The policies of the bush administration have been misguided and wasteful in so many ways that every so often I remember some radical wrong turn I’d completely forgotten about.
Like what the Federal Communications Commission has been doing the past two years. The cartoonishness of the stories that do grab our attention, like media IEDs—Justin Timberlake exposing Janet Jackson for .594 seconds, Howard Stern driven to satellite radio—have the effect of making us think that the whole subject is too trivial and vulgar to justify our concern. But no more influential piece of the federal apparatus has been captured more effectively by the Republicans’ Christian right wing than the FCC. And it has been running amok, mullah-like, throwing out old rules and precedents willy-nilly and making up new ones as it goes along.
The start of the new enforcement era coincided with the start of the last presidential-election cycle. Now it’s an election season again, and—voilà!—a more aggressively censorious set of FCC indecency rulings and fines were handed down in March. And after a grassroots Christian-right “congressional call-in day” at the end of April, the Senate passed—unanimously, by acclamation, the week before last—the Broadcast Decency Enforcement Act, which increases the maximum FCC indecency fine by 1,000 percent.
There is essentially no debate on this in Washington, of course: What’s in it for the Democrats? Indeed, this is just the sort of dumb, showboating “values” issue on which Hillary Clinton has tacked ostentatiously right.
But there is, happily, a dead-serious opposition, and I don’t mean the ACLU. No, the improbable free-speech white knights riding in for this battle are suits, members of the corporate Establishment, virtual and actual Republicans—the four big broadcast- television networks and their 800 local affiliates, who’ve joined forces to file a federal suit appealing the latest FCC rulings. They’re driven by commercial anxiety more than constitutional principle, of course, but they are nevertheless GE and Disney and Rupert Murdoch’s News Corp. taking a stand against “growing government control over what viewers should and shouldn’t see.”
It is comforting to watch the Man reaffirm mainstream values of laissez-faire restraint. And it’s fun to see this central contradiction of conservatism—the amoralists’ economic freedom versus the zealots’ will to regulate—exposed. But what’s most intriguing is that it might just become a great test case for the modern media age: Now that 86 percent of Americans have their TV programs delivered by cable or satellite, and any 12-year-old is free to look at billions of unregulated Web pages, what exactly is the point of having the federal government make rules about how raunchy or rude broadcast programs may be?
For decades, under Reagan and Bush 41 as well as Clinton, the FCC undertook indecency enforcement with a very light hand. After all, the big idea domestically has been getting government off our backs and out of our faces. And like other regulatory agencies, the FCC intended its findings to be a consistent body of case law, enduring and reliable.
Thus its Enforcement Bureau sensibly ruled in the fall of 2003 that Bono’s giddy, live-on-NBC reaction to winning a Golden Globe for his song from Gangs of New York (“This is really, really fucking brilliant”) was not indecent. The commission had given a pass to similar bits in previous awards-show telecasts—and besides, Bono’s usage was clearly outside the bounds of literal, dirty-word “indecency” as it had been defined over the years by the commission and the courts. “The word ‘fucking’ may be crude and offensive,” the FCC said, “but … did not describe sexual or excretory organs or activities.”
But then came 2004.
The Super Bowl nipple flash was a stroke of lucky timing for the right, a way to whip the issue of indecency into a pseudo-crisis. Two months later, FCC commissioners declared that old precedents were no longer precedential and overruled the career staff concerning Bono: “Any use of [fuck] or a variation, in any context,” they said, “invariably invokes a coarse sexual image.”
Of course, that’s simply not true. The phrase “fucking brilliant” makes no sane person think of sex. When Dick Cheney said “Go fuck yourself” to Pat Leahy in 2004 on the Senate floor, for instance, did he intend for Leahy to envision a literal, fantastic autoerotic act? Surely not.
The commissioners apparently didn’t really buy their own indecency argument either, so to cover themselves they unilaterally stretched the settled legal meaning of “profanity” to mean any language they find too coarse—such as “fucking brilliant.” At the same time, they also started going crazy with fines, ordering networks and stations to pay $8 million during 2004, several times as much as the cumulative penalties levied during the entire previous decade.
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.
And in the end, technology will keep us free. Indecency and profanity and weirdness of all stripes will continue to migrate to the unregulated Web. At least one of the big networks has a Plan B to end-run FCC decency regulations by delivering uncensored programs via broadband. Unless our decency crusaders really go Saudi Arabian on us, they may keep winning the FCC battles, but they are doomed to lose the war.