Overturning the FCC Indecency Rules Won't Make Much of a Difference

Last week's Second Circuit U.S. appeals court ruling striking down the FCC's indecency policy has a lot of people excited. They're either thrilled that network TV will now be free to explore creative turf once restricted to cable, or they're alarmed that such exploration will turn network TV into a haven for smut and destroy the innocence of America's children.

The long-term trend on network TV may be toward more risqué programming, but in the short term, nothing much will change. The same kabuki act we've witnessed for decades -- with activists making hay out of censorship battles, the FCC trying to stem the tide of indecency, the courts trying to stay out of the whole mess, and the networks ever so slowly pushing the content envelope toward what's allowed on cable -- will continue as before, with everyone playing their appointed roles.

That includes us pundits and industry observers. Many of us (including TV Squad senior writer Joel Keller, here) have been quick to respond to Tuesday's "Fox vs. FCC" decision as if it will open the floodgates to freer, more realistically raunchy programming on network TV. The Hollywood Reporter had an article last Thursday whose headline proclaimed, "Primetime to get racier after FCC ruling," citing such upcoming network shows as NBC's midseason comedy 'Friends With Benefits' (which contains especially frank discussions of dating and casual sex) and CBS's Twitter-inspired sitcom '$#*! My Dad Says.'

But these shows were in the works long before last Tuesday's decision came down. And other envelope-pushing moments cited in the article (Stan giving a racehorse a happy-ending massage on 'American Dad,' a topless-but-blurred contestant on 'Survivor,' a threesome on 'Gossip Girl') happened earlier this season as well, did not involve indecent language, and have nothing to do with the "Fox vs. FCC" decision.

Trailer for NBC's 'Friends with Benefits'


As for whether the networks will rush to take advantage of the absence of the old guidelines, it seems to depend on whom the Reporter is talking to. An unnamed network exec tells the trade paper that the networks will continue to exercise restraint, while activists from the Media Access Project and the Parents Television Council (people, that is, who aren't actually involved in network programming decisions) say radical change is coming to primetime.

Not that you have to take what these people say at face value. The network exec is probably correct in claiming that the broadcasters will move cautiously, for reasons I'll outline below, but it's disingenuous to claim that content won't become more blunt in the long run. As for the activists, the MAP praises the court ruling and the PTC condemns it, but both sides depend on the continuing existence of these battles over content and censorship; both rely on these disputes to drive up membership numbers and to solicit donations.

In terms of actual enforcement, all the ruling is likely to do in the short term is return the FCC to the standards it employed before 2004. Up to that point, enforcement was fairly lax, fines were few, and fleeting expletives, like the live, awards-show f-bombs cited in this case, were permissible.

After the 2004 Super Bowl's Janet Jackson wardrobe malfunction, however, the FCC shifted gears, multiplied its fines tenfold for individual offenses, and began punishing networks for even fleeting expletives. Networks argued that the new policy, which seemed to vacillate on whether or not context could excuse certain profanities, was too vague and subjective to serve as a guideline for what would and would not result in a fine. The Second Circuit decision strikes down that 2004 policy and sends the FCC back to the drawing board.

The FCC isn't going to take this decision lying down. The commission will either appeal it to the Supreme Court or else craft a new, constitutionally sound framework for punishing indecency. The networks will want to wait until the appeals process is exhausted, or until the yet-to-be-designed indecency policy is in place, before embarking on any sweeping changes that could risk future fines.

As the network exec told the Reporter, "I don't think you're going to see any change. For one thing, this will likely be appealed to the Supreme Court."

Before last week, the Supreme Court had ruled that the FCC had the authority to regulate content but not on whether the commission's current rules for content regulation were constitutional, tossing that question back to the Second Circuit. The new Second Circuit decision ruled that, not only was the 2004 policy a violation of the First Amendment, but so was the longstanding test for indecency, that content air when kids were likely to be in the audience, and that it be "patently offensive as measured by contemporary community standards."

