FC: Prudish FCC commissioner insists "piss" should be punished

[Declan McCullagh <declan () well com>]

http://www.fcc.gov/Speeches/Tristani/Statements/2001/stgt119.html

     _________________________________________________________________
   
                           FOR IMMEDIATE RELEASE
                             February 28, 2001
                        Contact: William J. Friedman
                               (202) 418-2300
                                      
   PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI
   
     Re: Enforcement Bureau Letter Ruling on WGR (AM) Buffalo, New York
     Indecency Complaint
     
   The FCC Enforcement Bureau has issued a letter dismissing an indecency
   complaint filed by Michael Palko of Buffalo, New York. Mr. Palko's
   complaint against WGR (AM) arose from words uttered during the
   "Bauerle and the Bull Dog" show. Mr. Palko alleged the station
   undertook a
   
     [M]onth long piece where the station has purchased urinal splash
     guards with National Hockey League emblems on them to distribute to
     local bars and restaurants. Throughout this campaign, the co-hosts
     would regularly talk about who they would like to "piss on" and
     callers were invited to call in to talk about who in the NHL they
     would "piss on." The co-hosts regularly discuss "pissing" on NHL
     Commissioner Gary Bettman.1
     
   Mr. Palko also noted the show is a "morning sports talk" show and he
   believed the "on-going bit" relied on "gratuitous use of excretory
   references." Mr. Palko also complained of Mr. Bauerle's use of the
   phrase "sawed off little prick" and repeated use of the word "prick."
   He reported his belief that Mr. Bauerle had been "reprimanded"
   previously for using the same phrase.
   
   The Division Chief dismissed the complaint: "Because the discussion
   you describe does not describe sexual or excretory activities or
   organs in a patently offensive manner, I am dismissing your
   complaint." The Bureau also noted the challenged remarks were "brief"
   and "subject matter alone is not sufficient."2 Based on the record
   before us, I cannot agree. Mr. Palko stated a prima facie case for
   indecency sufficient to survive dismissal. As I discuss below, this is
   one of the rare complaints where each portion of the complaint
   comports with recognized examples of indecent broadcast material.
   
   A. Applicable Law
   
   I start, as always, with the statute the FCC enforces:
   
     Whoever utters any obscene, indecent, or profane language by means
     of radio communication shall be fined not more than $10,000 or
     imprisoned not more than two years, or both.3
     
   Our definition of an indecent broadcast is:
   
     [l]anguage or material that, in context, depicts or describes, in
     terms patently offensive as measured by contemporary community
     standards for the broadcast medium, sexual or excretory activities
     or organs.4
     
   Among the factors that the Commission examines to determine whether
   material is patently offensive include the actual words or depictions
   in context to see if they are, for example, "vulgar" or "shocking,"
   and whether the material is dwelled upon or reference to it is
   isolated and fleeting.5
   
   The Supreme Court has pointed out that what constitutes a "patently
   offensive" broadcast:
   
     [D]epends on context (the kind of program on which it appears),
     degree (not "an occasional expletive"), and time of broadcast (a
     "pig" is offensive in "the parlor" but not the "barnyard").6
     
   The context question focuses first on the type of medium, here it is
   broadcasting7, and second on the "type" of program, here a "morning
   sports talk" show. The "degree" of offensiveness requires the remarks
   be distinguished from an "occasional" expletive and the time of day is
   referenced primarily to draw attention to the fact that children may
   be listening. In Pacifica the Court also said:
   
     In this case, it is undisputed that the content of Pacifica's
     broadcast was "vulgar," "offensive," and "shocking."
     
   The "content" at issue in Pacifica was a seven word list that was part
   of a lengthier monologue repeatedly employing the seven words. One of
   the words in the seven word list at issue in Pacifica was "piss,"8 the
   repeated use of which is at issue here. In Pacifica the parties did
   not dispute the FCC's finding that the monologue was indecent.
   
