Tuesday, November 15, 2016

Indecent Exposure

This weekend's episode of Saturday Night Live sounded a little different to viewers in the Raleigh-Durham market served by NBC affiliate WRAL-TV. Host Dave Chappelle's monologue featured several ten-second audio drops, omitting entire sentences and joke punchlines. The periodic audio interruptions continued into several SNL sketches. (Twitter user Nathania Johnson compared her local DVR recording to video clips from the national broadcast on Hulu. The WRAL interruptions are described in detail at her Medium post, 10 times NBC affiliate WRAL censored Dave Chappelle-hosted SNL last night.)

Raleigh's News & Observer confirmed that the local network affiliate had elected to provide additional local censorship of language, even though several pre-taped sketches already featured bleeping from the national broadcast feed. In an official statement released on Sunday, WRAL said,
"WRAL-TV has a station obscenity, decency and profanity policy that outlines 10 specific words that will not be broadcast on our air. This policy is based on our own standards in combination with FCC guidelines. Our broadcast operators have a 10-second delay button they can choose to use. During Saturday Night Live on NBC, guest host Dave Chappell [sic] used 2 of those words on 9 different occasions and they were silenced. Obviously, SNL is a live show so we had no prior indication about what would be said during the broadcast. We understand this caused disruption during the program. We wanted our audience to know this was a station decision, not the network's, and why we made that choice."

Later, in response to viewer complaints and increasing press coverage, WRAL apologized "for impeding the full flow and message of Dave Chappelle's monologue. It was not our intention to censor his message. We followed policies and procedures that have been in place for many years for programming of any kind," and pledged to review the internal policy while considering viewer input. Variety noted that the station had heard "from many viewers" about the local language censorship, and also had a history of refusing to air certain national programs during its time as a CBS affiliate.

In its statement about the local obscenity, decency and profanity station policy, WRAL mentions national "FCC guidelines" as well. The Federal Communications Commission regulates broadcast television and radio, and does indeed provide guidelines about obscene, indecent, and profane content. Obscene content falls outside First Amendment protection and is prohibited at all times; indecent and profane content is prohibited between the hours of 6 a.m. and 10 p.m., "when there is a reasonable risk that children may be in the audience." Saturday Night Live airs from 11:30 p.m. to 1:00 a.m.

In the 1970s, the decade when Saturday Night Live debuted, comedian George Carlin’s famous "Seven Dirty Words" routine landed before the U.S. Supreme Court, which considered FCC indecency and profanity standards in the case of Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978). In the Pacifica case, a 5-4 Court upheld the FCC's finding that a radio broadcast of Carlin's routine constituted indecent speech.

The current federal standard for what constitutes indecent or profane content is discussed in the FCC's "Golden Globes order" of 2004, 19 FCC Rcd. 4975, available on the FCC's website. In the "Golden Globes order" (so named for the awards ceremony where singer Bono uttered a "fleeting expletive" in the live broadcast), the Commission cited an earlier internal policy document, Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. §1464 and Enforcement Policies Regarding Broadcast Indecency ("Indecency Policy Statement"), 16 FCC Rcd 7999. This policy statement outlined more clearly what factors the Commission weighs in determine whether content is indecent.

For more information on broadcast standards and the FCC, try a search of the Duke Libraries Catalog for the subject heading "Broadcasting -- Law and legislation -- United States." You’ll find titles like Rodney Smolla's treatise Rights and Liabilities in Media Content: Internet, Broadcast, and Print (KF2750 .M472 & online in Westlaw) as well as historical works on broadcast regulation and indecency. For more information about the FCC's operations, check out the agency directories listed in the Goodson Law Library guide to Federal Administrative Law or Ask a Librarian.