04/17/2006 12:36 pm ET Updated May 25, 2011

FCC Stumbles in Run for Precedent of the United States

It might seem a cause for rejoicing that the FCC finally fined the four television networks in March for offensive programming. "Wife Swap" leaps to mind. Alas, reality is otherwise.

On Thursday, the networks filed a federal court appeal against the Commission's ruling over two obscenities, better known in the underworld as the F-word and S-word. Most offenses were blurted offhandedly on live broadcasts, although fines were levied for scripted material on the series "NYPD Blue." (Apparently, "Oh, darn, Sipowicz, he's got a freaking gun" was not deemed realistic enough by the show's writers.)

In their statement, the networks said that, "The FCC overstepped its authority" attempting to regulate 1st Amendment content, and failed to provide "a clear and consistent standard for determining what content the government intends to penalize."

While broadcast standards are a reasonable concept, the fear of government fines has a chilling effect, impacting everyone, including supporters. Witness 30% of ABC's affiliates afraid to air "Saving Pvt. Ryan" for Veterans Day in 2004.

As a result, what's most notable about the FCC's censoring is how their spokeswoman Tamara Lipper mystically defended the commission's ruling:

"Over 20 years ago, the Supreme Court upheld the FCC's ruling that George Carlin's monologue about the 'Seven Dirty Words You Can't Say on Television and Radio' was indecent. Today, Disney, CBS and Fox challenged that precedent and said that they should be able to say two of those words."

Since we know the truth shall set us free, let's look truthfully at what she said here.

With sleight of hand, what the FCC is using for justification isn't the Supreme Court at all, but rather...George Carlin. The Supreme Court didn't say, "You can't say those seven words on television." Mr. Justice George Carlin did. The Court dealt only with one specific monologue. Despite Ms. Lipper's convoluted, albeit disingenuous contention, neither the court - nor even the FCC itself - has ever set a precedent that those seven words individually could not be aired.

In truth, all the Supreme Court decided was that the FCC has the right to regulate indecent broadcast material. Moreover, the Court even acknowledged that their own ruling on the Carlin material had limitations! "Indeed," they wrote, "we may assume, arguendo, that this monologue would be protected in other contexts."

Some precedent, eh? And no, I don't know what "arguendo" means either.

In fact (with heavy emphasis on "fact"), rather than the all-encompassing precedent the FCC's Lipper tries to suggest, what the Supreme Court actually said was, "It is appropriate, in conclusion, to emphasize the narrowness of our holding....We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important."

In other words, it may actually be okay to say all of those words in a different setting.

It gets better still: since that 1973 citation, reports show that two of Carlin's words, the ever-sophisticated "piss" and "tits," have passed the test of time and childhood giggles to become broadcast-accepted. So, in reality, contrary to Ms. Lipper's imagined world, the FCC itself has challenged its own faux-precedent and said it was okay to say those two words.

But it gets even better: the FCC's defense is a 23-year-old decision, from a broadcast landscape that has changed staggeringly since then. That is akin to the FCC blinking its eyes but forgetting to open them for two decades.

Clearly, broadcasters should act with responsibility. And television stations are indeed licensed.

But -

In the last 23 years, it's not just a different landscape, it's a different solar system.

Understand: the revolution of cable television is not licensed by the FCC. Standards do not exist. Add in pay-per-view and accessing the Internet over TV, all without standards. Whatever the legal differences, to a viewer just clicking away on their remote and eating Cheese Whiz, it's all one, everything jumbled together. Channel 9 can't say the F-word, but Channel 10 can. Even Samuel Beckett couldn't write something that surreal.

Again, this is not to criticize standards. It's to suggest that if the FCC wants to deal with the issue, it should be dealt with responsibly, based on reality. A real world where even they themselves agree you can now say "piss" before 10 PM.

Maybe TV would be better with those old standards. Maybe not. But let's even accept that they would. The point is, if you close your eyes to the real world and drive a Model-T jalopy down the Autobahn, there's a good chance you'll cause a six-lane disaster.

Defend every decision you make - or don't make - with facts and solid judgment. Not by citing and misquoting a comedian. Otherwise you become the joke. And the rest of us the punch line.