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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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April 13, 2004

Howard Stern: Indecent But Not Profane

Posted by Ernest Miller

Didn't the lawyers in the FCC's Enforcement Bureau get the memo? Didn't they notice that three weeks ago the FCC announced a shiny new policy of enforcing prohibitions on broadcasting the profane? Apparently not, because their most recent decision on indecent broadcasts since that announcement doesn't consider whether the broadcasts were also profane. Come on FCC ... am I the only one who takes your newly announced policy on profane broadcasts seriously?

Well, you can't blame the FCC lawyers entirely since the Commissioners, who were so pumped by enforcing the prohibition on profane broadcasts against the Golden Globes, haven't done anything about it either. While the Commissioners applaud the size of recent fines and other new policies (such as fining every separate utterance), they seem to have forgotten about enforcing their prohibition on the profane. You would think that the FCC would want to promulgate and apply the new standards as soon as possible, but that doesn't seem to be the case.

As an advocate of free speech, I'm certainly interested in learning what the new standards for censorship are as soon as possible.

UPDATE When asked for the reason that the new policy on profane broadcasts was not addressed in the decision, an FCC representative replied, "I can only say that the NAL was based on the FCC's indecency standard." No further comment was forthcoming.

Read on....

Why is this important? Well, not only is it about censorship (as is the prohibition on indecent broadcasts) but, as I've written previously, the decision by the FCC to start enforcing prohibitions on profane broadcasts is especially troubling as the profane typically referred to blasphemy (FCC Revives Notion of the Profane). Even if the FCC chooses not to enforce a prohibition on blasphemy, there is very little guidance as to what is actually profane (Howard Stern Should Ask FCC: What is Profane?). Does it include hate speech? Does it include depictions of violence? There is an official definition, but it is vague as all heck. The only thing we know for sure is that the word "fuck" is both indecent and profane and that definitions of profane and indecent have an awful lot of overlap.

The FCC analyzed Bono's use of the word "fuck" during the Golden Globes and found it to be both indecent and profane. The FCC analyzes Stern's broadcasts and finds that they are only indecent. There is no analysis whatsoever as to whether Stern's words are also profane. The Golden Globe decision is here: In the Matter of: Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program [PDF]. The Stern decision is here: In the Matter of Clear Channel Broadcasting Licenses, Inc., File No. EB-03-IH-0159 [PDF].

This is especially strange, as the FCC's own definitions of profane and indecent broadcasts are extremely similar. Consequently, one can only conclude that the FCC is being arbitrary and capricious in their enforcement of the prohibition on profane broadcasts. This is a very bad thing.

Let's Look at the Definitions

The FCC defines indecent broadcasts thus (Obscene, Profane & Indecent Broadcasts):

The Commission has defined broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.

Compare and contrast to the definition of profane broadcasts from the same webpage:

The FCC has defined profanity as “including language that denot[es] ... language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”

Hmmm ... It would seem to me that if something meets the standards of being indecent, it also meets the standard for being profane.

Take, for example, patently offensive vs. grossly offensive. I'm not sure there is a legally cognizable difference there. If language is "patently offensive" isn't it also "grossly offensive"? If not, can the FCC explain why?

With regard to indecent broadcasts, the FCC has some guidance as to determining whether something is "patently offensive." The standard doctrine, as stated in the Stern decision, is:

In our assessment of whether [indecent] broadcast material is patently offensive, “the full context in which the material appeared is critically important.” Three principal factors are significant to this contextual analysis: (1) the explicitness or graphic nature of the description; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and (3) whether the material appears to pander or is used to titillate or shock. In examining these three factors, we must weigh and balance them to determine whether the broadcast material is patently offensive because “[e]ach indecency case presents its own particular mix of these, and possibly, other factors.” [footnotes omitted]

Hmmm ... not really sure how one would use these standards to determine whether something is profane, as the profane covers more than sex and excretion references (which makes the definition of what is "profane" much broader than what is "indecent"). It would be nice if the FCC were to enlighten us with regard to how one is to judge whether something is "grossly offensive".

The nuisance thing for profane broadcasts isn't really a distinction, since the indecency prohibition is also based on a nuisance rationale (though it isn't part of the definition).

There could be a distinction in "contemporary community standards for the broadcast medium" vs. "members of the public who actually hear it", but it would seem that, if anything, the definition of profane broadcasts is broader (possibly unconstitutionally broader) here as well.

