The Arizona Legislature is apparently considering a bill that would sanction schoolteachers for “engag[ing] in speech or conduct that would violate [FCC standards] concerning obscenity, indecency, and profanity if that speech or conduct were broadcast on television or radio.” Most commentators have fixated upon the many constitutional and pedagogical problems raised by the law’s end — policing teacher language and conduct — and rightly so.
Still, I must admit that I’m far more befuddled by the law’s means. Let’s assume, for the sake of argument, that there might be some valid reason to regulate teachers’ speech and conduct. Upon a modicum of reflection it’s pretty obvious that importing FCC standards could never be a remotely sensible or even possible way of achieving this regulatory goal. Broadcast standards are literally not applicable without reference to an actual broadcast.
Let’s assume, for example, that an Arizona teacher is taking a shower one evening. Would this conduct violate SB 1467? Well, certainly broadcasting video of a nude man or woman might trouble the FCC. But first we’d have to know what the video showed, exactly (a naked body? a naked body soaping up in a provocative manner? or just a steamy shower door?); whether the camera was positioned inside the shower or outside the curtain; on what channel the video was broadcast; at what time of day; the context (porn? or how to conduct a breast self-exam?); etc., etc. The FCC’s standards depend upon all sorts of relative qualifiers. For example, profanity is defined as “language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Obscenity is defined through a three-part test that factors in “contemporary community standards” and whether the material has “serious literary, artistic, political, or scientific value.” While obscene material is always banned, indecent material is permitted “during the ‘safe harbor’ hours between 10:00 p.m. and 6:00 a.m., local time.”
In sum, you cannot really know, in a vacuum, if any given instance of speech or conduct would violate FCC standards “if [it] were broadcast.” In these murky waters, the hypothetical subjunctive is out of its depth. This is why, when the FCC receives indecency complaints from the public, it requires specifics: the date and time of airing, the channel, the call signal or frequency, the city and state where viewed, and “as many details as possible about the content of the broadcast.” How in the world could we apply these standards, then, to teachers’ speech and conduct in their day-to-day lives? Are we always to assume an imaginary live broadcast contemporaneous with the occurrence of the event? (Why not recorded? And if live, Arizona time? Or East Coast time?) TV or radio? Because you’ve actually got to pick one; the aforementioned shower shot is, over the FM airwaves, nothing but the sound of falling rain. If TV, are we to presume a straightforward close-up, or an artistic angle through a dark glass? Network, or premium cable? If radio, is the sound crystal-clear, or is the garbage truck outside the poorly soundproofed studio making it hard for listeners to hear the on-air talent?
Unfortunately, the bill as currently drafted does not specify.
In other words, that deceptively simple hook — “if that speech or conduct were broadcast on television or radio” — renders the law effectively unenforceable, and that’s before you even get to the constitutional issues.
Now it’s very postmodern of these legislators to presume that one could apply broadcast standards to literally everything that a teacher says or does — as though every Arizonan’s every toilet trip or traffic jam is a performance, pristinely recorded by some all-seeing camera in both audio and video formats — but that’s not, I’d imagine, the result they were going for. If you really just don’t want teachers to say bad words, write a statute that says that, and be prepared to deal with the inevitable litigation.