About that SCOTUS ruling on indecency

Blog ››› ››› ERIC BOEHLERT

It's the one from yesterday that upheld the FCC's Bush-era attempt to crack down on broadcasters who air even fleeting, live TV references to the F-word, and other banned utterances. The way Bono and Cher both dropped the F-bomb on award telecasts earlier in the decade.

If we take a step back, the 5-4 conservative ruling really is quite amazing when you consider that ten years ago the FCC had virtually walked away from the business of fining broadcasters for indecency. Today, thanks to a conservative pressure campaign to change the laws, the fines broadcasters face are staggering. And again, not just for lewd, R-rated morning show banter. But for airing live events where anybody (including athletes) curse and it's picked up by microphones.

That kind of stuff used to get a pass because the FCC had decided that in order for a on-air F-word to be actionable, it had to be used in a sexual manner. In fact, the FCC initially passed on fining the network that aired Bono's acceptance speech profanity ("really, really fucking brilliant") because the "language used by Bono did not describe, in context, sexual or excretory organs or activities and that the utterance was fleeting and isolated." That, according to the FCC's own indecency officer at the time

For years, the key guidelines the FCC used in determining indecency fines included whether the material described or depicted sexual or excretory organs or activities. And the broadcast in question had to be "patently offensive as measured by contemporary community standards for the broadcast medium."

In other words, to be indecent the content had to sexually explicit, go on at length and used to titillate. But post-Super Bowl wardrobe malfunction, and after the Parents Television Council moved into high gear, the FCC announced that "given the core meaning of the 'F-word,' any use of that word or a variation, in any context, inherently has a sexual connotation" and therefore it was indecent.

And now, thanks to SCOTUS, that policy change has been upheld. Is the policy change constitutional? Does the FCC have the right to monitor speech on the airwaves? The SCOTUS passed on that this week, but may soon be asked to address the issue.

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