The Indecent Screen: Regulating Television in the Twenty-First Century

The Indecent Screen

The Indecent Screen

Regulating Television in the Twenty-First Century

CYNTHIA CHRIS

Rutgers University Press

New Brunswick, Camden, and Newark, New Jersey, and London

Library of Congress Cataloging-in-Publication Data

Names: Chris, Cynthia, 1961– author.

Title: The indecent screen: regulating television in the twenty-first century / Cynthia Chris.

Description: New Brunswick: Rutgers University Press, 2018. | Includes bibliographical references and index.

Identifiers: LCCN 2018007357| ISBN 9780813594071 (cloth) | ISBN 9780813594064 (pbk.)

Subjects: LCSH: Television—Law and legislation—United States. | Television broadcasting—Censorship—United States. | Obscenity (Law)—United States.

Classification: LCC KF2840 .C48 2018 | DDC 343.7309/946—dc23

LC record available at https://lccn.loc.gov/2018007357

A British Cataloging-in-Publication record for this book is available from the British Library.

Copyright © 2018 by Cynthia Chris

All rights reserved

No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is fair use as defined by U.S. copyright law.

The paper used in this publication meets the requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992.

www.rutgersuniversitypress.org

Manufactured in the United States of America

Contents

Chronology

List of Abbreviations

Introduction: What We Talk About When We Talk About Television and Indecency

1 A Brief History of Indecency in Media in the Twentieth Century

2 Targeting Television in the Twenty-First Century

3 Television: More or Less?

4 Bleeps and Other Obscenities

5 Who’s Afraid of Dick Smart? The Body Politic, Public Access, and the Punitive State

Conclusion: The Future of Indecency and Why It Matters

Acknowledgments

Notes

Index

Chronology

This chronology lists key actions by the Federal Communications Commission, the U.S. Congress, federal courts, and the broadcast television industry in regard to indecency. Focusing on select events discussed in this book, this list is not comprehensive.

Abbreviations

The Indecent Screen

Introduction

What We Talk About When We Talk About Television and Indecency

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

—First Amendment to the U.S. Constitution, 1791

Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

—U.S. Code Title 18, Part I, Chapter 71, Section 1464: Broadcasting Obscene Language (1948, revised 1994)

On November 6, 2005, the Fox television network aired an episode of the animated series Family Guy called PTV. Early in the episode, Lois Griffin reminds her husband, Peter, that he must attend their daughter’s school play that evening instead of staying home to watch television.¹ The next day, Peter hears local TV news anchor Tom Tucker announce that a wardrobe malfunction involving actor David Hyde Pierce’s testicles occurred during the prior evening’s live Emmy broadcast, and Peter is outraged that he missed this historic event. The fictionalized version of the Federal Communications Commission (FCC) receives such an astronomical number of complaints that the agency is unable to provide an exact count. In response, the FCC’s leader, who takes the form of the G. I. Joe villain Commander Cobra, decides to censor television.

The censors go wild, leaving no provocation or pun unbleeped or unblocked. New dialogue is dubbed into The Honeymooners (1955–1956) reruns so that audiences are protected from outbursts by Ralph Kramden (played by Jackie Gleason), which typically threatened his wife with "One of these days, pow, right in the kisser!); and black rectangular censor bars" cover most of the title of The Dick Van Dyke Show (1961–1966) as well as parts of Suzanne Somers, appearing on Three’s Company (1977–1984) in short shorts and a bikini top. Disgusted by what he perceives as regulatory overreach that sanitizes his favorite TV classics, Peter decides to start his own television station. With help from Super Friend Apache Chief, he installs a huge satellite dish on the roof of the Griffin home.² Questioned by his wife, Peter declares proudly, I’m saving television, Lois.

Peter’s idea of saving television is to create more television. He foregoes the license application that would be required in the real world and starts broadcasting. He calls the station PTV, and the television programs that Peter creates for it, from Dogs Humping to Cheeky Bastards, are resolutely obsessed with the very subject matter—sexual and excretory material—that the Enforcement Bureau at the real-world FCC is charged with regulating.³ The fictional FCC shuts down PTV and then begins to censor daily life. Government agents greet Peter when he emerges from a shower, insuring that his genitals are covered. They force him to wear a device that converts farts into jokes. They blow air horns over expletives that pepper a conversation between Peter and Lois, and join them in the bedroom to ensure that their sexual activity doesn’t break any rules. Enraged, the Griffins make a trip to Washington, DC, where Peter addresses Congress. Pointing out how much various Washington landmarks look like sexual organs (the Capital Building, a breast; the Washington Monument, a penis; and so on), he convinces legislators to make the FCC lighten up. Peter’s efforts defeat the puritanical repression of sexual expression and the hypocritical forces of selective enforcement, striking a heroic blow for free speech everywhere—especially, on television.

