Media Man News

Saturday, March 22, 2008

Swearing a hassle for Australian, US TV, By Stefanie Balogh in New York - The Daily Telegraph - 22nd March 2008

Jane Fonda has done it, so has Bono, Nicole Richie and Cher. They have all uttered obscenities on live US TV, causing complaint switchboards to go into meltdown with calls from outraged and offended viewers.

The appropriateness of using colourful language on TV has suddenly re-emerged as a hot-button issue in the US and Australia. With programs such as Ramsay's Kitchen Nightmares and Underbelly - which both feature a generous use of swear words - riding high in the ratings, Liberal senator Cory Bernardi has called for a parliamentary inquiry into the matter.

It was the regularity with which chef Gordon Ramsay dropped four-letter words during a recent episode that prompted the call for a parliamentary review, with Channel 9 receiving 60 complaints from viewers since moving the show to the relatively early timeslot of 8.30pm.

In the US, the tolerance usually extended to the occasional swear word during a live broadcast (a so-called "fleeting expletive") is destined to become a thing of the past.

America's federal regulator, the Federal Communications Commission (FCC), has decided to muscle up on free-to-air radio and TV networks and has adopted a zero tolerance approach to inadvertent foul language on live shows.

The regulator's teeth were sharpened by President George W. Bush's attempts to act on a chorus of concerns from family, religious and advocacy groups that believe American culture is becoming coarser.

The stand-off over fleeting expletives between the big four US TV networks and the FCC is headed for a showdown in the US Supreme Court, America's highest court.

This week the court agreed to hear the case in October and a decision is expected mid-2009. It is the first time in 30 years the US Supreme Court has tangled with a broadcast obscenity issue.

The test case is more than a dispute over four-letter words, and goes to the heart of the US Constitution's First Amendment on free speech. The ruling will determine whether the US Government still has the right to police public airwaves and protect the ears of children, even if it borders on censorship. The FCC's rules on fleeting expletives do not apply to the new world of media platforms, including cable TV and the internet.

The US TV networks are arguing against any nanny state-type ban on accidental swear words, arguing the rule curtails true artistic and creative expression during live broadcasts and, more importantly, violates free speech.

The US Supreme Court case is an appeal by the FCC after it was rebuked over its policy reversal in a lower federal appeals court in New York last year.

The last time the US Supreme Court heard a case on broadcast obscenities was in 1978 when comedian George Carlin delivered a 12-minute midday monologue on the seven words you couldn't say on TV. He said them all repeatedly and the FCC stepped in with a policy against profanity.

The FCC defines indecent speech as "language that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium."

In its 30-year-old ruling the US Supreme Court warned the FCC not to take punitive action against TV and radio stations that inadvertently broadcast the odd swear word. A fleeting expletive was seen as a necessary evil to protect free speech.

But then along came U2 frontman Bono. During the 2003 Golden Globe awards, the rock star expressed his delight on stage for winning best original song, declaring the moment to be "really, really, f. . .ing brilliant". The FCC was deluged by outraged viewer complaints.

A year later it was the so-called "Nipplegate", when singer Janet Jackson's right breast was briefly exposed thanks to a wardrobe malfunction during the high-rating half-time entertainment at the Super Bowl. CBS was fined $550,000 but is appealing the ruling. The culture war over indecency in the US had begun.

The FCC toughened up and reversed its policy on fleeting expletives, spelling out that any swearing between 6am and 10pm, when children were most likely to be watching, would no longer be tolerated.

One of the most recent slip-ups in US broadcasting occurred in February when veteran actress and political activist Jane Fonda uttered the highly inflammatory C-word during a live broadcast of NBC's Today Show in which she was discussing her role in Eve Ensler's groundbreaking play The Vagina Monologues. It caused a furore and both Fonda and the network apologised.

The landmark broadcasting obscenities case now before the US Supreme Court relates to two old incidents at the Billboard Music Awards. In 2002, Cher took to the stage to receive an artist achievement award and took a swipe at her critics. "F. . . 'em", the singer said of her detractors.

The following year, airheaded celebrities Paris Hilton and Nicole Richie proved their vacuous worth. The stars of reality TV program The Simple Life were presenting an award and Richie pondered aloud about the title of the show.

"Why do they even call it The Simple Life?" Richie mused. "Have you ever tried to get cow s. . . out of a Prada purse? It's not so f. . .ing simple."

In 2006, the regulator ruled the remarks were graphic and shocking because children would have been watching the broadcasts.

It reprimanded broadcaster Fox (a News Corp company and the parent company of News Ltd Australia, publisher of The Daily Telegraph) but did not issue fines because the incidents occurred before the FCC's policy reversal.

Fox, supported by ABC, CBS and NBC, challenged the policy and took their case to the Second US Circuit of Appeals in New York last year and won.

The court slapped down the FCC and determined it was applying its policy in an "arbitrary and capricious" manner and had gone too far in reprimanding Fox. The court also said it was "sceptical the commission can provide reasoned explanation for its fleeting expletives regime."

Instead of reworking its guidelines, the FCC and the Bush Administration decided to test the waters with an appeal to the Supreme Court. They have the backing of groups such as the Parents Television Council who argues the New York decision gives TV networks the green light to broadcast "the F-word and S-word in front of children at any time of the day".

FCC chairman Kevin Martin welcomed the US Supreme Court's decision this week to revisit the obscenity issue after 30 years, saying: "The Commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility.

"I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience."

FCC Commissioner Deborah Tate says a US Supreme Court decision will "give broadcasters clarity regarding the use of profanity, even fleeting profanity, on the public airwaves, at times when children are most likely to be in the audience".

The networks, too, are happy for a ruling on the guidelines.

Fox spokesman Scott Grogin says a higher court determination will give networks the chance to argue that the FCC's expanded enforcement of the indecency law is "unconstitutional in today's diverse media where parents have access to a variety of tools to monitor their children's television viewing".

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