From a regulatory standpoint it seems odd that, in the case of the Howard Stern broadcasts, the FCC is stretching for the narrower definition of "indecent," rather than going for the easier case of "profane." Indeed, the FCC doesn't even mention that "indecent" broadcasts are also presumptively "profane" according to the FCC's definition.

My guess as to why the concept is ignored? I think that the lawyers who drafted this decision are so used to the old way of doing business (cut-n-paste) that they entirely forgot the new policy that the FCC announced to great fanfare. But that is okay, because apparently the commissioners, even Darth Commissioner Copps didn't bother to say anything about it.

What the Commissioners Had to Say

Well, actually, they don't say anything about Howard Stern's broadcasts being profane one way or the other.

Here is Copps praising the use of the profanity doctrine in his press release regarding the "Golden Globes" decision (Statement of Commissioner Michael J. Copps, Approving in Part, Dissenting in Part, Re: Complaints Regarding Airing of the "Golden Globe Awards" [PDF]).

While I am pleased that the majority recognizes that profanity is not limited to blasphemy, I disagree that we need to give notice before we apply the law of the land.

Here is Copps completely ignoring application of "the law of the land" in his press release on the Stern decision (Statement of Commissioner Michael J. Copps, Re: Clear Channel Broadcasting Licenses, Inc., et. al. [PDF]):

I have long advocated that the Commission use all of the tools it has to tackle indecency on the public’s airwaves [but the FCC didn't use all the tools at its disposal, it ignored prohibitions on profane broadcasts]. Today’s decision is a step forward towards imposing meaningful fines. For the first time, the Commission assesses a fine against more than a single utterance, rather than counting an entire program as one utterance [but the FCC didn't fine the utterances as both profane and indecent]. In addition, the Commission makes clear that its indecency enforcement [but not its enforcement of profane broadcasts] will address not only the station that is the subject of a complaint, but also any other station that aired the same programming. I therefore vote to approve this decision.

Additionally, Grand Moff Commissioner Adelstein apparently has misplaced his enthusiasm for censoring profane broadcasts. See, Adelstein on the "Golden Globes" decision (Statement of Commissioner Jonathan S. Adelstein, Re Complaints Regarding Airing of the "Golden Globe Awards" [PDF]):

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]

Compare and contrast to Adelstein on the most recent Howard Stern decision (Statement of Commissioner Jonathan S. Adelstein, Re: Clear Channel Broadcasting Licenses, Inc., et. al. [PDF]):

I support this Notice of Apparent Liability for the broadcast of indecent material at a time when children may be in the audience. By issuing this NAL, we step up to our responsibility to enforce statutory and regulatory provisions restricting broadcast indecency [but not, apparently, statutory and regulatory provisions restricting broadcast of the profane]. For the first time, we impose fines based upon separate utterances [but not for utterances that are both profane and indecent]. While this is not the most egregious case that I have seen, the material broadcast is indecent under our standards [but who knows if it is profane, as that wasn't addressed] and the fines appropriately account for the violation of our rules [unless those rules are about profane broadcasts, as that wasn't addressed].
Since I arrived at the Commission, we have greatly stepped up our enforcement against indecent broadcasts [and I thought they were also stepping up enforcement against profane broadcasts, but I must have been mistaken]. I expect that stepped-up actions like those we take today will convince broadcasters that they cannot ignore their responsibility to serve the public interest and to avoid the broadcast of indecent material over the public airwaves [but who will convince broadcasters not to broadcast profane material in accordance with the law?].

Conclusion

I'm opposed to broadcast censorship, whether of the indecent or the profane. Consequently, I want to know what the heck the FCC meant when they declared they would be enforcing prohibitions on profane broadcasts. There are few things worse for freedom of speech than vague, quasi-secret definitions of what is permissibly censored. This is what the FCC is giving us.

If the FCC Commissioners are so darn proud of the censorious powers, why don't they more readily declare them?

Comments (1) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. Shanetta on April 18, 2004 04:45 PM writes...

I don't understand how the people in the FCC got their positions. They are making decisions what what THEY feel is indecent or not. These are people making decisions for the public when the public didn't put them there in the first place. The FCC is taking away my rights to have entertainment. Why can't people just turn the radio station?

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