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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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March 23, 2004

Howard Stern Should Ask FCC: What is Profane?

Posted by Ernest Miller

Last Friday I wrote about the FCC's decision last Thursday to begin enforcing their power to regulate "profane" language, something they have not done before (FCC Revives Notion of the Profane). See also this followup by Constitutional law guru Jack Balkin: Hate Speech Codes For Broadcasting?. Jeff "BuzzMachine" Jarvis has been, well, a machine when it comes to posting on this issue. Start with today's "Daily Stern" and just follow the links to previous posts for all the news fit to blog.

Despite all this discussion, however, I am still in the dark as to what "profane" means as the FCC interprets it.

Warning: Highly offensive language used as examples below.

The FCC has updated its policy page for "Obscene, Profane & Indecent Broadcasts," which declares briefly that:

Profane Broadcasts Restricted to 10 P.M. - 6 A.M.
The FCC has defined profanity as “including language that denot[es] 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.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing the latter part of this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “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. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.” [emphasis, hyperlink in original]

Hmmm ... that definition clears things up ... not. So, confused, I called the FCC's Enforcement Bureau's Investigations & Hearings Division (the number is usefully posted on their page). Unfortunately, they could provide me no more guidance than what was on their webpage and what was in the recent decision. I asked if they had any plans to provide guidance, as they do with regard to indecency (In the Matter of Industry Guidance On the Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency), though I expect the indecency guidelines will need some major revision. The answer I received was, "that is up to the Commission."

Since the FCC seems too busy to let people know what their definition means, or at least provide some examples and guidance, I suggest that, as a public service, Howard Stern test the limits of the new definition of "profane." Howard can do this either by broadcasting content that is arguably "profane" or by gathering examples from other broadcasters of the arguably "profane" cough*Oprah*cough. Below, I list several particular areas of the FCC's definition that can be challenged.

But first, in order to test the limits of the "profane," any examples should be free of indecency. Thus, any test-worthy "profane" content should not depict or describe "sexual or excretory organs or activities." The Seven Dirty Words and closely related terms are right out. Phrases like "shit-eating nigger" don't count because "shit-eating" obviously refers to excretory activities. Phrases like "dumb, stupid nigger," however, might make appropriate test cases.

Blasphemy

Traditionally, the "profane" has been closely related to blasphemy, which the FCC acknowledges. The FCC now claims that the "profane" encompasses more than blasphemy, however, the FCC does not say that the "profane" does not still include the blasphemous:

We recognize that the Commission’s limited case law on profane speech has focused on what is profane in the context of blasphemy, 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. 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... [footnotes omitted]

The FCC could have declared that not only is "profane" not limited to blasphemy but that it does not include it. What possible reason for not restricting the definition could they have had except that they are angling to come down hard on those who "sin against the virtue of religion"? While the Supreme Court has said one may not censor films for being "sacrilegious" (Burstyn v. Wilson, 343 U.S. 495 (1952)), apparently the Commission believes it still retains some authority over blasphemy. Someone should test that theory.

John Lennon once claimed the Beatles were "bigger than Jesus," which resulted in a rather large backlash (lots of people were quite offended) but a phrase so mild would be unlikely to work. Precedents hold that phrases like "god damn it" are not profane. However, if we go a little further back, say 70 years, we find a case in which profane speech was upheld (Duncan v. United States, 48 F.2d 128 (9th Cir. 1931)):

I'll put on the mantle of the Lord and call down the curse of God on you, that's what I'll do. You infamous harlot, you arch criminal, the people should tar and feather you and yours,

Perhaps Howard Stern could start his tests with that little speech addressed towards Michael Powell, for example. Using the words "by God" multiple times and in conjunction with irreverent speech has also been found to be profane, by God.

Perhaps there could be a contest on Howard Stern's show in which listeners are invited to profane the name of God (without being indecent). The real question is what would it take to get a blasphemy ruling from the FCC?

Hate Speech

Likely, hate speech is a much richer vein to mine when it comes to testing the FCC's new "profane" language ruling. Speaking of mines, the following was once found to be profane: "I can whip any damn Groover of the name." Seriously, when we think of "grossly offensive" language that is not "indecent," hate speech has to be at the top of the list. It would be easy enough to let loose with a racist diatribe (just be sure to avoid sexual or excretory words) and grossly offend people.

"Grossly offensive" does not necessarily require an out-and-out racist diatribe, however. The New York Daily News reports that WWPR fired a DJ for racially insensitive remarks (DJ fired for race remark). According to the article, the DJ spoke out against interracial relationships. Subsequently, "The station received many E-mails, phone calls and messages from listeners who were displeased and felt alienated as a result of her actions." As the DJ said, "I am being censored not for sexual indecency, but racial indecency." Sounds about right to me; the FCC ought to do something about it.

