Indecent exposure

June 06, 2007

Afederal appeals court ruling that challenges the Federal Communications Commission's authority to limit on-air cursing rightly questions the agency's rather inconsistent approach to what's decent or indecent on the air and scores a victory against government censorship.

The FCC would do well to take a more hands-off approach to regulating broadcast language and to let consumers be the ultimate arbiters of what they want to watch.

In the three decades since the agency succeeded in labeling indecent a 12-minute monologue by George Carlin that included dirty words on Pacifica radio, the FCC has variously been more and less aggressive in imposing decency standards depending on prevailing political winds.

Even before Janet Jackson's infamous wardrobe malfunction, spontaneous uses of the F-word and S-word by entertainers, particularly during live awards shows, and a scripted curse word in at least one network broadcast prompted the FCC to ban so-called fleeting expletives, in addition to cursing that might be used continuously during a show.

The fleeting-expletive standard, however, was rightly judged too "arbitrary and capricious" under administrative law in a 2-1 ruling by the 2nd U.S. Circuit Court of Appeals. Spontaneous cursing may underscore the general coarsening of language that extends to on-air appearances, but there has been little consistency in how the FCC has tried to impose sanctions. That inconsistency may not prove daunting to large-scale private networks, but it can have a more chilling effect on public broadcasters and small-scale documentarians.

And although it was not the basis for the ruling, the two-judge majority also pointedly suggested that the agency's efforts to dictate decency standards are constitutionally questionable based on First Amendment presumptions against censorship.

FCC officials may appeal the decision, but they should certainly take the majority's censorship warnings to heart. In the meantime, broadcast advisories, lock-box technology and specialized cable packages are among the ways that parents with differing values can shield their children from offensive programming; other parents can also use such programming as "teachable moments."

But if there must be broadcast nannies, better they be consumers rather than government officials.

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