United States Case Study
The television was invented around 1925 but became popular in 1950s, and in America, there were more than 50million television sets in use during that period. Nearly every living room in America had a TV. Questions were then raised about the content, whether to regulate it or not, and how to regulate it. The television and radio were similar in some ways: both were broadcasted through airwaves (before cable), and both were regulated by the federal government. This paper shall discuss these issues in depth.
Since the beginning of broadcast regulation, there were not enough channels for all who wished to broadcast their information, the electromagnetic spectrum had been deemed to be a publicly owned natural resource. The “scarce public resource” then made simple come up with broadcast regulation basis.
Both television and radio broadcasters operated under the Federal Communications Commission (FCC). With this, broadcasters applied, for licenses, to use a section of the “public property”, a definite frequency (UCSB SexInfo Online n.p.). Broadcasters, on the other hand, had a duty to serve the society’s interests. The obligation requires a licensee to ascertain the society’s needs and then provide a service to cater for those needs of the society. The FCC has the right to censor or restrict content with obscene material, requires fairness in political programming and segment broadcast percentages for certain content, for example, content for “public use” (Kaarina 233).
Obscene programming is considered whereby an average person, with contemporary community standards, finds the material appealing to the prurient interest; the content demonstrates or defines sexual behavior in an offensive way; the material lacks literary, political, artistic or scientific value. Indecent programming is whereby the contemporary community standards measures the broadcast medium and describes excretory or sexual activities and organs in the broadcast (Kaarina 231).
Indecent material was prohibited in the 1950s but later it was only aired after hours when the children have slept. The meaning of “indecent content” has changed over time. The National Association of Radio and Television Broadcasters (Center for Media Education 5) then came up with ways to call for censorship whereby there was self-censor with decency standards and production codes.
The first Amendment of the US Constitution declares that the congress shall not make any law that will abridge the freedom of speech or the freedom of the press (Perebinossoff 234). However, the state legislatures and the congress have tried to hold back speech that is considered indecent, harmful to minors, obscene or injurious to children, such as pornography (Perebinossoff 234). Common legislation seeking to regulate media content is seen mostly in an election year.
The US content regulation differs by the medium of expression. The 1st Amendment projection has affected the print publications to the highest degree. Radio and Television, on the other hand, have enjoyed the least protection degree. Initially the Fairness Doctrine and the Federal Communications Commission (FCC) required broadcasters to have time to reply to those who said their views were criticized (Center for Media Education 24).
That rule was then killed in 1987. Another rule that still stands till now is the “equal time law” for the political candidates. The broadcasters are restricted to barring the transmission of profane material, obscene content or indecent material over the airwaves. These rules do not apply to print publications.
Congress has tried repeatedly to tackle this problem. However, their efforts have been in vain. They came up with the Communications Decency Act, 1996, which was struck down as unconstitutional. It then came up with Child Online Protection Act (COPA), 1998, which still remains in a legal uncertainty.
It went ahead and came up with the Children’s Internet Protection Act (CIPA), 2000, which has been upheld by the Supreme Court of the country (Wayne 234). CIPA facilitated the use of technologies to filter and keep off pornographic content from computer screens in schools and libraries which received funds from the federal government.
Indecent content is material which contains excretory or sexual material that is not at the level of obscenity and is clearly offensive. The First Amendment protects indecent speech though the Supreme Court has held it back. The high court allowed restriction of indecency for some certain main, for instance, TV and radio broadcasts. The same court recently disallowed Congress proscribing of indecent material on the internet or cable TV.
The Federal Communications Commission’s rule of banning obscene and indecent material from being broadcasted on the radio or TV was backed by the Supreme Court. The Court established a public interest in the prevention of transmission of questionable material via broadcast medium, from 6.00am to 10.00pm. From 1978 up to around 2004, the FCC enforcement of rules against indecency was limited, that was until the Janet Jackson and Bono sagas.
Janet Jackson, who was considered “the infamous wardrobe malfunction”, on February 1, 2004, was featured in the Super Bowl XXXVIII which was aired by CBS (Gunter 67). The show featured many celebrities, including Kid Rock in a poncho from an American flag cutout. Dancers repeatedly grabbed their crotches writhing to the music. In the finale, Justin Timberlake ripped one side of Janet Jackson’s bustier which then exposed her right breast to hundreds of millions of viewers in a split of a second.
Many viewers were not sure of what they saw until the radio, internet, and newspapers accounted on the next day. Others wanted to have a second look. Hence, the show became the most replayed over the TiVo digital video recorders. CBS was fined by the FCC $3.5 million, the highest penalty ever, for this and other indecency violations. CBS refused, insisting that the incident was not planned for, which then turned around to the 3rd Circuit Court of Appeals in Philadelphia and challenged the indecency fine.
Another account was on a rock star called Bono. He was awarded in the Golden Globe Awards on January 19, 2003. The awards were broadcasted live and without taped delay. While accepting the award, he declared, “…this is fucking brilliant…” (Perebinossoff 234). The FCC Enforcement Bureau declared that he did not use the word to describe sexual activities or sexual or excretory organs. Thus, there was no basis for the argument in the indecency law.
Congress managed to pass the Broadcast Decency Enforcement Act, 2006, increasing the fines to $325,000 for each day of a violation or the violation itself, and a maximum of $3 million for failure to act or any single act.
