FCC Adopts New Policy to Allow On-Air Profanity

In an apparent reversal of its former policy, the Federal Communications Commission said Tuesday that profanity is acceptable on the airwaves, if it occurs on a program that the FCC deems a news program. FCC Commissioner Jonathan Adelstein talks about the FCC's new position.

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NEAL CONAN, host:

In an apparent reversal of policy, the Federal Communications Commission said on Tuesday, that profanity is sometimes acceptable on the airwaves - if it's uttered in what the FCC deems a news program. Its original ruling in March involved a contestant on the CBS program Survivor who used a vulgar term to describe another contestant. That came during an interview on the CBS News Early Show.

At the time, the commission found the incident breached standards of decency. A court sent the case back to the FCC, which then reversed itself. The commission also dismissed complaints against an episode of NYPD Blue on ABC but upheld rulings against Fox TV, much of which seems to raise more questions than answers.

Joining us now to help explain what this means for broadcasters and for listeners and viewers is FCC Commissioner Jonathan Adelstein. Commissioner, nice to have you back on the program.

Mr. JONATHAN ADELSTEIN (Federal Communications Commission Commissioner): Thanks for having me back.

CONAN: And could you help us decipher this weeks rulings? What can be said on the air and what can't?

Mr. ADELSTEIN: Well, I have to admit that it's not all that clear from this decision. I actually dissented in part, and I didn't agree with some of the reasoning in it because I don't think it makes it that clear.

Let's take the example of the news show that you talked about. On the one hand, the initial decision was that this certain word, that begins with bull, was not appropriate. It was illegal because it was indecent and profane, and then the decision was reversed because oh, we suddenly realized it was on a news show.

But the first time around, the decision actually said that it was shocking particular during a morning news interview. The second time around, they said it's not because it's news.

Now wait a minute. I think that's a bit stretching of the definition of news to say that a cross-promotion of the Survivor show on CBS, which also aired that morning show, is somehow news. It's as if we can create a reality program, an artificial world if you will, and somehow news that takes place in that artificial world is considered news for purposes of the FCC. I think that's stretching the definition of news to the breaking point.

CONAN: And then on one entertainment program, it's okay, and on another entertainment program, it's not. What's going on?

Mr. ADELSTEIN: Well, unfortunately, I'm not sure that we really clarified our decision-making in this. I wish that we had. I mean, we have an old decision going back two-and-a-half years ago in the Golden Globe case where Bono said some unfortunate words that we later held to be indecent and profane. And instead of revisiting that and reconsidering that, we go back to the court and ask them to let us review these other decisions that came up years later because we weren't sure we got them right.

So I'm not sure that we're doing our job and properly giving the guidance that we need to give to broadcasters and reviewing our own precedents. All of these cases build on that Golden Globe case, and yet we haven't even bothered to give them the decency of responding to them on their petition for reconsideration.

CONAN: This comes in a larger context. I mean, broadcasters are appealing to the FCC and in other venues, too, to say, you know, give us some clear rules here.

Mr. ADELSTEIN: Well, we try to be careful about not being too clear about it, because we don't want to engage in censorship, and if we give you a little black book, here's what you can and can't say…

CONAN: Right.

Mr. ADELSTEIN: That wouldn't be appropriate, either. And I do agree with my colleagues on that. But having these inconsistent rulings and making a decision then turning around a few months later and asking the court to give it back doesn't strike me as being fair, either.

CONAN: Well, is there some fear of lawsuits from broadcasters going on here?

Mr. ADELSTEIN: Absolutely. I think a lot of this has to do with litigation strategy as opposed to a serious effort to come to grips with what the limits of the First Amendment are. We are only taking those cases we think we can win on, we're somehow avoiding this Golden Globe case, which is the basis of everything else. And then rather than coming to grips with, you know, the use of the language in the Early Show, we say oh, I guess a little cross-promotion here is a news show. So we didn't think about that before. As a matter of fact, before, we said that because it's news, it's even more shocking, and now we say there's a news exemption.

Don't get me wrong, I think there should be a news exemption. I think we should be giving more deference to true, legitimate news. But in this case, when you come up with saying that, you know, an interview on the Survivor show is somehow news, looks like an excuse to duck the issue.

CONAN: We're talking with FCC Commissioner Jonathan Adelstein. You're listening to TALK OF THE NATION from NPR News.

And as we go back to examine this, is there going to be a moment when the commission can stop and say let's see if we can come up with a comprehensive policy that everybody can agree on, and that will be clear to broadcasters and lay this out. Obviously, you're not going to get something, you know, 10 laws in stone that are going to satisfy everybody, but clarity would seem to be really at issue here.

