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The Supreme Court released its ruling in FCC v. Fox Television Stations, et al. (07-582), in which a 5-4 majority found that the FCC acted on a rational basis in changing its policy on fleeting expletives. In an opinion penned by Justice Scalia, the Court declined to rule on the First Amendment question of whether indecency regulations are still constitutional. The majority decided the administrative law issue and sent the First Amendment issue back to the Second Circuit.

In his brief concurrence, Justice Thomas suggested that technology and today's fractured media landscape may not bode well for indecency regulation in a future case testing the constitutionality of broadcast indecency regulation.

Lyle Denniston, Scotusblog, Court partly upholds “dirty words” ban, "The main opinion stressed that it was dealing only with the question of whether the flat ban was “arbitrary and capricious” as a matter of law. The Court said it did not violate that standard, but that is as far as the ruling went. The Second Circuit Court, when the case returns there, will have a chance to pass upon broadcasters’ constitutional challenges to the ban. The lower court did not do so on the first review, but strongly hinted then that the ban would not survive a direct First Amendment challenge."

The Wall Street Journal, Court Upholds FCC 'Fleeting Expletive' Rule "The court reversed a lower court ruling that the Federal Communications Commission didn't follow proper procedures in adopting its new rule. But the ruling, by Justice Antonin Scalia, didn't address the underlying constitutional issue -- whether the First Amendment permits the FCC to punish such speech."

Los Angeles Times, Supreme Court upholds regulation of 'indecent' language on TV: "The Supreme Court said today that TV viewers should not be hit with the 'F-word' or the 'S-word' during prime-time broadcasts, upholding the government's power to impose huge fines on broadcasters for airing a single expletive."

Adam Bonin at Daily Kos, nicely summarizes the key points of the opinion and various dissenting and concurring opinions, SCOTUS Issues "F**king Brilliant" Decision

Previously:
FCC v. Fox Oral Arguments Today (11/08)
Court Grants Cert in FCC v. Fox (3/08)
Second Circuit strikes strict indecency regs (6/07)
Fox v. FCC Oral Arguments (12/06)

The Second Circuit Court of Appeals ruled that the Federal Communications Commission's policy prohibiting "fleeting expletives" is arbitrary and capricious under the Administrative Procedure Act for "failing to articulate a reasoned basis for its change in policy." Fox v. FCC, 06-1760 (2d Cir., Jun. 4, 2007).

"The Networks contend that the Remand Order is arbitrary and capricious because the FCC has made a 180-degree turn regarding its treatment of "fleeting expletives" without providing a reasoned explanation justifying the about-face. We agree."

The evaluation of the Commission's new policy is limited to the reasons articulated by the agency itself, particularly the "first blow" theory introduced in Pacifica. Based on the pervasiveness of the broadcast medium, a viewer or listener can not opt-out of indecent programming when encountering such programming in the spectrum, and so the audience must bear the "first blow" of encountering indecent speech. Because of this unique pervasiveness, the Commission changed its standards in order to be able to sanction fleeting and accidental indecency.

"We cannot accept [the "first blow" argument] as a reasoned basis justifying the Commission’s new rule. First, the Commission provides no reasonable explanation for why it has changed its perception that a fleeting expletive was not a harmful "first blow" for the nearly thirty years between Pacifica and Golden Globes. More problematic, however, is that the "first blow" theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives. As the FCC itself stressed during oral argument in this case, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules. For example, although "there is no outright news exemption from our indecency rules," Remand Order, at ¶ 71, the Commission will apparently excuse an expletive when it occurs during a "bona fide news interview," id. at ¶ 72-73 (deferring to CBS’s "plausible characterization" of a segment of The Early Show interviewing a contestant on its reality show Survivor: Vanuatu as news programming and finding expletive uttered during that part of the show not indecent or profane).

The Commission even conceded that a re-broadcast of precisely the same offending clips from the two Billboard Music Award programs for the purpose of providing background information on this case would not result in any action by the FCC, even though in those circumstances viewers would be subjected to the same "first blow"
that resulted from the original airing of this material. Furthermore, the Commission has also held that even repeated and deliberate use of numerous expletives is not indecent or profane under the FCC’s policy if the expletives are "integral" to the work.

