“Will Smith just smacked the snot out of me!” – Television Censorship in 2022
The FCC won’t let me be or let me be me so let me see…they wouldn’t let Will use profanity, but it felt so empty on live TV.
Watching TV with people who make TV (or at least know how the sausage is made, in my case) is either a really fun or a really annoying experience; we comment on a lot, which you either find cute and insightful or incessant and irrelevant. So during the Oscars on Sunday, I was having a debate with a producer about what on earth happened between Will Smith and Chris Rock. At first, we were pretty sure that the slap was staged, although neither of us could figure out why. Then I saw Will’s face—muted but undeniably livid—and was able to read his lips enough to know that Chris’ joke about Jada was not received well. That plus the telltale static image of the evening’s logo was a clear sign that something went very wrong and it was go-time for whoever was on “the button.”
But do we really need a button in 2022? In the United States, “obscenity” is not protected by the First Amendment and “profanity,” namely “grossly offensive language that is considered a public nuisance,” is restricted by the Federal Communications Commission (FCC) and prohibited on broadcast television between 6am and 10pm, since children under the age of 18 may be in the viewing audience.
However, the same rules for indecency and profanity do not apply to video on demand platforms such as Netflix and Hulu. Slowly and almost imperceptibly, the streamers, cable providers, podcasters, influencers, and YouTubers have been pushing the envelope and data shows that we, and our children, are exposed to these relaxed standards more often than the outdated norms of broadcast television. According to a recent Nielsen report, audiences now consumer 60% of their content from cable and streaming platforms, and just over a quarter of their content from broadcast. While sh#t will always constitute profanity, can it really be grossly offensive if we hear the word (and use it) on a daily basis?
The fact that an Aussie watching the unedited OTT (over-the-top) stream filmed the interaction and was able to share it with the world in a matter of minutes is proof that this sort of censorship is futile. Broadcast cable will never be home to the pornographic or brutally violent, that’s what HBO is for, but we should be able to watch live events as they were meant to be experienced—live. I’m not even sure the younger generations understand the difference between broadcast, cable, and streaming since ABC, A&E, and Amazon are all available through their smart TVs. However, until the FCC actually relaxes their standards, the threat of a fine still looms over the heads of executives and the button lives to see another day. What a f%ck&n$ drag.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Associate Michelle Lamardo who counsels clients in areas of entertainment and media, intellectual property, privacy and employment law. Ms. Lamardo is admitted to practice law in New York.
 If you were wondering, your run-of-the-mill pornography is protected under the First Amendment but any “obscene” pornography that violates contemporary community standards and has no “serious literary, artistic, political, or scientific value” would be unlawful.” See Miler v. California, 413 U.S. 15 (1973).
 Copyright infringement or fair use? Questions for another article.