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Broadcast Standards Malfunction

The New York Giants get their moment in the spotlight this morning with a ticker tape (actually, a paper shredder output) parade through lower Manhattan celebrating their Super Bowl victory. Attention then will shift to the game’s real stars: the judges, regulators and lawyers who endlessly debate broadcast decency standards.

But we should cut the folks in business suits a break. They were not the ones who started this diversion of attention from the athletes, who really matter (to the extent competition staged for entertainment actually “matters”), to the people who merely want to matter.

This year’s instigator is a British woman named Mathangi “Maya” Arulpragasam, the hip-hop artist better known by her stage name, M.I.A. As you probably know, during the halftime show she waved her middle finger at the cameras that carried her performance into the homes and watering holes of around 100 million Americans, and she uttered a bathroom expletive for good measure. NBC’s production crew was a fraction of a second late in blanking out her display.

Here we go again. Notoriety of any kind is a convertible currency these days, and the Super Bowl is the biggest stage in America. For some who crave attention, being invited to perform there is like finding an unlocked and unoccupied Lamborghini purring at the curb. The temptation to take it for a ride can be irresistible. It certainly was for Janet Jackson and Justin Timberlake eight years ago, when they gave us their infamous “wardrobe malfunction.” And so it was on Sunday evening in Indianapolis, when M.I.A. decided to upstage Madonna, I suppose as a thank you for providing such a fine venue.

We don’t know yet whether the Federal Communications Commission will seek to penalize NBC for being slow on the blackout trigger. The commission already has its hands full on the broadcast standards front.

The FCC sought to fine CBS and some of its local stations $500,000 after Jackson and Timberlake bared one of her breasts during the halftime show in 2004. The Third U.S. Circuit Court of Appeals struck down the fine, saying it resulted from an unannounced policy change. Many breasts and buttocks have been bared on network television, but FCC enforcement action has been spotty, inconsistent and mostly lacking.

In the next few months, the Supreme Court is expected to decide a separate case, in which the Second Circuit appeals court has found the FCC’s indecency rules unconstitutional. In that case, the commission held that the broadcast of Cher and Nicole Ritchie’s unscripted “fleeting expletives” during awards presentations could expose broadcasters to fines. Fox challenged the ruling. The Supreme Court has seen the case once already in 2009. It ruled that the indecency rules were not administratively invalid, but it sent the case back to the Second Circuit to decide whether the regulation is unconstitutional. In 2010 the Second Circuit found that the FCC’s policy on indecent speech is unconstitutionally vague, which violates the Fifth Amendment, and that it chills constitutionally protected speech, in violation of the First Amendment.

The case returned to the Supreme Court last fall. Noting that the FCC has approved the use of coarse language in the film “Saving Private Ryan” while simultaneously objecting to it in the NBC series “Hill Street Blues,” Justice Elena Kagan summarized the commission’s policy: “Nobody can use dirty words or nudity except Steven Spielberg.”

Amen to that. I suppose the new wrinkle in our jurisprudence provided by M.I.A.’s display is that, in addition to using a questionable word, she made a gesture that American viewers universally perceived as an even more questionable word. Call it symbolic profanity. Can the FCC penalize the network for allowing it?

If it can, then I wish somebody would explain to me which symbols can get penalized at what times, because I am hopelessly confused.

The very same halftime performance that brought us M.I.A. included an appearance by the song-and-dance-act LMFAO. LMFAO is text-message shorthand for “Laughing My Something Something Off.” The first something refers to a word the FCC absolutely, positively does not want broadcasters to carry, except when it has news value or artistic merit. The second something refers to a body part that must not be displayed, except when such displays are OK. If M.I.A.’s gesture is actionable, is LMFAO’s very name?

How about the 2008 episode of NBC’s sitcom 30 Rock entitled “MILF Island?” In the episode, network executive Jack Donaghy comes up with a summer reality programming hit that features “25 super-hot moms, 50 eighth-grade boys, no rules.” The term MILF means, approximately, “Mother With Whom I Would Not Object To Having Sexual Intercourse.” Even the FCC probably has no beef with MWWIWNOTHSI, since it does not symbolize any prohibited language; then again, the FCC did not, to my knowledge, object to MILF at the time either. Maybe the commissioners needed someone to translate it when the episode was broadcast. Or maybe they were afraid to tangle with Tina Fey, having seen how easily she dispatched culture warrior Sarah Palin. In any case, the term MILF is thoroughly offensive and disrespectful, and this was probably only about the eighth most disturbing thing about “MILF Island.” Which is why it has artistic merit, so even profane speech is allowed. Is that clear?

I have to sympathize with Chief Justice John Roberts, who momentarily misplaced his judicial objectivity to plead during oral arguments, “People who want to expose their children to broadcasts where these words are used, there are 800 channels where they can go for that. All we are asking for…”

Sorry, Mr. Chief Justice. Like it or not, coarse speech and coarse behavior are part of life, and if broadcasters are going to depict our lives, some of this coarseness is going to creep in. Even if, magically, it did not, our kids are going to see and hear the same things in traffic jams and on playgrounds. They see far worse in YouTube videos that show demonstrators fatally shot in foreign streets, or in news accounts of parents who kill their children. If we don’t overreact to this stuff, our kids won’t, either.

There is real violence, real cruelty, real degradation and inhumanity in the world. We can calmly explain it to our kids and help them deal with it when they must. There is no sense getting all worked up about a few thoughtless words or attention-seeking gestures. Let’s just show the kids how we ignore such silliness in order to enjoy the game and the rest of the entertainment.

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