The court finds that other justifications for the new indecency standard advanced by the FCC do not pass the threshold of being arbitrary and capricious:

The Remand Order makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient. For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is "difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions." Remand Order, at ¶ 23. This defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any "sexual or excretory" meaning. Bono’s exclamation that his victory at the Golden Globe Awards was "really, really fucking brilliant" is a prime example of a non-literal use of the "F-Word" that has no sexual connotation. See Golden Globes (Bureau Decision), 18 F.C.C.R. 19859, at ¶ 5 ("As a threshold matter, the material aired during the ‘Golden Globe Awards’ program does not describe or depict sexual and excretory activities and organs . . . . Rather, the performer used the word ‘fucking’ as an adjective or expletive to emphasize an exclamation."), rev’d by Golden Globes, 19 F.C.C.R. 4975 (2004). Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced "sexual or excretory organs or activities." See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to "get Syria to get Hezbollah to stop doing this shit" and Vice President Cheney’s widely-reported "Fuck yourself" comment to Senator Patrick Leahy on the floor of the U.S. Senate).

To change a long-standing policy without new legislation, must an agency show empirical evidence establishing the need for such a change?

For decades broadcasters relied on the FCC’s restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent. The agency asserts the same interest in protecting children as it asserted thirty years ago, but until the Golden Globes decision, it had never banned fleeting expletives. While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change.

The court finds that the Commission's new approach towards regulating profanity is more arbitrary and capricious than the new approach towards regulating indecency.

The Commission’s new approach to profanity is supported by even less analysis, reasoned or not. The Commission sets forth no independent reasons that would justify its newly-expanded definition of "profane" speech, aside from merely stating that its prior precedent does not prevent it from setting forth a new definition, see Golden Globes, 19 F.C.C.R. 4975, at ¶ 14. To the extent the Commission believes its arguments for expanding its indecency enforcement support its new policy regarding profanity, those arguments are rejected for the reasons stated above. Furthermore, the Commission fails to provide any explanation for why this separate ban on profanity is even necessary. Prior to 2004, the Commission never attempted to regulate "profane" speech. In fact, the Commission took the view that a separate ban on profane speech was unconstitutional. See 122 Cong. Rec. 33359, 33359, 33364-65 (1976) (recommending Congress delete "profane" from Section 1464 "[b]ecause of the serious constitutional problems involved"); FCC, The Public and Broadcasting, 1999 WL 391297 (June 1999) ("Profanity that does not fall under one of the above two categories [indecent or obscene] is fully protected by the First Amendment and cannot be regulated."). The Commission again has not provided this court with a reasoned analysis of why it has undertaken this separate regulation of speech. Finally, the Commission provides no explanation of what harm this separate enforcement against profane speech addresses that is not already addressed by the FCC’s indecency and obscenity enforcement. Particularly considering that the scope of the FCC’s new profanity definition appears to be largely (if not completely) redundant with its indecency prohibition, this would seem to be an important question for the Commission to consider. The Remand Order, however, provides no indication that the Commission has engaged in any such analysis.

While the court does not the case based on First Amendment grounds, it does pointedly question whether this standard of indecency regulation is Constitutional. The court remands to the FCC for a reasoned explanation for the "fleeting expletive" regime and is skeptical that the Commission can provide such a reasoned explanation.

As an initial matter, we note that all speech covered by the FCC’s indecency policy is fully protected by the First Amendment.

With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of "fuck" and "shit" are presumptively indecent and profane, repeated use of those words in "Saving Private Ryan," for example, was neither indecent nor profane. And while multiple occurrences of expletives in "Saving Private Ryan" was not gratuitous, a single occurrence of "fucking" in the Golden Globe Awards was "shocking and gratuitous."

We can understand why the Networks argue that FCC’s "patently offensive as measured by contemporary community standards" indecency test coupled with its "artistic necessity" exception fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech, and requires broadcasters to "steer far wider of the unlawful zone."

The court goes on to discuss the Supreme Court's strikedown of internet indecency regulation in Reno v. ACLU and notes that the internet regulations which were struck down used language "substantially similar" to that in the FCC indecency test.

We also note that the FCC’s indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. It appears that under the FCC’s current indecency regime, any and all uses of an expletive is presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were "integral" to the work.

New technology may make indecency regulations obsolete. The court suggests that such new technology make subject regulations of broadcast speech to review under strict scrutiny.

We would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television.

The proliferation of satellite and cable television channels—not to mention internet-based video outlets—has begun to erode the "uniqueness" of broadcast media, while at
the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television.

The FCC is free to regulate indecency, but its regulatory powers are bounded by the Constitution. If the Playboy decision is any guide, technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.

Besides changing the standard for enforcement, the Commission essentially crafted an entirely new definition for "profane" without direction from Congress.

