The U.S. Supreme Court will get to decide whether the following (minus the poster’s editorial additions) is worth a $1.43 million fine:
The Federal Communications Commission fined 52 ABC stations in the Central and Mountain time zones after the aforementioned opening to ABC’s “NYPD Blue” Feb. 25, 2003. A federal appeals court overturned the fines, leaving it in the hands of the Supremes, who heard oral arguments Tuesday, reports the Los Angeles Times:
The Supreme Court seemed reluctant Tuesday to end the government’s historic policing of the broadcast airwaves and to strike down the “indecency” rules that guide prime-time TV shows.
Broadcasters use the public airwaves, and the “government can insist on a certain modicum of decency,” said Justice Antonin Scalia during oral arguments on the constitutionality of a ban on four-letter words and nudity.
“All we are asking for is for a few channels” where parents can be confident their children will not hear profanity or see sex scenes, said Chief Justice John G. Roberts Jr., who is a parent of two young children. …
Lawyers for the networks urged the Supreme Court to throw out the fines and strike down the FCC’s indecency rules. They said federal policing of broadcast content was outdated and no longer warranted. They said most Americans receive entertainment and news though cable TV or the Internet, and these media have full 1st Amendment rights. Broadcasters deserve the same rights, they said.
They also argued that current FCC policy against indecency is vague and arbitrary and should be voided on those grounds. They noted, for example, that the broadcast of “Saving Private Ryan,” the World War II movie by Steven Spielberg that portrayed the Normandy landings, was permitted, even though it included plenty of four-letter words. At the same time, other broadcasters were fined for allowing a single four-letter word.
The ABC fine is the latest in a period of fine-happiness on the part of the FCC. Before 2000, according to the Washington Post, the FCC levied fines against a TV station once, for a Kansas City station’s 1987 discussion of the movie “Private Lessons.”
After the George W. Bush administration took office, the FCC issued fines for Telemundo’s 2000 showing a couple in a bubble bath during a sexually-themed show (merely because the scene was “suggestive”), a San Francisco station’s 2002 showing of the objects of the puppet show “Puppetry of the Penis” (I kid you not), Fox’s 2003 showing of “Married by America” that included “digitally obscured nudity,” and, of course, the infamous display of one of Janet Jackson’s breasts (which I managed to miss seeing) during the Super Bowl XXXVIII halftime show in 2004.
CBS was fined $3.6 million for a 2003 episode of “Without a Trace” that featured a disappearance of a high school student tied to “very wild parties that the students have been having.” (Oddly enough, the effort to get the FCC to fine CBS didn’t take place until after the episode was repeated 13 months later.)
The millennium has brought more than the FCC has fined. Cher got away with using a certain word that rhymes with “luck” in a 2002 awards show, one year before Bono of U2 described his group’s Golden Globe Award as “f—ing brilliant.” After Jackson’s flashing the CBS audience, the FCC decided that “fleeting expletives” such as Cher’s and Bono’s could indeed be fined, though they didn’t retroactively issue fines.
The aforementioned “fleeting expletives” fine threat has resulted in TV and radio stations’ broadcasting live sports events on seven-second delays (because, you know, players might call each other rude names or object to officials’ calls), which is utterly stupid. (I would have selected another word besides “utterly” in keeping with the theme of this piece, but I have standards.)
It is interesting to note that that “NYPD Blue” scene got the fine, but other “NYPD Blue” scenes did not, including …
… or the infamous Dennis Franz shower scene, which arguably should have gotten a fine solely for aesthetic reasons. (Similar to the Madison naked bicyclist protests, you cannot un-see something.) Anyone who has lived in a house with children knows that children sometimes walk in on their parents when their parents would have preferred the door had stayed shut. If, as Roberts claimed during oral arguments Tuesday, “context counts,” the context of the scene that got the fine is completely different from my other two examples.
It probably is foreshadowing to point out that I was a big fan of “NYPD Blue” (along with other cop TV) and I am not a fan of the FCC. The fines are incompatible with what the FCC tells anyone who goes to its website:
The First Amendment, as well as Section 326 of the Communications Act, prohibits the Commission from censoring broadcast material and from interfering with freedom of expression in broadcasting. The Constitution’s protection of free speech includes that of programming that maybe objectionable to many viewer or listeners.
