In a decision released yesterday, the FCC announced a new doctrine of fining "profane" broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?
Caveat: This decision is in a really vague area of First Amendment law and I've written my thoughts within hours of the decision's release, so my analysis is preliminary.
Back in October, the FCC ruled that the use of the word "fucking" as an adjective was not indecent (Bono Says 'Fucking' on TV; FCC Says 'OK'). Following Janet Jackson's wardrobe malfunction, the FCC decided to revisit that decision. Unsurprisingly, it was overturned and the use of the word "fucking," as in "this is really, really fucking brilliant," was found to be indecent. Read the press release: FCC Finds That Broadcast of "F-Word" During Golden Globe Awards Was Indecent and Profane [PDF]. Read the decision: In the Matter of: Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program [PDF].
The first thing that struck me, however, was not that the use of "fucking" as an adjective was found to be indecent. I understand the FCC thing about indecency. I don't agree, but I understand it. What struck me and what I don't really understand is this whole "profane" thing. Isn't "profane" something like blasphemy or contempt for the sacred? Well, it used to be. Used to be, as in people are seldom prosecuted or fined for it anymore, and the FCC never used it.
Turns out, where most anti-indecency folks would have been happy with overturning the original "fucking" decision, the FCC decided to go one big step further and has decided to basically create a doctrine of the profane. Why they would want to do this I have no idea. Nevertheless, this renewed doctrine seems to have the strong support of every commissioner:
Chairman Michael Powell
For the first time, the Commission has applied the profanity section of the statute for the
broadcast of this highly offensive word, an application I fully support.
Commissioner Kathleen Abernathy
Although I support applying the definition of profane as discussed in Tallman to this particular incident, this too is a new finding by the Commission. The courts never applied the standard in Tallman to an isolated broadcast of the fword and the FCC has never used this definition in any analysis of profane content, let alone the use of expletives. Rather, profane language has historically been interpreted in a legal sense to mean blasphemy. Moreover, the Mass Media Bureau in a document entitled The Public and Broadcasting stated that [p]rofanity that does not fall under one of the above two categories [indecency or obscenity] is fully protected by the First Amendment and cannot be regulated. [footnotes omitted]
Commissioner Michael Copps
I support the decision to find the utterance of the f-word on NBCs broadcast of the Golden Globe Awards to be both indecent and profane. I found ludicrous the Enforcement Bureaus decision that a word that might otherwise be indecent is not indecent or profane merely because it is used as an adjective or expletive.
Commissioner Kevin Martin
I am pleased that the Commission finally is making clear that the use of the F-word during this prime-time broadcast was both indecent and profane, regardless of whether used as an adjective, adverb, or gerund. I am particularly pleased that, at long last, the Commission is enforcing the statutory prohibition against the broadcast of profanity. Better late than never.
Even more troubling is the conclusion that we cannot issue a fine for the use of profanity. The majority argues that there is no notice. How ironic that the majority relies on the Commissions own failure to enforce its statutory mandate as the basis for NBC not knowing that the F-word is prohibited profanity. Taking a step back, I cant help but think NBC was on notice that the F-word was profane. [footnote omitted]
Commissioner Jonathan Adelstein
The same statute also proscribes broadcast profanity, and I am pleased that we apply a profanity definition endorsed by the courts to give meaning to our statutory directive. While we have historically interpreted profane to mean blasphemy, I support our application of the statute to the F-word, a highly offensive and commonly understood profanity. [footnote omitted]
Analysis of the Decision
Despite the fact that this is, essentially, a brand new doctrine, the decision gives this new interpretation of the law relatively short shrift, though it has the potential to be incredibly far reaching. Only two of nineteen paragraphs are devoted to expounding the new doctrine of fines for "profane" broadcasts. I'll go through these paragraphs line by line.
13. We also find, as an independent ground, that the use of the phrase at issue here in the context and at the time of day here constitutes profane language under 18 U.S.C. § 1464.
Independent ground. Even if the courts throw out our interpretation of law with regard to the "profane", we still have the count of indecency (and vice versa). The context and time is language meant to meet the burdens of FCC v. Pacifica (aka Seven Dirty Words case), which upheld the FCC's ability to regulate indecent broadcasts. As in Pacifica, the Commission is relying on a "nuisance rationale under which context is all-important."
The term profanity is commonly defined as vulgar, irreverent, or coarse language.34
34 Blacks Law Dictionary 1210 (6th ed. 1990) (citing 18 U.S.C. § 1464). See also American Heritage
College Dictionary 1112 (4th ed. 2002) (definition of profane includes [v]ulgar, coarse.)
It is odd that they have to cite back to the 6th edition of Black's Law Dictionary. I don't think the 7th edition has the term "profanity" in it. Odd also that they define "profanity" instead of the term actually used in the statute: "profane." According to Black's Law Dictionary (7th ed. 1999):
profane, adj. (Of speech or conduct) irreverent to something held sacred.
