FIRST ONE @ ONE FIRST

Fleeting Bleeplatives @ The Grammys?

Posted in Clairvoyance by Mike Sacks on February 1, 2010

Tonight Lil’ Wayne, Eminem, Travis Barker, and the atrociously autotuned Drake performed “Forever” at the Grammys.

Starting just before two minutes into the above video, you will notice unnecessarily long patches of silence during the song.  I’m not familiar with the song they played, so I do not know if the silences were technical difficulties or in response to expletives in the lyrics.  But if expletives were indeed getting blanked out, then perhaps CBS was ultra-conspicuously responding to past incidents that led to last term’s Supreme Court case, FCC v. Fox Television Stations.

At issue in FCC v. Fox was whether the FCC irrationally changed its policy on broadcast indecency to punish previously uncovered “fleeting expletives” on radio and television.  The FCC’s changes were in response to complaints against Fox’s broadcasting Cher’s F-Bomb at the 2002 Billboard Music Awards, Nicole Richie and Paris Hilton’s S-Word at the next year’s award show, and NBC’s broadcasting Bono’s F-Bomb at the 2004 Golden Globes.  Following the doctrine of constitutional avoidance, the Court, splitting 5-4 for the conservatives, avoided the First Amendment question to hold that FCC’s regulation was not arbitrary and capricious.  The case, however, could be back up to the Court next term: on remand, the Second Circuit heard argument on January 13 over the regulation’s constitutionality under the First Amendment.

So back to tonight: assuming the silences were in response to expletives in the song’s lyrics, could CBS have been doing more than merely exercising over-caution?  Could they actually have been blanking out chunks of the song in a deliberate attempt to infuriate viewers?  That is, perhaps CBS hoped that enough viewers would write to the FCC expressing disgust that CBS censors felt “compelled” to be overzealous with the bleep button during a song enjoyed by much of America.  This, of course, is a longshot: the ACLU, for instance, may not have the vigilance or the committed following to organize a major letter-writing campaign to the FCC such as the Family Research Council mobilized in response to the Bono’s utterance.

Nevertheless, such efforts may be unnecessary.  First, the FCC under the Obama Administration may be less inclined to enforce the fleeting expletives regulations.  Second, the Obama Administration could do away with the regulation altogether.  Third, the Second Circuit could strike down the regulation as unconstitutional and the Court could deny certiorari.  Or fourth, the Court could grant certiorari regardless of how the Second Circuit rules and then strike down the regulation as unconstitutional.  Indeed, last year’s voting blocs will not remain static on the constitutional issue.  Writing separately, Justice Thomas clearly signaled that he would give the broadcasters the winning vote should the Court decide the case on constitutional grounds:

I join the Court’s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission’s (FCC) policy with respect to indecent broadcast speech under the Administrative Procedure Act. I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.

All of this conjecture may be moot if the silences were merely technical difficulties.  Still, the LA Times’s liveblog writes:

Not sure how the performance played in the Staples Center — and it seemed to look pretty powerful — but it was largely bleeped on CBS broadcast.

If I learn anything more, I’ll post it here in an update.

UPDATE: Here’s the uncensored version.  Looks like the silences were from the censor’s hand.

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