Indecency on U.S. Television: regulating nudity and deregulating graphic violence.

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Viewers who compare U.S. and European television shows often report similar comments:  violent scenes, rude language and graphic nudity. U.S. TV shows are abundant with indecent or profane language and graphic violence. Among the many examples, some are: Law & Order; CSI; 48 Hours; Forensic Evidence; NYPD Blue, NCIS

Even if a detailed analysis of this cultural phenomenon goes outside the scope of this brief note, it would be interesting to know which, among graphic violence, indecent language or graphic nudity, has more consequences for young viewers. What traditionally can be regulated under the 1st Amendment protection seems to  be slowly changing: notwithstanding the fact that the FCC created guidelines, such as where indecent speech and words cannot be uttered, the recent case presented here could have consequences for the setting of guidelines for graphic nudity. Here, it is worthwhile to remember that the Federal Communication Committee (FCC) does not regulate graphic violence.

On January 4, 2011, in ABC Inc. et al. v. FCC, the U.S. Second Circuit Court of Appeals vacated the forfeiture order of a 1.4M indecency fine that the FCC imposed on ABC Television in 2003 when, during an episode of NYPD Blue aired at 9:00 p.m., viewers saw, for seven seconds, actress Charlotte Ross’s naked buttocks and a portion of her breast. In general, the U.S. First Amendment does not protect obscene speech and such speech can thus be limited. In addition, Indecent material falls under the First Amendment protection and could be regulated as well, but the distinction between obscenity and indecency is a very difficult one to determine.

Under current federal regulations, broadcasters are able to air nudity and explicit language only between 10:00 p.m. and 6:00 a.m. (the so called “safe harbor”). Title 18 of the U.S. Code, Part I, Title 17, Section 1464 entitled “Broadcasting Obscene Language” establishes that: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” In 1960, Congress authorized the FCC to impose civil monetary fines, revoke the license or deny a renewal application. The FCC started to enforce the ban on indecent speech through a rigid “indecency test” created initially with reference only to “specific words uttered;” lately, the test applies a more flexible contextual approach.

In 2001 the FCC issued the policy standard for indecent speech.  The indecency test is met when: (1) the material “describes or depicts sexual or excretory organs or activities”; and (2) when the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” A broadcast is patently offensive when three factors are met: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.”

This policy changed in 2004. Before then, single and isolated expletives were not censored. However, in 2004 the FCC changed its policy because, during the 2003 Golden Globe Awards, U2 band member Bono exclaimed, after having received an award: “This is really, really, f**king brilliant. Really, really, great.” The FCC, in changing its prior policy, found that even an isolated use of a single word is per se indecent and can be sanctioned because such use amounts to a “nuisance.” In the meantime, Congress amended the legislation increasing the amount of fines that the FCC could impose.

For the NYPD Blue episode, ABC Television appealed the indecency fine before the U.S. Second Circuit Court of Appeals relying on Fox Television Stations, Inc. v. FCC, 129 S. Ct. 1800, 1819 (2009), where the Court held that the “FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” As a consequence, the Court vacated the FCC’s order and the indecency policy underlying it.

Considering this a victory, are American viewers likely to see more nudity on television during the no-safe harbor time? It is likely to happen sporadically because similar events may boost the TV show popularity. However, in general, broadcasters have in place a self-restraint rule according to which they tend not to offend both the majority of American viewers and advertisers. Therefore, the language will continue to be bleeped; While, on the contrary, graphic violence is still unregulated.

The FCC has the option to appeal and, therefore, the U.S. Supreme Court may review the case.

Considering the different priorities that the U.S. and European countries place on broadcasting and censorship, we still do not have  a clear understanding of the consequences to unwilling viewers upon their exposure to graphic violence, nudity and expletives, and we do not clearly know whether unregulated graphic violence has the same effects and consequences as do regulated uttered words or nudity.

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