More Than Seven Dirty Words

One again, culture warriors are pressuring the Federal Communications Commission to crack down on "indecency" in broadcasting. Uniquely among government agencies, the FCC has the power to censor talk shows, political dialogue, and artistic endeavors on radio and television if it finds them too raunchy. But the zealousness with which it performs this job tends to vary with the political winds.

The winds today are decidedly censorial. While it appears that Congress may thwart at least part of the FCC's plan to increase media consolidation, less attention has been given to its tough new stance against "indecent" words and ideas. In a Notice of Apparent Liability, or "NAL," issued to Infinity Broadcasting earlier this year, it threatened the equivalent of capital punishment -- that is, revocation of broadcast licenses -- for any TV or radio station that strays from propriety as the agency perceives it.

Admittedly, the broadcast that occasioned this radical escalation in enforcement rhetoric was pretty gross. The January 9, 2002 episode of the call-in radio show, "Deminski and Doyle" on WKRK-FM in Detroit, consisted of male callers describing bizarre sexual practices, some of which involve excrement, and which go by such colorful names as "The Stranger," "the Cleveland Steamer," "Manhattan Hot Platter," and "Rusty Trombone." (Courtesy of our government, you can learn what these practices are in the agency's decision, at fcc.gov.)

Despite the colorful descriptions, the most offensive part of this particular exercise in "Animal House"-style sex talk was actually the radio host's repeated warning that not only children, but women as well, should not be listening. Whose tender ears did this crew think they were shielding, given that all of the practices described involved consenting women as well as men? For whatever anthropological interest or amusement value the show may have had, surely women were entitled to decide for themselves whether they wanted to hear it.

The importance of this case, though, lies neither in the host's oddly incongruous male chivalry nor in the callers' equally odd sexual interests, but in the FCC's threats. The agency not only warned Infinity that it might lose its license if it does not clean up its act, but announced that any broadcaster who runs afoul of the vague indecency standard will face "strong enforcement actions, including the potential initiation of revocation proceedings." And this announcement came at a time when the constitutionality of the FCC's censorship regime is more doubtful than ever.

The FCC's power to censor the airwaves goes back to the beginning of radio, when it was necessary for some authority to assign different frequencies so that broadcast signals did not collide. Because of this initial need for licensing, and because the airwaves were thought to be a public trust, it was assumed that broadcasters did not enjoy the same First Amendment right to be free of government interference with their content as did publishers of newspapers or books. When the FCC began in the 1930s to sanction radio stations for vulgar content -- for example, the use of such words as "damned" and "by God" -- it relied on a general law forbidding "obscenity" or "indecency" on the airwaves.

It had no definition of "indecency," though. Many pundits thought it meant the same as obscenity -- that is, so sexually explicit and lacking in redeeming value as not to be constitutionally protected. But the FCC had a broader view. In the famous "seven dirty words" case, FCC v. Pacifica Foundation, it announced the indecency definition that it still uses today: any depiction or description of "sexual or excretory activities or organs" in a manner that it deems "patently offensive as measured by contemporary community standards for the broadcast medium."