Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1443
sexual or excretory functions, offensive language does not fall within
the scope of the prohibition against indecent programming and that
“[t]he use of specific potentially offensive words is not in and of itself
indecent.” 299 Finally, in keeping with its previous statements about
indecency, the Bureau reiterated that “fleeting and isolated” remarks
such as Bono’s use of the f-word generally do not warrant regulatory
action. 300
Dissatisfied with this outcome, the Parents Television Council
convinced the Commission to review the decision. 301 In a sweeping
opinion, the Commission reversed the Bureau’s findings, stating that,
“given the core meaning of the ‘F-Word,’ any use of that word or a
variation, in any context, inherently has a sexual connotation, and
therefore falls within the first prong of [the Commission’s] indecency
definition.” 302 The Commission also found that the f-word satisfies
the second prong of the indecency test, because it is “one of the most
vulgar, graphic and explicit descriptions of sexual activity in the
English language,” and it “invariably invokes a coarse sexual
image.” 303 The Commission expressly overruled its previous position
that it would not punish isolated or fleeting use of the f-word, stating
that failure to enforce the indecency rules in all cases would lead to
widespread use of indecency on television. 304
The Commission went even further, finding that Bono’s remarks
constituted profane speech, despite its previous rulings that profanity
must contain an element of “blasphemy or divine imprecation.” 305
The Commission did not provide specific guidance for its new
definition of profanity, but simply warned broadcasters that it would
likely find that the f-word and similar “highly offensive” variants fit
within the definition of profanity. 306 The opinion concluded by
299 Id. at 19,860-61 & n.12.
300 Id. at 19,861.
301 In re Complaints Against Various Broadcast Licensees Regarding Their Airing of
the “Golden Globe Awards” Program, 19 F.C.C.R. 4975, 4975 (2004) (noting that
Council sought reversal of Enforcement Bureau’s decision that Bono’s remark was not
indecent).
302 Id. at 4978.
303 Id. at 4979.
304 Id.
305 Id. at 4981 n.37 (citing cases in which Commission had found that
“sonofabitch,” “God damn it,” and “damn” were not profane).
306 Id. at 4981. But see Fox v. FCC, 489 F.3d 444, 462 (2d Cir. 2007) (suggesting
that “the FCC's new profanity definition appears to be largely (if not completely)
redundant with its indecency prohibition”), cert. granted, 2008 U.S. LEXIS 2361 (U.S.
Mar. 17, 2008) (No. 07-582).