In the past several weeks, broadcast indecency has been back in the news – seemingly almost on a daily basis. First, there was the story about Bob McDonnell, the Republican candidate for Virginia governor who, seemingly inadvertently, dropped the f-bomb, perhaps as a result of tripping over his tongue during a news interview on a news radio station in Washington. Then came the extensive coverage of New York City TV newscaster Ernie Anastos who, during on-air banter with the weather man, also let the f-word fly – in what was apparently not a slip of the tongue, but perhaps a slip of the brain, where the anchor must have thought that he was somewhere other than on the set of a live TV newscast. And then this past weekend, an actor on Saturday Night Live let the word fly during the late night program. These incidents come on the heels of the FCC releasing its statistics on complaints that it had received in the first quarter of this year (reflecting many indecency complaints in the last month), while the Commission has asked the Court of Appeals for the opportunity to reexamine its decision in the Janet Jackson case to determine if any violation of the indecency rules was "willful." What does all of this activity mean?
The recent well-publicized on-air slip-ups demonstrate how the fleeting expletive, which have formed the basis of a number of recent FCC cases, including the Supreme Court decision upholding the FCC’s authority to decide to change its prior holdings and issue fines for such utterances (but leaving open the constitutional questions as to whether the FCC regulation is consistent with the First Amendment), can no longer hide from public examination. In the past, fleeting expletives were just that – fleeting. If there was an on-air slip up, people in the audience may have done a double take, trying to decide if they really heard what they thought that they heard. Often, there would be a shrug of the shoulders and the event would pass. Not so in today’s electronic world. Now, when a politician or a TV announcer slips up and let’s one of those you-can’t-say-that-on-TV words slip, the listening public quite often has the opportunity to check out YouTube or some other website to confirm what they did or didn’t hear. As a recent press article about the NY anchor observes, these events become viral. A similar observation was made today about the SNL skit. And, when they become viral, the FCC often hears about it in the form of a complaint. As the FCC does not usually monitor stations themselves looking for indecency, but instead only takes action where a member of the public complains, the viral preservation of these incidents have no doubt resulted in far more FCC complaints that would have otherwise occurred – certainly more than have occurred in the past.
The Janet Jackson incident provides exactly that same kind of case. How many people actually saw what happened that Super Bowl evening? Probably not many – the complaints did not start coming in to the FCC until well after the incident, when it had been run over and over again (often in slow motion) on television programs and on the Internet. Obviously, indecency on the Internet is not within the FCC’s jurisdiction, but it is these Internet clips (and the subsequent publicity given to them by some activist groups) that seem to spur complaints to the FCC. Without complaint, there would be no FCC action, and in connection with network programs, many stations would probably never be subject to complaint were it not for the non-broadcast circulation of the miscue.
The remand of the Janet Jackson case, if the Court allows it, and these new cases, will give the new FCC an opportunity to chart its own course on indecency regulation. (Of course, the SNL slip up, occurring after 10 PM, should be within the FCC’s "safe harbor" where the occasional use of such words is not actionable) Certainly, the broadcast industry will wait anxiously to see what that course will be.