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Monday, November 03, 2008
 
Chase Utley's F Word

Chase Utley, the second baseman for the world champion Philadelphia Phillies could have given some local Philadelphia television stations major administrative and financial headaches when he used the "F word" to describe his elation at his team's accomplishment. As can be seen in this YouTube clip, Utley says: "World Champions . . . World Fuckin' Champions" in front of about 40,000 fans at Citizens Bank Park and many hundreds of thousands watching live on television.

Imagine if the Phillies won two years ago and Utley made the same statement. The use of the "fleeting expletive" would have raised the dander of FCC chair Kevin Martin and his Republican majority, which had reinterpreted its traditional definition of "indecency" to include out of context expletives that bore no relations to sex or excretory activity. [for more background, click here]. However, the regulations were invalidated by the U.S. Court of Appeals for the Second Circuit and, ironically, the oral arguments in the case, will be held tomorrow in the U.S. Supreme Court. Given the stay of the regulation, it is unlikely the commission would issue any notices of apparent liability at this time.

I just completed an article on this very question that advocates the creation of a "safe harbor" to protect broadcasters from precisely this kind of situation. Titled " 'Fleeting Expletives' and Sports Broadcasts: A Legal Nightmare Needs a Safe Harbor," it appears in 18 Journal of Legal Aspects of Sports 175. I think this is the best way to solve this problem, even if the Supreme Court affirms the Second Circuit's invalidation of the rules.





9 Comments:

Apparently there were censors in place, and the event was broadcast on a delay of several seconds ... that should have been their first safe harbor of sorts...

Anonymous Anonymous -- 11/03/2008 6:32 PM  


Mark,

I have to agree with Anon, with the commonplace use of several seconds of delay and someone who is in charge of the "mute" button, that should be enough. With those safeguards in place there is no excuse for braodcasting explatives.

That being said, I certainly do not agree with the staggering penalties that have been used in the past.

What sort of "safe harbor" are you suggesting, and would you extend the same safe harbor to other type of broadcasts such as live radio shows etc?

I look forward to reading the article.

Jim

Blogger Jimmy H -- 11/03/2008 7:07 PM  


Good points. The lead time should have acted as a safeguard, but as my article notes, those kinds of broadcast delay systems are not as easy (or cheap) as many would think. Human judgment/error plays a role.

In a nutshell, the article proposes a statutory immunity for broadcasters of randon, fleeting expletives said by athletes, coaches, and fans that are picked up during a live sporting events.

Blogger Mark Conrad -- 11/04/2008 10:52 AM  


Mark,

Are you proposing a sort of "intent" standard? Meaning that if a mike picks up say...a football player after a play cursing...that the intent of the broadcaster was not to air the auditory comments of the player. This would be opposed to say that same player being interviewed after the game and cursing...in this case the clear intent of the broadcaster is to air the what the player is saying. Hope that made sense. Thanks!

- Alex

OpenID TwoStep420 -- 11/04/2008 2:39 PM  


Alex:

I am proposing a standard that does not penalize a broadcaster when they cannot control the situation. Meaning that the expletive happens during a live event, not "encouraged" by any action by the broadcaster or producer. The article enunciates the standard in more detail.

Blogger Mark Conrad -- 11/04/2008 8:22 PM  


Is this not basically the rule that has been followed since Pacifica...and which is now at issue in FCC v. Fox? Are you simply saying that the rule should be memorialized definitively in a statute? If not...how does your proposal differ from the FCC's traditional treatment of fleeting expletives? Sorry if I have confused your position. Thanks for taking the time to answer.

Cheers,

Alex

OpenID TwoStep420 -- 11/04/2008 9:48 PM  


Mark, is your article available on SSRN or anywhere else for those of us that no longer have access to westlaw or lexis?

Blogger Jimmy H -- 11/04/2008 9:51 PM  


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