Most dictionaries interpret the term "profane" to denote something that pertains to the irreligious, and since 1927, courts—as well as the FCC itself—have assumed that "profane" in the broadcast context refers to sacrilege, and nothing more.

But the FCC’s definition of "profane" here, would substantially overlap with the statutory term "indecent." This overlap would be so extensive as to render the statutory term "indecent" superfluous. Because our canons of statutory construction do not permit such an interpretation, see TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001), we do not believe the FCC has proffered a reasonable construction of the term "profane." While we may owe Chevron deference to the FCC’s construction, the FCC must still demonstrate that its construction is reasonable, particularly in light of Congressional intent, the canons of statutory construction, and the historical view of the plain meaning of this term.

While the court is skeptical that broadcast indecency regulation can survive First Amendment scrutiny, it does give the Commission the chance to advance that argument, by ruling on only the administrative law grounds.

As the foregoing indicates, we are doubtful that by merely proffering a reasoned analysis for its new approach to indecency and profanity, the Commission can adequately respond to the constitutional and statutory challenges raised by the Networks. Nevertheless, because we can decide this case on this narrow ground, we vacate and remand so that the Commission can set forth that analysis. While we fully expect the Networks to raise the same arguments they have raised to this court if the Commission does nothing more on remand than provide additional explanation for its departure from prior precedent, we can go no further in this opinion.

In dissent, Judge Leval finds that the "the Commission gave a sensible, although not necessarily compelling, reason," which deserves deference.

[The FCC] made clear acknowledgment that its Golden Globes and Remand Order rulings were not consistent with its prior standard regarding lack of repetition. It announced the adoption of a new standard. And it furnished a reasoned explanation for the change. Although one can reasonably disagree with the Commission’s new position, its explanation – at least with respect to the F-Word – is not irrational, arbitrary, or capricious. The Commission thus satisfied the standards of the Administrative Procedures Act.

The dissent also discusses the various uses of the word "fuck"

The majority notes that the F-Word is often used in everyday conversation without any sexual meaning.… I agree with the majority that the word is often used without a necessary intention on the part of the speaker to refer to sex. A student who gets a disappointing grade on a test, a cook who burns the roast, or a driver who returns to his parked car to find a parking ticket on the windshield, might holler out the F-Word to express anger or disappointment. The word is also sometimes used to express delight, as with Bono’s exhilarated utterance on his receipt of his award. Some use it more as a declaration of uncompromising toughness, or of alignment on the side of vulgarity against prissy manners, without necessarily intending to evoke any sexual meaning. Some use it to intensify whatever it is they may be saying, and some sprinkle the word indiscriminately throughout their conversation with no apparent meaning whatsoever.

In a footnote, the dissent notes that the court is only reviewing cases dealing with use of the word "fuck," not cases concerning the word "shit." Were this court testing the Commissions standard for uses of the s-word on television, might the result be different?

"For children, excrement is a main preoccupation of their early years. There is surely no thought that children are harmed by hearing references to excrement.… When the censorship is exercised only to protect polite manners and not by reason of risk of harm, I question whether it can survive scrutiny. Because each instance of censorship at stake in this case involved the F-Word, which in the Commission’s view inherently retains a sexual reference, the question does not arise in this case."

News and Analysis Links:
David Oxenford, Broadcast Law Blog, Second Circuit Throws Out FCC Indecency Fines: "While the Court's decision was based on the FCC's failure to provide a rational basis for its departure from precedent, the Court also said that it was difficult to imagine how the FCC could constitutionally justify its actions. The Court pointed to the inconsistent decisions of the FCC - fining stations for the use of the "F-word" and the "S-word" in isolated utterances during awards shows, and when used in the context of a program like PBS' The Blues, but finding that the same words were not actionable when used in Saving Private Ryan or when used by a Survivor contestant interviewed on CBS' morning show."

Brooks Boliek, The Hollywood Reporter, Esq. 2nd Cir. Tosses Key FCC Indecency Ruling: "The U.S. 2nd Circuit Court of Appeals in New York on Monday tossed out a key FCC ruling that said a slip of the tongue gets broadcasters a fine for indecency, telling the commission that it failed to give a good reason for its decision and couldn't likely find a good reason if it had to."

Frank Ahrens, The Washington Post, Broadcasters Win Appeal Of FCC's Profanity Ruling: "The ruling is a rebuke to the FCC and a victory for television networks, which in recent years have pushed back against the FCC's crackdown on indecency. In 2004, the agency reversed years of policy and effectively branded even "fleeting," or one-time, use of an expletive off-limits on broadcast television and radio, angering Hollywood, which warned of a chilling effect on programming."

