Not long after the first film "talkies" gave artists the power to show audiences audiovisual recordings of real, flesh-and-blood human behavior, television began to broadcast these kinds of recordings on publicly-owned airwaves. Naturally, the U.S. government has had a great deal to say about what the content of these recordings ought to be.
1934Under the auspices of the Communications Act of 1934, Congress creates the Federal Communications Commission (FCC) to oversee private use of publicly-owned broadcast frequencies. While these early regulations primarily apply to radio, they will later form the basis of federal television indecency regulation.
1953First televised trial. Oklahoma's WKY-TV televises clips from the murder trial of teen cop killer Billy Eugene Manley, who is ultimately convicted of manslaughter and sentenced to 65 years in prison. Prior to 1953, courtrooms were off-limits to television cameras.
1956Elvis Presley appears twice on The Ed Sullivan Show, and—contrary to the urban legend—his scandalous hip gyrations aren't censored in any way. It isn't until his January 1957 appearance that CBS censors crop out his lower body and film him from the waist up.
1977ABC broadcasts the miniseries Roots, one of the highest-rated programs in television history and among the first to include uncensored frontal nudity. The FCC does not object. Later television miniseries, most notably Gauguin the Savage (1980) and Lonesome Dove (1989), will also feature frontal nudity without incident.
1978In FCC v. Pacifica (1978), the U.S. Supreme Court formally acknowledges the FCC's authority to restrict broadcast content deemed "indecent." Although the case deals with a George Carlin radio routine, the Court's ruling provides a rationale for later television broadcast censorship. Justice John Paul Stevens writes for the majority, explaining why broadcast media do not receive the same level of First Amendment protection as print media:
First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.It is worth noting that the Court's majority in Pacifica is a narrow 5-4, and that many legal scholars still believe that the FCC's purported authority to regulate indecent broadcast content violates the First Amendment.
Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source.
1995The Parents Television Council (PTC) is founded to encourage government control over television content. Of particular offense to the PTC are television programs that portray lesbian and gay couples in a positive light.
1997NBC broadcasts Schindler's List unedited. Despite the film's violence, nudity, and profanity, the FCC does not object.
2001Shortly after the inauguration of President George W. Bush, the FCC issues a $21,000 fine to WKAQ-TV for airing a series of bawdy television comedy skits. It is the first FCC television indecency fine in U.S. history.
2003Several performers, most notably Bono, utter fleeting expletives during the Golden Globe Awards. President George W. Bush's aggressive new FCC board takes action against NBC—no fine, but an ominous warning:
There should be no doubt, my strong preference here would have been to assess a fine against the licensees in this case. Despite this preference, as a legal matter, today's action can be said to represent a departure from a previous line of cases issued before I joined the Commission ... Our action today also represents a fresh, new approach to enforcing our statutory responsibility with respect to profane broadcasts. Regardless of my personal view, in such instances, licensees should have fair notice that the use of this language in a setting such as this would be found actionably indecent and profane. Given the delicate authority the courts have permitted us under the First Amendment to enforce the indecency laws, the Commission must exercise care in affording licensees firm yet fair treatment. Nonetheless, it should be abundantly clear from today's action that we are setting a clear line to broadcast indecency and profanity to which all licensees should adhere and which from now on will result in forfeitures and other enforcement sanctions.Given the political climate and the obvious need the Bush administration had to appear tough on indecency, broadcasters had reason to wonder whether the new FCC chairman, Michael Powell, was bluffing. They soon learned that he wasn't.
2004Janet Jackson's right breast is partially exposed for less than one second during a "wardrobe malfunction" at the 2004 Super Bowl Halftime Show, prompting the FCC's largest fine in history - a record $550,000 against CBS. The FCC fine creates a chilling effect as broadcasters, no longer able to predict the FCC's behavior, scale back live broadcasts and other controversial material. NBC, for example, ends its annual Veteran's Day broadcast of Saving Private Ryan.
In November 2011, the U.S. 3rd Circuit Court of Appeals strikes down the fine on the basis that the FCC "arbitrarily and capriciously departed from its prior policy excepting fleeting broadcast material."