That seems to throw out more than 30 years of precedent, going back to the Pacifica decision (stemming from a radio station's broadcast of George Carlin's seven-words-you-can't-say-on-television routine) that established the indecency test. But the appeals court was correct to note how unclear the terms of that test is.

What is "patently offensive" to the handful of people who file FCC complaints is apparently not "patently offensive" to the masses of viewers who watch and don't complain. And what does "contemporary community standards" mean when the same show plays to audiences in Los Angeles and Tulsa (to use a couple of overly broad stereotypes)?

Trailer for CBS's '$#*! My Dad Says'


Also, as the new ruling notes, the rationale in the 1970s for subjecting broadcast TV to more stringent restrictions than other media was based on broadcast TV's "uniquely pervasive presence" in American life, but that's no longer an accurate description of network television. Cable TV is nearly as pervasive (and, when you're channel-surfing with your remote, indistinguishable). So is the Internet, and so is home video recording, which make broadcast shows available to view at any time of day. Plus, the V-chip is in nearly every TV, allowing parents to block objectionable content in a way impossible 30-plus years ago. So any new FCC content regulation policy will have to face much stricter scrutiny from the courts than before.

Broadcasters are relieved by the ruling, not because they're dying to unleash a tide of sewage during the "safe harbor" hours of primetime when kids might be watching, but because they want to see a clearer policy that will keep them from being fined if they want to air 'Saving Private Ryan' unexpurgated, or if someone sneaks a bleepable word past the network censor during a live event like an awards show, a sporting event, or a morning news program. But even after the "safe harbor" hours, the networks say they're not likely to push the envelope.

As that unnamed TV exec told the Reporter, "We have the ability right now after 10PM to do whatever we want, and you don't see that stuff. If we were going to do it, why wouldn't we have already done it before?"

The answer to that question is that the limits of acceptable content will be determined, not by network programmers, activist groups, the FCC, the courts, or even the viewers, but by the people for whom television is actually made (because they're the ones who pay the bills): the advertisers. What advertisers want from a TV show is an environment friendly and hospitable to their product. If sponsors think that more of the target demographic for their product will be attracted to racier programming than repulsed by it, then we will get racier programming.

Of course, the audience for truly boundary-pushing shows may be small, as small as the subscriber base for premium channels like HBO and Showtime that can air a 'True Blood' or 'Californication' without fear of alienating advertisers, or as small as the audiences for basic cable channels like FX and AMC, where a 'Breaking Bad' or 'Rescue Me' need deliver only a few million viewers to sponsors to be profitable. But the broadcast networks need to attract tens of millions of eyeballs to make a profit, so they'll always be more conservative than cable out of economic necessity, not just out of fear of legal repercussions.

'American Dad' clip: Stan and the racehorse


Nonetheless, network TV is clearly, if slowly, getting edgier every year. Apparently, the networks are confident that advertisers will buy time on new shows like 'Friends with Benefits' or '$#*! My Dad Says' (whose profanity quotient, I predict, will be limited to the bleeped title). They must also be confident that long-running shows that flirt with edgy content, like 'American Dad' and 'Gossip Girl,' are still viable to advertisers, and they'll keep such shows on the air as long as advertisers see the occasional threesome or equine masturbation scene as an asset, not a liability. Being a protest magnet is bad, but being old hat is worse; being considered boring is likelier to drive these shows off the air faster than being considered edgy.

Sugar loses her top on 'Survivor: Heroes vs. Villains'


The networks may never reach HBO/Showtime levels of unblurred nudity or frequent casual profanity, but over the coming years, they'll inch as close as the sponsors will let them. Meantime, the protesters can continue protesting the coarsening of the culture, the politicians can continue making broadcast TV an easy target, the courts can keep tossing hot-potato First Amendment issues into each others' laps, parents can keep maintaining a vigilant eye (and a vigilant V-chip filter) on what their kids watch, and everyone from the sponsors to the network executives to the activists to the lawyers can keep collecting their checks. (Everyone, that is, except for those of us watching at home.) It'll be free-market capitalism at its finest.

•Follow Gary Susman on Twitter @garysusman.