FIG. 1 An employee of the Federal Communications Commission censors Peter and Lois Griffin’s conversation in PTV, Family Guy, Fox, November 6, 2005.

There are undeniable similarities between the 2005 Family Guy episode PTV and a chain of incidents involving live, celebrity-laden broadcasts that started in 2002 when Cher used an expletive during the Billboard Music Awards. In 2003, Bono and Nicole did the same, also on live awards shows. Then, on February 1, 2004, the Super Bowl halftime show culminated in a wardrobe malfunction, when Justin Timberlake’s tug on Janet Jackson’s top provided viewers with a brief glimpse of her bejeweled breast. After the last incident, FCC Chairman Michael Powell moved to strengthen the commission’s policy against indecency. Both the FCC and Congress moved to raise fines. The number of complaints received by the FCC skyrocketed as conservative media-watchdog organizations shepherded members toward electronic complaint forms. The networks claimed that the FCC’s actions threatened to dampen innovative and popular entertainment, and the creative community bristled at new restrictions. The FCC’s policy and attempts to enforce it were taken to court by the networks, which kept the matter of broadcast indecency in the news for years.

The Indecent Screen explores these clashes among U.S.-based media advocates, television professionals, and federal regulators. This book is a work of history and analysis, focusing on very recent history and a particular national context. In many ways, the U.S. broadcast industry has an anomalous history, given its foundation in commercialism. Most other national radio and television markets originated as state-run or public broadcasting systems and operate under distinct social expectations and legal frameworks. These distinctions persist in varying degrees, despite significant globalization across media industries that provide for transnational circulation of capital, labor, and intellectual property—albeit a flow that sloshes unevenly with a few dominant media-producing nations, including the United States.⁴ One of the hallmarks of the U.S. context is its ostensibly strong constitutional protection of free speech (including mediated speech). But, in fact, there are many limitations placed on free-speech rights, including regulations pertaining to broadcast indecency. Clashes over the what is allowable and what is prohibited in broadcasting are, in many regards, continuations of long-running squabbles over decency and indecency not only in television but also in radio, motion pictures, and other mass media. These clashes are taking new forms in the early twenty-first century in response to continuously changing conditions in the TV industry that affect how, when, why, if, and even where we watch TV, not to mention our expectations of the medium when we do watch it.

Those changing conditions involve, among other things, media and regulatory environments shaped by the liberal push and conservative pull of various cultural, social, and political agendas. Those agendas may be influenced by constituent demands and corporate lobbyists; by an executive branch that sets administrative priorities; by Congress, which passes legislation governing telecommunications industries; by the FCC, which develops policy in this area; by the judiciary, which interprets laws and policies when they are challenged; and by the media industries themselves, through their economic and technical imperatives and their programmatic components, however innovative—or regressive. As Imani Perry, Kimberlé Williams Crenshaw, and others have shown, public policy and the range of narratives available at any given time, in any given place, are mutually constitutive.⁵ Regulatory agents don’t simply scurry to govern atomized speech events; they shape the playing fields in which speech takes place. Structural, political, and representational conditions and discourses work together to maintain social hierarchies, patterns of dominance and subjugation, and the possibilities of liberty or constraint.⁶

There are then, to be sure, many stakeholders in the media environment. Some of them coalesce from a variety of perspectives to advocate for media reform, challenging the boundaries of what is allowable on television and what is not. Some have argued that the FCC’s indecency policy is too weak, the agency too slow and hesitant to enforce it, and the punishments inadequate. Others argue that the policy is too strict, too vague, and too arbitrary to pass First Amendment muster or to be implemented in a fair and precise manner. Throughout the history of U.S. media regulation, context has been key: public opinion, press coverage, and regulatory responses to incidents of indecency have depended on factors such as the genre of the program; the time of day that the program airs; and the race, ethnicity, gender, and sexual orientation of the speaker who voices or enacts the potentially controversial material. (As I will show, programming that nonjudgmentally represents LGBTQI characters has provoked a disproportionate share of the ire of some of the most conservative media advocacy groups.) Some utterances offend more than others, for reasons that correspond quite closely to the socially constructed expectations that varying audiences have for different kinds of speakers in different places.

