Many of us watching the Patriots-Packers game so Tom Brady throwing a fit on the sideline after a bad play. He clearly was saying “f–k” over and over again but there was no audio. Those silent F-bombs however are now the basis for a series of complaints to the Federal Communications Commission from people who said that they, even if they could not hear what he said, they knew what he said and were left shocked and angry. It creates an interesting basis for a FCC: the silent F-Bomb. It is almost a Zen-like Administrative Law question: Little Grasshopper, if a silent F-bomb explodes on a sidelines and no one is around to hear it, did it make a legal sound?
Brady, 37, is the subject of three indecency complaints, including one from an Indianapolis parent wrote that their “6 year old children know how to read lips even if there is no sound.” Another complaint from a Pennsylvania grandparent reported that, “My 8 year old grandson was watching the game with me and even commented that he should not have said that.” That grandparent objected that the network kept the camera on Brady when he was swearing. Frankly, I do not believe that this was a good thing for a NFL QB to be doing. However, he was not swearing at someone else or into a camera. He was showing emotion at a point of the game where he thought it was slipping away (he was right). As someone with a team with a QB with the passionate expression of a mortician, it was a change.
The FCC states the standard for obscenity on its website:
Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time. The Supreme Court has established that, to be obscene, material must meet a three-pronged test:
An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
The material, taken as a whole, must lack serious literary, artistic, political or scientific value.
I am not sure that an average person would find that this appeals to the prurient interest. It is interesting that the list of value does not include social value. For sports fans, the scene probably did have value in understanding Brady’s feelings at a critical point of a major game.
There is also the indecency standard:
The FCC has defined broadcast indecency as
“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.” Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.
Mouthing words does not really “depict” sexual activities in my view.
However, the FCC stresses the following: “The FCC staff must analyze what was actually aired, the meaning of what was aired and the context in which it was aired.”
I do think silent F-bombs meet that standard, but what do you think?
By the way, I truly hate the FCC seal which is not only strikingly unattractive but looks like the American Eagle is just another bird being electrocuted by high-power wires. Now that is indecent.
Source: Smoking Gun