Saturday, October 20, 2007

The Case for Bleeping Expletives

October 20, 2007, 7:40 a.m.

"Indecency" in Broadcasting

The Press-Citizen devoted most of its op ed page this morning (Oct. 20) to the subject of "indecency" in broadcasting. It asked that I respond to a column on that page by Dr. Loren Glass. My column is reproduced below -- with a link to an earlier dissenting opinion on the subject that I wrote when an FCC commissioner.

As will be seen from today's column, and the earlier dissenting opinion, there are two distinct subjects here.

One involves literary and artistic freedom generally in our country; the other relates to the FCC's responsibility to enforce laws regarding "indecency" in broadcasting. The differences between Dr. Glass and myself involve the second. What he is attacking, as his title suggests, are actions by the FCC; but what he argues by way of support are reasons for literary freedom generally (as to which we are in more agreement than disagreement).

I knew and supported Allen Ginsberg as well as George Carlin, and Pacifica's New York City station WBSI (a true "fair and balanced" practitioner of the First Amendment, often under attack at the FCC, and virtually never defended by the commercial broadcasting industry, even when Pacifica's Houston station was bombed off the air, twice). But since the Press-Citizen asked that I, like a good law professor, put together the best case I could for the FCC's position, that's what I've endeavored to do.

My column is an effort to bring to Dr. Glass' attack on the FCC the acts of Congress and Supreme Court decisions that impose on the FCC, and broadcasters, standards regarding the unacceptability of "indecency" in over-the-air radio and television broadcasts that virtually all (including members of the Supreme Court) would acknowledge to be unconstitutional if applied to other media.

In the course of doing so, I also raise the matter of what Justice William Brennan characterized in the Pacifica ["George Carlin"] case [FCC v. Pacifica Foundation, 438 U.S. 726 (1978)] as the "acute, ethnocentric myopia" of his colleagues -- though I don't, here, use his phrase. (Justice Brennan wrote in dissent, "in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court . . .. It is only an acute ethnocentric myopia that enables the Court to [disapprove] . . . communications solely because of the words they contain." 438 U.S. at 725.) That is to say, in a democracy we have at least some obligation to respect -- that's "respect" not "capitulate to" -- the different values of our neighbors, regardless of whether they be freer, or more restrictive, than our own.

Dr. Glass' column, and his additional comment in today's Press-Citizen replying to mine, on the same page today, are linked from this blog entry just below my column.

The Case for Deleting Expletives
Nicholas Johnson
October 16, 2007

What are we to make of Dr. Loren Glass’ “@#$% the FCC”?

Not the content. The title.

By deleting the expletive (ironically, one approved by the Supreme Court for public display in Cohen v. California [403 U.S. 15 (1971)] he refutes his very thesis. It is an example of his “pandering to a very small group with a very loud voice” -- his characterization -- for which he criticizes the FCC.

Don’t get me wrong. Among the 400 dissenting opinions I wrote as an FCC commissioner are a goodly number poking fun at a variety of FCC silliness. One dealing with the FCC’s punishment of little college station WUHY-FM for its “indecency” will be linked from the blog version of this column for your entertainment. [Here is that link.]

But the issues are a little more complicated than I then, or he now, reveal.

For starters, the “small group” forbidding indecency in broadcasting is called “Congress.” “Indecency” has been illegal since the FCC’s earliest days -– ironically in the very same section of the Act that forbids FCC “censorship.” In 1948 Congress moved it out of the Communications Act and into the Criminal Code, where it still resides as a crime punishable by fines and imprisonment [18 U.S.C. Sec. 1464 (2004)].

That doesn’t make “indecency” any less vague as guidance for broadcasters, but it does make the agency’s attention to the issue something more than mere “pandering” to “the core constituency of the Republican Party.”

Moreover, however well qualified Dr. Glass may be regarding the tastes and values of the Democrats of his personal acquaintance in Johnson County, I suspect there are a goodly number of registered Democrats in America among the Republicans in that “very small group” offended by indecency.

And therein lies the dilemma for which the discipline of anthropology provides more insightful guidance than either my training in law or Dr. Glass’ field of American literature.

Dr. Glass points out the availability of pornography on some cable channels and the Internet. He’s right. But the Supreme Court says he’s wrong to argue broadcasting should be as free.

For 70% of us TV comes by cable -– whether the Cedar Rapids stations or cable programming sources like Comedy Central. But there’s a difference -– one more easily explored in my Senior College class this month than this brief column. There’s a scarcity of over-the-air frequencies that doesn’t exist for cable. That’s one reason our local stations are licensed by the FCC to serve “the public interest” and Comedy Central is not (but bleeps expletives anyway).

Anyone who pays an extra premium to the cable company for a soft or hardcore pornography channel can’t reasonably complain when they get what they paid for. The same is true for cable generally to a lesser degree -– “lesser” because we can’t yet pick individual “basic cable” channels.

Rabbit ears and rooftop antennas still provide, for free, a wide range of public and commercial stations. We have a choice.

Personally, I prefer individuals’ “censorship” for themselves to FCC censorship for all. Don’t like the cable channel? Don’t pay for it. Worried about the Internet? Get a filter. TV? Get a “v-chip.”

But what of those who’ve done those things and must still live, and raise children, amidst societal values of which they disapprove? Aren’t they entitled to ask the FCC and Justice Department to enforce the criminal law? In a democracy, with an anthropologist’s sensitivity, we can’t simply offer them a poke in the eye with a sharp stick and a dismissive expletive, deleted or not.

We need not permit them to determine what the rest of us can read and watch. But we must honor the different values of their religious communities, their choice of home over public schooling, or their decision, like that of the Amish, to create entertainment from home rather than merely watch entertainment from Hollywood.

I suspect Dr. Loren Glass, like Comedy Central, chose to delete his expletive because he thought it a good idea to respect others’ values -- even though not legally obliged to do so. For broadcasters, respect for others’ values is not just a good idea, it’s the law.
Former FCC commissioner Nicholas Johnson teaches at the University of Iowa College of Law, blogs at, authored the just published book, Your Second Priority, and is teaching a Senior College course on the media.

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This op ed column was published as Nicholas Johnson, "'@#$%& the FCC' and the case for deleting expletives," Iowa City Press-Citizen, October 20, 2007, p. A17.

It was written as a response to another column on that same page, Loren Glass, "The Only Proper Response is to Say '@#$% the FCC,'" Iowa City Press-Citizen, October 20, 2007, p. A17.

The paper also published a response to my column by Dr. Glass, Loren Glass, "Glass Responds to Johnson," Iowa City Press-Citizen, October 20, 2007, p. A17 -- the introductory comments at the top of this blog entry are, in effect, my response to his response.

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