TV news anchors, cursing, and the First Amendment

Aspiring news anchor A.J. Clemente was fired after cursing on live television and became a national celebrity in a 72-hour time span. So what happens to the station that aired his indecent words?

TV-anchor-AJ-Clemente640Likely nothing in the way of a fine is in the future of NBC affiliate KFYR. But it did have to apologize to viewers and then explain to people sympathetic to Clemente about his dismissal after one day on the job.

Clemente was recently hired by the Bismarck, North Dakota, TV station to co-anchor a weekend evening newscast. As he later explained to “The Today Show,” he was caught live on the anchor desk as the broadcast started 30 seconds early.

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He also acknowledged he wasn’t wearing the earpiece most anchors wear to get instructions from the show’s producers. (And neither was his co-anchor.)

Clemente then blurted out two of the seven words made famous by George Carlin in his 1970s comedy routine about what you can’t say on radio or television.

Within 24 hours, Clemente was fired–and he gained a legion of sympathetic fans in the world of social media. On Wednesday, Clemente had appeared on two NBC shows, “Today” and “Morning Joe,” and he skipped over to an interview on “Live with Kelly & Michael,” where he was offered a one-time job covering an event for the show.

Clemente was scheduled to appear on David Letterman’s show at night.

The link between Clemente and Carlin is ironic, because a radio station’s use of Carlin’s dialogue sparked a Supreme Court case that set the baseline for First Amendment rights when it comes to broadcasters and indecent or obscene language.

The broadcast networks follow a 34-year-old precedent set in FCC v. Pacifica Foundation, which involved a broadcast of Carlin’s “filthy words” comedy routine on a radio station.

The court decided that the Federal Communications Commission could punish stations that broadcast over the airwaves the use of indecent or obscene language, and that the use of such language had less First Amendment protection because it could be heard by children and intruded into the homes of listeners.

Over the years, the FCC guidelines have evolved, as has the willingness of the agency to fine stations for violations.

The Supreme Court ruled on two related cases last year. In one ruling, the decision in Federal Communications Commission v. Fox Television Stations was about three incidents where the FCC wanted to punish Fox and ABC for what it deemed as offensive content.

Fox in particular was facing potential fines from the FCC for two incidents of “fleeting” cursing during live broadcasts involving Cher and Nicole Richie.

The Supreme Court found that the FCC didn’t provide fair notice to both networks. Also, the ruling was specific to the three incidents, and not meant to alter the FCC’s policy about broadcast regulations of obscenity.

Also, the court refused to hear an FCC appeal after a lower court tossed out a $550,000 fine against CBS for the 2004 Janet Jackson halftime show incident. The justices said the FCC had failed to give CBS proper notice in that specific incident.

Even though the court turned down the FCC case, Chief Justice John Roberts made his opinions very clear, after the FCC changed its policy on “fleeting expletives” and fined CBS for the Jackson incident after the Super Bowl.

“It is now clear that the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” Roberts said last June. “Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.”

In its official guidelines, the FCC says, “Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.” Its rules for profanity, such as the words used by Clemente, are different.

“The FCC has defined profanity as ‘including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.’ Profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m.,” the FCC policy reads.

Clemente’s gaffe was outside of the “safe harbor” period, and the station could be subject to a fine. But based on recent statements from the FCC, it’s unlikely anything will happen.

Outgoing FCC chair Julius Genachowski, citing a backlog of indecent language complaints, indicated in early April 2013 that the agency would only pursue “egregious” complaints. The FCC said it reduced its case backlog by 70 percent after the 2012 Supreme Court decisions by following that policy.

As for Clemente, he’s enjoying another First Amendment benefit. The FCC doesn’t regulate the Internet, where his TV appearance (in its uncensored form) went viral, as did the widespread public debate about giving an employee a second chance after a bad first day at work.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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