I am interested in what motivates the persistent sparring among those on all sides of the decency debate and what their battles accomplish. I explore the history of efforts to regulate broadcast television content and the many challenges to those efforts, with an emphasis on the two decades following the Telecommunications Act of 1996. I argue that the degree to which a society can tolerate unregulated speech, and the extent to which we can use that freedom effectively, has an impact on the quality of public discourse, which goes beyond whether this word or that word is broadcastable or whether this or that amount of flesh is permissible. A media unfettered by puritanical controls—yet diverse enough to meet a wide range of needs and desires, and rich enough in options to provide for age-appropriate children’s programming—is integral to our capacity as citizens to comprehend this twenty-first-century information environment—an environment that has never before been so rife with contradictions and so volatilely divided on questions of what constitutes truth and fact and the proper balance between the rights of individuals and the common good. In PTV, Family Guy creator Seth McFarlane might amusingly satirize both free speech (as practiced by a blowhard like Peter Griffin) and incursions, even modest ones, upon it. But First Amendment rights are no joke. Practicing free speech and defending it are never small responsibilities.

What’s So Special about Broadcasting?

Ever since the earliest days of radio broadcasting, federal regulators and industry watchdogs alike have placed on radio and television broadcasters an expectation of acting in the public interest, convenience, and necessity.⁷ No other mass medium shares this obligation. What’s so special about broadcasting, if anything, that justifies the federal government’s unusual demand on it? The public-interest obligation derives from the long prevailing scarcity principle, which holds that the electromagnetic spectrum is a finite public resource. The basic tenets of this principle were first articulated in the Federal Radio Act of 1927 and restated in the Federal Communications Act of 1934. The rationale for these pieces of legislation is that since the electromagnetic spectrum is a public resource, those licensed to use it could be required to act in the public interest. However ill-defined this public-interest expectation, it is the backbone of congressional acts establishing the right of government agencies to license stations and to place limitations on the extent to which the First Amendment protects broadcast speech. In exchange for the privilege of using frequencies that belong to the public, broadcasters are obliged to air only programming that respects commonplace standards of decency (however difficult it might be to pinpoint those standards)—at least when there is a reasonable chance that children are in the audience. That is, given the scarcity of available frequencies, broadcasters are expected to act as public trustees of those precious airwaves.

But in the earliest years of the medium, most viewers were lucky to find even a handful of channels scattered across the VHF (very high frequency) portion of the electromagnetic spectrum on channels designated 2 to 13. Television has not been so scarce to most viewers since the proliferation of alternative delivery systems that have added exponential channel capacity. The pioneers of cable TV were rigging up wired systems as early as 1948 or 1949, but their bread-and-butter business was retransmitting broadcast signals to communities unreached by local stations.⁸ The All Channel Receiver Act of 1962 promoted access to broadcast channels 14 to 83—the UHF (ultra-high frequency) portion of the spectrum. A decade later, starting with the launch of HBO in 1972, new cable-only channels rapidly attracted millions of new subscribers to wired cable systems. In the 1990s, the growth of direct-to-home satellite TV gave consumers access to yet another delivery system. On-demand streaming services, led by Amazon (launched in 2006), Netflix (2007), and Hulu (2007), offered still another option for bringing TV programming (mostly sans live TV) into homes. It has been a technological and legal fiction to pretend that non-broadcast television systems do not also exploit public resources in an infrastructure that includes countless miles of under- and above-ground cable—an infrastructure in which communications satellites and microwave transmission also utilize portions of the electromagnetic spectrum. But the easy, no-cost accessibility of the broadcast signal girds its unique status. After all, broadcast channels, both VHF and UHF, are freely available over the air to any home equipped with a TV set or screen.

