When celebutante Nicole Richie swore during a 2003 airing of the Billboard Music Awards on News Corp.'s Fox, it was a shining example of what can go wrong on network TV during a live broadcast. But the Federal Communications Commission ruled that Ms. Richie's lapse of good taste amounted to indecency. A panel of the Second Circuit Court of Appeals in New York yesterday rejected the FCC's ruling, and also questioned whether the agency's policy on expletives aired on broadcast TV, which has become more severe in recent years, was even legally appropriate.
No rush to air bawdy talk
Broadcast networks are cheering the ruling, though they are privately suggesting they don't see it as an opportunity to lace their airwaves with more bawdy talk. "We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment. Viewers should be allowed to determine for themselves and their families, through the many parental control technologies available, what is appropriate viewing for their home," said a Fox Broadcasting statement.
"The U.S. Court of Appeals for the Second Circuit has applied a strong dose of common sense to the FCC's recent indecency rulings and vindicated our view that those decisions were arbitrary and inconsistent," NBC Universal said in a statement.
Perhaps the court's "dose of common sense" test was reflected in its opinion regarding the nature of the "fleeting expletives" the FCC sought to impose limits on: "In recent times even the top leaders in our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities,'" the court wrote in reference to statements made by Vice President Dick Chaney on Capitol Hill.
However, the court's ruling is not the last word on indecency. FCC Chairman Kevin Martin strenuously objected, and said the FCC would review the decision. "I completely disagree with the court's ruling and am disappointed for American families," Mr. Martin said. "The court even says the commission is 'divorced from reality.' It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f---' does not invoke a sexual connotation."
He added, "If ever there was an appropriate time for commission action, this was it. If we can't restrict the use of the words 'f---' and 'shit' during prime time, Hollywood will be able to say anything they want, whenever they want."
Combating cable's edgier content
All the broadcast networks must live up to the government's standards of decency, because they transmit their programs over public airwaves. At the same, they have to combat edgier fare increasingly available on cable networks. Outlets such as HBO, Showtime and FX attract attention by airing sophisticated dramas such as "The Shield," "Deadwood" and "Dexter" that feature depictions of language, sexuality and violence that traditional broadcast networks, which appeal to a broader viewer base, might find harder to emulate.
But for most advertisers, it's all a matter of taste. "Most of the clients that I work with are fairly conservative," says Jan Weinstein, a senior VP-group director at Interpublic Group of Cos.' Draft FCB. "They don't want to have to respond to irate consumers." While profanity uttered during live events may be accidental, she adds, it isn't something that advertisers welcome. Saltier language in sophisticated dramas is something that has to be considered on a case-by-case basis, sometimes through screening of individual episodes.
Networks typically have a number of checks on live broadcasts that help them block out content that might be considered offensive. In recent years, random utterances by celebrities during live events have raised regulators' hackles. Bono, for instance, referred to an award as "fucking brilliant" during a 2002 NBC telecast of the Golden Globe Awards.
Super Bowl fiasco
The FCC began to heighten its scrutiny of expletives uttered on broadcast TV in 2004, in the wake of a Super Bowl broadcast on CBS and the now-infamous halftime show it featured showing Justin Timberlake yanking a top off of singer Janet Jackson.
Subsequently, then-FCC Chairman Michael K. Powell sent sternly worded letters to the broadcast networks asking them to submit plans for voluntarily policing the content of their shows. Since that time, networks have called attention to their use of V-chips and program ratings.
When it comes to broadcast-network programs that push the envelope, the market often wins out. When Walt Disney's ABC launched gritty cop drama "NYPD Blue" in 1993, 57 ABC affiliates refused to air the first episode, which featured rough language and brief nudity. Even so, the show became a critical and popular success and aired for more than a decade.
More recently, however, NBC encountered rough going in early 2006 when launching "The Book of Daniel," a drama that focused on a Vicodin-taking Episcopalian priest and his family, which included a gay son and a daughter who dealt drugs. A conservative Christian group persuaded consumers to write to local affiliates and advertisers to withdraw their support. Ultimately, the program was canceled.