Decency or Censorship?

[Melensdad]

At what point do you draw the line between "free speech" and censorship? This new law apparently only applies to free broadcasts. But we have wrestled with 'adult' content here on the Forums and its a tough issue to deal with. Who will be making the calls on what is 'beyond' the bounds of decency and when does it become censorship?

Bush signs broadcast decency law

By NEDRA PICKLER, Associated Press Writer2 hours, 4 minutes ago

President Bush signed legislation Thursday that will cost broadcasters dearly when raunchy programming exceeds "the bounds of decency."


At a signing ceremony for the new law increasing by tenfold the maximum fine for indecency, Bush said that it will force industry figures to "take seriously their duty to keep the public airwaves free of obscene, profane and indecent material."
Accompanying the president at the ceremony was a crowd of lawmakers who worked to pass the bill in Congress. For raunchy talk or a racy show of skin, the Federal Communications Commission can now fine a broadcaster up to $325,000 per incident.


Approval of the bill culminates a two-year effort to get tough on sexually explicit material and offensive language on radio and television following Janet Jackson's 2004 Super Bowl "wardrobe malfunction."


The FCC recently denied a petition of reconsideration from CBS Corp.-owned stations facing $550,000 in fines over the Jackson incident, in which she briefly revealed a breast during a halftime concert. The agency recently handed down its biggest fine, $3.3 million, against more than 100 CBS affiliates that aired an episode of the series "Without a Trace" that simulated an orgy scene. That fine is now under review.


The FCC has received increasing complaints about lewd material over the airwaves, and has responded with fines jumping from $440,000 in 2003 to almost $8 million in 2004.
"The problem we have is that the maximum penalty that the FCC can impose under current law is just $32,500 per violation," Bush said. "And for some broadcasters, this amount is meaningless. It's relatively painless for them when they violate decency standards."


The bill does not apply to cable or satellite broadcasts, and does not try to define what is indecent. The FCC says indecent material is that which contains sexual or excretory material that does not rise to the level of obscenity.


The legislation, while facing little resistance in Congress, had detractors warning of problems in defining what is indecent and of the erosion of First Amendment rights. Under FCC rules and federal law, radio and over-the-air television stations may not air obscene material at any time, and may not air indecent material between 6 a.m. and 10 p.m. when children are more likely to be in the audience.


"Unfortunately, in recent years, broadcast programming has too often pushed the bounds of decency," Bush said. "The language is becoming coarser during the times when it's more likely children will be watching television. It's a bad trend, a bad sign."
​

 

[bczoom]

I read this as just being an increase in the fine. The fine is so small now that they show indecent things but the fine is a drop in the bucket.

But I believe your question is "what is indecent"? Although different media types (internet, cable/satellite...) have different rules, I would say that anything that would be inappropriate for a child of lets say your daughters age would qualify as indecent over the open airwaves.

 

[daedong]

Surely you have time slots or zones governing censorship. late night is pretty open slather here.

 

[Melensdad]

Vin . . . on free broadcast TV in the US there is no nudity at any time and foul language is strictly regulated. The key is the free part. On cable TV pretty much anything goes.

Brian . . . let me pose a question then. A female rap artist by the name of Missy Elliot has a song. The song talks about how a can 'excite' a man in many ways and how she is an expert at it. On one of the awards shows, the song was performed by a dance troop of children who were roughly 12 years old. This was during 'prime time' on a major broadcast network. Is that decent?

 

[Junkman]

Anyone taking bets on how long it will be before the fines are challanged in a court of law and then it is off to the U.S. Supreme Court for a ruling. How they will define it, is to be seen. I remember the last time when one of the justices tackled the subject...

"Pornography" is a layperson's term, with no particular legal significance. Jones may believe that Penthouse is non-pornographic, while Smith believes that it is. Neither is incorrect.

The term of legal significance is "obscenity", which, after struggling for many years and through many cases, the U.S. Supreme Court defined in Miller v. California in 1973. It is a three-part test, as follows:

"The basic guidelines for the trier of fact must be:
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Note that part (a) does employ community standards. However, all three parts must be met for a work to be deemed obscene, and part (c), as the Court has held elsewhere, is a national threshold, not a community test.

An example is from the Supreme Court's 1989 decision in Fort Wayne Books v. Indiana.
Some relevant language from that Opinion:

"We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U.S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U.S. 868, 874-876 (1986).

"Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, [489 U.S. 46, 64] which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here.9

"In its decision below, the Indiana Supreme Court did not challenge our precedents or the limitations on seizures that our decisions in this area have established. Rather, the court found those rules largely inapplicable in this case. 504 N. E. 2d, at 564-567. The court noted that the alleged predicate offenses included 39 convictions for violating the State's obscenity laws10 and observed that the pretrial seizures (which were made in strict accordance with Indiana law) were not based on the nature or suspected obscenity of the contents of the items seized, but upon the neutral ground that the sequestered property represented assets used and acquired in the course of racketeering activity. "The remedy [489 U.S. 46, 65] of forfeiture is intended not to restrain the future distribution of presumptively protected speech but rather to disgorge assets acquired through racketeering activity. Stated simply, it is irrelevant whether assets derived from an alleged violation of the RICO statute are or are not obscene." Id., at 565. The court also specifically rejected petitioner's claim that the legislative inclusion of violations of obscenity laws as a form of racketeering activity was "merely a semantic device intended to circumvent well-established First Amendment doctrine." Id., at 564. The assets seized were subject to forfeiture "if the elements of a pattern of racketeering activity are shown," ibid.; there being probable cause to believe this was the case here, the pretrial seizure was permissible, the Indiana Supreme Court concluded.

