Research Unplugged: A conversation with Clay Calvert

man points at piece of paper
Emily Wiley

Clay Calvert

"We are dealing with culture wars—the ability of the government to police our culture in terms of the language we use and the violence we see on television," Clay Calvert said last Wednesday at Research Unplugged.

Calvert, Penn State professor of First Amendment studies and co-director of the Pennsylvania Center for the First Amendment, discussed the Federal Communications Commission's efforts to remove indecent language and violence from the public airwaves with a crowd of concerned community members.

Calvert stressed that indecency and obscenity are two different things under the law. While indecency is protected under the First Amendment, obscenity is not. According to Calvert, speech is obscene if, "under contemporary community standards, it appeals to a morbid or shameful interest in sex, is patently offensive, and lacks serious literary, artistic, political, or social value." One example, he said, is child pornography.

Indecent language, on the other hand, "is protected by the First Amendment, but may be regulated by the FCC," explained Calvert. "The FCC defines indecency as 'involving sexual or excretory organs or activities,'" he quoted. He went on to tell the story of George Carlin and his "Seven Dirty Words" monologue, which set FCC regulation in motion in the early 1970s. "This is the only area of law that has been created by a comedian," Calvert said.

In FCC v. Pacifica Foundation, he continued, the Supreme Court ruled that while adults have the right under the First Amendment to receive speech that may be sexually explicit, indecent speech is allowable on the air only between the hours of 10 p.m. and 6 a.m. "Children are less likely to be in the audience during that time period," he explained.

In addition to its sexual nature, Calvert noted, in order for speech to be determined indecent, "the second thing you have to ask is if it is patently—or obviously—offensive to contemporary standards of the broadcast media."

"How do you establish what is patently offensive?" he asked the crowd. "The FCC looks at how graphic or explicit the content is and if it is repeated or dwelled upon," he explained. "The more explicit, the more likely the content is to be patently offensive."

During the 2004 Super Bowl halftime show, Janet Jackson uncovered her nipple to a national audience of CBS viewers. Even though Jackson was exposed for just one second, the FCC ruled her "speech" was intentional and meant to shock the audience, which is the final factor in determining indecency. "If the material is designed to shock, pander, or titillate the audience," said Calvert, "it is indecent." Context is key, he reiterated.

Calvert also commented on the FCC's recent attempts to regulate violence on television, and the extreme difficulties this would entail in a mass-media culture where violence is so pervasive.

He noted that the FCC does not regulate content in print media, cable television, or satellite radio. "Indecency rules do not apply," he stated, "which is why [radio shock jock] Howard Stern took his show to satellite radio." Comparing our ever-expanding world of digital media to the arcade game, Whack-A-Mole, he said, "We can police indecency and violence on television, but then it pops up in another form like the Internet or an iPod. And as we bang it down there, it will crop up in music. It's a never-ending game."

"The FCC has a lot on its hands right now," he said at last. "Is its definition of indecency clear? And how does it plan to define violence?"

When broadcasters face such vague laws, he argued, it's difficult to determine what is punishable and what is not. "The result is a chilling effect on speech. Rather than risk putting material out there, they play it safe."

Clay Calvert, Ph.D., is John and Ann Curley Professor of First Amendment Studies in the College of Communications and serves as co-director of the Pennsylvania Center for the First Amendment. He can be reached at cxc45@psu.edu.

Last Updated October 15, 2007