Digitus Impudicus: The Middle Finger and the Law - Wired

2008] Digitus Impudicus 1449
censorship era short-lived. 342 If not, however, the result of the more
stringent indecency standards likely will be a chilling effect on the
media that severely undercuts First Amendment principles. 343 The
tougher regulations threaten live television and sports programming
because the guidelines urge broadcasters to air these shows with five-
to ten-second delays. 344 Even a delay of a few seconds threatens the
very essence of live television. 345 When it comes to sports, anything
can happen in a few seconds, and viewers should be entitled to watch
the events as they unfold 346 — even if it means watching a cursing fan,
player, or coach. Heightened censorship even affects the true
broadcasting of the news, as it often forces broadcasters to choose
between risking a fine and deleting content that has literary, artistic,
or political value merely because the FCC might find the material
indecent. 347 For example, the FCC recently found that language
342 See Bill Carter, Broadcasters Wrestle F.C.C. for Remote; Pushed on Obscenity,
Networks Turn to Delays, Even on Sports, N.Y. TIMES, Mar. 15, 2004, at C1 (suggesting
that complaints regarding indecency in broadcasting are common during election year
and, after election, media companies generally prevail over indecency complaints
because of boundaries of First Amendment). However, the indecency complaints for
the 2004 election year appear to be harsher and greater than the norm. Id.
343 See, e.g., Ahrens, supra note 331 (stating that producers and performers
detected chilling effect even before Congress raised indecency fines, and noting that
comedian Ralphie May purchased indecency insurance to indemnify himself against
any potential FCC fines).
344 See Airing of the “Golden Globe Awards” Program, 19 F.C.C.R. 4975, 4980
(2004) (assuming that, because technological advances allow blocking of offensive
words or actions, all broadcasters should invoke delays for all programming). In
making its suggestion, the FCC believes that preventing a single, gratuitous offensive
word or action outweighs the importance of live broadcasting. Id.
345 See McDaniel, supra note 341, at 3 (questioning how programming can be “live”
if broadcasters use delay mechanisms).
346 See Carter, supra note 342 (noting that CBS Network’s plans to invoke 10second
delays for basketball games as well as for on-field football interviews are
actions that are likely to upset fans expecting to witness events as they occur, not 10
seconds later); see also Eggerton, supra note 333 (stating that cable sports network
ESPN does not time-delay its broadcasts).
347 See Calvert, supra note 282, at 64-65 (suggesting that broadcasters over-censor
themselves, fearing fines from FCC and loss of advertisers known to disassociate
themselves from broadcasters airing offensive or indecent material); see also McDaniel,
supra note 341, at 3 (observing that FCC’s indecency restrictions are causing networks
to compromise content on live news coverage that they have freely broadcasted in
past). One example is the live coverage of former football player Pat Tillman’s funeral.
Id. Tillman gave up football to enlist in the army, and subsequently died in
Afghanistan. Id. The public, touched by his patriotism and dedication, wanted to be
part of the funeral, but when a relative began to use expletives, networks ended the
live coverage. Id. Another recent example occurred during Fox’s 2007 Emmy Awards