Supreme Court Justice Potter Stewart once described obscenity in a 1964 case about pornography saying, “I know it when I see it.” The pronouncement instantly became an adage—the unspoken rule for gauging cultural appropriateness.
It was the subtext behind the court’s 1978 case on George Carlin’s radio monologue about words you can’t say on TV, which was deemed obscene. It was decided that free speech didn’t cover obscenity—regulations for decency were created; regulators knew obscenity when they saw it or heard it, and entertainers weren’t going to be able to engage in it in broadcast media.
At the time the rules seemed pretty clear, both in terms of what obscenity was and who qualified for regulation: George Carlin saying shit and fuck was obscenity, and any broadcast media, which was determined to be “uniquely pervasive” and “uniquely accessible” to kids, would be forbidden from spewing such filth.
But over the last thirty years the landscape has changed. First and foremost, it’s no longer clear that broadcast networks are “uniquely pervasive” and “uniquely accessible” to kids in the way that they were in 1978. Networks will argue in a case that goes before the Supreme Court tomorrow that nearly all households have cable these days—the days of people accessing TV by broadcast via bunny-eared antennas are long gone. Almost everyone watching NBC gets FX, so why should FX get left alone while NBC gets monitored under the FCC’s microscope? Addressing a complaint over FX’s “Nip/Tuck” The FCC specifically stated in a 2006 court filing “the Commission has indicated that it does not regulate cable indecency or indecency on satellite subscription services.”
And that’s not to mention the internet: Broadcast media is hardly more “uniquely pervasive” or “uniquely accessible” to kids than web content and yet an entire universe of swears and porn awaits them, universally accessible and unregulated by the FCC. To think of curbing obscenity on the internet seems a flagrant First Amendent violation.
But aside from the hypocrisy of regulating speech in broadcast media and nowhere else, the meaning of obscenity has also grown murkier: under the auspices of the Parents Television Council an army of monitors watches and flags shows for objectionable material constantly. Washington Post reports the Council has 1.4 million complaints pending with the FCC. And many of these are gray-area cases. For instance “the policy allows the use of expletives in a movie like ‘Saving Private Ryan’ depicting war but found the same words indecent in ‘The Blues,’ a music documentary by Martin Scorsese.”
Also central to the case going before the Supreme Court tomorrow is an episode of ABC’s ‘NYPD Blue’ that included a seven-second shot of a woman’s butt. Frontal nudity is pretty commonly accepted under the “I know it when I see it” litmus test, but a butt? It seems right on the line.
Less vague is Cher saying fuck in a 2002 broadcast of the Billboard Music Awards. But still, how is Fox’s broadcast of the Billboard Music Awards more “uniquely accessible” than the biggest sites on the web, which are allowed to swear to their hearts’ content under free speech rights?
As a court filing in the case on behalf of Fox says, “The FCC’s current enforcement policy…cannot survive First Amendment scrutiny.”
While the Obama Administration maintains that the current controls are necessary, it’s possible that the FCC’s entire justification for policing TV for obscenity may fall apart in the case that starts tomorrow. If that happens, we may see our teenage dreams finally come true: unmitigated boobs and swears on TV.