$#*! That Lawyers Say: Or, the Nine-Sixteenths of a Second That Shocked Television (Sort Of)

Curator's Note

I wonder if it ever feels like Groundhog Day at CBS. Not the holiday; the movie, in which a meteorologist experiences the same day over and over, again and again. Or maybe it’s more like those old Dunkin’ Donut commercials: “Time to make the donuts.” CBS’s mantra? “Time to protest the indecency fine.”

To review, the 9/16th of a second that shocked — well, if not the world, then-FCC Chairman Michael K. Powell — took place during the Super Bowl halftime show on February 1, 2004, when Justin Timberlake removed a piece of Janet Jackson’s costume, revealing a breast adorned by a nipple shield. Complaints that the scene was indecent (that is, “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium”) poured into the FCC, largely the result of efforts by the conservative watchdog group Parents Television Council.

In response, the FCC promised stricter enforcement, turning away from decades of “contextual analysis” and a light regulatory touch in regard to live, fleeting, unplanned events. In 2006, after failed appeals, CBS paid a $550,000 fine and prepared to take the matter to court, on grounds (among others) that the forfeiture was based on policy developed after the incident. In 2008, the Third Circuit Court of Appeals agreed, which meant that the fine would be rebated, and the FCC would return to a policy of restraint. Then, in 2009, the Supreme Court ordered the Third Circuit to reconsider.

On February 23, 2010, the Third Circuit heard the case again, with C-Span recording the proceedings. Lawyers on both sides sought to explain the status of images within legal discourse that has attended more extensively to language, with the Supreme Court parsing the particulars of profane and indecent words from FCC v. Pacifica (1978) to FCC v. Fox (2009) and beyond. FCC Associate General Counsel Jacob Lewis argued that unlike cases of “nonliteral” expletives (such as Bono’s blurted “fucking” at the 2003 Golden Globes), lack of intent or duration should not excuse incidents of broadcast nudity: “Images were never subject to that per se exception ... Images ... are descriptions.”

Now there’s a real rub. Automatic condemnation of a glimpse of the (sort of) naked female breast as patently offensive reveals an understanding of televisuality so paltry that it can be said that medium is still understood as radio with pictures. If the image can be excised from context and collapsed into a sign equivalent to a word, then it seems to me that the body is left so far behind that there is nothing left of it to raise offense. But the body matters more than that, and the image cannot be reduced to a card in a semiotically stable flashcard deck. Policy based on such a reductive view of the medium is destined to fail, over and over, again and again.

While the debate drags on, complaints to the FCC have dropped precipitously. Even if their constituency has lost most momentum, conservative watchdogs carry on. L. Brent Bozell III hates Family Guy so much he can barely speak Seth McFarlane’s name, referring to him in a recent Media Research Center column as “this man,” and the PTC has “denounced” CBS’s decision to give its new, Twitter-derived series the title $#*! My Dad Says. All observers await a decision that is unlikely to close the case, and to paraphrase Miss Jackson, will leave most asking, what have all these words done for us lately?


It truly is the case that never ends . . .

What has interested me about the FCC's indecency policy, and especially the ramped up enforcement of it around 2002-2003, is how out of step it is with the Commission's embrace of deregulation over the last thirty odd years.  Just about every other content-based regulation has been repealed under the logic that marketplace forces are the best arbiters of the public's needs and interests, and that regulatory intervention was unnecessary, burdensome, and anachronistic in a diversified media landscape.  But the indecency regulations persist, which to me speaks to the contradiction within contemporary conservative discourses on the media, ones that cannot reconcile a devotion to free market principles with a desire to police public morality.  

Though the FCC's attorney denies the flexibility of the "fleeting expletives" rule to images, I am curious about the flexibility of how the Commission and the courts understand "patently offensive" and "contemporary community standards" these days, and the implications that its groups like the PTC who seem to be setting the parameters.



Yes, as per Allison's comment, it never ceases to amaze me how the antiregulation, free market crowd nonetheless argues that certain things that make lots of money (e.g. porn) should be regulated.  I think part of the reason indecency has become such a hobby horse for the right is that obscenity law (even though made somewhat more conservative in the Nixon years) has repeatedly let them down.  Whereas "obscenity" must be proven, and it is usually hard to do, "indecency" is theoretically more straightforward and, of course, "decency" is policed specifically in the name of CHILDREN, which often makes it harder to defend than obscenity.

It was very interesting how, during the 1980s, at the height of the "Culture Wars," obscenity and indecency were so often rhetorically conflated, as if they were not--legally speaking--completely different things.  Jesse Helms was, of course, one of the major culprits.

He has got it wrong from a different material perspective as well. By his logic, CBS is guilty 17 times: if images are descriptions, and the clip lasted 9/16ths of a second, that is 17 images, so 17 descriptions. At $550,000 per description, it should be $9.35 Million. How is that for pure logic!

Add new comment

Log in or register to add a comment.