The Evolution of Obscene: Who Decides What Can be Spoken on TV? - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Evolution of Obscene: Who Decides What Can be Spoken on TV?

The Evolution of Obscene: Who Decides What Can be Spoken on TV?

By: Robyn Feldstein

It has long been debated whether television is a reflection of society, or if society is influenced by television. No matter which answer is true, it is clear that television and society evolve side by side. Looking at television today, the premises of Gossip Girl or The OC are nothing new. Shows chronicling the daily lives of families have been around since The Brady Bunch and Leave it to Beaver. What has changed, however, is the manner in which these families are depicted. Unlike the classic Brady Bunch episode where the beautiful daughter is hit with a football, today’s common television plotline is more likely to show the beautiful daughter getting pregnant. These plot evolutions, of course, have not occurred on their own; rather, they are a reflection of the evolution of societal problems and concerns. Television shows evolve with the times in order to keep people interested.

If television shows are going to represent and discuss more mature and graphic issues, the language they use needs to evolve as well. It would not be believable to hear today’s television character saying, “oh Darn,” or, “we’ll get them next time.” This language simply cannot convey the plotlines in a modern way. Additionally, the themes and stories covered on television have changed significantly in the past fifty years. Topics such as abortion or drug use which were not on television fifty years ago are now commonplace. As a result, the Federal Communications Commission (“FCC”) has been forced to adapt to these changes, evolving with social mores to allow more mature language and more graphic images on network television.

These changes however, also raise legal issues. The FCC has the authority to regulate the content of network television; however, they are restricted by the speech protections contained in the First Amendment. The FCC is allowed to prohibit “obscene” speech, but cannot ban “indecent” speech. (Sable Communications v. FCC, 492 U.S. 115, 126 (1989)). This vague rule gives broad discretion to the FCC, and raises questions of what qualifies as obscene. These are subjective terms; what is acceptable to one person could be obscene to another.

The FCC often takes action against a network for a violation once it receives complaints. Usually, in order for the FCC to initiate an action they must first receive many complaints which come from well-organized and well-funded groups. Some of these groups are watchdog organizations; others are religious in nature and have the benefit of internal funding and organization. This means that a well-funded minority could decide what the general public will get to see on their televisions.

The prevalence of both live and reality television only serves to complicate the issue. In a recent case before the Supreme Court, Fox v. FCC, the court was asked to address the use of expletives on live television. The controversy there centered on the “fleeting expletive” regime which exempted stations when a banned word is uttered on live television. This debate continued in CBS v. FCC, where the Third Circuit heard arguments surrounding the 2006 Superbowl halftime show where Justin Timberlake famously ripped part of Janet Jackson’s shirt. (489 F.3d 444 (2d Cir. 2007), cert. granted, 128 S. Ct. 1647 (Mar. 17, 2008). The court found that CBS was not vicariously liable for the actions of the performers. The court also held that the FCC had not reasonably supported its departure from the “fleeting expletive” rule in holding CBS accountable for the Timberlake-Jackson incident. This holding serves to expand the language allowed on television in certain scenarios to degrees unthinkable fifty years ago.

Of course, live television and scripted television are very different and need to be governed by different rules. However, once particular language or images are allowed on live television, it is not a stretch to believe that it will be allowed on scripted shows at some point in the future. Perhaps if enough television stars curse in their awards acceptance speeches, maybe one day they will be able to do so while reciting lines in character as well.

Chris Reid