I'm not really sure how common their definition of profane is, since the online version of the American Heritage Dictionary has three other definitions ahead of the one the FCC chooses (profane):
1. Marked by contempt or irreverence for what is sacred. 2. Nonreligious in subject matter, form, or use; secular: sacred and profane music. 3. Not admitted into a body of secret knowledge or ritual; uninitiated. 4. Vulgar; coarse.
Sounds like a variation on blasphemy to me.
The Seventh Circuit, in its most recent decision defining profane under section 1464, stated that the term is construable as denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.35
35 Tallman v. United States, 465 F.2d 282, 286 (7th Cir. 1972). In United States v Simpson, 561 F.2d 53 (7th Cir. 1977), the court called into question the nuisance rationale for the regulation of offensive speech set forth in Tallman, suggesting that it might not survive cases such as Cohen v California, 403 U.S. 15 (1971). Id. at 58 & n.7. But the Supreme Court's Pacifica decision subsequently upheld an indecency finding that "rested entirely on a nuisance rationale." 438 U.S. at 750. See also 12 Am. Jur. 2d Blasphemy and Profanity 9 (citing Tallman standard in connection with section 1464).
This is the crux of the new doctrine. There is a lot going on here, so bear with me.
First, "most recent decision" in this case means 1972. Thirty-two years is a long time without revisiting the doctrine of what constitutes the "profane." Second, we only have the interpretation of a single circuit. Look at some of the other circuit's "most recent definitions" and you'll find things that would definitely not withstand scrutiny today. Third, it isn't clear that the Seventh Circuit's definition is valid today for several reasons.
The first half of the definition doesn't really matter, as it deals with "fighting words," and isn't relevant to this particular case. I doubt the still valid but weakened "fighting words" doctrine is relevant to nearly any broadcast case (though I suppose one might be able to come up with a highly imaginative hypothetical where it was relevant).
The second half of the definition is really what is of interest. My first question in regards to this is, what is the difference between "grossly offensive" and "patently offensive"? There is no distinction in law between the two that I am aware of. Generally, the two terms have been used interchangeably, though "grossly offensive" is rarely used outside the military courts (which use it as part of their definition of indecent). So I will use them interchangeably.
If this is the case, then Pacifica has some interesting relevant quirks. For example, in Pacifica, the Commission had determined that George Carlin's language was "patently offensive." The Pacifica Foundation did not dispute this, they disputed whether or not Carlin's language was not only "patently offensive" but also indecent: "Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive."
This is a serious problem for the FCC's (and Seventh Circuit's) definition of profane since, in Pacifica, the broadcast would be admittedly "profane" under the FCC's (and Seventh Circuit's) definition. If the FCC's definition is valid, Pacifica should never have been decided the way it was. Rather than determine whether or not Carlin's Seven Dirty Words were indecent and thus subject to FCC regulation, the Court could have simply declared that Pacifica was subject to FCC regulation under the definition of "profane" and would not have had to go on to analyze whether or not the speech was indecent.
For the FCC, a finding that something is "patently offensive" should terminate any further inquiry as to whether the speech can be regulated. Under the FCC's definition, once you have determined that something is "patently offensive," it is profane and you can regulate it. The FCC will never have to make a further inquiry as to whether that particular speech is indecent.
Interestingly, in Manual Enterprises v. Day, the terms indecency and patent offensiveness were used interchangeably: "These magazines cannot be deemed so offensive on their face as to affront current community standards of decency - a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.'" Pacifica, seems to reiterate this definition of indecency:
Prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality.14
14. Webster defines the term as "a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . ." Webster's Third New International Dictionary (1966).
Consequently, Pacifica may also cause another problem for the FCC's proposed definition for "profane". Pacifica holds that "The words 'obscene, indecent, or profane' are written in the disjunctive, implying that each has a separate meaning." If "patently offensive" is synonymous with "indecent" then it cannot also be synonymous with "profane." The FCC may argue that they define indecency as relating to sexual acts, organs and excretion. However, just because the FCC chooses not to regulate indecency to the extent permitted, does not mean that indecency is not what is "patently offensive." By this logic, "profane" must mean something other than simply "grossly offensive."
Finally, it is not at all clear from Pacifica that the Court would not find the FCC's definition of "profane" vague and/or overbroad. Following the logic of Reno v. ACLU, there are a number of ways in which the court could distinguish Pacifica's permissible regulation of indecency from regulation of the profane, even though they regulate the same broadcasting medium. For example, in Pacifica it was conceded that the language was "patently offensive." I hardly think the same concession would be made in a case challenging this decision. The FCC's own internal fighting over whether profane language could be regulated would also be a factor in distinguishing Pacifica. But let us move on.