In any case, we should find out what some of the boundaries are. How far does "grossly offensive" extend?

Who Must be Offended?

According to the FCC, in order to be indecent, a broadcast must be "patently offensive as measured by contemporary community standards for the broadcast medium." For this, the FCC provides a little more clarification, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant."

The "contemporary community standards" test is fairly standard for naughty bits, but the FCC did not adopt that test for profane language. Instead, the FCC declared that profane language must be "grossly offensive to members of the public who actually hear it as to amount to a nuisance." Hmmm ... "members of the public." Could it be that two offended members of the public would be enough to trigger a fine? If a broadcast is a nuisance to two members of the public is that enough?

The FCC does, sort of, provide a definition for "nuisance":

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 . . . .” Ballentine’s Law Dictionary (3d ed. 1969).

Nice use of the passive tense. Sure, nuisance has been defined that way. Nuisance has been defined lots of ways, but the FCC doesn't say which definition of "nuisance" they are adopting. And why does the FCC have to reach back to a legal definition more than 40 years old? Is the government so poor they can't afford more recent legal dictionaries?

In Pacifica, the "nuisance rationale" isn't about nuisances per se, but rather nuisance "law generally speaks to channeling behavior more than actually prohibiting it." Well, grossly offended members of the public are likely to want to channel offensive language, rather than prohibit it. Alternatively, "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." Whatever that means.

Indeed, whatever "nuisance" means. Obviously, "nuisance" is not the same thing as violating "contemporary community standards," otherwise the FCC would have used that language. Unfortunately, the FCC hasn't seen fit to provide guidance on what the distinctions might be. Is there anyone at the FCC who bothers to read the decisions they issue?

Probably the best way to test this aspect of the decision is for those people issuing complaints to declare that, while they don't believe the offending statements violate contemporary community standards they are definitely a nuisance.

Conclusion

The FCC's new "profane" language doctrine is a mess just waiting to be challenged. The opportunity to embarrass the FCC is there. Which broadcast personality will accept the challenge?

Comments (16) + TrackBacks (0) | Category: Freedom of Expression | Telecomm


COMMENTS

1. Ryan S. on March 24, 2004 03:54 PM writes...

Well even though we would all love to see personalities and radio stations challenge the laws, it's not going to happen. In the past they have all tried before, and since the FCC is also in charge of licensing, they just simply slow down the process of allowing licenses. If Clear Channel was to fight against the FCC, the FCC would simply not allow Clear Channel to buy anymore stations, until they paid the fine. The FCC has the power to shut down corporations, by pulling licenses or stop giving licenses, and they don't even need any explanation.

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2. roger on March 24, 2004 05:59 PM writes...

This is a great write-up on this issue. I especially like the definition of "nuisance" that includes "public at large"...as you state, does that mean 1 in a hundred? 1 in a thousand? Almost every day, I walk down the street, shop at a store or a mall, eat out and hear these same "offensive" topics and/or "offensive" words uttered by the general public all around me, can I complain to the FCC about that as well? Seems to me that the general public is much more accepting of these phrases en masse than the FCC may be lead to believe...if they are not sure, I invite them to attend any of the pro and college football and basketball games I "religiously" attend every year to listen to what passes as acceptable speech in the stands (let alone what will most assuredly come screaming out of my mouth as well)...since this appears to fall outside the definition of moral standards, can we fine all of them as well?

I fully agree that a clear listing of what is acceptable language, topics and phrases needs to be defined as a protection to the broadcasters and the stations so everyone knows exactly what can and cannot be said. Until that is done, no fines should ever be levied unless a clear violation of the 7 words is proven. Anything less is clearly subjective.

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3. Nick on March 24, 2004 06:54 PM writes...

What about the new law that the House approved for increasing fines? Doesn't it also contain language to fine the individual broadcaster? Broadcasting companies may be reluctant to challenge the FCC, but shouldn't this allow the individual personalities to challenge the FCC's rulings? Wouldn't an individual be more likely to challenge a fine from the FCC in court?

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4. George on March 25, 2004 05:38 AM writes...

How many people would have to complain to the FCC stating they find political ads offensive and should not be allowed to be broadcast on our public airwaves?

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5. K Callahan on March 25, 2004 12:52 PM writes...

You're an idiot sometimes. You know what profane is.

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6. Ryan Bailey on March 25, 2004 09:41 PM writes...

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Don't forget this is what all the hub-bub is about. Seems to me we lost the battle a long time ago and are now just fighting about how far "the line" gets moved.

abridging

Abridge \A*bridge"\, v. t. [imp. & p. p. Abridged; p. pr. & vb. n. Abridging.] [OE. abregen, OF. abregier, F. abr['e]ger, fr. L. abbreviare; ad + brevis short. See Brief and cf. Abbreviate.] 1. To make shorter; to shorten in duration; to lessen; to diminish; to curtail; as, to abridge labor; to abridge power or rights.

