Heaven knows I've spent a good part of three decades excoriating individual advertisers for various assaults on common decency. And one chapter in "And Now a Few Words from Me" surely lays waste to the transgressive mentality of agency creatives. But if you are a student of the Supreme Court of the United States and followed the oral arguments on the FCC v. Fox, you can surely see who will ultimately be the gatekeepers.
The issues are, for the moment, how does the FCC determine what constitutes indecency in programming without being arbitrary and capricious, and does the government regulation of family-hour broadcast-TV content violate the First Amendment in the first place? That question is especially salient when the other 1,000 channels are distributed only via cable and satellite and thus unmonitored by the Nanny State.
The particular cases at issue demonstrate the problems of decency policing; it's hard to see the fines against the networks for Janet Jackson's Super Bowl wardrobe malfunction and Bono and Cher's live award-show f-bombs as anything but arbitrary and capricious. I myself worry deeply about what my 10-year-old is exposed to in popular culture, but none of those episodes would have made me so much as flinch. Likewise, works of manifest artistic and cultural merit cannot be aired by the networks on vocabulary grounds, while sitcoms like "Two and a Half Men" and "Are You There, Chelsea?" -- which trade almost entirely on thinly veiled raunch -- escape scrutiny because they cross no expletive redlines and display no stray nipplage. A sizable portion of network content makes a mockery of the FCC's best intentions.
At last week's oral arguments, sentiment of the court seemed to line up behind preserving -- again, for the moment -- the FCC's responsibility to police content. Chief Justice John Roberts expressed comfort with the Obama administration's interest in preserving the status quo. "What the government is asking for," he helpfully summarized, "is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity."
And Justice Anthony Kennedy seemed to endorse the idea of a "public value in having a particular segment of the media with different standards than other segments." Justice Elena Kagan added, "It seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore" -- although she evinced doubt about the FCC's attempts to be cultural arbiter. It seems, she sneered, that "nobody can use dirty words or nudity except for Steven Spielberg."
So, yes, this court is signaling that the public's interest in a public-airwaves safe haven from coarseness and vulgarity may trump the networks' claim to free-speech protection. Which is fine by me, First Amendment near absolutist though I may be. To paraphrase Oliver Wendell Holmes, free speech should not protect a man from shouting "Fuck!" in a crowded broadcast spectrum.
Alas, there's the rub: the broadcast-spectrum part of the equation is not long for this world. Justice Samuel Alito, who seems to be onboard with The Chaos Scenario, questioned the reason to memorialize a first-amendment exception if technology will soon render the exception moot.
"Broadcast TV is living on borrowed time," he declared. " It is not going to be long before it goes the way of vinyl records and 8-track tapes. . . . So why not let this die a natural death?"
That there is what you call your "money quote," but it may not have been the most memorable moment of the hearing. Surely that honor goes to ABC lawyer Seth Waxman, who hilariously deflated Justice Antonin Scalia's arguments about decorum. Scalia had noted that even in a coarsened culture, some venues should be immune from the licentiousness of the outside world. The high court itself enforced a dress code, so that nobody could enter bare-assed, "NYPD Blue" style. But Waxman, a former Solicitor General who well knew the room he was playing, impeached Scalia by pointing out the neo-classical marble friezes lining the room. Ah, the provocative human form! "There's a bare buttock there," Waxman noted, "and there's a bare buttock here ..."
Oh, snap! So much for safe havens. Even in the hallowed halls of justice, a total booty call.
So, let's just assume that the government bulwark against indecency is constructed on increasingly thin ice. Whether by technology or by jurisprudence, the FCC will be out of the taste-police business. Then what?
Well, that 's where advertising comes in. While looser taste standards generally attract more audience than they repel, and while marketers generally prefer large audiences to smaller ones, what marketers most fear is loud and angry hordes of disaffected viewers going online to denounce -- or worse yet, boycott -- the advertisers sponsoring offensive programming.
Historically, that 's resulted in unnaturally tame-nigh-unto-denatured content. But faced with the competition from the likes of HBO and even basic cable, the networks have found themselves edging ever more into edginess. (As I said, "Two and a Half Men." QED.) Yet they must constantly balance the value of audience appeal with the public value of family-friendliness -- a public value that is measured not by conscience but by the risk of losing advertiser dollars. That risk is the only thing that makes my family room reasonably safe for my entire family at 8 p.m.
Do I wish for the networks to be held hostage by the American Family Association and other domestic Taliban? Of course not. But soon, when the broadcast towers are left to molder and FCC protection along with it, the Leading National Advertisers will be the culture's last line of defense.
Not the most comforting thought, but, strangely, I will be rooting for them.