Digitus Impudicus: The Middle Finger and the Law - Wired

1444 University of California, Davis [Vol. 41:1403
advising broadcasters that, in the future, the Commission would
pursue license-revocation proceedings for “serious multiple
violations,” and that it would issue monetary forfeitures against
broadcasters for each indecent expression within a broadcast. 307 The
Commission urged broadcasters to adopt time-delay technology in
order to censor speech during live broadcasts. 308
After the second Golden Globes decision (“Golden Globes II”), it
seemed clear that even isolated use of the f-word on television could
subject a broadcaster to monetary forfeitures. In 2005, however, the
FCC declined to punish broadcasters who aired the World War II film
Saving Private Ryan, despite the film’s repeated use of words such as
“fuck,” “shit,” “bastard,” “hell,” “bullshit,” “Jesus,” and “God
damn.” 309 In applying an indecency analysis, the Commission focused
on the f-word and, as it had in Golden Globes II, found that the f-word
described sexual activity and therefore satisfied the first prong of the
indecency test. 310 Although it had apparently created a bright-line rule
in Golden Globes II, 311 in the Saving Private Ryan decision the
Commission ultimately concluded that the f-word was not patently
offensive in the context in which it was presented; therefore, the
Commission found that the language failed the second prong of the
indecency analysis. 312 Noting that it must consider the full context of
a broadcast in making an indecency determination, the Commission
highlighted three considerations that affect its determination of
whether material is patently offensive: (1) whether the material is
explicit or graphic; (2) whether the potentially indecent material is
dwelled upon or repeated; and (3) whether the material “appears to
pander or is intended to titillate or shock the audience.” 313 Under the
307 19 F.C.C.R. at 4982.
308 Id. at 4980.
309 See In re Complaints Against Various Television Licensees Regarding Their
Broadcast on November 11, 2004, of the ABC Television Network’s Presentation of the
Film “Saving Private Ryan,” 20 F.C.C.R. 4507, 4507, 4509 (2005).
310 Id. at 4510.
311 See In re Complaints Against Various Broadcast Licensees Regarding Their
Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. at 4978 (“[G]iven 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 our
indecency definition.”). Under the second prong of the indecency analysis (whether
the material is patently offensive), it found that the “‘F-word’ . . . invariably invokes a
coarse sexual image,” suggesting that it would almost always fall within the second
prong of the test. Id. at 4979.
312 20 F.C.C.R. at 4510.
313 Id. at 4512.