McAdams On: Indecency and the First Amendment

The Founding Dads clearly never saw TV coming. They otherwise may have added some words to the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech [except by celebrities who cuss on TV], or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

And so it is that some of most esteemed legal minds in the country have now spent countless hours pondering the First Amendment protection of vulgarities. The U.S. Second Circuit Court of Appeals this week released a 32-page contemplation of scatological and reproductive slang terms. This, at the behest of the Supreme Court, which punted on the constitutional question but found cussing on TV to be a no-no.

However, crafting law to make cussing on TV a no-no is turning into a nightmare for the Federal Communications Commission. Three consecutive FCC chairmen failed to imagine an enduring legal framework. Meanwhile, the agency’s scale-paid attorneys, armed with illogic, go up against Fox lawyers in the high courts.

Unknowingly, I’m sure, Cher launched a lucrative legal volley when she let fly an F-word at the “2002 Billboard Music Awards.” Really, she seemed just happy, and a bit irreverent--not pervy, as indecency laws imply. She was 56, for gosh’s sake. The numerical equivalent of dearly departed in Hollywood, to which she directed her verve.

Fox, not having the telecast on tape delay so as to bleep Ms. LaPierre’s exultation, was female-canine slapped by the FCC--eventually. Several other such expressions slipped into the airwaves by the time the commission did so, and Fox put up its dukes. Unfortunately, the First Amendment was dragged into the fight, precisely because the FCC couldn’t write decipherable law. Some uses were OK; others were not, and the uncertainty led to demonstrable self-censorship among broadcasters--the only TV providers subject to indecency laws.

Under the leadership of former FCC chairman, Kevin Martin, expletives in “Saving Private Ryan” were found acceptable on the basis of “artistic necessity,” while the same ones were censured in a PBS documentary on the blues. Aside from the racist implications in that determination, it was legally random. A law defining indecency can’t rest on subjective analysis. I find most “reality” shows indecent. The stuff on premium cable networks is porn, but again, they’re not subject to indecency laws. A parade of filmmakers managed to capture the gruesomeness of World War II without salting the dialog with dirty words. Of course, they weren’t Steven Spielberg.

Broadcast indecency law should cover all uses or none. The FCC should invite public comment on the application of similar law to all other forms of TV provision. I doubt if that helps much because of the polarity of the issue, but it will give a lot of people a chance to vent, First Amendment style. Beyond that, they can vote with their remotes, and try to remember that television is not a “right.”