Most people would not disagree that American society has grown coarser. One aspect of this coarsening is the content our children may see simply by turning on TV. In its recently completed term, in a case known as FCC v. Fox Television Stations, the U.S. Supreme Court missed the opportunity to take a step forward in protecting our children from indecency through television programming.
The saga of decency standards applied to primetime broadcasting began more than 30 years ago in a case involving a radio station’s broadcast of George Carlin’s “Filthy Words” comedy monologue. The U.S. Supreme Court said that Carlin’s repeated use of words referring to “sexual or excretory activities” did not deserve First Amendment protection. A broadcast did not have to descend to the level of outright obscenity in order to be kept off the public airways, especially in primetime when it could be easily accessed by children; that it was “indecent” was enough. Despite years of efforts by those who wish to dictate what comes into American homes, the court has never changed this standard.
The recent Fox Television case was a missed opportunity, however. The case dealt with so-called “fleeting expletives.” The term itself reminds you of the “five-second rule” in many kitchens: if a melon ball hits the floor for less than five seconds, it remains good.
Rationally, we know that melon picks up dirt the moment it touches the floor, just like indecency is no less indecent just because it happens quickly or without warning. Before the court in the Fox Television case, was singer Cher’s “fleeting” use of the F-word and similar vulgarities by other celebrities appearing on award shows in 2002 and 2003.
The Federal Communications Commission found these broadcasts no less indecent than the Carlin monologue even though the broadcasters did not script expletives for the celebrities — in contrast to Carlin, where expletives were the very point. The television stations objected to the finding that their programming was indecent and took their arguments to the Supreme Court.
The case took two turns before the court. The first time, in 2009, a majority refused to go along with a lower court holding that the FCC’s indecency determination was unconstitutional. Relying on common sense, the court deferred to the FCC’s view, in applying a statute, that “indecent material is harmful to children.” After another round in the lower courts the case made its final appearance before the Supreme Court in this year’s term. The lower court had again invalidated the FCC’s indecency ruling. The Supreme Court this time said that the television stations had not been given fair notice that the FCC intended to begin applying decency standards to “fleeting expletives.”
However, the court did not buy the argument that expletives on primetime — even the unscripted variety — were deserving of First Amendment protection. An opportunity for clarity was lost but the legal standard was not changed.
No doubt the question of broadcast decency will return to the Supreme Court. Hopefully, the court will continue to hold that what we see and hear in our homes should not be at the whim of a Hollywood celebrity’s vocabulary. If someone purchases a CD containing Carlin’s “Filthy Words” or buys a ticket to a Cher concert, that person has made an informed choice. But the same cannot be said when a family tunes in to the Academy Awards or Super Bowl. A celebrity who was not the focal point for the programming — perhaps appearing as halftime entertainment or merely as an award presenter — has no more right to explode “F-bombs” in the homes of unsuspecting families than we would have to intrude into their homes and deliver a message they did not want to receive. Families have rights too, including resisting declining standards of broadcast decency.
— Foster Robberson, partner, Lewis and Roca’s Tort Litigation Group.