Do you really care if you see a nipple on television? For most of the ‘00s, the Federal Communications Commission bet that you did, and it spent a great deal of energy concerning itself with minor lapses of decency.
But more recently, the agency had what could be perceived as a change of heart. In a public notice released on April 1, the FCC announced that, with the wave of a magic wand, it had tossed out more than 1 million indecency complaints, many of which it conceded were “too stale to pursue.”
The decision was made as part of an effort to reduce an overwhelming backlog of complaints that had been building up since the Bush administration, when the FCC vowed to crack down on so-called fleeting expletives. In 2006, President George W. Bush signed into law the Broadcast Decency Enforcement Act, which increased fines for fleeting expletives tenfold, from $32,500 to $325,000. The law came about following Janet Jackson’s now-infamous wardrobe malfunction, which caused controversy during the Super Bowl halftime show two years earlier.
But today’s FCC, displaying what many will no doubt see as a long-awaited show of common sense, did away with some 70 percent of its backlogged indecency complaints, according to the announcement. And if you think that’s an encouraging sign for freedom of expression, it gets better. The agency also announced that it is seeking public comment on whether or not it should stop going after fleeting expletives altogether -- a move it says would free it up to focus on more “egregious cases” of indecency.
Some parents’ groups are not happy with the idea, however. In an open letter posted online on April 1, the conservative watchdog Parents Television Council (PTC) called the proposed change “deeply vexing,” saying it disregards the FCC’s duty to act in the interest of the American viewing public.
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Which brings us back to the question of whether or not most people care if they see a nipple on TV. Dan Isett, director of public policy for PTC, thinks they do. “If we’re using a nipple as an example, that’s a good one,” he said in a phone interview. “There were more than 650,000 complaints following the Janet Jackson incident. That doesn’t happen if people don’t care.”
According to the proposed changes, the FCC would focus on deliberate and repeated expletives, while overlooking fleeting instances. The agency would also treat isolated, non-sexual nudity differently from more gratuitous cases. But Isett said the FCC should not be in the business of distinguishing between fleeting and egregious instances of indecency.
“What they’re saying with this absurd standard is that misdemeanors don’t exist,” he said.
On the flip side of the argument, some free-speech proponents say the FCC’s proposal doesn’t go far enough. Berin Szoka, president of the technology think tank TechFreedom, said the very notion of regulating what broadcasters can and cannot say is obsolete in the digital age, when consumers have unfettered access to any type of media they want. Although Szoka gave the FCC an “E” for effort, he said the agency’s enforcement policy -- however relaxed -- is destined to be challenged and decided by the Supreme Court.
“They’re just rearranging the deck chairs on the Titanic,” he said. “The iceberg of technological change has already struck. The ship of regulation is sinking. No matter what decision they come to, they’re just delaying the inevitable.”
The argument for keeping the FCC’s authority intact is based on the idea that the airwaves are a limited public resource, and that FCC licenses are granted with the understanding that the licensee will use those airwaves to serve the public interest.
From a legal standpoint, the FCC’s power to regulate indecent content was defined in 1978 with “FCC v. Pacifica,” a landmark Supreme Court ruling. The court essentially ruled that indecent material presented over the airwaves confronts us in our homes, where our right to be left alone outweighs the free-speech rights of the broadcaster. As Szoka points out, however, much has changed since 1978. Today, “only 8 to 15 percent of American households rely on over-the-air broadcasting,” as he noted on the Huffington Post last year.
And yet despite a vastly different media landscape, potential challenges to the Pacifica ruling have so far yielded little progress. In September 2012, the Supreme Court avoided the issue in “FCC v. Fox Television Stations,” which centered on supposed obscenities during two performances at the 2002 Billboard Music Awards. The court ruled in favor of Fox on a technicality -- namely that the FCC’s rules on fleeting expletives were not yet in place at the time of the broadcast -- but it declined to take up the larger issue of whether or not technological change necessitated a reevaluation of Pacifica.
“The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the Government has its own interest in setting certain standards,” the court wrote in its judgment summary. “These arguments need not be addressed here.”
The PTC sees the ruling as reaffirming the FCC’s authority to regulate speech over the airwaves, and strengthening the notion that those airwaves should be used for the good of the public. In its open letter, Tim Winter, the organization’s president, said the FCC’s proposal to relax its rules caters instead to Washington lobbyists and their “paymasters” in the entertainment industry.
“As such,” Winter wrote, “we insist that the FCC give greatest heed to the voices of those who own the airwaves and who continue to support the broadcast decency law as necessary to protect their children.”
Reading the letter, Szoka wasn’t convinced that PTC’s motives were altruistic as Winter purported them to be. “That’s rich,” he said. “This is an organization that literally wants to squelch speech. It’s their prime directive.”
[Correction: 4/10/13] An earlier version of this article misspelled the last name of PTC President Tim Winter.