The distinction between broadcasting and cable has also depended on the recognition that the free-to-air broadcast signal is so ubiquitous as to be unavoidable. In 1978, the Supreme Court affirmed this distinction in a famous indecency case that had erupted five years earlier when a listener complained about WBAI in New York playing a recording of George Carlin’s comedy routine Filthy Words, a monologue exploring what the comedian called the seven words you can never say on the airwaves. The court described broadcasting as not only uniquely pervasive but also uniquely accessible to children, compared to other media.⁹ In contrast, cable and direct-broadcast satellite television as well as online streaming services require subscription and nontrivial monthly payments, thus constituting invited guests to the home for which the subscriber, not the provider, is primarily responsible. Therefore, many regulations pertinent to broadcasting, including the rules regulating indecency and profanity—have never applied to cable or any other form of pay-TV.

The special status of broadcasting has been tested in a number of legal challenges that sought in one way or another to void broadcasting’s unique obligations. In fact, the federal courts have been key protectors of broadcasting’s character as a public trustee. For example, Red Lion Broadcasting Co., Inc. v. FCC, 385 U.S. 367 (1969), affirmed the constitutionality of the Fairness Doctrine, an FCC policy that had, since 1949, required broadcasters to provide some news or public affairs programming and to cover issues fairly—that is, to represent multiple views on topics of public interest. In Red Lion, the Supreme Court determined that the policy is in the public interest, because it is the First Amendment rights of the viewing and listening public, and not the right of the broadcasters, which is paramount.¹⁰ That is, it is the public’s right to have access to what the court called in another context a diverse marketplace of ideas.¹¹ Balancing broadcasters’ rights against those of viewers and listeners, the court found that protecting the latter justified minor incursions on the former. Nevertheless, the FCC, in a shift that was part and parcel of the Reagan-era deregulatory turn under the commission’s Chair Mark S. Fowler, took a different view. Under Fowler, the FCC jettisoned the Fairness Doctrine in 1987, largely citing the broadcasters’ right to First Amendment protections (not the public’s), which opened the door to broadcast editorializing without rebuttal and a more partisan news culture generally.

Other cases affirming the special status of broadcasting followed. For example, in a 1985 case involving the FCC’s must carry rules—which require cable systems to provide subscribers with local broadcast channels—a Quincy, Washington, cable provider and Turner Broadcasting System challenged must carry as an infringement of their First Amendment rights. The court agreed, recognizing that cable TV is more like traditional [print] media than broadcasting and therefore more broadly protected by the First Amendment.¹²

In cases where legislators sought to prevent indecency on cable TV, the courts were forced to reckon with differences between broadcasting and cable TV and generally drew similar conclusions. For example, when the State of Utah passed the Cable Television Programming Decency Act in 1983, several cable systems promptly challenged the law. In 1985, U.S. District Court of Utah agreed with the FCC, which had filed an amicus curiae (friend of the court) brief in the case, stating that cable and broadcasting are fundamentally different: cable television is not an uninvited intruder (inferring that broadcast signals are, in contrast, intrusive, even inescapable).¹³ For this and other reasons, the District Court overturned the Utah decency act, and federal protection for cable prevailed.¹⁴ Given the status of broadcasters as trustees of a scarce public resource (the airwaves on which their signals travel), they continue to shoulder special public-interest obligations. Accordingly, the FCC regulates programming originating from broadcast networks and stations for the purpose of suppressing three categories of broadcast speech: obscenity, indecency, and profanity. While these regulations have been sustained, the manner in which indecency and profanity are regulated has not always been consistent, and regulated parties have argued that these terms have been far from clearly or consistently defined.

Defining Indecency

This is a book about indecency, and as such, it must provide a definition of this term. Indecency, at least as the term is used in broadcast regulation, is difficult to understand without comparison to other categories of speech—obscenity and profanity.

Obscenity is a more settled legal category than indecency. But it is difficult enough to define that the FCC’s 2016 fact sheet on Obscene, Indecent, and Profane Broadcasts quotes Supreme Court Justice Potter Stewart’s famous line, I know it when I see it.¹⁵ Stewart, participating in a decision that overturned conviction of a theater manager who had screened Louis Malle’s The Lovers (1958), which had been banned by the State of Ohio, agreed that the film was not obscene but demurred from offering a definition of obscenity.¹⁶ In other cases, federal courts have tried to define the term more specifically, and the legal definition of obscenity has changed over time. Late twentieth-century law treats