In a three part order issued last week, the Federal Communications Commission levied the largest fines ever against broadcast stations for airing “indecent content.” The biggest blow was a $3.6 million fine for implied sexual situations on the CBS drama “Without a Trace.” Bob speaks with Democratic Commissioner Jonathan Adelstein, who dissented from large portions of the majority decision, but stands by the government’s right to protect against the most egregious trespasses.
BOB GARFIELD: From WNYC in New York, this is NPR's On the Media. Brooke Gladstone is out this week. I'm Bob Garfield. Parents, a language alert in this first story. In a three-part order issued last week, the Federal Communications Commission levied the largest fines ever against broadcast stations for airing what the majority deems "indecent content." CBS stations felt the brunt of the blow, with $3.6 million in fines for implied sexual situations involving teenagers in its prime time drama, "Without a Trace." This, on top of $550,000 in fines for the Janet Jackson breast exposure incident during the 2004 Super Bowl. Democratic Commissioner Jonathan Adelstein dissented from large portions of the majority decision, but he stands by the government's right to protect against the most egregious trespasses, such as lewdness in front of children during family viewing hours.
JONATHAN ADELSTEIN: Well, look there were a lot of families gathered around the television during the Super Bowl, not expecting to see adult type fare. Frankly, it's not that adults don't have every right to see that kind of material, but children are supposed to be protected from that. And parents had no reason to expect that during a Super Bowl they would be subject to that kind of a performance. And we had over half a million complaints. BOB GARFIELD But to those complaints, as you analyze them, are they from a lot of individuals acting individually? Or, were they part of some organized astroturf campaign of the American Family Association or elsewhere on the religious right?
JONATHAN ADELSTEIN: I think we see both. I mean, certainly in the case of the Super Bowl there was a lot of grassroots concern. “Without a Trace,” my sense is, was much more of an organized campaign that came out of centralized organizations that are monitoring the airwaves. So it depends. But, the point is that the FCC needs to look into every complaint, and we do look at every complaint and determine - if only one person weighed in or if a hundred thousand people weighed in - we try to see whether or not the material met the standard or not.
BOB GARFIELD: I want to talk to you about the word "bullshit." Now, this is commonly used to convey skepticism. But the Commission found it to be explicitly excretory, and therefore indecent, whereas "dickhead" as an insult is okay. But where I come from, "bullshit" is, you know, pretty much kids' stuff, and "dickhead" is pretty darned insulting. All of which is to finally ask, I guess, how do you go about finding standards on this stuff? It just seems to me so arbitrary.
JONATHAN ADELSTEIN: Well, are you actually going to air that, or are you going to edit that out [LAUGHS] because--
BOB GARFIELD: It depends. Are you on duty? [LAUGHTER]
JONATHAN ADELSTEIN: My colleagues may have an issue with it. To me, it's something that does defy a little bit the imagination. I understand why parents don't want that heard over the airwaves, but our rules require that words that are banned are either sexual or excretory. And I think in common usage that word is not really one that is excretory. So we made quite a stretch to say that it's inherently so, and I think it's something that is probably going to be challenged in court.
BOB GARFIELD: So I'll mark you down as against this portion of the ruling. But as to the general question of arbitrariness, the fact that you are having this kind of Talmudic debate about, you know, what is over the line and what isn't, doesn't that get to the central problem that there can be no reasonable standard because it's just all so wildly subjective?
JONATHAN ADELSTEIN: I think there is a real problem with the arbitrary nature of this and the fact that we don't really have a consistent way of looking at these different words, as to what's indecent or profane. If you look at the so-called Golden Globes case, where Bono used the F-word with regard to an award that he got, it wasn't certainly sexual in nature but we found that it may have been. And once you go down that path, all of a sudden you have the whole vocabulary in front of you and you need to make these determinations. And, in fact, I can see why broadcasters would be somewhat confused about what is and what isn't permissible.
BOB GARFIELD: Yeah, and I'm like yeah! [LAUGHS] Now, you dissented with a specific ruling that finds the Martin Scorcese documentary, "The Blues: Godfathers and Sons," writing that, "the coarse language is a part of the culture of the individuals being portrayed." And you equate it with a prior ruling by the Commission on “Schindler's List” and “Saving Private Ryan,” which allowed graphic language to depict "serious incidents."
JONATHAN ADELSTEIN: I think when it comes to news and documentaries, that we have traditionally looked at a different standard. It is very hard to separate out coarse language from the culture of the blues that was being portrayed. And I guess it was a decision by my colleagues that you could, that we somehow here inside the Beltway, knew better than Martin Scorcese how to cut that film, and that you could somehow take out certain parts and not lose meaning.
BOB GARFIELD: So, explain to me again why, instead of writing a partially concurring opinion, you didn't, you know, self-immolate on the steps of the FCC in protest of your colleagues' actions?
JONATHAN ADELSTEIN: Well, all I can do is write a dissent, in part. And that's what I did. I mean, I think we need to be very careful about how we draw the line here, because the Supreme Court gave us a real short leash on which to determine what is and isn't indecent. They want us to exercise the utmost restraint, lest we inhibit the constitutional rights of broadcasters and others to free speech. If we overstep in these cases and the Court knocks us down, we could potentially lose what limited authority we have to protect children from indecent material forever. It would actually take a constitutional amendment amending the First Amendment to be able to get the FCC authority back to limit material that we could all agree would be inappropriate for children.
BOB GARFIELD: All right, Commissioner. Well, thank you very much.
JONATHAN ADELSTEIN: Well thank you, Bob.
BOB GARFIELD: Jonathan Adelstein is a Democratic appointee to the FCC.