"We do not question the holding of the court below that adding obscenity-law violations to the list of RICO predicate crimes was not a mere ruse to sidestep the First Amendment. And for the purpose of disposing of this case, we assume without deciding that bookstores and their contents are forfeitable (like other property such as a bank account or a yacht) when it is proved that these items are property actually used in, or derived from, a pattern of violations of the State's obscenity laws.11 Even with these assumptions, though, we find the seizure at issue here unconstitutional. It is incontestable that these proceedings were begun to put an end to the sale of obscenity at the three bookstores named in the complaint, and hence we are quite sure that the special rules applicable to removing First Amendment materials from circulation are relevant here. This includes specifically [489 U.S. 46, 66] the admonition that probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films."

The "special rules applicable to removing First Amendment materials" are not just applicable to allegedly obscene material, but to all speech, deriving from the notion that the government must meet a much higher burden to restrain speech in advance than to try to punish it after the fact. The classic example of this is the Supreme Court's decision in New York Times v. United States (the so-called Pentagon Papers case), in which the Court refused to prevent publication of the Pentagon Papers by the NYT, despite the government's assertion that the papers included matters of national security. Prior restraints on speech are not absolutely prohibited under all imaginable scenarios, but *virtually* all attempts to restrain speech in advance are found to be unconstitutional, even if that same speech may later be found to be obscene, defamatory, etc.

-James S. Tyre

http://censorware.net/essays/obscene_jt.html

 

[bczoom]

Brian . . . let me pose a question then. A female rap artist by the name of Missy Elliot has a song. The song talks about how a can 'excite' a man in many ways and how she is an expert at it. On one of the awards shows, the song was performed by a dance troop of children who were roughly 12 years old. This was during 'prime time' on a major broadcast network. Is that decent?

I do recall that happening but never saw the detail or lyrics. My initial thought is that it should not have occurred.

What's good is that luckily many of the lyrics children recite are masked meanings of something else. It seems to be OK to recite things if the person saying it doesn't know the meaning.
Thinking of nursery rhymes:

- Ring around the rosie = Bubonic plague.
- Georgie Porgie = A Duke who had affairs with both male and female Kings & Queens
- 3 blind mice = 3 protestant nobleman killed by Queen Mary I
- Jack & Jill went up a hill = The beheading of King Louis and Marie Antoinette
...

 

[Melensdad]

It seems to be OK to recite things if the person saying it doesn't know the meaning.
...

How about 25 kids, roughly age 12 singing and dancing to this on prime time TV?

~Chorus~
Is it worth it? let me work it i put ma thing down flip it and reverse it.
Flip it and reverse it (backwards2X)if ya gotta big (elephant sound) let me search ya. find out how hard i gotta work ya. Flip it and reverse it(backwards2X)

??Gimme all yo numbres so i can phone ya. Ya girl acting stank then call me ova. not on the bed lemme on yo sofa.before you come over i need to shave my cha cha. you do or you dont or you will or wontcha. go downtown and eat it like a vulture.
See mah hips bigs hips dont cha? see mah butt and mah lips dontcha? lost a few pounds in mah waist for ya. this the kinda beat that go ratata. ratatatatatatatatata. Sex be so good i say BLAH BLAH BLAH. Work it! I need a glass of wata. boy oh boy its good to kno ya.

~Chorus~

Boy lift it up lets make a toasta. Lets gets drunk its gon bring us closa. Dont i look like a halley bary posta? see the belvadere playin tricks on ya? Girlfriend wanna be like me? neva. you wont find a bitch thats even betta. ill make ya hot as las vegas weather. listen up close while i take ya backwards. WATCH MISSY TAKE YA BACKWARDS(say it backwards)
Im not a prostitute but i can give you what you want. i love your braids and your mouth full of fronts. love the way mah butt go BUBOOMPBUBOOPBOOMP. keep ya eyes on mah BUBOOMP BUBOOMP BOOMP. and think you can handle this? DADONTDADONT DONT. Take mah thong off and mah tail go VOOMH, cut the lights on so you can see what i can do.

~Chorus~

boys boys all type of boys. black white peorto rican chinese boys. whythithanadoathanathana 2X. Girls girls get that cash if its not a 5 to 9 boy shaking dat ass. Aint no shame ladies do yo thang. Just make sure you ahead of the game.
You kno missy still supa dupa but prince coundnt get me change mah name papa. ??? no sir. picture black sayin oh yesa masta. Got a lambergini so i drive fasta just to make you hatas even ****ing madda. ??? when i drop this record here it wont even matta.
Why you act dumb like uhhhhhhhhhh DUH. so you act dumb like Uhhhhhhhhhh DUH. as the drummer boy go Brrumpumpumpum gimme some some some dis cinnabun.

~chorus~


???(feels like sumthins missin) Fellas good god i like the way you work that.... MAH MAH MAH to mah ladies whoa! yall sho kno how to work that. good god.​

 

[bczoom]

That's wrong... Really wrong.

I'm with Dargo as it relates to music and that kind of stuff won't be played in my house/car.