Jim Puzzanghera, The LA Times, FCC efforts on indecency dealt setback: "In a victory for TV networks but a setback for efforts to shield children from coarse language, a federal court ruled Monday that broadcasters couldn't be penalized for expletives that were considered impromptu."

Stephen Labaton, The New York Times, Court Rebuffs F.C.C. on Fines for Indecency: "If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts."

Advocacy Group Statements:
Media Access Project: "Score one for the First Amendment. It’s a shame that citizens and broadcasters had to seek protection from the courts, but it is very reassuring to know that one branch of the government can rise above demagogy."

Parents Television Counsel: "As we predicted several months ago, a court in New York City has cleared the way for television networks to use the F-word and S-word in front of children at any time of the day. By a mere 2-1 margin, the Second Circuit Court of Appeals has, in essence, stolen the airwaves from the public and handed ownership over to the broadcast industry."

Chairman Martin and Commissioner Copps are both disappointed with the court's decision.

The F Word

The NY Times reports that the four television networks are challenging the Constitutionality of the FCC indecency and profanity standards: TV Networks Sue to Challenge F.C.C.'s Indecency Penalties: "With no allies among either the Democrats or the Republicans on the Federal Communications Commission nor any significant ones in Congress, the four broadcast networks, joined by the Hearst-Argyle Television group of stations, embarked late last week on a low-risk strategy of turning to the courts."

See also Christopher M. Fairman, Ohio State Moritz College of Law, Fuck: "This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context."

Are Indecency Regulations Obsolete?

The Authority to Regulate Indecency

Broadcasting is an area where the government has a greater interest in regulating indecent speech than in other media. In FCC v. Pacifica Foundation, the Supreme Court upheld the Commission’s authority to prohibit indecent speech in the broadcast media and to punish broadcast licensees who air indecency. Two unique characteristics of broadcast allow the FCC to regulate indecent speech broadcasts, “pervasive presence” in the airwaves and its “unique accessibility” to children. These characteristics were balanced against the idea that indecent speech falls "at the periphery of First Amendment concerns.”

Protecting children from inadvertent exposure to indecent speech represented the sort of interest that would allow the regulation of broadcast indecency. Both "the content and context of speech" are "critical elements" of the First Amendment analysis. Broadcast represents a pervasive presence in the household. The Court based its reasoning on a nuisance rationale under which “context is all-important.” Among the factors to be considered include the time of day of the broadcast, and how the content of the program will affect the composition of the audience. In contrast, the Supreme Court declined to extend the authority to regulate indecency to cable television and the internet because these media are not so pervasive. Citizens must make a conscious choice to subscribe to cable or to visit an internet location, while broadcast television permeates the airwaves and requires no subscription to view.

Because it is possible to prevent minors from accessing indecency on cable television, the internet, and for telephony, the Court has applied strict scrutiny and struck down regulations on indecent speech in those media. These media lack the same sort of pervasive push into the home as broadcast and must be evaluated under strict scrutiny. The availability of channel-blocking or internet filtering technology provides a “feasible and effective means” of furthering its compelling interests, which is less restrictive to speech than a ban based on time-channeling. Filtering and blocking make it possible to exclude certain individuals from access. Justice Powell noted that broadcast lacked that power to exclude a discrete part of its audience and must rely on time channeling to achieve similar results, where protected speech is available, but not readily accessible to minors.

Even with broadcast, an outright ban on indecency is impermissible under the First Amendment. Action for Children's Television v. FCC. However, in order to target regulations of indecency to the times when children would be watching television or listening to the radio, a “time-channeling” approach is a “narrowly-tailored” regulation. A prohibition on indecent broadcasts outside of a 10 P.M. to 6 AM “safe harbor,” was found to be an acceptable balance of the First Amendment interests of adults with the public interest in preventing the broadcast of indecent speech to children. While other media are not regulated for indecency, the D.C. Circuit continued to single out broadcast for unique treatment, allowing that “radio and television broadcasts may properly be subject to different-- and often more restrictive-- regulation than is permissible for other media under the First Amendment." Broadcast remains an anomaly within the Court’s First Amendment jurisprudence as the only field where government regulation of indecent, rather than obscene, speech is tolerated.

