, in context, is not pandering and is not used to titillate or shock….
In context, the dialogue, including the complained-of material, is neither gratuitous nor in any way intended or used to pander, titillate or shock…. Deleting all of such language or inserting milder language or bleeping sounds into the film would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers. In short, the vulgar language here was not gratuitous and could not have been deleted without materially altering the broadcast. In this context, we must proceed with caution and exercise restraint given “the high value our Constitution places on freedom and choice in what the people say and hear.”
…In light of the overall context of the film, including the fact that it is designed to show the horrors of war [and] its presentation to honor American veterans on the national holiday specifically designated for that purpose…we find that the complained-of material is not patently offensive as measured by contemporary community standards for the broadcast medium, and, therefore, not indecent.
So the FCC in “Saving Private Ryan” takes under consideration the third “principal factor,” which it implicitly renounced in the Jackson and Bono cases, and determines that the material, though shocking, “is not used to titillate or shock.”
Reversing itself again in the February 21, 2006, decision to fine San Mateo County Community College $15,000 for airing Martin Scorsese’s PBS documentary “The Blues: Godfathers and Sons,” the FCC said:
In our assessment of whether broadcast material is patently offensive, “the full context in which the material appeared is critically important.” Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material panders to, titillates, or shocks the audience. (My italics)
Notice that, unlike the “Saving Private Ryan” decision, this decision does not quote verbatim the three “principal factors” of the Indecency Policy Statement. In fact, the statement here of the third “principal factor,” though it footnotes its origin in that 2001 policy document, is a radical unacknowledged reformulation of the 2001 test.
The original test asked “whether the material … is used to titillate, or … to have been presented for its shock value.” Instead of those questions, the FCC now is asking merely “whether the material… titillates or shocks the audience.”
And in fact the FCC’s decision in the “Godfathers and Sons” case employs that new criterion, rather than the 2001 criterion. Paragraph 78, specifically discussing the airing of the Scorsese documentary, says:
Because the expletives in the program are vulgar, explicit, graphic, dwelled upon and shocking to the audience, we conclude that the broadcast of the material at issue here is patently offensive under contemporary community standards for the broadcast medium and thus apparently indecent.
There was no determination in this case that “the material appears to pander or is used to titillate,” or that “the material appears to have been presented for its shock value.” The FCC says, in fact, “We recognize here that the documentary had an educational purpose.” But under the unacknowledged reformulation of the 2001 Indecency Policy Statement’s third “principal factor,” there is suddenly no need to determine that the broadcaster had an intention to titillate or shock. All that is necessary is to determine whether some viewers were titillated or shocked.
And the decision to fine San Mateo County Community College, while not fining other stations which aired the documentary, follows logically the use of this new criteria. The logic, based on the FCC’s new criteria, seems to be that it’s not a program’s inherent spirit or intent that determines “indecency,” but whether specific viewers are shocked. Therefore the FCC finds the indecency to have occurred only where the shock occurred.
In paragraph 86, the decision says:
Although other stations may have also broadcast the subject episode of “The Blues: Godfathers and Sons,” we propose a forfeiture only against San Mateo as the only licensee with a station whose broadcast of the material between 6 a.m. and 10 p.m. was the subject of a viewer complaint filed with the Commission. We recognize that this approach differs from that taken in previous Commission decisions involving the broadcast of apparently indecent programming. We find, in this case, however, that, in the absence of complaints concerning the program filed by viewers of other stations, it is appropriate that we sanction only the licensee of the station whose viewers complained about that program.
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