The Supreme Court recently did something right for a change, and negated the fines levied against CBS for the brief airing of Janet Jackson’s nipple, ruling that the FCC had arbitrarily and unexpectedly wielded its authority to regulate and punish ‘indecency’.
The real problem, of course, is that the FCC is considered to possess authority over a thing no one is willing to properly define. As the SC claimed in its 1978 decision regarding the airing of George Carlin’s infamous monologue, “indecency is largely a function of context – it cannot be adequately judged in the abstract”.
So we can’t define indecency, but we know it when we see it? Riiiight.
The truth of the matter is that the function that determines indecency in the Supreme Court’s eyes, the one they use to evaluate the properties of the message and its context, can be abstractly defined and abstractly implemented. If it exists, it is necessarily the case that it can be so defined.
The truth is that people don’t like to bring implicit reasoning into rational awareness even in the best of times, and especially not when they know their reasoning won’t survive the analysis.
As best as I can determine, the standard being applied is that: something is ‘indecent’ if it violates certain societal taboos in a way that weakens those strictures in the public mind. If an expletive slips out in what appears to be an accidental self-censorship failure, and the speaker is aghast, it will be considered offensive but not indecent. If it appears to be done intentionally, or without concern at violating the asserted norm, it’s indecent. If it’s repeated enough for people to become accustomed to it, to lose its ‘shock value’ and thus weaken the response to the taboo violation, it’s indecent. The key matter is the respect for the authority of society’s norms (or the lack thereof).
That isn’t a suitable matter for governmental regulation, especially not in a country in which freedom of expression is a guaranteed right. Which is probably why no one wants to acknowledge what the standard is.