Congress shall make no law [...] abridging the freedom of speech or the press...." [1]  However, the Federal Communication Commission ("FCC") often steps in and creates regulations that prohibit foul language on television.  The recent Academy Awards cut away from a thank you speech by Sally Field to a black screen as a result of the topic of her speech.  A new documentary, entitled "The War", is to air on Public Broadcasting Station ("PBS") in an edited form to remove foul language.  This article will look at these instances and question the necessity of the FCC to prohibit such speech in these contexts and how the courts have viewed this issue in the past.

The FCC was created by the Communications Act of 1934 [2] and has the responsibility of "regulating interstate and international communications by radio, television, wire, satellite, cable." [3] The FCC initially took up the role of regulating speech when Pacifica Foundation broadcasted George Carlin's routine entitled "Filthy Words" which used several expletives in the routing. [4] After the airing of the routing, the Commission created a definition of indecent content as being a concept "intimately connected with the exposure of children to language that describes, in tern patently offensive by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of day when there is reasonable risk that children may be in the audience." [5]  As a result of this definition, the D.C. Circuit Court ruled this to be censorship, stating that the FCC went too far in creating a vague and over-broad definition of indecency. [6]

     The FCC clarified its position on indecency and stated that indecent language does not include foul language used in news pieces or language that is not repetitive. [7]  While Bono was permitted to wear on live television when receiving and award at the Grammy Awards, the FCC decided to restrict the ability of individuals to use "indecent language" on television after several celebrities swore on live television. [8]  According to the federal regulations, the FCC is not allowed to censor television, meaning that they cannot tell a television station what they can and cannot air beforehand. [9]  However, the FCC can impose charges upon television stations that air material that is indecent, obscene or profane. [10]  The court decided that the FCC could not change its policy on fleeting speech as it was "arbitrary and capricious" to do so. [11]

     The issue of speech has been raised frequently in relation to awards shows.  Recently the American Broadcasting Company decided to cut away from the actress Sally Field when she decided to use her acceptance speech as a time to speak out against the war in Iraq.  Other times in the broadcast the station cut away from actors when they were shown on the screen swearing, even if the swear was not fully audible.  In these instances the speech was fully within the fleeting speech requirement in that they were isolated incidents of foul language being used in a manner other than to describe sexual or excretory functions.  However, television stations are worried that they will be met with heavy fines from the FCC if they allow such speech to air on prime time television.  While the FCC does not censor television before programs air, it does disincentive stations from airing programs that they fear will lead to fines.

     The PBS is currently facing exactly this situation.  Ken Burns' documentary entitled "The War" is set to air on PBS in one hour episodes over fifteen days. [12]  The documentary contains four expletives, which has leads PBS to offer its affiliates two versions of the film to air. [13]  One version is complete with the four expletives while the other is void of any foul language. [14]  While this may seem like a small change, it sends a big message.  It says that the FCC is very powerful in influencing television programming.  Removing four words from a documentary about World War II changes the atmosphere of the war for the soldiers and civilians portrayed in the film.  PBS is not under the control of the FCC [15], yet they still fear the fines that may be imposed as a result of airing a documentary with four expletives.  This is the result of a fine levied upon a public television station in California for airing a documentary about blues musicians in which the musicians used expletives in their dialogue. [16]  The question that arises is whether the FCC should have such power to influence educational television so that it is self censored by the networks that air it.

     The role and power of the FCC has often come into question in the past in regards to popular television.  The show "Sex and the City" originally aired on Home Box Office ("HBO") and was free of the need to contrain the show to the regulations of the FCC.  As a result, much of the dialogue on the program was about sexual activity.  The show has since been put into syndication and airs on non-premium cable television and network television.  As a result, the networks have decided to edit the show to make it suitable for air by removing all expletives and scenes involving sex.  This has dramatically changed the program from being about the intimate details of four women's lives to being about four women who drink coffee and like shoes.  "Sex and the City" also is aired in a later time slot as it did on HBO so that younger viewers are less likely to be in the audience and may not accidentally happen upon the program.  Adults are then left with a watered down version of the show as a result, in a time slot where younger viewers are unlikely to be privy to any of the foul language or sexual content in the program.  This raises questions as to the necessity of the networks to censor the program to air on television.  However, returning to the FCC and its regulations, it is apparent that the networks edit the programs largely to avoid fines and penalties.

     Free speech is a fundamental right of the Constitution.  As a result, it is dubious as to the FCC's actions in limiting the speech that may air on television.  While the FCC has not actively censored programming before it airs on television, it has enacted regulations that chill the speech of the networks. Because of the fear of fines and other penalties, networks and the Public Broadcasting Stations have all begun to censor themselves.  Therefore, the FCC has instituted an indirect censoring regime that has decreased the quality of programming on television and inhibited the right of adults to watch programming of their choice with its original content.

[1] U.S.Const. amend I.

 

[2] Communications Act, 47 U.S.C. § 151 (2000).

 

[3] Federal Communications Commission, http://www.fcc.gov/aboutus.html (last visited Sept. 26, 2007).

 

[4] Fox Television Stations, Inc. v. Federal Commc’ns Comm’n, 489 F.3d 444, 447 (Ct. App. 2d Dist. 2007).

 

[5] Id.

 

[6] Id.at 448.

 

[7] Id.

 

{8] Id. at 452.

 

[9] 47 U.S.C. § 398 (2000).

 

[10] Mark Harris, A War of Words, Entertainment Weekly, Sept. 21, 2007, http://www.ew.com/ew/article/0,,20058153,00.html.

[11] Fox Television Stations, 489 F.3d at 454.

 

[12] Harris, supra note 10.

 

[13] Id.

 

[14] Id.

 

[15] 47 U.S.C. § 398 (2000).

 

[16] Harris, supra note 10.