Monday, December 15, 2014

Does the FCC have a "policy" on rap lyrics?

It may be hard to believe now, but major record labels like Warner were releasing records of  the new “fad” in music—rap “music”—with lyrics by “artists” like Tupac Shakur that not only advocated violence, but implicitly regarded the shooting of police officers as “justified” in certain circumstances. For example, “Soulja’s Story” reflects the rage of certain people in the aftermath of the Rodney King beating case, when the four officers accused were acquitted after the trial was moved to a Simi Valley courtroom, a kind of “Copland” on the west coast:

Cops on my tail, so I bail till I dodge them,
They finally pull me over and I laugh,
Remember Rodney King
And I blast his punk ass
Now I got a murder case . . .
. . . What the f --- would you do?
Drop them or let them drop you?
I choose droppin' the cop!

There was, of course, some controversy concerning the subject matter chosen by some of these rap”artists,” although one of the worst offenders, Public Enemy, received positive reviews from music critics who wanted to appear “hip” to the times; it was all freedom of “speech” and “artistic” expression. Personally, I thought it would be just a “fad” that might attract some media attention outside its inner city roots, but surely its vulgarity and violence couldn’t be accepted by the “mainstream.” Unfortunately it has; although major labels have self-censored, in many ways nothing has changed, especially given the multiplicity of “indie” labels who respect no boundaries. Even female rappers have their “say”; although some assert that they are just being “forced” to be as “bad” as male rappers, this is just a subsection of victim myth—these people can be as naturally rude and physically aggressive as any one. 

Of course, some rappers have their pretensions to something “higher.” I have been forced to listen to a Jay-Z record in a place where I shouldn’t have to; I wonder for all his affectations in using historical references if he knows anything about half of what he is talking about. All I know for certain is that it sure impresses the critics. He certainly expresses no respect for “roots,” and he can’t understand that if there is something wrong with society today, he and others like him are part of the problem. People talk about “respect.” Respect for what? What ethical and moral values do they “respect”? Besides cursing, using “indecent” sexual expressions and threatening violence?  

I admit that I find the “lyrics” of most rap songs patently offensive and vulgar, but others do “enjoy” it and find that it “speaks” to their reality (a scary thing for society in general—again just my opinion). I guess that’s what happens when the music of my youth was about love, peace and living together. While the worst offenders (usually) don’t make it onto the radio, much of the vulgarity and suggestiveness of various vices does, if a particular radio station observes the “community standards” of a certain listenership.

Occasionally offensive and vulgar words do slip past the censors, especially in the cutthroat radio ratings business, and DJs need to be “hip” to the “hop” of what their listeners want. As someone who grew up on Seventies’ Top-40, it shouldn’t be a surprise that I would find the repetitive drumbeat of vulgarity and intimations of violence offensive to the ears (not to mention the lack of actual music, melody—or singing, for that matter). I wonder where the Federal Communications Commission—an outgrowth of the Radio Act of 1927, originally created to stymie control of the airwaves by a few powerful corporations—stands on the subject.

Back in the day, I wondered if there was ever any “controversy” when Clark Gable uttered that famous line “Frankly my dear, I don’t give a damn” in Gone With the Wind. Even when it was heard on television for the first time in the 1970s it sounded rather “daring” to say the word “damn” on network TV. Such was the sanitized nature of language allowed to be broadcast. In fact the Hays Code in 1930 banned the word (among others) in films, but given the great anticipation of the film, just before its release in 1939 the Hays Office relented and made an exception for the word’s use. 

In the 1960s, the Smothers Brothers ran into censorship issues for merely making political innuendo (yeah, the networks were owned by right-wing corporations back then, too); their show was doomed when censors listened to this line in a David Steinberg “sermonette”: “The Old Testament scholars say that Jonah was, in fact, swallowed by a whale. The gentiles, the New Testament scholars they say, hold it, Jews. No. Jonah wasn't - Jonah, they literally grabbed the Jews by the Old Testament.” Even the Monkees courted “controversy” on their Saturday morning show when the tone in which they used the word “hell” in one episode suggested something other than the underworld. Some people might have this odd notion that nobody ever used “foul language” in everyday life back in the good old days, but that wasn’t true; it was just as foul as it is today. It just was just frowned on more in public; when kids used “dirty” words then, it was rebellion, but today it’s just a normal part of the lexicon.

Back in 1972, comedian George Carlin caused a sensation when on a radio skit he uttered the "Seven Words You Can Never Say on Television”: Shit, piss—and the rest that you are unlikely ever to hear on network television. Once Morality in Media got wind of it, the FCC stepped in. Language that is deemed “obscene,” it declared, is strictly prohibited from the airwaves, but with certain caveats and “exceptions.” The so-called “Declaratory Rule” merely threatened broadcasters with punishment for using words deemed “unfit” for the general public’s ears, and broadcasters voluntarily demurred to its presumed—but not by law—“authority.” 

However, the owner of the radio station that Carlin originally aired the show, Pacifica, was supported by the Justice Department in claiming that FCC’s ban on certain words violated freedom of speech and due process rights. The subsequent 1978 U.S. Supreme Court decision on the “Declaratory Rule” rather innocuously claimed that since the FCC did not actually mete a substantial punishment on Pacifica (say, in the form of a fine), it did not violate any part of the Constitution. However, the court apparently decided that the “obscene” terms used by Carlin were offensive enough to justify the FCC issuing the ruling. Thus the court gave the FCC powers it originally did not have. Later, the court would add a slight amendment to its ruling, allowing “indecent”—presumably terms of general usage like “hell,” “shit” and “damn”—during hours when children would presumably in bed.

Current FCC policy states that “Obscene speech is not protected by the First Amendment and broadcasters are prohibited, by statute and regulation, from airing obscene programming at any time. According to the U.S. Supreme Court, to be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest (i.e., material having a tendency to excite lustful thoughts); (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Supreme Court has indicated that this test is designed to cover hard-core pornography.”

One may note the hypocrisy of extreme sensitivity to sexual words and imagery, but when it comes to violence (especially by law enforcement and rappers) and hate speech inciting violence, the FCC is nowhere to be found. In 2004 the right-dominated FCC changed course, banning all use of “vulgar words" even if "fleeting" or used accidentally. In 2009, the right-wing dominated U.S. Supreme Court allowed the FCC to continue the ban by a bare 5-4 majority, cowardly refusing to decide on its constitutionality. The majority ruling merely ordered the lower courts to establish a lawful basis for the FCC’s policy.

That did not settle the issue. The Second Circuit Court of Appeals rejected the FCC’s “indecency” regulation, since it gave broadcasters no guidance on what was “patently offensive.” The FCC took the case back to the Supreme Court, and this time it ruled unanimously (with one recusal) that any punishments meted out by the FCC at that time for “fleeting expletives” violated the Due Process Clause of the Fifth Amendment at the time, because of the lack  of guidance. But the court reaffirmed the original Pacifica ruling, thereby allowing the FCC to establish “guidance” to meet the constitutional requirements needed to sustain its authority “on behalf of the public interest.”

But foul language and sentiments are so pervasive in today’ popular “culture” that  the odd word or phrase still slips through anyways, because there is no accounting for public taste—especially when white kids are into the “beat” of rap (as one told me when I asked him why he listened to it). Perhaps the FCC knows that its “rules” also happen to hypocritically protect something else that many people find offensive and dangerous: Racist and anti-government hate speech on Fox News and on 95 percent of political talk radio programs—on the basis of “freedom of speech.”

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