it seems oddly, poetically ironic that as the U.S. Supreme Court heard arguments on indecency in broadcasting this week the justices found themselves sitting in a chamber where they were surrounded by more nudity than a night out at the Mons Venus.
Ringing the court's chamber are numerous artworks depicting various stages of nudity. Or put another way, we could have called this scene "Moon Over Scalia, Thomas, Roberts, Et Al."
At issue was whether the federal government can justify its authority to impose sanctions and fines over broadcast radio and television networks for such things as "wardrobe malfunctions" and the occasional uttered dirty word, as when Tiger Woods misses a 2-foot putt on the national airwaves.
The Federal Communications Commission oversees this stuff based on a 1978 case that involved the late comedian George Carlin's "seven dirty words" shtick, which is hilariously funny but, alas, cannot be repeated in these pages. Although if you've ever played golf with my brothers you would recognize the offending language immediately.
Since then, the FCC practically had Howard Stern on a speed-dial fine system, while also imposing steep penalties for Janet Jackson's brief breast exposure during a Super Bowl halftime performance, the fleeting glimpse of a buttock on NYPD Blue, and even a Martin Scorsese-produced PBS documentary on the blues, in which some musicians, well, went blue.
This seems a bit strange. After all, does anyone honestly expect artists who sing about how terrible, miserable, awful and depressing life is — ergo, the blues — to express themselves as if they were Queen Elizabeth delivering her New Year's remarks?
It's not as if salty words and an abundance of flesh don't show up from time to time. Two Steven Spielberg films, Saving Private Ryan, which dropped more profanity than Rahm Emanuel talking in his sleep, and Schindler's List, a brutal account of the Holocaust with several scenes of nudity, were aired on broadcast television without the merest tsk-tsk from the FCC.
Memo to ABC, CBS, NBC and Fox: Have Steven Spielberg produce all your programming.
It should also be noted that in the late 1970s PBS aired I, Claudius, a sort of X-rated Dallas-in-togas epic miniseries about the Roman Empire, which contained no shortage of nudity, graphic violence and some lovely orgies — all without the American empire falling.
The problem, of course, is indecency, like obscenity, remains difficult to define. What may offend you may be a mere trifle to someone else. A case in point might be former U.S. Attorney General John Ashcroft, who was so unsettled by being constantly photographed standing in front of two partially nude statutes in the Great Hall of the Justice Department during news conferences, he spent $8,000 on drapes to cover them up.
The issue before the high court stems from the FCC imposing a 1978 indecency standard that predated the rise of cable television and satellite radio, where Howard Stern is now free to curse away without fear of reprisals. The FCC has no authority over cable- and satellite-delivered programming. So as a practical matter, broadcast networks are operating at something of a content disadvantage in competing for eyeballs.
Sure, if you hold a public license to broadcast, you have a legal and ethical obligation to provide programming that meets some bare-bones minimum standard of good taste. Which raises the question: If that's true, what is The Apprentice doing on the air?
Still, it's hard to reconcile this nonsense that we have to protect children from being exposed to any remote possibility they might see an errant nipple, but it's perfectly okay to watch Kiefer Sutherland's Jack Bauer on 24 using pliers to gut a bad guy in a torture scene.
In the end, the marketplace of ratings remains probably the best censor. If a broadcaster opts to air raunchy material and nobody tunes in, the program will soon go away. NBC's The Playboy Club wasn't canceled because of all the coo-coo-ca-choo cleavage. It was just lousy television in a bustier.
What's truly indecent about television today, whether broadcast or cable, is that most of us have 500-channel systems and there's still nothing to watch. Why it's enough to make you sit on you couch and scream at the tube. … See: Carlin, George.
The justices raised concerns that if language and sexual content restrictions were eased it would be only a matter of time before the broadcast channels were awash in all manner of bacchanalia.
It could be worse. We could have endless prime-time presidential debates. Get the children out of the room!