Super Bowl Fleeting Expletive Could Prompt Indecency Complaints
What’s it like to win the Super Bowl? “Fucking awesome!” according to Joe Flacco, just before the Baltimore Ravens quarterback was named game MVP. He let those words loose while giving teammate and offensive lineman Marshal Yanda a celebratory slap on the shoulder pads in front of CBS’s cameras and microphones following the game Sunday night. The words carried through CBS’s network and out over the air of its owned and affiliated TV stations, where the FCC’s rules against indecency apply.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
Because the utterance occurred directly after the game and before CBS cut to a commercial break, Flacco’s utterance hit the network’s cameras and air live. Broadcast networks typically delay live TV events to catch and edit out so-called fleeting expletives. But those delays, which were in effect for CBS’s pre- and post-game coverage, were not in place during actual game play, people familiar with the network’s practices said. CBS declined to comment.
What are the FCC’s current policies toward such fleeting expletives? A spokeswoman for the Media Bureau had no comment. The commission’s policy has been said to be in flux (CD June 27 p1) following a Supreme Court ruling that struck down some of its enforcement actions against fleeting nudity and expletives that aired before the industry got notice it could face censures for such content in 2004. Meanwhile, the agency has cut down its backlog of pending indecency complaints by at least two-thirds (CD Jan 14 p1).
The CBS-owned and affiliated stations that carried the game Sunday night on the East Coast should be safe from liability. That’s because by the time the game ended, stations were operating in the safe harbor time period of after 10 p.m. But stations in other time zones could face problems, said Kevin Goldberg, an attorney with Fletcher Heald who follows First Amendment issues.
"When we last left the Supreme Court, all they had conclusively said was you can’t apply the fleeting expletive indecency doctrine to anything before 2004,” Goldberg said. That is when the FCC found pop singer Bono’s description that winning a Golden Globe award was “really fucking brilliant” to be a violation of its indecency rules (http://xrl.us/boesmf). The judges didn’t address the constitutionality of the policy itself, he said. “It’s still in play for the time being."
The Parents TV Council said the FCC should take action against CBS. “No one should be surprised that a jubilant quarterback might use profane language while celebrating a career defining win,” said Tim Winter, the council’s president. “But that is precisely why CBS should have taken precautions,” he said. “After more than four years of inaction on broadcast decency enforcement, the FCC must step up to its legal obligations to enforce the law.” Until the FCC fields a complaint, it can’t do anything on the matter, Goldberg said. But a complaint, if acted on, could spark further legal challenges that might ultimately answer the question of the policy’s constitutionality, he said. “That’s going to require somebody to file a complaint against a CBS station ... and then set the process in motion.”