   In a separate setting, the Court has said the discharge of urine is
   "an excretory function traditionally shielded by great privacy."9 In
   U.S. v. Harvey, 991 F.2d 981 (2nd Cir. 1993), a defendant's criminal
   conviction for possession of child pornography was overturned because,
   inter alia, the prosecution introduced testimony regarding the content
   of some adult videos, seized from defendant, that did not involve
   children. The testimony included depictions of video content "of
   people engaging in gross acts involving human waste," and describing
   "people urinating on each other."10 The Second Circuit reversed the
   conviction because the testimony was introduced to create, "disgust
   and antagonism toward [the defendant], and resulted in overwhelming
   prejudice against him."11
   
   In 1997, Senator Joseph Lieberman described a disturbingly similar
   scene in a video game brought to his attention by a concerned parent:
   
     What makes Primal Rage novel, however, is a scene known among
     teenage players as the "Golden Showers" in which an ape-like
     creature celebrates the killing of his opponent by actually
     urinating on the corpse.12
     
   Senator Lieberman described the scene as both "repulsive" and
   "degrading."13 See also U.S. v. Prytz, 822 F.Supp. 311 (D.S.C. 1993)
   (criminal defendant purchased video tapes the Court described as
   "depicting sexual activity involving urination," and the defendant
   described as "golden shower" tapes).
   
   The foregoing should leave no doubt in anyone's mind that Mr. Palko's
   allegations should not be dismissed. The U.S. Supreme Court has noted
   urination is excretory and is not a subject for routine public
   viewing. The repeated broadcast of the word "piss" has been
   unquestioningly accepted as meeting the contour of a "vulgar" and
   "shocking" broadcast by the Court. Urination on others is so offensive
   to the community's sense of decency and so inflammatory that a
   conviction for possession of child pornography was thrown out because
   such imagery was among the degrading subjects discussed before a jury.
   If the Constitution may bar discussion of such inflammatory imagery in
   a criminal trial, why should it be approved for broadcast when
   children are listening? Proposing to routinely urinate on someone to
   express disagreement with that person's sports affiliations (the NHL
   teams) or job performance (the NHL Commissioner) is the kind of
   degrading and pointless personal attack that possesses little
   political value. Like "fighting words,"
   
     [S]uch utterances are no essential part of any exposition of ideas,
     and are of such slight social value as a step to truth that any
     benefit that may be derived from them is clearly outweighed by the
     social interest in order and morality.14
     
   Taken together these points should have counseled hesitation by the
   Bureau sufficient to at least issue a letter of inquiry to this
   station.
   
   B. Dismissal is Improper on the Facts of this Case
   
   The facts alleged by Mr. Palko demonstrate the "type" of program was a
   regularly scheduled morning radio program obviously targeting
   listeners traveling to their morning destinations and was not an adult
   only program. It contained a vulgar and apparently repeated reference
   to urinating on other people and at least one target of this behavior
   was identified by name. Urination on other people appears to have been
   a promoted theme of the program rather than anything that could be
   considered isolated or fleeting. The broadcast was made during the
   normal hours children are riding in cars on their way to school and
   are thus likely listeners.
   
   The Bureau concluded no further investigation was needed. However, the
   review of the thankfully thin caselaw on how to treat speech, whether
   video or radio, that involves urinating on others demonstrates that
   once again our Bureau read the facts alleged in the complaint in the
   light most favorable to the broadcaster rather than the complainant.
   This conflicts with well- settled principles of civil law where
   dismissal of civil complaints is permissible only if "it is clear that
   no relief could be granted under any set of facts that could be proved
   consistent with the allegations."15 Moreover, it is difficult to
   discern what more specific allegations are necessary to state a prima
   facie violation of the statute. It may be that constitutional precepts
   ultimately require such facts be proved prior to imposition of a
   penalty, but it does not require such proof at the outset of a
   proceeding.
   
   It seems the Bureau ignored the allegation that this was a shameless
   month-long campaign to discredit individuals and teams of individuals
   by covering them with human waste. Callers were also apparently
   encouraged to use vulgarities like the word "prick." I am at a loss to
   explain the failure to even seek further review. This decision adds
   weight to the public's conclusion that the FCC's indecency enforcement
   program is ineffective. Our children deserve better.
   
                                  - FCC -
   _____________________
   
   1. See Letter Complaint.
   
   2. See Bureau Letter Dismissing Complaint at §2.
   
   3. See 18 U.S.C. §1464; see also 47 U.S.C. §§ 312(a)(6), 312(b)(2),
   and 503(b)(1)(E) (1970 ed. and Supp. V) (FCC may impose civil
   penalties because the Communications Act incorporates § 1464); see 47
   U.S.C. §§ 312(a)(6), 312(b)(2), and 503(b)(1)(E).
   
