The 2nd U.S. Circuit Court of Appeals in Manhattan threw out the 2004 Federal Communications Commission policy that imposed fines on broadcasters for allowing even a single curse word to go out over the air. In their 2004 policy, the FCC prohibits all “patently offensive” references to sex, sexual organs, and excretion. The court decision maintains the policy is unconstitutionally vague and effectively “chills speech,” forcing “self-censorship of valuable material which should be completely protected under the First Amendment.”
It seems to me the real question isn’t what the FCC finds patently offensive; it’s figuring out their definition of “valuable material.”
There’s a huge difference between airing the great George Carlin’s legendary “7 Words You Can’t Say On TV” bit, and some Wacky Morning Zoo’s Ca Ca Poo Poo skit. Yet, in theory, both should be protected under the First Amendment. I’m more concerned about the definition of “chill speech.” Is that just a codeword for censorship? Or is it the kind of talk that gives you goose bumps when you hear it? And if it’s the latter, is it the tactile sensation you experience when you are titillated? Or when you’re cringing from revulsion?
The heart of the court’s decision is the argument that the FCC does not give any real guidelines as to what they prohibit, just a ubiquitous Justice Potter Stewart style “I know it when I see it” rationale. Which, once again, brings us back to the genius of Carlin, and his brilliant observation, “You can prick your finger, but you can’t finger your…” well, you know. It’s all about context, certainly, but fines have also been levied for what was considered to be too many sexual references. Unfortunately, though the FCC maintains that profanity referring to sex or excrement is always indecent, there’s no record as to the number of on air “penis” mentions they allow, which prohibits the bargaining aspect of negotiating the fine print: “Okay, we’ll cut two ‘Johnsons’ and a ‘boner’ if you let us keep the joke about the bear and the rabbit going to the bathroom in the woods.”
With the court’s dismissal of the FCC policy, networks like MTV will no longer be punished financially when some Hollywood Phony like that racquetball goggle-wearing Bono drops the F-Bomb during a live awards ceremony. Nor will your local Wacky Morning Zoo team for their ‘Ca Ca Poo Poo’ skit.
If only there was a Federal Comedy Comission who could fine them for not being funny.