Decency nearly impossible to regulate

Capital Eye by Randi Bjornstad

Since long before Janet Jackson and Justin Timberlake’s bawdy shenanigans during the halftime production at this year’s Super Bowl plunged the country into shock, awe or something in between, controversy has raged over what constitutes decency on radio, television, stage and screen and, to a lesser degree, in newspapers.

Just a couple of weeks before the infamous incident, in fact, two bills had been introduced in Congress–one in the House and a companion measure in the Senate–to try to clamp down on indecency in broadcasting.

Rep. Fred Upton of Michigan sponsored H.R. 3717 in the House, while Sen. Sam Brownback of Kansas put forth S. 2056 in the Senate. Both bills go by the name “Broadcast Decency Enforcement Act,” and both simply provide for an increase — huge — in the penalties to be exacted for violating “obscene, indecent or profane language.”

The amount of the fine can be as high as $275,000 per day for each violation, but can’t exceed $3 million altogether, if the infraction continues.

Straightforward as that might seem, it’s not. Because, before the punishment can be levied, someone has to decide what’s the crime.

This problem, of course, goes back thousands of years. Art in one culture represents pornography in another. Freedom of expression in one place becomes a capital crime somewhere else.

We have ample examples to illustrate the point. Not long after the French impressionists lauded nature by painting voluptuous nudes a la Renoir, the buttoned-up British found it necessary to sew ruffly covers for the legs of their pianos.

Today, conservative Muslims require their women to cover themselves from head to foot, while females in this country saunter about with bared midriffs, thigh-high skirts and low-cut tank tops.

As it always has been, indecency depends on who’s making the judgment.

In this country, when it comes to the airwaves, that task falls to the Federal Communications. And, probably thankfully, up to now — and despite strong pressure to the contrary — the FCC has had a difficult time declaring very much to be indecent.

Certain aspects of indecency nearly everybody can agree on. Hard-core pornography, especially that involving children, violates just about everyone’s community standard of appropriateness.

But consider other forms of activity that may not be quite so easily evaluated.

What about violent video games? Does “play” that includes graphic and vicarious experiences of killing people — or cartoonish aliens — violate standards of decency? Does it differ so much from previous generations that played “cowboys and Indians” or other war games?

How about steamy music videos that offer up a seemingly unending supply of gyrating, underdressed teens engaged in sexually suggestive movements? In the 1950s, Elvis Presley’s appearances on the Ed Sullivan Show — with his swiveling hips and smirking smile — drew both screams of delight and shocked disapproval from those who watched.

Rap music, of course, offers another example of controversial communication, interpreted by many to advocate physical violence against women in particular and society in general. But in past generations in this country, many people assumed men had the right to knock some sense into their women, and we’ve always felt some kind of perverse sympathy for the misfits that challenged the status quo.

So what’s indecent, and what’s not?

In the past, the FCC has defined the term as language that describes or shows “sexual or excretory activities or organs” in terms “patently offensive to contemporary community standards.”

But that rather vague definition hasn’t helped the agency very much in deciding what really constitutes indecency, and it’s probably just as well.

Up to now, the FCC has ruled that indecency has to be judged on the basis of how fleetingly it is presented, whether children will be exposed to it and whether it conveys some essential expression.

Thus, an interview on National Public Radio several years ago with convicted mobster John Gotti included 10 or 12 repetitions of the “f-word,” which the FCC said didn’t rise to the level of indecency because of the context of the program.

On the other hand, a Colorado radio station drew a fine for broadcasting an Eminem rap song that included “bleeped-out” swear words.

That’s the problem that crops up every time with censorship — one person’s poetry can be another’s obscenity.

It shouldn’t be the government’s job to tell everyone what to think, enjoy or abhor. That’s not a value this country has been built on. It’s been tried in other places, and it hasn’t worked very well.