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Indecency Update

Kathleen A. Kirby
April 2005 | Mass Media Update

The FCC recently issued four decisions denying complaints that certain network television broadcasts violated federal restrictions regarding the airing of indecent material. Most notably, the Commission held that the Veterans' Day 2004 broadcast of the film Saving Private Ryan by certain ABC affiliated stations did not run afoul of the applicable indecency and profanity prohibitions.

In a unanimous decision, the Commissioners denied complaints alleging that Saving Private Ryan contained indecent or otherwise actionable material. Generally, the Complainants cited dialogue containing expletives including: "f**k" and variations thereof, "s**t," "bulls**t" and variations thereof, "bastard," "hell," "Jesus" and "God damn." The FCC said that this language, in context, was not indecent. While the complaints also cited violent content, the FCC noted that its authority under the indecency statute did not extend to violent programming.

Applying its indecency analysis to Saving Private Ryan, the FCC concluded, "the complained of material, in context, was not pandering and was not used to titillate or shock." The FCC characterized Saving Private Ryan as an award-winning film and noted that the November 2004 broadcast was introduced by a World War II veteran who survived D-Day and Senator John McCain. The FCC concluded that the dialogue cited by Complainants was not gratuitous but instead "integral to the film's objective of conveying the horrors of war through the eyes of these soldiers." The FCC reasoned that deleting the language or inserting milder language or bleeps would have altered the artistic nature of the work and said it was appropriate to "exercise restraint given 'the high value our Constitution places on freedom and choice in what people say and hear.'" The FCC concluded that its findings, with respect to the first two factors, were outweighed by the third component, and therefore the material was not indecent.

For the same reasons, the agency said, the material was not profane "in context." The FCC further concluded that the words "Jesus," "Jesus Christ," "God," "God damn" and its variations are not actionable, citing precedent in which courts held that material, such as the phrase "God damn it" uttered in anger, while offensive to some, is not legally profane for purposes of Section 1464.

Central to the FCC's decision concerning Saving Private Ryan was its belief that the presentation was not intended as family entertainment. That fact, the Commission said, was clearly and explicitly stated in the introduction to the film and was repeated in viewer advisories as well as the voluntary parental code throughout the film.

Other Indecency Decisions
The FCC also released decisions denying complaints filed for an episode of Will & Grace, an episode of Arrested Development on Fox television stations and a WB affiliate for the program Angel. The Will & Grace episode involved references to sex and drug use. The FCC concluded, however, that the scenes at issue "showed no nudity or sexual or excretory activities" and that none of the remarks cited were "sufficiently graphic or explicit" to render the program indecent. The material from Arrested Development included dialogue about making popcorn balls that devolves into jokes about "corn-holing," which Parents Television Council (PTC) alleged was a reference to anal sex. Again, the FCC concluded that the cited dialogue was not sufficiently graphic or explicit to render the program indecent. The FCC also denied the PTC's complaint against Angel. The FCC concluded that the scene cited by PTC, in which a male character is on top of a female character, their clothes are on, his body rocks back and forth, there is heavy breathing and the female eventually turns into a vampire and bites his neck, was not indecent. Specifically, the FCC says that the scene was brief, contained no nudity and was not sufficiently graphic or explicit to render the program patently offensive.

For more information, please contact Kathleen A. Kirby at 202.719.3360 or kkirby@wileyrein.com.

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