By now, you've no doubt heard that the O.J. Simpson book and primetime special "If I Did It, Here's How It Happened," was canceled.
Needless to say, I am profoundly relieved. As a former prosecutor, it sickened me that a man held liable in a wrongful death suit was set to bring in $3.5 million to "confess" on national television. Plus, as a proud employee of FOX News, I hated that our parent company was planning to air such a morbid spectacle. As a mother, my heart ached for the pain such antics would create for the surviving families, and especially the children of Nicole Brown-Simpson.
Nevertheless, it is interesting to note that throughout the controversy, the Federal Communications Commission (FCC) remained silent on the matter. You may recall the FCC was anything but silent when it levied a $550,000 fine against CBS after Janet Jackson's two-second nipple flash during the 2004 Super Bowl. Nor was it silent when it issued a $15,000 fine to PBS affiliate for showing a Martin Scorsese-produced documentary about blues music which contained some uses of the "F-word" and the "S-word." So what's the difference? The O.J. "confession" was totally unrelated to sex or the bathroom.
According to the FCC, material is indecent if "in context, it depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards in the broadcast medium." The FCC forbids radio or television broadcast stations from transmitting indecent programs between 6 a.m. and 10 p.m. when children are more likely to come upon it. The FCC does not regulate depictions of violence, such as those that were to be featured in the O.J. interview.
Given the FCC's disproportionate concern about sex and the bathroom, you might think it has developed a clear set of guidelines governing how its standards should be applied, but that has hardly been the case. On one hand, racy, erectile dysfunction ads have never seemed to bother the FCC. On the other hand, the FCC fined Clear Channel $495,000 over a 2003 broadcast in which Howard Stern discussed a personal hygiene product called a "Sphincterine." Meanwhile, documentary filmmaker, Ken Burns, isn't sure how the FCC will react to his upcoming World War II project — the war, which includes several uses of the "f-word." "In order to save the world, these guys sometimes had to use language we sometimes wouldn't use in our daily discourse," says Burns. "I forgive them, and I hope others will, too."
But how would one argue that the FCC should regulate programming like the now defunct O.J. interview, and aren't there freedom of speech issues here? Many people don't realize that in America, there are several restrictions on free speech, such as speech which creates a clear and present danger of imminent lawless action, speech which contains "fighting words," speech which is somehow defamatory, and speech with restrictions justified because the government can demonstrate a "narrowly tailored" and "compelling interest." With respect to the O.J. interview, I think the state could argue that it had a compelling interest in protecting kids from the implicit message of the program — that if you want to make a quick $3.5 million and get lots of attention, one way to do it is to knife two human beings, deny it, and then tease the public with how you "might have" done it after all. Moreover, I think the state had a compelling interest in protecting kids from witnessing a father inflicting trauma on his children by effectively telling them (along with the rest of the country) how he "hypothetically" nearly decapitated their mother. Finally, I think the state had a compelling interest in ensuring that such a repulsive program didn't give rise to a slew of other "If I Did It" reality shows. No doubt, if the O.J. interview had been successful, it wouldn't have taken long for similar quasi-confessionals featuring the likes of Scott Peterson or Neil Entwistle.
So, what's the bottom line?
Despite the inconsistency of the FCC, the American people have spoken with a loud and clear voice about the marketing of people like O.J. Simpson. They don't like it, and current FCC standards ought to better reflect the values of the people — specifically, a narrowly tailored indecency provision should be drafted to cover such situations so kids aren't subjected to it. In addition, clearer guidelines need to be established for what constitutes indecency so that broadcasters have notice before fines are levied or the people revolt. And ultimately, depictions of violence ought to be scrutinized as carefully as elicit sexual behavior. An "If I Did It" special involving O.J. Simpson should not be subjected to less scrutiny than an "If I Molested Those Boys" special featuring Michael Jackson, merely because the latter contains a sexual component.
The FCC has been given the authority to protect the airwaves, continuing to do so in ignorance of the people's values is the epitome of indecency. We can do better. Let's fix the FCC.
• Howard Stern
Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently a professor of law at the New York Law School. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.