Jacob Sullum

During the 2002 Billboard Music Awards, Cher had a message for critics who are always predicting the imminent demise of her career: "F--- 'em." While it may have offended some people who saw the show, which was carried live by Fox, the singer's rejoinder does not fit the Federal Communications Commission's definition of indecency.

What Cher said did not amount to "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." Cher was not describing sexual activities; she was expressing anger.

So was the FCC when it nevertheless concluded Cher's remark was indecent, one of several arbitrary decisions that recently prompted the major broadcast networks to ask a federal appeals court to overturn the commission's TV censorship policy. Since "contemporary community standards for the broadcast medium" are whatever the FCC says they are, the commissioners feel free to translate their own gut reactions into legal mandates, with results that defy logic and chill speech.

The FCC itself has suggested isolated uses of "the F-word" as an expletive or intensifier do not qualify as indecency, which is barred from the airwaves between 6 a.m. and 10 p.m. In 2003 the commission rejected a complaint about Bono's description of receiving a Golden Globe Award as "f---ing brilliant," finding that "in the context presented here" the offending word "did not describe sexual or excretory organs or activities."

The following year, the FCC reversed the dismissal. "Given the core meaning of the 'F-word,'" it decided, "any use of that word or a variation, in any context, inherently has a sexual connotation."

Since the Bono decisions came after Cher's F-bomb, the FCC magnanimously refrained from fining the Fox stations that carried the Billboard Music Awards. "This case ... illustrates the difficulty in making the distinction between expletives on the one hand and descriptions or depictions on the other," it said.

Now broadcasters are on notice that if they let a celebrity utter any form of "the F-word" during a live awards show, they will be on the hook for fines that could add up to millions of dollars. But if Cher had said exactly the same thing on a morning news program, that would have been OK. Maybe.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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