The other day, I was flipping through channels when I caught a minute of a CNN broadcast in which President Trump’s comments on the Israel and Iran conflict were being aired. In the clip, Trump states the two nations “don’t know what the fuck they’re doing.” Setting politics aside, I was caught off guard that CNN played the clip completely uncensored. I have become accustomed to uncensored television in the age of streaming, but it is still surprising to hear uncensored content on a “traditional” cable network. This led me down a rabbit hole of censorship practices in television. To my surprise, censorship is largely self-imposed.
How the FCC Regulates Broadcast Content
In the United States, television is primarily regulated by the Federal Communications Commission (the “FCC”). The FCC was created by the Communications Act of 1934 to regulate interstate and international communications in all 50 states and the District of Columbia. One of the primary responsibilities of the FCC is censoring “obscene, indecent, and profane” content from television and radio broadcasts. The power to regulate this content stems from the fact that “obscenity” is not a form of protected speech under the First Amendment. Given this authority to prohibit obscenity, why can stations like HBO and streamers like Netflix display “obscene” content, and why can CNN air Trump’s F-bomb uncensored?
The First Amendment and the Legal Doctrine of Obscenity
To answer these questions, it’s important to understand the laws governing “obscenity.” The First Amendment prohibits Congress from making any law “abridging the freedom of speech.” Simple, right? Not exactly. Since the ratification of the First Amendment, courts have agreed that the drafters of the Constitution didn’t intend to protect all forms of speech.
In the case Roth v. United States, the court determined that “obscene” speech is not protected by the First Amendment. To reach this conclusion, the court conducted a historical analysis to determine what types of speech the Founders intended to protect when they drafted the First Amendment. The court found that when the First Amendment was ratified, nearly every state had a law on the books making “blasphemy” or “profanity” a crime. Given the seeming contradiction between these state laws and the ratification of the First Amendment, the court in Roth determined that the First Amendment was not intended to protect “every utterance.” Thus, obscenity was deemed to be unprotected speech.
The modern definition of obscenity was formulated in the case Miller v. California. Known as the “Miller Test,” the Supreme Court created a three-pronged test that established the guidelines for defining obscenity. The three prongs are:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Like many pronged legal tests, the Miller Test is highly subjective. The test relies on “community standards,” meaning something could be obscene, and therefore unlawful, in one jurisdiction, but not obscene, and therefore protected, in another. Further, it is hard to objectively determine whether something lacks artistic value “on the whole.” Van Gogh famously did not receive recognition until after his death—art is highly subjective and difficult to contextualize solely in the period it is created. Outside of its subjectivity, this test sets a relatively high bar to prove obscenity. Courts tend to avoid limiting speech on the grounds of obscenity unless it is absolutely clear that it falls within the Miller Test. The FCC must abide by this same three-pronged test whenever it intends to censor content on the basis of obscenity.
Indecent and Profane Content: What the FCC Can Regulate
Proving that speech is obscene is a difficult proposition. How, then, does the FCC censor content? In the name of the children. The FCC can legally prohibit “indecent” and “profane” content if the broadcast is viewed by children. “Indecent” and “profane” content does not meet the three-pronged definition of obscenity and would normally be protected under the First Amendment. However, this material material can be legally censored if children are watching. According to the FCC, children are watching between the hours of 6:00 a.m. and 10:00 p.m. Thus, no profane or indecent material can be broadcast during these hours.
Although the word “fuck” probably wouldn’t be considered obscene under the Miller Test, it can be considered “profane,” and is therefore prohibited from broadcasts between the hours of 6:00 a.m. and 10:00 p.m. Broadcasters could theoretically air indecent and profane material after 10:00 p.m., but they often avoid doing so due to the restrictions during prime broadcasting hours.
Why HBO, CNN, and Netflix Can Ignore FCC Rules
There is a simpler reason that cable networks and streamers can broadcast profanity and nudity, and it has little to do with the definition of “obscenity,” “profanity,” or “indecency.” The FCC can only censor “broadcast” television. Broadcast television uses public airwaves (radio waves) to transmit signal. These days, broadcast television is limited to local ABC, CBS, and NBC affiliates. Streamers use the internet to broadcast content, and cable companies use—you guessed it—cable. Thus, these platforms do not fall under FCC authority. CNN, HBO, and Netflix are free to broadcast indecent and profane material.[1]
Why Networks Choose to Self-Censor
Given the lack of regulation, why do most cable networks choose to refrain from airing profane and indecent content? This largely comes down to brand identity and viewer expectations. CNN, for example, has created an unwritten expectation with viewers that profane and indecent content will not be aired. While CNN does have the ability to broadcast this content (see Trump’s F-bomb), the network self-censors to stay in line with viewer expectations and conform to its brand image. CNN wants to appeal to the largest audience possible; it does not want to alienate viewers with frequent profanity or indecency. Further, CNN relies on advertiser revenue. To ensure that advertisers do not pull their support, CNN airs content that falls within certain parameters to create an environment friendly to advertisers.
Networks like HBO and streamers like Netflix have built their brands on artistic expression. HBO built its reputation on groundbreaking shows like The Wire and The Sopranos, which feature graphic violence, profanity, and nudity to convey their messages. Censorship simply isn’t a priority for these content producers. HBO and Netflix are also subscription-based and do not rely on advertiser revenue; they do not need to pander to advertisers to stay afloat. Their viewers are immune to profanity as long as it is in service of prestige content.
Simply put, censorship is a choice for every cable network and streamer. This means that at any time, these companies’ censorship policies could change. As societal norms surrounding profanity evolve, networks will modify their censorship policies to reflect those changing standards. FX and AMC, for example, have slowly been loosening their restrictions. Nudity and adult language have become more abundant on these networks as they attempt to keep pace with the modern prestige television found on Netflix and HBO. Self-censorship is a choice—a choice largely based on audience expectations. As those expectations change, so too will the censorship habits of networks and streamers.
Censorship is a Moving Target
In the 1950s, CBS infamously deemed the word “pregnant” too vulgar to air on an episode of I Love Lucy. Viewers today would hardly blink an eye at the word. As society becomes more open about sexuality, self-expression, and alternative lifestyles, television censorship will become less prevalent. The president dropping an F-bomb on live television is clear proof that the use of profanity is simply more acceptable today than it was in the past. What is considered “obscene” or “profane,” and therefore censored, reflects the current state of society. The FCC has much less power these days, and it will come down to individual companies to decide the level of censorship for their networks. I believe these companies will self-censor increasingly less in the coming years as society continues to loosen its norms surrounding obscenity.
[1] Cable providers and streamers still need to comply with obscenity laws because obscenity is not protected speech.
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