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Free Speech And Common Sense: First Casualties In First Amendment Debates

Posted by Bob · May 5th, 2004 · 1 Comment

The debate about the First Amendment has remained lively since Janet Jackson’s Super Bowl “incident”. The FCC, supported by the administration and many right-wing Christian groups, has reacted by increasing the fines per “obscene” incident. The increases are enough that even Corporate America is taking notice.

The result is that those who make a living pushing the envelope of “decency” are now finding it harder to do and stay on the air.

Another result is that technology is coming to the aid of those that prefer their life squeaky clean of four-letter words, nudity and violence.

But first, we have to track down and punish the latest high profile offender of public decency. No, not Howard Stern….

Oprah Winfrey.

MAY 4 — In the wake of an Oprah Winfrey show that included explicit talk about teen sexuality (and addressed topics such as rainbows and getting one’s salad tossed), the Federal Communications Commission received more than 1600 letters complaining about the racy March 18 broadcast and demanding that the talk show host be cited for indecency. And since most FCC correspondents were prodded to write by the agency’s Public Enemy Number One, Howard Stern, and ABC late night host Jimmy Kimmel, the Oprah complaints are particularly entertaining and vituperative in their decrying of a double standard employed by the fine-happy FCC brass.

So what is the definition of decency?

Howard Stern has built his reputation on being as “indecent” as the FCC will allow. But Oprah Winfrey? What has she done to be lumped into this debate?

Her show of March 18th was supposed to “shock” America by talking about teen sexuality. It went so far as to describe a certain sex act in no uncertain terms called “tossing the salad”. [Editor’s note: once you find out you what “tossing the salad” refers to you may be skipping the salad bars during lunch.] This was challenged by Stern and ABC’s Jimmy Kimmel. How is it she can get away with that and someone like Stern could not? Shouldn’t the FCC crack down even harder since the show aired during a time that children could see it?

An excerpt of emails received by the FCC:

My twin nine year old boys had returned from school and were putting on a DVD (Daddy Day Care). The channel was still set from the night before (WJAR-TV) . The[y] heard the word “anal sex” and forgot all about the DVD. They watched for almost twenty minutes before my wife, putting clothes away, walked by the living room and heard a graphic description of how to best please a man orally. She shut off the TV and asked exactly what they had heard. They told her a “Tossed Salad” is where you do “oral sex in the ass.” Then they said “we know what an ass is but whats oral sex?” They went on to ask about anal sex and a host of other graphic topics. What are you doing all day??? This was 4PM for g-d’s sake. The FCC should be fined for not doing their job. Get on the ball and fine Oprah. I DEMAND IT!!!! I hope you’re not holding back because she is black and a woman. This show was OBSCENE……

and my personal favorite ….

The Oprah show described with graphic detail a sexual term known as “tossing salad.” It was so offensive that my child’s head literally exploded. Please ban free speech so this never happens again

(Sorry, I just had to work that one in.)

Just for the record, Stern’s employer was hit with a $495,000 fine for Stern’s comic bit called “Sphincterine.” Stern’s bit was intended to be funny, Oprah’s was intended to be informational. Is that the difference?

The serious question here is this: Is decency defined by who delivers the indecency? Is Oprah’s “hard hitting” journalistic reputation enough to allow her to use of many of the same words and images as Howard Stern and not be fined?

Has her reputation changed the definition of “decency”? (Note: As of this writing, I cannot find any mention of Oprah being fined for indecency.)

It appears by the actions (and inactions) of the FCC that if you’re Howard Stern, you’re kept on a short leash. Oprah appears to have gotten away with it.

While you’re chewing that over, in case you’re overwhelmed by the amount of sex, violence and profanity in YOUR entertainment, technology has come to your rescue.

The ClearPlay DVD player comes equipped with 100 preloaded movie filters and a wide range of titles, from “As Good as It Gets” to “Zoolander.” If customers want more filters, they have to purchase a membership from ClearPlay.

Consumers can now change the content of a major motion picture by the use of this ClearPlay DVD player.

This does raise a few questions, namely … is it that bad? Are the movies being made today really that filled with offensive material?

And if they are, why would someone sensitive to all this want to watch it? Don’t they have the ultimate power of choosing NOT to see the movie entirely?

And does this create some kind of copyright issue?

Aho argues that the ClearPlay DVD player does not violate copyright laws. It provides users with the power over movies they have had for years: the ability to fast-forward or mute scenes they choose not to watch, he said.

I admit that this one confuses me. When a consumer can “wash” the parts of a movie that may offend them, are they watching the same movie as me?

I just don’t see “Saving Private Ryan” being the same film without the very graphic beach landing scene at the beginning. Would “Body Heat” be the same movie without Kathleen Turner and William Hurt spending so much time in bed? Wasn’t the movie predicated on her gaining control of “Ned” with all her womanly powers?

And for the record, even the good guys use profanity in movies. Writers use profanity for effect just like the cinematographer uses shadow and light.

Can you imagine… “Frankly Scarlet, I don’t give a darn”?

So the First Amendment protects all Americans, depending on your reputation. And consumers can now purchase an artistic end product and change it to match their comfort level of offensive content, just as the director envisioned.

Only in America ….

Categories: Constitutional Issues · Freedom of Speech


1 response so far ↓

  • 1 Bob // May 5, 2004 at 8:07 am

    Just as a follow up question, can advertising be challenged as ‘indecent’? Sure we’ve seen women wearing almost nothing in ads forever, but how about an ad by Ford that features the decapitation of a cat…..just for laughs.

    If Stern did this would he be facing fines?

    An opinion piece here: http://sfgate.com/columnists/morford/

    The mpeg here:

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