Return of the ‘Seven Dirty Words’ Indecency Standard?

Published February 1, 2004

Nothing brings out the puritanical streak in American politicians more than the utterance of a few dirty words on TV or radio. And so, in the wake of two such utterances by celebrities during live TV awards ceremonies this year, policymakers in Congress and at the Federal Communications Commission (FCC) are once again vowing to do something to “clean up the airwaves.”

We’ve been down this path before, of course, with the FCC occasionally tossing out fines to warn the broadcast community not to follow the poor example set mostly by a few foul-mouthed radio DJs. The FCC’s Enforcement Bureau keeps a running online record of all such fines on its “Obscene and Indecent Broadcasts” page. Until recently, most fines ranged from $6,000 to $8,000, but in 2002 and 2003, the levies jumped to the $12,000-$55,000 range, and a record-high $357,500 fine was slapped on Infinity Broadcasting in October for a radio stunt involving couples having sex in public places.

Plenty of nasty words show up in newspapers and magazines, as well as on the Internet, cable, and satellite TV, but those media outlets are accorded full First Amendment protection from government censorship efforts. By contrast, because broadcast radio and television operators need FCC licenses to operate, they have been relegated to second-class citizenship in terms of First Amendment rights.

Regrettably, the Supreme Court has endorsed this illogical legal distinction in famous cases such as FCC vs. Pacifica Foundation (1978), which held that broadcasting could also be censored since it was more intrusive or pervasive in our lives. It’s questionable whether that presumption is still valid, or if it ever was valid for that matter, but television and radio are only “intrusive” in our homes or cars to the extent that we put them there in the first place.

While almost all censorship proposals are made in the name of “protecting the children,” if parents voluntarily purchase these devices, they should assume responsibility for guarding their children’s eyes and ears from material they might find potentially objectionable. We should not expect Uncle Sam to play the role of surrogate parent.

But here’s a far more practical consideration: Will all this huffing and puffing by policymakers about indecency really amount to much concrete regulatory activity in the future, given the declining role broadcast TV and radio play in our diverse modern media marketplace? For example, over 85 percent of American households currently subscribe to cable and satellite television, and regulators can’t censor those media providers.

As more Americans opt for media alternatives that receive stringent First Amendment protection, it could mean the gradual withering away of almost all federal censorship efforts. Alternatively, it could mean that policymakers will shift their attention to those other outlets and concoct new rationales for why “public interest” regulation must apply there too. But they will be on very shaky legal footing in this pursuit, given the unlicensed status of these carriers and technologies, as well as the precedents established in recent court decisions rejecting almost all efforts to regulate indecency on the Internet.

And that’s how it should be, of course. There are far more mature and sensible ways of dealing with filthy words than resorting to censorship. Still, there will always be those who believe that profanity has no place on TV or radio, or anywhere children might be in the audience. As the parent of a young daughter, I can sympathize.

But I’m reminded of what author and poet Charles Bukowski had to say on the matter: “Censorship is the tool of those who have the need to hide actualities from themselves and others. Their fear is only their inability to face what is real. Somewhere in their upbringing they were shielded against the total facts of our experience. They were only taught to look one way when many ways exist.”

Adam Thierer ([email protected]) is director of telecommunications studies at the Cato Institute in Washington, DC. (