As part of its delegated authority to regulate broadcasting, the FCC has the specific authority to regulate the broadcast of “obscene, indecent, or profane language.” The FCC’s authority to regulate indecency relies on the statutory authority in 18 USC §1464, which criminalizes the broadcast of “obscene, indecent, or profane language by means of radio communication.”

The FCC Regulations prohibit licensees from broadcasting obscene material at all times and from broadcasting indecent material during the “safe harbor” period between 6 a.m. and 10 p.m. 47 C.F.R. §73.3999. In order to qualify as indecent, material must describe or depict sexual or excretory organs or activities and the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium.

Does technology obsolete indecency regulations?

In Pacifica, the Court justified regulating indecency on broadcast because of the unique characteristics of the broadcast medium, its “pervasive presence” in the airwaves and its “unique accessibility” to children. Today, however, the technological and media environment is sufficiently different that these circumstances may not justify limiting indecent speech on broadcast more than on cable television, satellite television, satellite radio, or the internet.

Nearly 90% of all households in the US have access to television through cable or satellite. For the vast majority of Americans, broadcast stations are just part of the televised content available. Cable and Satellite are not subject to indecency regulation because they are subscription services (one is less likely to unwittingly experience an indecent cablecast in their house than an indecent broadcast) and because they allow subscribers to filter out channels showing indecent content.

The V-chip allows television viewers to filter out content that may be indecent. Section 551 of the Telecommunications Act of 1996 encouraged the broadcast and cable industry to "establish voluntary rules for rating programming that contains sexual, violent or other indecent material about which parents should be informed before it is displayed to children," and to voluntarily broadcast signals containing these ratings. Televisions equipped with the v-chip allow parents to block undesirable programming at the time it enters the home.

All televisions sold in the US since Jan. 1, 2000 are equipped with the V-chip. Initially, parents were enthusiastic about the prospect of the v-chip. A 1999 Kaiser family foundation survey found that 77% of parents surveyed would use the v-chip to block shows they didn't want their children to watch. Yet, in 2004, usage of the V-chip stands at fewer than 15% of households, even though 74% have a v-chip equipped television. Researchers from the Annenberg Public Policy Center gave V-chip equipped television sets to families in Philadelphia and instructed the families on how to use the v-chip. After one year, only 30% of the families ever tried using the V-chip and only 8% of the families used the blocking feature regularly.

The FCC is preparing to transition broadcast television from conventional analog television to new digital technology sometime during the 21st century. DTV transition requires new sets or digital tuner converter equipment that will have the V-chip. At that point, all televisions capable of receiving broadcast television will have the V-chip and it will be as easy to filter broadcast television, as it is to filter cable television. Additionally, digital multicasting will ameliorate spectrum scarcity and allow broadcasters to increase the number of channels of content. Multicasting will also allow broadcasters to offer detailed metadata about the programs on subchannels. This data may include detailed information about potentially indecent content.

These new technological developments in broadcast offer arguments that the the special circumstances that justify regulating broadcast indecency may no longer exist.

In the 2004 Super Bowl Halftime Show Forfeiture Order, the Commission notes that the Supreme Court "expressly recognized in Reno the 'special justifications for regulation of the broadcast media.'" The Commission finds that the availability of the V-Chip does not change the need for broadcast indecency regulations, because the V-chip "cannot be utilized to block sporting events such as the Super Bowl because sporting events are not rated." In a footnote, the Commission agrees that the V-chip is an important protection outside the context of exempt programming, "but it does not eliminate the need for enforcing [the] indecency rule or undermine the constitutionality of that rule."

However, the mere fact that sports and commercials are unrated under the V-chip scheme might not protect broadcast indecency regulations. Wouldn't the least restrictive means of regulating speech be to require that commercials and sports programming are rated by the V-chip and then letting individual parents decide what programming can enter their houses?

If a court can find that sufficient safeguards exist to protect children from indecent content on broadcast television, then the First Amendment may prohibit indecency regulation. However, broadcasters may always be subject to greater obligations than cable and internet video distributors. Under the "public trustee" model of spectrum rights, broadcasters do obtain a broadcast licensee and the rights to valuable spectrum from the public and should have some obligation to serve the public. The safe harbor does serve a public policy by making a pragmatic decision to offer parents a set of “safe” channels that children can watch without concerns about indecency.

The most recent FCC rulings on broadcast indecency caused the WB to edit a new show. The NY Times reports: WB Censors Its Own Drama for Fear of F.C.C. Fines

The pilot episode of "The Bedford Diaries," which concerns a group of college students attending a class on human sexuality, had already been accepted by WB's standards department. After the F.C.C. decision last week to issue millions of dollars in fines against broadcast stations, the network's chairman, Garth Ancier, contacted Mr. Fontana and asked him to edit a number of specific scenes out of the show, including one that depicted two girls in a bar kissing on a dare and another of a girl unbuttoning her jeans.

