Case Studies in Indecency – The Burden of Proof is on the FCC

by June 27th, 2011 - Culture » Politics » Society »

The Supreme Court of the United States has decided some interesting cases in the last year. Most recently came a decision that overturned a California law banning/fining sales of violent video games to minors, leaving the moral decision of such incidents to families rather than the all-knowing Oz.

Bravo to SCOTUS for making the rational decision in response to the endless fear-mongering that tries to paint Comic Books, Rock Music and Video Games as insidious tools of destruction put on upon “our” children to dissolve their morals and ruin their lives and thus our very world.

That…hasn’t happened.

And it brings us to the next big case coming to the Supreme Court, reviewing previous lower court rulings that challenged the FCC rules regarding indecency, overturning fines levied for nudity and foul language on television during hours that children may be watching.

On yet another subject where you would hope – were you the hoping kind – that President Obama would really shine by protecting our most essential freedoms, it is actually his very administration calling for these rulings to be overturned because it strips the FCC of its ability to police the airwaves.

Is not the very notion that we have someone policing expression repulsive? Indeed, that very intrusion should be viewed as far more indecent than any horror that has been unexpectedly pushed over broadcast air. And yet it is taken for granted that the FCC is right in its role of moral arbiter, putting the onus on broadcasters to defend their rare moments of nudity and foul language.

The real burden of proof must be on the FCC. And by burden of proof, I do not mean that it is for them to swim through the sludge of subjectivity to define what is and isn’t decent – a task that very often simply requires another sympathetic eye that can’t define it but knows it when IT sees it. Yet another eye may very well see something completely different and luckily most everyone has eyelids or other means of defense against what they find personally offensive.

When I say the burden of proof is on the FCC, I mean that they must show what actual harm these incidents have caused and therefore validate the very notion that broadcasts should be policed by anyone. And the particular cases that will come under review in October offer a great opportunity to evaluate the very necessity of the FCC in the aspect.

The three incidents in question:

  1. Cher used an expletive at the 2002 Billboard Music Awards
  2. Nicole Richie used an expletive at the 2003 Billboard Music Awards
  3. On a 2003 episode of NYPD Blue a nude woman, otherwise covered, bared the side of her breast and her buttocks.

We are 8-9 years removed from these outright horrors! Certainly there were those offended by these incidents, but show of hands: Who knows anyone whose life was ruined by these scandals? In this case, we have the ability to actually judge the outcome of these apparently terrible crimes and I can’t honestly point to any related downfall of society.

Fleeting expletives are themselves a weak case for intervention, but what I myself can’t help but be terribly offended by is the idea that it is illegal to show even the naked buttocks and side of a woman’s breast on air. The very presentation of our most natural form is a crime? Does the person to whom this is such a terrible offense live such a family life that they hide from their children until their late teens the very fact that there are times in every person’s life when they are not covered by clothes, revealing this HORROR at the same time they present the very real possibility that Santa Claus does not exist?

“Johnny…Suzy. Santa Claus is just a friendly myth to spread cheer and good will amongst man. Also, you were not actually born with pants and a shirt. We have simply tranquilized you every time it was necessary to remove your clothes for a bath or visit to the doctor.”

In fact, might we someday live in such a regulatory world that I may be fined for putting into the public sphere of the internet that very notion that Santa Claus does not exist because it may wreak psychological havok on a child who was not yet of proper age for such a reveal?

Unfortunately, while people who are offended by nudity and expletives can shield themselves from and boycott the offending network, I don’t have the same alternatives when it comes to the offense I take at the law itself.

I do tend to be extreme in my views of freedom of speech, so much so that I would put forth the case that ABC should be able to legally, without any warning, broadcast a special full hour lottery drawing portraying a naked woman spreadeagle shooting ping pong balls with the winning numbers our of her vagina, reaching ejaculatory climax with release of the final number.

Will people be offended? Yep.

Will it make for a very awkward family conversation? Yessir.

Even though they’ll object, would anyone actually change the channel? I don’t think so…

And while that program would certainly create an intensely strange moment the next time your kid is asked to play ping pong by a woman, he or she will in all likelihood march right along with the rest of civilization, largely unscathed.

Parting with the jokes for a moment, I don’t harbor any real anger at families and individuals who are enraged by portrayals of curse words, violence, and nudity or anything else they find objectionable. By all means, rally for the television that you want to watch, the world that you want to live in. Tune out. Restrict your families access to certain channels or media. Organize a boycott of the offending channel.

Networks and shows have changed their content in the past because of angry letter writing campaigns. You have a lot of options, yet offended parties tend to rely on the laziest, least moral recourse of the FCC, using the government as the biggest hammer in the land to pound the world in to just what they want it to be at the expense of our more precious freedoms.

Mental Exercise: Imagine a world where the FCC does not regulate the content of speech on broadcast television. With this absence of regulation, will NBC one day randomly preempt Today with an impromptu uncensored screening of the ass-sewn-to-anus classic,Human Centipede (NSFW)?

The answer is “HELL NO!” That is bad business. In general, broadcast TV naturally caters to the lowest common denominator of entertainment which is still strongly composed of individuals and families that don’t have much tolerance for the perverse.

Those are the breaks…and I am not petitioning the government to put MORE nudity on the air. The problem, however, is that the government and some consumers think television is a right and so everyone must be brought to the lowest common denominator of objectionable content. But if we put forth such regulation as the FCC provides to protect television as a right, then freedom of speech is no longer a protected right.


In response to the administration’s concern that the previous rulings strip the FCC of its role policing the airwaves, the SCOTUS should agree, applaud, and in fact officially strip the FCC of its role policing the airwaves.

History can shine mightily on this topic. Though perhaps a better equivalent to the video game industry, I have found no greater defense of free expression and exposure of authoritarian fear-for-the-sake-of-fear than the 1986 Crossfire debate with Frank Zappa concerning the PRMC congressional hearings regarding regulation of the music industry, protecting the innocent from buying violent, satanic, and filthy music. The video below is well worth the exhibition of logic and lack thereof.

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