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Defending against FCC regulations

B

BradT

Senior member
Tomorrow my class is going to have a mock trial. We are studying radio, and we will soon host a radio show. We are going to put the song ?Who Are You,? by The Who up for question. We will say that the defendant played it on his show unedited. The vocals weakly say ?who the f*** are you.? I am on the defense attorney. What can I say to defend this case? This class is also supposed to tie in with the first amendment.
I have listened to it, and I can hardly hear it. All sites that have lyrics do not list the obscenity. It is said around the 2:15 mark on my version.
What advice do you have for me? THANKS!
 
Does the song actually say "who the f*** are you"? Or is that something that was made up for the sake of the argument
 
Have you looked into what exactly the FCC says regarding these regulations? Check into what a station has to agree to in order to get an FM license.

Just because it ties in with the first amendment doesn't say much, because that's the right to say what you want, but that still doesn't make it legal to do something against the regulations that the FCC lays down for radio stations.
 
To be fined, it must be obscene.

So what is obscene? One of many links. "For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value."

So does this word meet those criteria? Was "who the f*** are you" referring to sexual conduct? No, it was not. The F-word was an intensifier and not a sexual act in that usage. Thus, it does not meet the criteria of being obscene. And thus, it was not wrong.

Or go the artistic route (#3) in that defintion. A song is artistic, and thus it should not qualify. The statue david is nude, but it is artistic, thus it is not obscene.

Or go the 1st amendment route.
 
Originally posted by: dullard
...and (3) that it lacks serious literary, artistic, political or scientific value."
Click to expand...

Well then why hasn't rap been removed from the radio :laugh:

😛
 
Originally posted by: dullard
To be fined, it must be obscene.

So what is obscene? One of many links. "For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value."

So does this word meet those criteria? Was "who the f*** are you" referring to sexual conduct? No, it was not. The F-word was an intensifier and not a sexual act in that usage. Thus, it does not meet the criteria of being obscene. And thus, it was not wrong.

Or go the artistic route (#3) in that defintion. A song is artistic, and thus it should not qualify. The statue david is nude, but it is artistic, thus it is not obscene.

Or go the 1st amendment route.
Click to expand...

That is the rationale for obscenity cases in general, but radio historically has less First Amendment protection (because of the legal fiction of the 'public interest'). The FCC has rules against indecency, which have been relaxed lately, but prohibit ?language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.?
 
Originally posted by: daveshel
That is the rationale for obscenity cases in general, but radio historically has less First Amendment protection (because of the legal fiction of the 'public interest'). The FCC has rules against indecency, which have been relaxed lately, but prohibit ?language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.?
Click to expand...
I do agree the 1st amendment route would be the most difficult due to previous decisions along that path. But you must always remember that rules and policies are one thing, but laws and the constitution are another thing. The FCC can have as many rules as they want, but they aren't necessarilly undefendable in court. It just would be a very difficult case to defend.

Going the other routes is easier to defend. Is is truely sexual or excretory material? No. Was it so grossly offensive? No. Was it a nuisance? No. Was it within the banned time frame? I don't know.
 
I've heard Longview by Green Day played on the radio many times, and it has never been edited.

That is not a valid defense.

Just saying is all.
 
Originally posted by: dullard
Originally posted by: daveshel
That is the rationale for obscenity cases in general, but radio historically has less First Amendment protection (because of the legal fiction of the 'public interest'). The FCC has rules against indecency, which have been relaxed lately, but prohibit ?language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.?
Click to expand...
I do agree the 1st amendment route would be the most difficult due to previous decisions along that path. But you must always remember that rules and policies are one thing, but laws and the constitution are another thing. The FCC can have as many rules as they want, but they aren't necessarilly undefendable in court. It just would be a very difficult case to defend.

Going the other routes is easier to defend. Is is truely sexual or excretory material? No. Was it so grossly offensive? No. Was it a nuisance? No. Was it within the banned time frame? I don't know.
Click to expand...

I'm saying that the standard First Amendment analysis used by the Supreme Court does not apply to radio. The Supreme Court has allowed the FCC to apply rules more stringent than the standard obscenity analysis to radio. You don't have a choice as to which set of rules apply.
 
With the information in this thread, the OP should have no trouble winning. Recite it in front of a mirror or record yourself doing it and keep practicing. Half of it will be presenting it confidently and smoothly, the other half is the content.
 
I can see how it passes obscene. I can sort of see how it passes indecent (at least the sexual part), but how can I defend that it isn't profane?
 
FCC "rules" are not laws

when the FCC fines a company, it isn't a criminal action, it has nothing to do with a trial, the FCC is part of the executive branch, not judicial

sounds like your teacher needs to stick to the textbook and stop being "creative"
 
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