Profanity Decision: Hollywood at Loss for Words

FCC rules sow confusion about what is indecent among content creators.

TV creators are literally at a loss for words to know when they might run afoul of Federal Communicatons Commission rules in the wake of the FCC's arbitrary, capricious and content-chilling decision to find profanity on Fox's air indecent -- a decision that took a toll on producers' creativity and their pocketbooks, while denying viewers access to diverse programming.

That was the message from the Center for Creative Voices in Media by way of Media Access Project, which filed a brief in the Supreme Court Friday in the FCC's challenge to a lower-court decision throwing out that indecency finding against swearing on a couple of Fox awards shows.

In its brief, the Center said it is not challenging the broader constitutionality of the indecency-enforcement regime, and on that score at least, it is in agreement with the FCC. But that is about the only thing they agree on.

The Center argued that the FCC's finding that swearing by real people on a live show was indecent, but that swearing by actors on a scripted show wasn't indecent (Saving Private Ryan), but that swearing by real people on a documentary was indecent (The Blues) is a peripatetic regulatory course that it is impossible for content creators to follow.

"The commission's action leaves creators in the dark as to how a finding of indecency would be avoided based on the merit of the program ... This type of 'guidance' is not only arbitrary and vague, but for creators, completely unworkable and unacceptable," the Center said.

The groups pointed to the chilling effect on PBS' The War, where two versions were distributed -- one with swearing and one without.

The hit is not just creative, the Center argued, but economic. That includes having to indemnify stations from potential fines, as PBS has required of producers, according to the brief. It also means that, for less-well-known producers, the product may be censored, refused by stations worried about fines, or never funded at all out of an abundance of caution.

Among the center's advisors are Steven Bochco, whose NYPD Blue was also found indecent by the FCC; Tom Fontana; Diane English; Warren Beatty; and Vin Di Bona, whose Funniest Home Videos just escaped the FCC’s grasp.