ABC this past week filed an appeal of the Federal Communications Commission’s proposed indecency fine against a 2003 airing of NYPD Blue that clearly showed the backside (and quite a lot of the rest) of an attractive female character as she was preparing to step into a shower.
Jonathan Rintels, executive director of the Center for Creative Voices in Media, a nonprofit group that promotes free speech in the media (and includes NYPD Blue creator Stephen Bochco on its executive board), talked with B&C’s John Eggerton about the implications of the decision.
Q: What would be the impact on the public and content creators if the FCC’s fine was allowed to stand?
A: We always talk about the gray area and the line between indecency and what’s allowable on television. What this decision did was to make this gray area exponentially larger. This scene that they are fining on NYPD Blue was obviously looked at by network standards and practices, who are experts in that area and do their jobs very well. It was allowed through by the lawyers. And yet the FCC decision comes back as though it is pornography. The rhetoric the FCC uses indicates that this scene, which was allowed by ABC executives, is far over the line. They used language like "graphic," "repeated pandering," "titillating" and "shocking." Who knows where the line is now? It is all gray. How is a network supposed to respond to that?
Q: Without FCC censors, wouldn’t TV producers be completely unrestrained in their choices of images and words?
A: No, clearly not. Look at how far the FCC had to reach back in order to make this statement -- five years, and just before the statute of limitations expired. There has not been in the five intervening years an exponential increase in scenes like this. To the contrary. The atmosphere and the environment that the FCC itself has generated has toned down network broadcast television considerably, I think.
Q: Are you saying that is a good thing?
A: No. I think it is a bad thing in that it is repressing legitimate free speech and speech that is not indecent. Networks, creative artists and the public suffer as a result. I don’t think the networks would put that NYPD Blue scene on today, or in the past couple of years. Is that a good thing? I don’t think it is indecent, so I think the current environment is causing the censorship of speech.
Q: ABC contended that the FCC’s decision was arbitrary and capricious. Would you agree?
A: Completely. The FCC could have said: "This is over the line but it is close to the line." But that’s not what they said. They said, "This is so far beyond the line," which it is not. I think the vast majority of people would not characterize it in that way and would instead say that it is completely in keeping with contemporary community standards.
Q: Should the FCC be out of the content-regulation business?
A: No, but our position is that the line has to be clearly drawn and crystal-clear so that creative people can speak and write and create up to the line without going over it. But right now, it is so gray that you don’t know when something that is five years old can suddenly rise up and be categorized by the FCC as being indecent. How does that impact the [present]? Are there now things that will be categorized as indecent that everyone had presumed were not indecent? How does that impact creative people going forward?
Q: Given the bipartisan support for the FCC’s indecency standards, do you feel that the commission can draw a clear line for enforcement?
A: I once did. Not anymore.