It seems as though my freedom of speech was abridged long ago. Like Howard Stern or not we are all on a timeship to 1934 Germany, welcome the new Der Führer, George Bush! STOP THE FCC!

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7. Justice Potter Stewart on March 25, 2004 10:02 PM writes...

"You're an idiot sometimes. You know what profane is."

"[C]riminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced with that shorthand description. ... But I know it when I see it.

--Justice Potter Stewart (concurring), Jacobellis v. Ohio, 378 U.S. 184, 198 (1964).

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8. Ryan Bailey on March 26, 2004 05:00 PM writes...

WHAT IS PROFANE?

pro·fane ( P ) Pronunciation Key (pr-fn, pr-)
adj.
Marked by contempt or irreverence for what is sacred.
Nonreligious in subject matter, form, or use; secular: sacred and profane music.
Not admitted into a body of secret knowledge or ritual; uninitiated.
Vulgar; coarse.

tr.v. pro·faned, pro·fan·ing, pro·fanes
To treat with irreverence: profane the name of God.
To put to an improper, unworthy, or degrading use; abuse.


--------------------------------------------------------------------------------
[Middle English prophane, from Old French, from Latin profnus, from pr fn, in front of the temple : pr-, before, outside; see pro-1 + fn, ablative of fnum, temple; see dhs- in Indo-European Roots.]
--------------------------------------------------------------------------------
pro·fana·tory (pr-fn-tôr, -tr, pr-) adj.
pro·fanely adv.
pro·faner n.

[Download or Buy Now]
Source: The American Heritage® Dictionary of the English Language, Fourth Edition
Copyright © 2000 by Houghton Mifflin Company.
Published by Houghton Mifflin Company. All rights reserved.

YOU TELL ME WHAT PROFANE MEANS! WHAT IS ALLOWED ONLY items in "religious in subject matter"?

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9. Mike on March 28, 2004 09:48 AM writes...

I Listen to Howard Stern often, but if someone finds him obcene or "profane" they should just change the station. i listen to howard, and he has a personality: who does the government think they are to take away who we are or put laws on our pesonalities. Like i said if someone doesn't like what they see or hear :change tha "beeping" station!

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10. David Traven on March 29, 2004 12:14 PM writes...

BIG BROTHER IS WATCHING YOU!

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11. Phil on March 29, 2004 08:44 PM writes...

Voltair must be turning in his grave...

"I may disagree with what you have to say, but I shall defend, to the death, your right to say it."

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12. anj on April 8, 2004 04:36 AM writes...

To cringe, to shake, to tremble, to fear, to be afraid. To be afraid. To be profane. To be afraid of profanity. To Fear. To be blastphemous. To fear Blastphemy. To Fear God. To fear self. To fear life. To fear death. Panaphobia. We are. We fear. We are fearing panaphobia.

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13. JOHN CROMIE on April 10, 2004 02:58 AM writes...

I don't get it , someone please explain:
Howard Stern was fined when a caller used the "N"
word - I am watching a movie on public airways (UPN)right now at 8:00pm , and that same word has been used no less then 7 times. Why is it ok on tv , and not radio ...someone please enlighten me.

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14. Michelle on April 13, 2004 11:11 PM writes...

I want to know how many conservatives are listening to Howard Stern just so they can get offended and bitch about it. All I have to say is EVERYONE knows what Howard Stern does and says, and EVERYONE has the choice to listen or not to listen. If it's a matter of offending people, then why isn't Phil Hendrie off the air? It's just like the slightly overweight people eating mcdonald's, becoming obese, and then suing. YOU KNOW BETTER.... don't blame it on the restaurant OR the man... you are a consumer with a conscience and a hand with which to change the channel/station.

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15. Taarna on April 15, 2004 07:59 PM writes...

Hypothetically, if we as a nation were to collect and say cut off fingers of people who either said or did something offensive, lude or disagreeable to another, NO ONE would have ANY fingers left!

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16. Dale in Sales on June 22, 2004 09:33 PM writes...

Howard Stern is being targeted and singled out because of his popularity, as well as being considered "vulgar" and "profane" by the "religious right" but the guild lines have radically changed over the last year (since the Janet Jackson incident) of what exactly is "profane".
In an age where the American public is being constantly brainwashed by the media, it is not surprising that the FCC will censor everything you see and hear on the air. The FCC is being directly controlled by the Bush administration.
Our freedom is being taking away from this horrible travesty. VOTE out George Bush from the white house, he is a corrupt lying coward and criminal that costs many Americans their lives.

See the Michael Moore movie "Fahrenheit 911" and you will see the light.

Howard Stern is on our side. Thank you Howard !!

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