How Dirty Is That Word?   

New guidelines on "indecency" do little to clarify the definition for the broadcast media.

FOR ITS FIRST 50 YEARS or so, the new technology of commercial radio, and then television, intimidated people. It required someone to be the traffic cop who would allocate frequencies on the broadcast spectrum. But once the government, in the guise of the Federal Communications Commission, gained this toehold, it began dictating content, setting up ownership rules and generally exercising control.
The rules and regulations issued by the FCC over the years were supposed to ensure that a scarce resource would be operated in the public interest, not to censor speech. But from the beginning, the trick was to decide what the "public interest" was, and the two political parties often had very different ideas about that.
As a general rule, Democratic administrations tend to favor control of content and stringent limitations on the concentration of media ownership. Republicans generally oppose limitations on ownership and are often inclined to take a hands-off approach to content regulation.
"Indecency" on the airwaves, however, is something that just about everyone loves to hate. The problem is figuring out what indecency is. Unlike obscenity, indecency is protected by the First Amendment. The FCC has tried since the late 1980s to come up with a formula that would shield children from offensive content without preventing adults from seeing and hearing constitutionally protected material. It created a "safe harbor" between 10 p.m. and 6 a.m. during which licensees could broadcast indecent speech without fear of reprisals.
But the commission's definition--descriptions or depictions of sexual or excretory organs or activities presented in a way that is patently offensive, based on contemporary community standards for the broadcast medium--is not easy to apply.
Although the courts have upheld the commission's indecency standards, its enforcement procedures have been questioned. In 1994, the FCC agreed to drop an indecency complaint against Chicago's WLUP-AM provided that the station's owner, Evergreen Media Corp., would withdraw its constitutional challenge to the commission's process. A condition of the settlement was that the FCC would publish within nine months "industry guidance" describing its enforcement policies.
For more than seven years, the commission failed to do so. But as one of the first acts under the new Republican chair, the FCC finally issued its policy statement in early April. It summarizes the existing regulations and explains how the FCC analyzes the complaints it receives. The guidelines include numerous, and in some cases quite explicit, excerpts from broadcasts, mostly "shock jock" radio shows, to illustrate exactly what the commission has found to be indecent.
The guidelines explain, in excruciating detail, just how staffers will determine whether a broadcast is "patently offensive" or acceptable. It isn't simply a matter of language. A "dirty" word in a newscast might pass muster; an expletive blurted off-mike by a flustered deejay would probably be OK, too. But much depends on subjective concepts such as context. And in the right setting, innocuous words might be grounds for a claim if they are sufficiently suggestive, while explicit descriptions of sexual conduct in an educational program or a government report would be left alone.
Reminiscent of the infamous 1986 Meese Commission report on pornography--a bulky two-volume compendium of "findings" about the impact of smut (which included a lengthy list of dirty books and movies with synopses) that quickly sold in the thousands--the FCC's report concludes by cautioning that the excerpts in the statement are "intended only as a research tool."
How useful the guidelines will be is unclear. Tom Schurr, a regional market manager for Clear Channel Communications (the successor to Evergreen), told the Fort Worth Star-Telegram, "the standards are broad enough that they don't offer much guidance. [Y]ou don't know you've crossed the line till [sic] you've crossed it." In her dissenting statement, Democratic Commissioner Gloria Tristani fumed that the statement "will likely become...a 'how-to' manual for those licensees who wish to tread the line drawn by our cases."
But perhaps foreshadowing a new era at the FCC, Commissioner Harold W. Furchtgott-Roth observed, "technology, especially digital communications, has advanced to the point where broadcast deregulation is not only warranted, but long overdue." He predicts that the basis for a constitutional challenge of the indecency standard has been "well laid" and is ripe for review.
Will the Bush administration conclude that broadcasting deserves the same First Amendment protection as speech in print, or on the Internet? Stay tuned.