   4. See Enforcement of Prohibitions Against Broadcast Indecency, 8 FCC
   Rcd 704, n.10 (1993). The Commission's jurisprudence does not indicate
   whether the "patently offensive" and "indecent" determinations should
   be made with respect to the broadcast community's vision of what is
   necessary to protect minors or the sensibilities of the broadcast
   community as an adult whole.
   
   5. See, e.g., Infinity Broadcasting Corp., 3 FCC Rcd 930, 931-32
   (1987), aff'd in part, vacated in part on other grounds, remanded sub
   nom. Act I, 852 F.2d 1332 (D.C. Cir. 1988).
   
   6. FCC v. Pacifica, 438 U.S. 726, 748 (1978) 7. See e.g. Southeastern
   Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)(observing "[e]ach
   medium of expression . . . may present its own problems."); see also
   Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S.
   727, 774 (1996) (SOUTER, J., concurring) ("Reviewing speech
   regulations under fairly strict categorical rules keeps the starch in
   the standards for those moments when the daily politics cries loudest
   for limiting what may be said"); Id. 518 U.S. at 803 (1996) (KENNEDY,
   J., concurring and dissenting) ("Emphasizing the narrowness of its
   holding, the Court in Pacifica conducted a context-specific analysis
   of the FCC's restriction on indecent programming during daytime
   hours."). The Court has repeatedly recognized special factors as
   justifying regulation of the broadcast media -- the history of
   extensive government regulation of broadcasting, see, e.g., Red Lion
   Broadcasting Co. v. FCC, 395 U.S. 367, 399-400; the scarcity of
   available frequencies at its inception, see, e.g., Turner Broadcasting
   System, Inc. v. FCC, 512 U.S. 622, 637-638; and its "invasive" nature,
   see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128.
   
   8. FCC .v Pacifica, Appendix to the Opinion of the Court (setting
   forth "a verbatim transcript" of the "Filthy Words" monologue).
   
   9. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 658 (1995) citing
   Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 626 (1989).
   
   10. Harvey, 991 F.2d at 994.
   
   11. Id. at 996.
   
   12. See Lieberman, J., 15 Cardozo Arts and Entertainment Law Journal
   147, 149 (1997).
   
   13. Id.
   
   14. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
   
   15. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) citing Conley v.
   Gibson, 355 U.S. 41, 45- 46 (1957) discussing Federal Rule of Civil
   Procedure 12(b)(6).
     _________________________________________________________________
   
   Text | Word97
   
   FCC FEDERAL COMMUNICATIONS COMMISSION
   Enforcement Bureau, Investigations and Hearings Division
   445 12th Street, S.W., Room 3-B443
   Washington, D.C. 20554
   February 23, 2001 [clear.gif]
   In Reply Refer to:
   EB-00-IH-0221/RBP
   ID#56101
   Mr. Michael P. Palko
   Buffalo, New York
   
   Dear Mr. Palko:
   
   This is in response to your complaint against radio station WGR(AM),
   Buffalo, New York, for allegedly airing indecent material during
   "Bauerle and the Bull Dog" on May 8, 2000, at 9:15 a.m. In support of
   your complaint you submitted brief comments from the above program.
   
   Based on the information you have provided, it does not appear that
   the material about which you complain is indecent. Indecency is
   defined as material which, in context, depicts or describes sexual or
   excretory activities or organs in a patently offensive manner as
   measured by contemporary community standards for the broadcast medium.
   In determining whether broadcast material is patently offensive we
   look to, among other things, the explicitness or graphic nature of the
   description of sexual or excretory organs or activities and whether
   the material dwells at length on such organs or activities. Subject
   matter alone is not sufficient to find material indecent, nor is it
   sufficient that some, or even most, people would find the material
   offensive. Because the discussion you describe does not describe
   sexual or excretory activities or organs in a patently offensive
   manner, I am dismissing your complaint.
   
   To assist you, we include an information sheet regarding enforcement
   against indecent and obscene programming. The enclosure discusses the
   law with respect to obscene and indecent broadcasts and our
   enforcement procedures.
   
   Thank you for your interest in this matter.
   
     Sincerely,
     
     Charles W. Kelley
     Chief, Investigations and Hearings Division
     Enforcement Bureau
     
   Enclosure



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