The network's standards and practices department previously cleared the show to air, believing that it would not run afoul of the indecency regulations.

Even if networks do not edit shows because of indecency regulations often, the constraints imposed by the indecency framework do affect the creative content of television. In some cases, these constraints compel writers to find alternative means of expression.

Battlestar Galactica uses the made-up word "frack" as an all-purpose expletive. The super-cheesy original Battlestar Galactica series, with Lorne Greene, invented the fracking expletive (along with, um, especially creative measures for time and currency.) As a result, though, dialogue on Galactica has its own particular tone and rhythm. If it used the normal English equivalents, the show might sound more like The Sopranos, just with the Jersey accents toned down a bit. Salon.com's Video Dog has a compilation of clips incorporating the word: Motherfracker!

In another way, writers can build on the fact that networks will bleep the worst language. In a first-season episode of Arrested Development, Bringing Up Buster, the writers sent Buster on a 10-second long tirade, where we hear "cause I'm an uptight…[bleeeeeeeeep]…Buster…[bleeeeeeeep]… you old horny slut!" The video shows only the other characters' (Michael, GOB and Lindsay) horrified reactions. The result is more offensive than anything the writers could think up, because those 10 seconds are filled with the foulest language each viewer can imagine, and that language may be different for each imagination.

In Complaints Regarding Various Television Broadcasts Between February 2, 2002 and March 8, 2005 (FCC 06-17, Mar. 15, 2006), the FCC discussed the standard used for determining when broadcasters violate the prohibition on broadcast profanity. The broadcast of "obscene, indecent, or profane language by means of radio communication" is prohibited. 18 USC §1464.

In the Golden Globes II decision, the FCC ruled that "fuck" is profane. Here, the Commission provides a somewhat more comprehensive rationale for the standard it is enforcing and expands its definition of profanity to include the word "shit" and its derivatives.

The FCC will analyze potentially profane language with respect to whether it is so grossly offensive as to constitute a nuisance. Profanity is "denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." This standard is based on the definition of profanity adopted by the Seventh Circuit in Tallman v. U.S., 465 F.2d 282 (7th Cir., 1972). The Commission finds that the "fighting words" portion of the definition is inapplicable to the broadcast context, since it "appears unlikely that broadcast material would provoke immediate violence between those uttering such words and the audience."

In order to be consistent with the First Amendment, the FCC establishes a presumption that the regulation of profane language will follow indecency regulation and be limited to the "universe of words that are sexual or excretory in nature or are derived from such terms." The presumption of profanity is limited to those certain vulgar sexual or excretory terms are so grossly offensive to members of the public that they amount to a nuisance-- "the most offensive words in the English language, the broadcast of which are likely to shock the viewer and disturb the peace and quiet of the home."

A broadcast of one of the presumptively profane words does not trigger liability where the broadcast is not likely to shock the viewer and disturb the peace and quiet. One of the "rare instances" where this occurs is where the words are seen in graffiti on the side of a train in the background of a scene.

"Fuck" and "shit" are the two words that are presumptively profane. "Bitch," "hell" and "damn" are not profane because they do not refer to sexual organs or activities and are not grossly offensive. Although "ass" and "piss" do refer to sexual or excretory organs or activities, they are not profane because they are not grossly offensive as to amount to a nuisance.

A use of "fuck" or "shit" is not profane only in "rare cases" where such language is "demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance." Even though profane language may have some communicative purpose, the broadcaster must "demonstrate that it is essential to informing viewers on a matter of public importance or that editing the language in question would have a material impact on the network's function as a source of news and information."

The Commission decides that the use of profane words was not essential in "The Blues," directed by Martin Scorsese and broadcast on PBS. Previously, the FCC ruled that substituting other language in a broadcast of "Saving Private Ryan" would have “would have altered the nature of the movie and diminished the power, realism and immediacy of the film experience for viewers." In contrast, the Commission rules that such a substitution would not have materially altered "The Blues," "While we recognize here that the documentary had an educational purpose, we believe that purpose could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives."

The FCC may decide whether a use of "fuck" or "shit" is profane based on the Commissioners' decision that the broadcast lacks artistic merit or newsworthiness.

Previously: Broadcast Indecency Regulation: The Indecency Standard