I'm not sure if the “serious value” here is literary, artistic, scientific or political, but the FCC must figure it's one of these. So, language of serious value is protected by the 1 st Amendment, even if it's obscene. The commission, however, cannot afford to protect all literary material, as is the case with the notorious glutton for bathroom humor, James Joyce. Although Joyce's Ulysses is arguably a book of unrivaled literary merit in the last century, the FCC is not quite sure what to make of the language. After L.A. radio station KPFK 90.7 got into a tiff with the FCC over airing a play whose AIDS-inflicted protagonist used graphic language, the station asked the commission to provide advance ruling for another “future broadcast script” that it intended to air. The FCC, upon reading the script, declared it obscene and informed the station that airing the segment would result in a second legal brawl. When the FCC was informed that the “future broadcast script” was in fact a segment extracted from Joyce's Ulysses , the commission declined to comment.
Obscenity , after all, is not the only thing to worry about. The FCC is also responsible for regulating the profane and the indecent . James Joyce might fit better into one of these FCC distinctions, which, though they are offensive, are still protected by the 1 st Amendment, unlike obscenity. In short, indecent material makes “sexual or excretory references”, and profane material makes use of “reviling epithets”. Neither are said to be as repulsive as obscenity; for this reason indecent and profane material may be aired at night, when children are presumably asleep, so long as it is not aired between the hours of 6 a.m. and 10 p.m. But if profanity and indecency are both said to be protected by the 1 st Amendment, how is it then that they can legally be regulated at all? TV and radio broadcasters are livid, and with good reason. The FCC is placing thousands of dollars in fine distinctions between three synonyms that they refuse to adequately define. The FCC more recently announced a proposition that radio and television stations be required to keep recordings of completed shows, for up to three months after the show airs, a ruling which would force broadcasting stations to produce their own possibly incriminating evidence should complaints be researched.
Since this decency crusade has been launched presumably for the children, those incapable of the moral judgment necessary to turn off obscene radio and television programs themselves, it seems fitting to ask, why include a curfew clause at all? Half the time kids are ones sneaking in late-night television. Who stereotypically gets up at the crack of dawn to watch TV before school? Kids. Whose trademark nighttime posture includes falling asleep with headphones on? Kids. Furthermore, why are we so interested in making public broadcasting a fantasy island where no one swears or shits or moans, when most kids in this country hear worse language at school, on cable, or from their own parents' bedrooms. This is not to say that American children should be forced to sit down and soak in profanity, but it is still absurd to propose indecent language be siphoned into an eight hour window of broadcasting and then treated, in the morning, as if it didn't exist. For those in broadcasting, it is not accurate to claim that FCC regulations are, per se, censorship, as the FCC makes a point to state that obscene language is not protected. But the 1 st Amendment rights are clearly getting dicked around, and I mean that in both the obscene and profane sense of the word. Because the regulations are not well-defined, many TV and radio stations, even local and college stations that are subject to the same fines, are implementing a system of self-censoring, to insure that their staff does not cross the FCC's wavering line. Those in broadcasting continue to beg the commission for a little more guidance in this matter, but, as both sides of the debate know very well, the less concrete the rules are, the more subjectively each offense is treated, and the more subjectivity is involved, the easier it is for scapegoats to be hand selected.
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