We find that the broadcast of the phrase at issue here in the context and at the time of day qualifies as profane under the Seventh Circuit nuisance rationale.36
36 Nuisance has been defined as including a condition of things which is prejudicial to the . . . sense of
decency or morals of the citizens at large . . . . Ballentines Law Dictionary (3d ed. 1969).
Once again the FCC claims that the specific context justifies a finding of profane language. However, this once again raises the question of how you distinguish the definition of "profane" from the definition of "indecent." Moveover, this is rather conclusory, with very little argument as to why this particular context makes this language "profane" as well as "indecent."
Use of the F-Word in the context at issue here is also clearly the kind of vulgar and coarse language that is commonly understood to fall within the definition of profanity.
Yes, but the statute discusses "profane" language, not profanity. They are related terms to be sure, but they are not synonymous - we still need a definition of "profane" that is not identical to "indecent." Furthermore, by emphasizing a definition of "vulgar and coarse" language, the FCC seems to be emphasizing a highly vague and overbroad standard. After all, not all vulgar and coarse language is indecent or "profane." For example, "Check out that hot momma!" is vulgar and coarse, but it is hardly indecent or profane. The American Heritage Dictionary claims that "kick butt" is vulgar slang. Well, maybe, but I hardly think it is profane or indecent in nearly any context. Indeed, "fuck" is always a profanity, but it is not necessarily "profane" to say it, for example as part of a bona fide news cast. So, although "fucking" might be "patently offensive" in this context, we still haven't gotten any closer to an idea about what "profane" means.
14. We recognize that the Commissions limited case law on profane speech has focused on what is profane in the context of blasphemy,37 but nothing in those cases suggests either that the statutory definition of profane is limited to blasphemy, or that the Commission could not also apply the definition articulated by the Seventh Circuit.38
37 See, e.g., Raycom, Inc, 18 FCC Rcd 4186 (2003) (referring to God as a sonofabitch not profane under section 1464) (citing Gagliardo v. United States, 366 F.2d 720, 725 (9th Cir. 1966) (God damn it not profane under section 1464) and Warren B. Appleton, 28 FCC 2d 36 (Bcast Bur. 1971) (damn not profane under section 1464) (also citing Gagliardo). See also Duncan v. United States, 48 F.2d 128, 134 (9th Cir. 1931) (conviction under section 1464 for using profane language upheld where the defendant . . . referred to an individual as damned, . . . used the expression By God irreverently, and . . . announced his intention to
call down the curse of God upon certain individuals).
38 In this regard, the Supreme Court noted in Pacifica that [t]he words obscene, indecent, or profane are written in the disjunctive, implying that each has a separate meaning. 438 U.S. at 739-40.
Good to see that the Commission isn't necessarily using a definition of blasphemy as the baseline for the profane. Of course, they really don't have much of a choice. I highly doubt the court would countenance such a definition under both freedom of religion and freedom of speech grounds. I've dealt with the Seventh Circuit's pseudo-definition above. However, this does emphasize that the profane has had a lot to do with blasphemy. Consequently, it seems likely to me that shifting the definition away from earlier definitions would require something a little less vague than "grossly offensive."
Broadcasters are on notice that the Commission in the future will not limit its definition of profane speech to only those words and phrases that contain an element of blasphemy or divine imprecation, but, depending on the context, will also consider under the definition of profanity the F-Word and those words (or variants thereof) that are as highly offensive as the F-Word, to the extent such language is broadcast between 6 a.m. and 10 p.m.39
39 See Pacifica, 438 U.S. at 749-750.
Speaking of vagueness, it is interesting that the FCC doesn't rule out using a definition of the profane based on blasphemy. Time to get more concrete about the profane FCC, if you really intend to run with it. Heck, based on this, I think there are many a judge who would throw out the whole "profane" definition if the FCC insisted on holding onto the blasphemy elements.
We will analyze other potentially profane words or phrases on a case-by-case basis.
I'm not really sure how the FCC will really get to this point with a definition of "profane" that isn't distinct from "indecent." But let's pretend that the FCC's definition of profane is distinct from indecent. What, then, is the difference? Well, it would seem to be that indecency "describe[s] or depict[s] sexual or excretory organs or activities." Well, that pretty much covers the seven dirty words. What words would generally be considered patently or grossly offensive, but don't deal with sex and excretion? Hmmm ... well, the only ones I can think of (perhaps my imagination is limited) are racial and sexual epithets. Nigger, Bitch, Kike, Fag, Guido, I could go on, but you get the picture.
"Profane" can't be about blasphemy, that would raise all sorts of freedom of religion issues, but it has to be distinct from "indecent." I think that leaves hate speech. Seems to me the FCC has decided that it wants to regulate the broadcast of hate speech.
I will end this quick analysis with the words of Chairman Powell:
Going forward, as instructed by the Supreme Court, we must use our enforcement tools cautiously. As I have said since becoming a Commissioner, government action in this area can have a potential chilling effect on free speech. We guard against this by ruling when a clear line has been crossed and the government has no choice but to act.