Regulating Risque Content: Obscenity and Violence on Television

by Macy Jenkins

First Amendment

“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.” [1]

Material labeled “obscene” is not protected by the First Amendment, and therefore is subject to banning and criminal prosecution by federal and state governments.

Federal Communications Commission

The Federal Communications Commission (FCC) was established by Franklin Roosevelt in 1934. The Commission had the right to restrict content, to require fairness in political programming and to regulate public use. The fairness doctrine was dropped in the 1980’s but laws against obscenity, indecency, and profanity have prevailed since the 1950’s. [2]

Obscenity vs. Indecency vs. Profanity

A three-pronged test was established by the Supreme Court to define obscenity:

An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law
The material, taken as a whole, must lack serious literary, artistic, political or scientific value. [3]

Indecency is defined by the FCC as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”

Source: West Seattle Funblog

Profanity is defined by the FCC as “language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.”

It is a violation of federal law to (1) air obscene programming at any time, or (2) air indecent programming or profane language on broadcast television or radio between 6:00 am and 10:00 pm time. [3]

Although the FCC has the power to revoke a station’s license for noncompliance, it will typically charge the network with fine but leave their licenses in place.

Federal Communications Commission vs. Fox Television Stations (2012)

The gist of it: The FCC wanted to fine FOX for “fleeting expletives” on awards shows by Cher and Nicole Richie in 2002 and 2003. (Before 2004, the FCC banned only repeated uses of certain four letter words). The FCC also fined ABC over one million dollars for showing seven seconds of buttocks and a glimpse of “side breast” on NYPD Blue.

The ruling: The Supreme Court ruled that the FCC’s regulations were unconstitutionally vague and not clear enough for broadcasters to be able to follow them. [4] It held that broadcasters had a right to be warned if changes were going to be made to FCC policy. [5]

Recent headlines

Superbowl profanity

CBS is currently under fire after airing profanity during the Superbowl. Just after the Baltimore Ravens beat the San Francisco 49ers, Ravens quarterback Joe Flacco used the F-word and another player said another curse word. The moment aired on CBS because the network hadn’t set up a time delay. The Parents Television Council (PTC) is calling for the FCC to fine CBS.

Ironically, CBS had set up a time delay for Beyonce’s halftime performance – remember Janet? – but did not set up a time delay for the on-field coverage. (Photo by Christopher Polk/Getty Images)

PTC president Tim Winter said the following in a statement [6]:

“Now nine years after the infamous Janet Jackson incident, the broadcast networks continue to have ‘malfunctions’ during the most-watched television event of the year, and enough is enough. After more than four years of inaction on broadcast decency enforcement, the FCC must step up to its legal obligation to enforce the law, or families will continue to be blindsided.”

A 2011 study by The Parents Television Council found a 69% increase in profanity on primetime television between 2005 and 2010. [7] Source: Parenting Starts Here

Egregious Cases ONLY

On April 1st, the FCC announced that September 2012, it had eliminated 70% of its pending indecency complaints. That’s over one million cases. FCC Chairman Julius Genachowski stated that FCC officials will only focus on the “most egregious examples” of violations. [8]

A large concern is the amount of backlog that the agency is up against. At the same time of the announcement, the FCC asked for a public comment as to whether the cut back on the enforcement should actually occur.

PTC’s Winter weighed in on this, saying “either material is legally indecent or it is not.”

Violence in American Television

Violence is more prevalent than sex in American television. Some believe we’ve simply become desensitized to violent scenes. Experts believe the effects of continuous violent depiction is detrimental to society as a whole.

Self Regulation

Each network has a standards and practices department, which reviews programming and advertisements. The idea is to regulate content to keep many different parties happy. They have to meet FCC restrictions, intellectual property guidelines and personal rights requirements. At the same time, the networks are concerned with serving the good of society and also preserving the image of the network. And they have to keep a broader range of advertisers happy than cable networks do. [9]

V-Chip Technology

A “V-chip” allows adults to block television programs that they don’t want children to watch. Each program is encoded with a rating (see below). Adults can then program their televisions to only allow programs with a certain rating to be accessible. The Telecommunications Act of 1996 required all U.S. television sets to have V-chips. [10]

Content Rating System

The ratings system established in 1997 [9]:

TV-Y: Appropriate for all children
TV-Y7: Appropriate for children 7 and older
TV-Y7-FV: Programs in the Y7 category with more intense or combative fantasy violence
TV-G: Appropriate for a general audience
TV-PG: Parental guidance suggested
TV-14: Parents strongly cautioned – probably not suitable for children under 14
TV-MA: Mature audiences only

Many are unhappy with the V-chip because a lot of people don’t even know how to use it. And networks tend to “go light” with ratings or risk scaring off advertisers. [11]

Violent Content Research Act

Senator Jay Rockefeller
Source: csmonitor.com

Senator Jay Rockefeller (also chairman of the Senate Commerce Committee) D-W.Va., introduced the “Violent Content Research Act” in January.

His aim is to get the National Academy of Sciences to study the effects of media violence. Specifically, he wants them to look at the effect that violent programming has on child behavior. [12]

“Congress should do everything we can to address gun violence. We need comprehensive policies to fully protect our communities. This study is an important element of this approach.” [13]

Future of Content Regulation

When you boil it down, the content we see on television is determined by the green. If it’s too risque for advertisers, networks will adjust to please them. If it’s too risque for the viewers (and their children), networks will adjust to please them. Networks want plenty of happy advertisers; advertisers want plenty of happy viewers; and viewers…well what they want changes from minute to minute. The challenge is keeping up.