06/08/2007 02:22 pm ET Updated May 25, 2011

A Market Solution to Dirty Words on the TV

This week, the 2nd U.S. Circuit Court of Appeals asked the FCC to reexamine its position on "fleeting expletives." In a 2-1 decision, the Court said the Commission was wrong when it called Nicole Richie and Cher indecent for swearing on TV.

According to the Court, Cher and Richie's problems went "much, much deeper than that."

(This was also the first time the women's names had appeared together since the former was built out of discarded parts of the latter in 1981. Okay, that's a juvenile joke. But if Richie really was made out of left over parts of Cher it would give a whole new meaning to the term "slag heap." Okay, and now I'm going to go cherish my wife and daughters.)

I'm back.

The Court basically told the FCC to lighten up, and to recognize that even the best people say the F word and the S word sometimes, without ordering the impressionable listener to F or S. It's not a command or a description; it's just an ejaculation.


Here's the money quote from the ruling:

"In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities."

In other words, if the vice president does it, it's not illegal. Isn't it nice to know there's an upside to unchecked executive power? Your phone may be tapped, and you're not entitled to a trial, but if Dick Cheney gets to drop the F-bomb, so does Cher.

I don't think the Court went far enough. It's one thing to let Bono occasionally bring down the high moral tone of the Golden Globes with salty talk, it's quite another to provide an American institution -- television -- with true, meaningful regulatory relief.

Today, your television industry needs help. Ad revenue was down 2.7% last quarter, and network television ad revenue was down 7.2%. Viewership is down, drastically. In fact, there were times this year when Two and a Half Men wasn't just the name of the show, it was also a description of the audience. There were fewer women 18-to-35 watching Charlie Sheen than he had personally paid for sex.

I could go on. But it's time to bring out our first guest.

If network TV is going to compete with movies and the internet -- and C-SPAN -- it needs swearing.

Look at a movie like Hostel II. Their torture victims can beg Christ for mercy by name. How's 24 supposed to compete with that?

Look at a movie like Borat. If Balki from Perfect Strangers had been allowed to make incest jokes maybe he could have been a cultural phenomena, too.

Look at Knocked Up. The Gilmore Girls also celebrated relentless reference humor and the infinite rewards of carrying an unplanned fetus to term. But they weren't allowed to talk dirty -- or show crowning -- and now they're gone.

I'm not saying we let the networks go crazy and do whatever they want, without rhyme, reason, logic or common sense. We tried that, and they gave Gabriel Byrne a sit-com. I'm saying there's a market solution:

We follow the lead of the carbon credit system and set up a way for the networks to buy and sell permission to swear.

Call them Smut Credits.

Let's say CBS airs about twenty hours of country music awards a year. (Because they do.) No one swears on those. They can take the credit for those hours, and let Katie Couric do the news topless.

Or they can trade those credits to ABC, and ABC can let Charles Gibson do the news topless. That's the beauty of free enterprise.

HBO cancels Deadwood? They get to take those credits and not just keep showing boxing, but actually show a guy beat another guy to death with a chain.

If Showtime changes Penn & Teller's Bullshit to Penn & Teller's Malarkey, they get to tell us what the L word is.

The point is, we make the industry more competitive while letting it police itself -- it's working so well with coal -- and everyone wins. The consumer. The entrepreneur. And the free market system itself, a hideous, pagan idol, who would not drink the nectar but from the skulls of the slain.