“I cuss, you cuss, we all cuss for asparagus.” Now, thanks to a decision by the U.S. Court of Appeals, we’ll all be able to do so on network television. Last week, the court took a look at an indecency charge leveled by the FCC against Fox for on-air profanity and said, roughly, “To heck with that!”
Since the mid 1970s, the FCC had maintained a policy that “fleeting” profanity on broadcast networks — typically meaning off-the-cuff expletives uttered once on live television — was not necessarily indecent. But in 2004, the FCC decided that, in the future, such language would be branded indecent and carry hefty fines for offending networks. It then charged Fox with indecency for some on-air expletives from Bono, Cher, and others that slipped through the cracks. On appeal, however, the court found the FCCs reversal “arbitrary and capricious” and ruled that the agency had not adequately explained its reasons for switching positions. Conservatives often frown upon such rulings out of frustration with the increasing prevalence of vulgar speech in public life. But even if there’s cause to worry over profanity, a Washington bureaucracy like the FCC is hardly the tool that should be used to fight it.
There’s a general problem, of course, with the idea of “public” airwaves and a federal agency regulating them. At the dawn of television, when there were only a handful of fuzzy channels available to most homes, one could plausibly argue that the airwaves were a scarce enough commodity to require them to be public resources. But these days, cable, satellite, and now the Internet have created the potential for an almost unlimited number of networks. And the vast majority — almost 90 percent — of American homes don’t get their TV over their air anymore. Competition from numerous private providers means there’s really no reason for federal oversight.
Even more of a problem, especially from a conservative point of view, is that FCC regulation of broadcast speech creates exactly the sort of centralized, out-of-touch control mechanism that conservatives should want to avoid. One of the two measures the FCC is supposed to use when deciding whether or not speech is indecent is
whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” Does anyone really think the FCC is equipped to enforce “community standards” from its coastal perch in Washington? It’s like some Bizzaro-world notion of local governance: putting a single federal agency in charge of “community standards” for a large, diverse country.
But as long as we’re stuck with an FCC charged with regulating indecency, we might as well expect it to make sensible decisions. Its judgment and continued insistence that Bono’s happy utterance, “That’s f***ing brilliant!” should count as indecent has proven, well, less than brilliant. In fact, it doesn’t even follow the commission’s own rules. Indecency, at least as far as the FCC defines it, requires a word to have “sexual or excretory” connotations, and, without going into too much raunchy detail, that sort of swearing simply doesn’t. In so much common usage, the f-word and other four-letter epithets are placeholders or modifiers used to give emphasis. The words in question are almost certainly crude and vulgar, but by the definition that matters — the FCC’s — they aren’t “indecent.”
Some, however, are still afraid of life without the FCC. But what would really happen if the FCC suddenly decided to take a genuine hands-off approach to broadcast indecency? Would it lead the way, as the Parents Television Council
recently warned, to television networks allowing the use of “
the f-word and s-word in front of children at any time of the day?” Probably not. Even on channels like HBO — not exactly known as a bastion of restraint when it comes to airing explicit material — R-rated and other adult fare is almost always relegated to the evenings. Saturday mornings tend to be filled with kids’ shows, and afternoons typically see programs aimed at teenagers. These networks could air the hardest of the hardcore all day long if they wanted to, but the best business model, even in the absence of government intervention, is to save the rougher fare for after hours.
The indecency debate, like so many other debates about government restrictions on speech and content, has always revolved around the sanctity of children’s ears, which, according to those in favor of government restrictions, are wholly innocent and should never be sullied with even a pinch of salty talk. But what do we really think we’re protecting kids from anyway? In my neighborhood in Brooklyn, packs of otherwise pleasant youngsters playing at the park seem congenitally unable to speak more than a half-dozen words without launching into full-fledged cussing binges that would make George Carlin’s cheeks red. That’s obviously not true all over. In the small, southern town in which I grew up, such language was rarely uttered on the streets and cul-de-sacs during play. And if it was, it was out of earshot of adults, meaning the kids knew how keep it in check.
What this goes back to is the notion of “community standards.” Talk that flies on the park in Brooklyn will get your mouth washed out with soap in the small-town south. And no matter which you think is better (or worse), there’s no way to reconcile the two at the federal level. If the FCC really wants to allow community standards to rule, it should get out of the speech-regulation game entirely and let actual communities — or better yet, parents — figure out what works for them.
— Peter Suderman is managing editor of National Review Online. 