However, in 2007, the Second Circuit Court of Appeals said that fines could not be collected from companies for so-called “fleeting expletives” because, in recent times, even top leaders use the expletives in a manner that no reasonable individual would believe that it has been used to describe excretory or sexual organs or activities. There were several acts against obscenity and indecency including
- Child Pornography Protection Act (CPPA) was passed in 1996. It banned all visual depictions of minors, even if no minor is used. This law was then considered unconstitutional because it focuses on canning the content instead of banning the production.
- Deleting Online Predators Act (DOPA) was passed in 2006 by Congress but was not voted by the Senate. The bill mandated e-rate portion to prevent minors from accessing chat-rooms and commercial social networks in schools and libraries. This measure would not grant the FCC the power to regulate or decide which sites were to be blocked.
- In 2003, Congress passed the PROTECT Act (Prosecutorial Remedies & Other Tools to End the Exploitation of Children Today) ( NJ Law n.p.), which illegalizes misleading a minor via domain name in order to view content which may be “harmful to minors”. It prohibited pandering or depiction of digital or computer generated image of a minor engaging in sexually explicit actions.
- Family Privacy and Security Act was introduced in 2002 by Congress, though he did not make it out of the committee. It required registration, with the government, web-page operators with web-pages with content considered “harmful to minors”, then they be moved to a separate domain. This required labeling of emails with sexual content, also to restrict the use of digital recording devices to view or record for lewd purposes the image of another person, including minors.
- Dot Kids Implementation & Efficiency Act was passed in 2002. It provided that a “.kid.us” domain to be designed for families and children using the internet, to provide a safe environment and prevent exposure to harmful material on the internet.
- Children’s Internet Protection Act was passed into law in 2000 after bundling it into the Consolidated Appropriations Act of 2001. This requires public institutions that use e-rate portion, to install blocking software systems to prevent minors from accessing material, which is harmful to minors, controlled by adult patrons.
There has been an augmentation in volume of sexual content, imagery and talk on the television which are being condemned by people who are termed as “a rising tide of filth” and celebrated by others terming it as “liberation from the regulations of the past” (Gitlin 12).
Sexual conduct is evident all over the broadcast media. Pornography has evolved from soft-core to hardcore. In the olden days, media posed restrictions for broadcasting, but these days limitation of broadcasting restrictions have burst. Long time back, couples in the “TV life” were aired sleeping on separate beds, while, in real life, they sleep on the same bed (Kunkel 15).
These restrictions lessened until it has reached an era where the restriction lies within the individual. The FCC cannot restrict any longer. With the presence of internet, an individual can get any content from hardcore to live pornographic videos.
In the writing, Pornification, Sex and Sexuality, By Kaarina Nikunen, Susanna Paasonen and Laura Saarenmaa, it depicts how all kinds of pornography, from soft-core to hardcore, straight and gay pornography, male and female pornography, black to white, and many more, and how it has infiltrated the media (Gunter 67). Pornography is evident everywhere. It is evident in the explicit discussions in popular magazines, suggestiveness of music videos, refashioning of sex into art pieces and erotica of advertisements (Kaye and Barry 98).
Pornography has now been integrated into popular culture and made part of everyday life (Kaye and Barry 98). Advertisements on television commercials bear sexually explicit content.
Sexual desires have been transformed into commodity, made pornographic, and media are the foundation of this. Starting from music videos, they literally contain sex scenes; there are a lot of pornographic sites, also gay sites, like gaydar and cosimo girls which are online forums; H&M’s street adverts, retro posters, films and educational sex videos and more.
On the other hand, the accessibility, pervasiveness and the popular nature of TV makes it a brilliant instructor which offers a way to learn sexuality and sex without embarrassment. The images on the television, however, can be harmfully stereotyped, limited, and one dimensional, showing sex as an activity only acceptable for the young, beautiful and singles only. Sexual encounters may be erroneously represented as romantic, spontaneous and risk-free which may bring harm.
The media, however, may help break the cultural taboos which are associated with sensitive sexual topics and may also bridge the gaps in knowledge about sex. TV shows and movies reveal a wide range of sexual expressions and raise topics such as incest, rape and abortion.
The Media Project is an organization which works, with the television industry, to incorporate realistic information about sexuality and responsibility into this programming (UCSB SexInfo Online n.p.). They have even sponsored SHINE (Sexual Health IN Entertainment) Awards, which recognizes mass media outlets which have portrayed constructively sexual issues to the public.
Center for Media Education. A Parent’s Guide to the TV Ratings and the V-Chip. Washington, D.C.: Center for Media Education, 1999.
Gitlin, Todd. Inside Prime Time. Berkeley: University of California Press,2000.
Gunter, Barrie. Media Sex : What are the Issues. Mahwah, N.J: Erlbaum, 2002.
Kaarina, Dickson. Pornification and the Education of Desire: Sex and Sexuality. Cambridge: Cambridge University, 2007
Kaye, Barbara and Barry Sapolsky. “Offensive Language in PrimeTime Television: Before and After Content Rating.” Journal of Broadcasting and Electronic Media 45 (2001):303–319
Kunkel, Dale. Assessing the Validity of V-Chip Rating Judgments. Cresskill, N.J.: Hampton, 2003
NJ Law. New Jersey Lawyers voted 2010 Best of South Jersey. Web.
Perebinossoff, Philippe. Real-World Media Ethics : Inside the Broadcast and Entertainment Industries. Amsterdam Boston: Elsevier Focal Press, 2008.
UCSB SexInfo Online.Sexuality in the Mass Media. Web.
Wayne, Louis. Attempts to Protect Children from Unsuitable Material on the Web. New York: Oxford University Press Rowman & Littlefield Publishers, 2001.