Monday, May 04, 2009

What the Bleep?

In my latest FindLaw column, I discuss the Supreme Court's recent decision in FCC v. Fox Television Stations, Inc., which upholds the FCC's "fleeting expletives" rule against an administrative law challenge. Among other things, I call attention to the peculiarity that Justice Scalia's opinion for the Court uses the terms "S-Word" and "F-Word" in place of "shit" and "fuck" respectively. Here I'd like to explore another point about profanity that I don't address in the column.

In challenging the FCC policy, Fox and the other broadcast tv networks argued, among other things, that profanity (at least of the fleeting variety) is so commonplace, that it's futile to try to protect the sensibilities of children by keeping it off prime-time tv. The Second Circuit had accepted this argument, reasoning that today's youth "likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech." But Justice Scalia purported to turn this argument around. He wrote:
The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.
On its face, this makes little sense. The point urged by the broadcasters and accepted by the Second Circuit was that once kids are old enough to operate a tv or an internet-accessible computer on their own, they will be exposed to profanity, whether or not their parents approve.

I believe, however, that Justice Scalia was making a somewhat different point. He was not suggesting that it is possible for parents to shield kids from the words "shit" and "fuck." Rather, he was arguing, as he says expressly elsewhere in his opinion, that the problem with carrying these expletives on prime-time tv is that doing so conveys a message to children that their use is "normal and appropriate."

I'll grant that there is something to that point, but I don't think it goes nearly as far as Justice Scalia believes, precisely because of the "bleeping" technology that the FCC found crucial. A child who sees and hears Bono say "fucking" on TV gets exactly the same message as a child who sees Bono mouth the word "fucking" while hearing a bleep. The child learns that the people who run tv have a rule requiring that "fuck" and its variants must be bleeped out, even while also learning that people say the word anyway.

The near-pointlessness of bleeping is well illustrated by the closely related phenomenon of substituting a similar-sounding-but-not-profane word for the profanity, as in a 1989 SNL sketch that substituted "funk" for "fuck," or, more profoundly, by Norman Mailer's magnificent 1948 novel of WWII Pacific combat, The Naked and the Dead, in which, at the insistence of his publisher, Mailer had to substitute "fuggin" for "fucking" throughout the book. No one who knows the actual word "fuck" is either fooled or protected by such substitutions. So what the fug is their point?

Posted by Mike Dorf


Tammy said...

I think this issue underscores an invisible struggle between a generation whose cultural values orbited more around protecting the "sanctity" of children's right to an unblemished childhood, and the generation to which my 13-year-old belongs, in which that particular horse is already out of the barn and 10 miles down the road.

While we're trying, futilely, to protect our kids from bad words on television, my daughter sees crime, drug use and abuse, pregnancy and even domestic violence among her peer group. While we're worrying about the "F-word" on television, she worries about her 17-year-old classmate who's trying to finish high school while raising a baby. While we're worrying about fictional portrayals of drug use on television, the genuine article is readily available for sale in most schools in our city. While we're worrying about television violence, a teenage boy was shot by members of a rival gang while walking down the street outside school. And I don't live in an urban metropolis, either, but in small-town California.

Given the realities in which kids my daughter's age live, this single-minded focus on policing the language our kids see on TV seems ludicrously Pollyanna-ish to me.

I must say that I also found troubling the verbal gymnastics to which the majority opinion subjected itself to avoid reaching the First Amendment issue.

Paul Scott said...

BSG did this one further replacing the word "fuck" with "frak" (the original BSG did this as well - though there spelled "frack" - but this never had the traction the current reboot does)in all contexts. Both when used to swear and when used to solicit sex. Then owing to its huge popularity (it being the best thing to ever appear on television), frak has now come into common usage. I have heard it on several other television shows (including the most recent episode of "The Dollhouse" as well heard it in general parlance. I believe I read recently that it made (or would make it) into the next OED.

The FCC's policy is woefully outdated. In many ways, like porn itself, the word "fuck" readily accessible in any number of the most commonly visited media of kids today - most of which lie far outside the "protection" of parents.

Lefty said...

Keeping profanity off TV - its simply the right thing to do. OK, stop showing people mouthing the words too and then fine the f out of them.

Barkley said...

For me, the FCC ensuring that my kids do not hear fuck and shit on TV is horribly pointless in light of the fact that I can't watch a televised ballgame on a Sunday afternoon (a seemingly kid-friendly event) without repeatedly jumping for the remote to switch off horrbly graphic advertisements depicting violence and gore(usually for a new film or a crime-based TV show). As far as I know, none of my kids have ever had a nightmare about the word "fuck."

Drew80 said...

"Keeping profanity off TV--it's simply the right thing to do".


That sentence is worth more than all the judicial opinions filed in the case (which, unhappily, I just waded through).

Unknown said...

I am an adult with no children that gets really tired of hearing profanity bleeped off the tube. If I wanted to hear bar room language I would go to a bar. I've noticed that many people on TV do it just because they can...and it gets old. Most people do not use the F word in every other sentence and I'm tired of liberal TV producers making it seem like it is OK. It's not and I wish they would stop.

Ben Goodman said...

The point is that both children and adults tend to adopt what they see and hear on TV as normal and appropriate. Advertising dollars depend on grabbing viewers' attention with images and dialog containing as much shock value as can be crammed into the program. The result has been the coarsening of our social environment.

The solution will be programming that contains alternate versions that are selected, during viewing, by software that substitutes less offensive material based on the individual viewer's pre-established preferences. This will be an extension of current technology that provides alternate endings to movies and multiple story lines in video games. The motivation for distributors and advertisers to underwrite the additional costs will be the revenue enhancements provided by the ability to target ads to viewers based on the viewer's established preferences, and the fact that viewers that otherwise would not watch the show because it is too offensive or not offensive enough will tune in when a version meeting their personal preferences are available.

In effect the First Amendment will not only be applied to the source, defending the speaker's right of free speech, but also at the destination, defending the listener's right to be entertained but not offended, and provide a depiction of "normal and appropriate" that is not the product of the least common denominator among viewers.

Ben Goodman

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