When FCC chairman Michael Powell resigned last year, Kevin Martin—who once worked for Ken Starr’s investigation of Clinton—was appointed to replace him. He has hired a prominent member of the Christian-right mafia as his “special adviser” on indecency, and this spring their crusade shifted into still higher gear, making an unprecedented plunge into purely editorial and aesthetic judgment. A rape scene central to a 1988 film was deemed too “intense” to broadcast, even though it includes no nudity. The depiction of a high-school sex party on CBS’s Without a Trace contained no nudity or naughty words—but “goes well beyond what the story line could reasonably be said to require.”
And a public-TV station was fined $15,000 for airing The Blues, Martin Scorsese’s documentary series, in which “motherfucker” and “shit” are good-naturedly uttered several times. “We disagree that the use of such language was necessary to express any particular viewpoint,” declared the commissioners, who have perhaps never met musicians. What’s more, they scrupled to point out, as if satirizing their stiff-necked honky selves, some of the language is “not used by blues performers” at all, but by a white record executive.
That kind of documentary reality was supposed to be okay. In a 2001 FCC guide, the relevant example cited as not indecent was a clip on NPR in which John Gotti repeatedly said “fuck” and “fucking.” The rules have suddenly changed, however, because Martin & Co. say so.
But not even in any consistent, coherent fashion. Exactly why is Bono’s “fucking brilliant” unacceptably “indecent and profane,” while all the variations in Saving Private Ryan—fucking latrine, fucking mess, no fucking idea—are, as the FCC ruled last year, “not indecent or profane”? Bleeping Spielberg’s patriotic feature “would have . . . diminished the power, realism and immediacy of the film experience”—but not in Scorsese’s documentary? And why, among the hundreds of stations that aired The Blues, was a single station fined?
The arbitrary logic and aggressive-but-capricious enforcement are partly in the nature of the task. There are hundreds of stations each programming hundreds of hours a week, and even this FCC finds it impossible to make absolute rules. Yet I wouldn’t be surprised if the new powers-that-be have decided that this policy of selective, even random fines is the most cost-effective way to scare the industry into self-censorship. That’s certainly the effect. Days after the FCC fines this spring, the WB trimmed racy scenes from The Bedford Diaries that the network’s censors had already approved. “They panicked,” a top executive at another network told me. “It’s really unfortunate.” At “Studio 360,” the public-radio show I host, we had a staff legal tutorial after the latest FCC rulings: The lawyer’s basic advice was to start letting him vet anything anyone had any question about—such as the Irish curses from the Broadway play The Lieutenant of Inishmore, which we bleeped.
The FCC claims its new hard line is a response to a widespread outcry. “We used to receive indecency complaints by the hundreds,” Martin says. “Now they come in by the hundreds of thousands.” But that’s because of e-mail, and in 2004, the FCC began counting every e-mailed complaint individually, which gives the echo-chamber campaigns organized by Martin’s Christian-right allies an artificial salience.
However, modern technology has also fundamentally undermined the enforcement system: The FCC doesn’t exercise jurisdiction over TV shows produced only for cable, which now constitutes a majority of our TV diet. This riles the censoring class. Even as they are nominally triumphant, their control is slipping away. Thus they now want Congress to restore the FCC’s power to regulate all TV and radio content, no matter how it comes into the box. And the key members of Congress are apparently willing. “I think we can put restrictions on cable,” says Ted Stevens, the chairman of the Senate committee that oversees the FCC. “I intend to do my best to push that.” Joe Barton, his counterpart in the House, is onboard, too. If “my grandson can click and watch a channel, whether it’s satellite, over-the-air, or cable,” he says, “the same rules in terms of decency should apply.”
The problem is that the right-wingers are right about the double standard. Cable programming today is no less “uniquely pervasive” than TV and radio were in 1978, when the Supreme Court posited that fact as the underpinning of the FCC’s right to ban naughty words. (If the Supreme Court decides in favor of expanding the FCC’s decency purview, I can easily imagine the commissioners fining South Park into oblivion, for instance, and prohibiting the premeditated words bleeped every night on The Daily Show.) So: Do we regulate TV content in the 21st century or not? This is the awkward, all-or-nothing constitutional question toward which the networks’ new litigation seems headed. And I’d say no, give it up, trust freedom, embrace technology. For the 14 percent of people who still watch old-fashioned over-the-air broadcasts, there’s the V-chip, and for most of the rest of us, satellite and digital cable make it easy to block shows or entire channels.