TV Wants Clear Rules on What’s a Bad Word

WASHINGTON —  Indecency on broadcast television is mostly a word game.

There are the S-word and the F-word and all their creative variations. But the legal battle that began this month between the four major networks and the Federal Communications Commission revolves around an I-word that is disturbing in its own way to TV executives: inconsistency.

Why, they wonder, did the FCC allow the F-word and the S-word in the airing of Steven Spielberg’s “Saving Private Ryan,” but rule that the same words in the Martin Scorsese documentary, “The Blues: Godfathers and Sons,” were indecent?

Why did the FCC say in 2003 that the F-word was OK if used as an adjective, then several months later change course and say there was no acceptable grammatical construction?

“At one time I could explain indecency to you in seven words,” said Washington communications attorney John Crigler. “Now I need seven volumes.”

Frustrated by that growing complexity and confusion, the broadcast TV networks showed rare unity in filing notices of appeal April 14 alleging that a March 15 ruling by the FCC was unconstitutional.

In so doing, networks executives knowingly embarked on what probably will be a long legal struggle. But their goal -- bringing more clarity to what they describe as the increasingly blurry and outdated world of federal indecency rules -- was key, several said, to assuring the continued viability of the broadcast TV business.

This new battle has been long anticipated, and the stakes are high for broadcast networks in their competition with edgier shows on cable and satellite television, which are not regulated by the FCC because they do not use public airwaves and they require paid subscriptions.

Three network executives, who did not want to be named because of the looming litigation, lament that the current unpredictability is having a chilling effect on writers and producers.

“There are lines that are being drawn that make no sense,” said one of the executives. “You can say ‘poop’ but ... you can’t say ‘bulls...’ ‘Poop’ clearly means excrement.... ‘Bulls...’ clearly doesn’t, but the FCC has pretty arbitrarily decided it does.”

The last time the Supreme Court ruled on broadcast indecency was nearly three decades ago, before the explosive growth of cable TV and the advent of the V-chip technology that allows parents to block some objectionable programs.

The networks and the media conglomerates that own them intend to argue that by affording consumers more control over what they watch, such developments have lessened the need for strict censorship.

Former FCC Commissioner Kathleen Q. Abernathy, a Republican who stepped down in December, said it would help the commission if federal judges weighed in again.

“It’s very, very difficult to engage in this kind of line drawing,” Abernathy said, calling indecency cases the most difficult she handled in 4 1/2 years on the commission. “I think you do need further court guidance.”

But some question how much guidance the courts can offer in the subjective area of indecency, which is based on amorphous concepts such as “contemporary community standards.” As times keep changing, defining indecency requires a constant rethinking of the idea of knowing it when you see it.

“These are tough issues, and I’m not sure there’s a great answer in how to deal with them,” said Douglas Lichtman, a telecommunications law expert at the University of Chicago. Of the networks’ recent rules challenges, he said, “I don’t think this will lead to some great clarifying judgment from the courts.”

A review of the 1978 Supreme Court precedent on broadcast indecency illustrates some of the challenges the courts will face.

The case, FCC vs. Pacifica Foundation, involved the radio broadcast of a George Carlin comedy routine about seven “filthy words” you could never say on TV. The court ruled that the routine’s broadcast wasn’t protected by the 1st Amendment and that the FCC had the right to impose sanctions on the broadcaster.

But the case was narrowly decided, 5-4, and contained a maze of concurring opinions. The court ruled it was clear that Carlin’s repeated and intentional use of the seven words, including the F-word and S-word, were indecent. But the court said that context was “all important” and depended on a “host of variables,” including whether children were apt to be listening.

The ruling specifically left unclear whether a fleeting use of an obscenity, inadvertently blurted out over the air, also was indecent.

The muddiness of the issue was apparent when Justice John Paul Stevens concluded the majority opinion by quoting another justice, who said, “nuisance may be merely a right thing in the wrong place -- like a pig in the parlor instead of the barnyard.”

“We simply hold,” Stevens wrote, “that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

Today, that ruling is all the legal guidance the FCC has to go on as it carries out its legal responsibility to patrol the public airwaves. If context matters, current and former FCC officials say, then it’s impossible to draw stark lines between what’s always allowed and what’s not.

“If you truly believe in context, it’s hard to give too-specific direction,” said Abernathy, the former commissioner. “Words that may be appropriate in ‘Saving Private Ryan’ might be inappropriate in an episode of ‘Friends.’ ”

One current commission official, who asked not to be named because of the pending litigation, accused network executives of being inconsistent when they complained about the gray areas that contextual analysis of content inevitably create.

“They’ve asked us to take into account context,” the official said, “and then we take into account context and they say, ‘No, we need bright lines.’ ”

FCC Chairman Kevin J. Martin was just as critical this week , telling members of the National Assn. of Broadcasters at the trade organization’s annual convention that there should be no confusion about indecency standards because they haven’t changed since 1978.

Tim Winter, executive director of the Parents Television Council, whose 1.1 million members have helped flood the FCC with indecency complaints in recent years, said the FCC and his own group want consistency.

“But to hear the broadcasters say all they want is consistency is bogus,” Winter said. “All they want is no rules.”

Notably, the networks were able to launch their recent challenge because of the FCC inconsistency they so revile.

In the past, the agency’s indecency decisions have been famously difficult to challenge in court because the commission’s multilayered bureaucratic process can drag on for years. Courts have been loath to adjudicate cases that have not yet been resolved by the FCC.

But in handing down a mixed bag of rulings last month on a bundle of indecency cases, some say the FCC left itself open to a challenge.

Again, it was all about words. Rock star Bono had uttered the F-word on the 2003 Golden Globe telecast. The FCC’s staff concluded in October 2003 that Bono had not violated broadcast standards because he used the word as an adjective, not to describe sexual “organs or activities.”

In March 2004 -- just one month after the tremendous public outcry that followed the brief exposure of Janet Jackson’s breast during the 2004 Super Bowl halftime telecast -- the commission reversed its staff’s finding on the Bono incident.

In response to a request by the Parents Television Council that the staff’s decision be reviewed, FCC commissioners determined that “any use of that word or a variation, in any context, inherently has a sexual connotation.”

But the FCC realized it had a problem: it would appear unfair if it levied fines for similar incidents that took place before March 2004. Thus, last month’s muddle: The commission ruled that four network broadcasts contained indecent or obscene material, but said it proposed no fines because the shows aired during a period when the FCC “had suggested that the isolated use of an offensive word like the ‘F-word’ is not indecent.”

Immediately, network attorneys saw their chance. By filing notices of appeal in federal circuit courts in Washington and New York, they set the issue on a possible course to the Supreme Court, where a new generation of justices, such as John G. Roberts Jr. and Samuel A. Alito Jr., may get the chance to help set 21st-century rules for the indecency word game.

“At some point the judges say, ‘Enough is enough. Our schizophrenic 1st Amendment policy in this country makes no sense,’ ” said Adam Thierer, a senior fellow at the Progress and Freedom Foundation, a Washington think tank. “This case may be a chance for the court to reassess its vision.”

Blair Levin, an FCC chief of staff in the mid-1990s and now a media regulatory analyst with investment banking firm Stifel, Nicolaus & Co., agreed.

“At some point in time, it is good to put the rubber to the road,” he said. “Now is the time.”