Nobody is Getting Fined or Fired: A Brief History of Obscenity and Indecency

Posted by Kyle September 28th, 2009 at 03:36pm In SNL

Jesse has already covered the news that Jenny Slate said “fucking” on SNL this weekend. As soon as the sketch started, Maggie and I got scared. An f-bomb seemed inevitable. And it certainly was. But don’t feel bad for anyone on this one. Nobody is getting fined or fired over this. Today I’m going to give everyone an education in the nature of dirty stuff on television in recent years.

For television networks, the first arbiter of decency is not the government. It is the advertisers who pay them to put their silly little shows on the air. If you can get a sponsor to pay for your filthy smut, you can do almost anything you want. Most advertisers, however, are a skittish bunch, and want to avoid controversy. That simple fact goes a long way towards explaining why television has a history of being extremely tame. But as advertisers have become less concerned with the naughty content in the broadcasts they sponsor, the government has stepped in more often.

As you may be aware, there is a rather popular amendment to our constitution that says “Congress shall make no law …  abridging the freedom of speech, or of the press” etc. Unfortunately, over the years the Supreme Court has found exceptions to that clear and rather plainly worded bit of lawmaking. One of these exceptions grants the FCC the power to regulate over-the-air broadcast networks to prevent them from broadcasting indecent material between the hours of 6am and 10pm; what I refer to as the “Won’t Somebody Think of the Children Zone.” In a wonderful bit of irony, this policy was first solidified in 1978 after someone broadcast George Carlin’s “Seven Words You Can Never Say on Television” on the radio. The Supreme Court upheld the FCC’s right to protect children by putting indecent content on late at night, which seems to indicate that someone could actually perform Carlin’s monologue on SNL if the sponsors were willing.

Since the Jenny Slate incident occurred well outside of the Zone, the FCC has no authority to fine anyone for broadcasting the potentially indecent material. According to the FCC “indecent material contains sexual or excretory material that does not rise to the level of obscenity. Now, saying “I fucking respect you for that” clearly does not rise to the level of obscenity (I’ll cover obscenity in a moment) but what is not immediately clear is whether using “fucking” as an intensifier actually refers to sexual material. Earlier this year, the Supreme Court offered distinctly mixed signals on this issue. In 2003, Bono (who was coincidentally featured on this weekend’s SNL) said winning a Golden Globe was “really, really fucking brilliant” during a live broadcast during the Won’t Somebody Think of the Children Zone and television stations were assessed some hefty fines for letting that through (on the East Coast of course. The West Coast never gets to hear the dirty words). The case made its way to the Supreme Court and they punted on the big issue of whether fleeting expletives of that type could be considered protected by the First Amendment. But they did rule in favor of the FCC in this particular case, which puts a bit of a cramp on live broadcasts in the Zone. Beeping out words on a seven-second broadcast delay is not as easy as people think.

In the long history of SNL, there is a surprising lack of profanity. I personally remember Norm MacDonald following a mid-sentence burp with a mumbled “What the fuck was that?” and making a joke about it the next week. I don’t remember it being big news, but there weren’t a lot of blogs back then. In the first episode after 9/11, Lorne actually wanted Reese Witherspoon to say she was “fucking freezing” in her monologue but she decided not to because she was Thinking of the Children. The Charles Rocket incident is the most famous, but SNL was in huge trouble back then, and his firing not long after probably had a lot more to do with the terrible ratings of the Jean Doumanian-helmed episodes. She was fired at the same time, along with most of the show’s writers. Cheri Oteri once said “look at this shit” and put some money in a “swear jar” at the end of the episode. The first ever f-bomb on SNL was in 1980, after 5 profanity-free years. The man who said it? Mr. Entertainment himself, Paul Shaffer, said “fucking” instead of “flogging” in a sketch which seemed to also be based on repeated repetitions of a word that sounds like fuck. That one slipped by without anyone even noticing, and the West Coast got to hear it.

All this reading about indecency led me to indecency’s developmentally-disabled sibling, obscenity. The Supreme Court has decided that obscenity has no protection under the First Amendment, and is not allowed on television at any time in any format. The current standard is:

(1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value.

Of course this is designed to apply pretty much exclusively to hard-core pornography. The law applies to subscription (cable/satellite) TV as well as over-the-air. In 1989, HDO (Home Dish Only) was convicted of delivering obscenity for sending adult films via satellite to viewers in Alabama. Since the movies were only delivered to subscribers who chose to receive the films, I don’t see much of a Won’t Somebody Think of the Children argument, but of course the whole thing started because unsupervised children of subscribers were taping the dirty movies and selling them to their classmates.

Anyway, maybe we can use this whole thing as a lesson. It’s actually no big deal to say bad words on television. The country may be going to hell in a hand basket, but it is not because people are more profane than they used to be. It’s because we don’t have universal health care.

2 Comments

  • 1. sara  |  September 28th, 2009 at 4:03 pm

    I’m having a pleasant flashback to graduate-level publishing law. Maybe we can talk about copyright infringement and fair use next?

  • 2. TV Blog Coalition –&hellip  |  October 6th, 2009 at 5:24 pm

    […] In the wake of the much ballyhooed Jenny Slate controversy, Kyle examined indecency, SNL, the FCC and drew one conclusion — who cares? (TiFaux) […]


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