Broadcast Indecency Regulation: The Profanity Standard

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