What is a fine if it is not an attempt at “censoring broadcast material” and “interfering with freedom of expression in broadcasting”? TV station owners whose tolerance for FCC fines reaches its limit will ultimately tell their network to stop airing FCC-objectionable material, or not carry potentially FCC-objectionable material. (There is a long history of the latter, including the boycott by Southern NBC stations of the original “Star Trek” because NBC dared to carry a series with a black actress. That boycott was about racism, however, not the FCC. The NBC station in Salt Lake City refused to carry NBC’s “The Playboy Club” when it was briefly on this past fall.)
The distinguishing factor is supposed to be that ABC, along with CBS, Fox, NBC, PBS, CW, My Network TV and other networks are available over the air, whereas HBO, Showtime, TBS, TNT, A&E and others are available only for cable or satellite viewers. That is a distinction with a decreasing difference given that only 15 percent of U.S. households get only broadcast TV.
Had I written this column a decade ago, I would have written that it’s really not the FCC’s business to decide whether my sensibilities have been offended. The fact that we now have three TV-watching children, one of whom is now up through what the networks call “prime time,” actually doesn’t change that opinion, although it makes TV-watching more of a chore.
The old “family hour,” which was supposed to feature family-appropriate TV before 8 p.m. Central time, went away a long time ago. It’s up to the producers of Fox’s “Glee,” which is on Tuesdays at 7 p.m., whether they want to have gay characters, but I’m sure parents who don’t approve of homosexuality don’t appreciate having to explain it to their kids during a TV show. (So far, I have not had to explain the purpose of Cialis, Levitra or Viagra or other “male enhancement” aids when a commercial comes up.)
Well, there’s an answer for all that: Don’t watch. In fact, you are free to not watch the following 7 p.m. shows, all of which are rated TV-14: ABC’s “The Bachelor,” CBS’ “How I Met Your Mother,” the CW’s “Gossip Girl,” Fox’s “House” and My Network TV’s “Law & Order: Special Victims Unit” on Mondays; CBS’ “NCIS” and Fox’s “Glee” on Tuesdays; CBS’ “Criminal Minds” on Wednesdays; Fox’s “Bones” and the CW’s “The Vampire Diaries” on Thursdays; and Fox’s “Kitchen Nightmares” on Fridays; plus Telemundo’s “Una Maid en Manhattan,” on every weeknight.
(It is perhaps a little more disturbing that such TV-14-rated shows as “The Simpsons,” “Two and a Half Men” and “Family Guy” are shown between 6 and 7 p.m. by stations that don’t carry 6 p.m. news, but the answer to that is in the previous paragraph too. Then again, I watched such family-friendly shows as “The Mod Squad” and “Hawaii Five-O” when I was our children’s age; I remember being bummed because the “family hour” shifted Steve McGarrett to 8 p.m.)
More disturbing than what’s on between 6 and 8 p.m. is the cultural and parental laziness inherent in the idea that TV needs to cater to the lowest-common-sensibility denominator at some times of the day because parents don’t want to have to act as parents. Parents who want to censor what their children see and hear need to be independently wealthy because they’ll have to follow them around to such opportunities for exposure to disagreeable ideas as the school lunchroom and recess.
This is a good place to bring up the difference between government and society, a distinction not enough people seem to understand. In a diverse, pluralistic society, government is not the best arbiter between contrasting standards of personal morality. (For example, see the positions on abortion rights of 1996 presidential candidate Steve Forbes vs. 2000 presidential candidate Steve Forbes.) Should the moral standards of those opposed to alcohol force beer, wine and liquor commercials off TV? No. It should not be up to the government to tell the networks that they cannot broadcast ads for legal products, whether or not you like the presence of Cialis, Levitra and Viagra ads. (Does that apply to cigarette advertising, not seen on the airwaves since 1970? Yes.) Those with problems with such advertising of legal products need to contact the offending TV station, or the companies advertising said products, and get like-minded people to do the same.
I’m not sure where one begins trying to de-coarsen the culture, but TV reflects culture at least as much as the other way around. Actually, now I do know where one begins trying to de-coarsen the culture: with yourself and those around you. The networks respond to ratings, and if people don’t watch, TV series don’t survive.
Roberts’ request that “All we are asking for is for a few channels” without foul language or bare skin should fall on deaf ears because it’s not the government’s place to tell any broadcaster — over the air, cable, satellite or online — what content the broadcaster can or cannot show. There is that troublesome First Amendment, for starters. And as brought up here last May, the idea that the airwaves are public was correctly described by former FCC commissioner Erwin Krasnow as “a mischievous notion that has been misused as a rationalization for government regulation,” which contradicts the First Amendment.