Mr. ADELSTEIN: Well, it's not that easy, to be honest, even from the perspective of someone like me who's very concerned about the First Amendment and about indecency. It's not so easy to draw these lines. We always say that the context matters. Some people criticize us, I think appropriately so, for not really caring about context, but look at the CBS example.

I mean, we say that the context is this is a news show, which is a perfectly legitimate kind of contextual question to ask, saying that you can use language. For example, a precedent from the FCC: John Gotti used some very colorful language once.

CONAN: On ALL THINGS CONSIDERED, as it happened.

Mr. ADELSTEIN: That's right. And that's the way that John Gotti spoke, and that was part of the news, and we said that okay. Those are words that we've subsequently said aren't okay, but in the context of a news show, I do think we need to give extra deference to that.

CONAN: I should explain. I was the producer of ALL THINGS CONSIDERED at that particular moment and edited that particular piece of tape and was involved in that conversation. I later said in testimony, asked if I edited anything out, I said yes, the word mother. But indeed, the tape would've been incoherent if we bleeped all of the obscenities in it. You would not have gotten an idea of what John Gotti's true character was about. These were FBI wiretaps of Gotti threatening one of his family members.

Mr. ADELSTEIN: Well, the Supreme Court has noted - we have to follow the Supreme Court guidance - that sometimes the emotional content of these words is conveyed within them and that somehow we've got to be cautious about how we step on that kind of discretion that newsmakers have. But when we look at context in this case, they say well, this is a news show, and you're talking about Survivor.

Pardon me, but I don't think Survivor is news. But that's why we have to look at it in a contextual basis, and we can't come up with this sort of easy guideline.

CONAN: Let's get a caller on the line, and this is Mark(ph). Mark is with us from Jacksonville, Florida.

MARK (Caller): Hey Neal, thank you for taking my call.

CONAN: Sure.

MARK: I just wanted to say, as a simple person here, it seems like he's created a no-win situation. You do have a book that says either these words are accepted or not accepted. You don't look at them on an individual basis because either a word is profane and vulgar or it's not.

Growing up in my house, we knew certain words that we just did not use, and if you couldn't come up with a better word for it, you'd just better not say anything. It's not right to do it on an individual basis. That way, everybody has the same rules to apply to them.

CONAN: And Mark, let me ask you about a famous example that came up just not too long ago, and that's the opening scenes of Saving Private Ryan, where soldiers in combat used profanity in a situation in which soldiers use profanity. This is not gratuitous. It's a situation where these words came out. That's not making it up. Mark, is it fair to broadcast that movie and bleep those words?

MARK: No, sir. If I pay my money to go see a movie, I know full well…

CONAN: No, on television, broadcasted - broadcasted on TV.

MARK: Say it again, please?

CONAN: To broadcast that movie on TV. Should the TV station bleep the words?

MARK: Yes, sir. They are not allowed. They are not appropriate for all people. That's why the movie had a particular rating, and I did not take my 7-year-old to go see it.

CONAN: Okay, Jonathan Adelstein.

Mr. ADELSTEIN: Well in that case, the commission actually ruled that it was okay. We allowed that in the context of a war movie. There was a disclaimer. Senator John McCain himself actually went on at the beginning of the broadcast to warn parents that there might be material that was inappropriate for children, and that was a context in which you couldn't separate out that kind of language from the content of the film itself. It was a very difficult decision. All these are difficult decisions. But we are saying it's okay in that context but not okay in the context of, for example, an awards show.

CONAN: Where it might be gratuitous. And Mark, thanks very much for call. But his point, I think overall, and a lot of people's point no matter what their view on this, is it's got to a la carte to some degree. Each case is different?

Mr. ADELSTEIN: It really does have to be a la carte, and that's the way that we do it in order to respond to the needs to protect the First Amendment. See, it's a little-known fact that this kind of language actually is protected under the First Amendment. There's a distinction between indecency and obscenity. This is indecent language. Adults have the right to hear it, but children need to be protected from it, and the courts have ruled that we have a right, as the FCC, as a government, to protect children from being exposed to that kind of material. But because we're actually dealing with constitutionally protected speech, we have to be extremely cautious and restrained in how we use and exercise that authority.

CONAN: And obscenity - salacious material - is always against the law.

Mr. ADELSTEIN: That's right.

CONAN: Okay. Jonathan Adelstein, thanks very much for being with us. We appreciate you taking the time to discuss with us some very difficult issues.

Mr. ADELSTEIN: Thanks for having me.

CONAN: Thanks very much. Jonathan Adelstein is an FCC commissioner. He joined us today in Studio 3A. This is TALK OF THE NATION from NPR News. I'm Neal Conan in Washington.

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