ArtsWatch: Cher's Expletive Still In Play

Ten years later, Cher's fleeting four-letter word is still bouncing around the court system
June 25, 2012 -- 8:04 am PDT
By Philip Merrill / GRAMMY.com

In recent news ...

On June 21 the U.S. Supreme Court unanimously decided that the Second Circuit Court of Appeals must take a third look at whether Cher's comment at the 2002 Billboard Music Awards was indecent when she said, "I've also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." Justice Anthony M. Kennedy wrote the opinion for the court, finding that Cher's remark and two 2003 instances of alleged broadcast indecency were not actionably indecent because broadcasters had not received fair notice from the Federal Communications Commission. Justice Ruth Bader Ginsburg wrote a brief separate concurrence and Justice Sonia Sotomayor did not participate. In 2007 the appeals court had found the FCC's fleeting expletives policy arbitrary and capricious, but that was reversed by the Supreme Court in 2009. In 2010, in reconsidering, the appeals court found the FCC's policy unconstitutionally vague — that ruling is now vacated by the Supreme Court so the appeals court must re-address the issues in light of the highest court's latest guidance. Kennedy's opinion addressed the vagueness of the FCC's indecency standards as being a consequence of the lack of fair notice to broadcasters. This is a sufficiently different kind of vagueness from the standard the appeals court used to make its second decision on Cher's remark so it must now take a third swing at the fleeting expletive. In 1989 Cher had a major hit with "If I Could Turn Back Time" — for now it seems like she really can. Reactions to the decision ranged from frustration with the continuing lack of clarity to satisfaction with the procedural fact that the FCC will now begin going through its backlog of 1.5 million pending broadcast indecency complaints.

As anticipated, European Parliament's International Trade Committee recommended that parliament's plenary body reject the Anti-Counterfeiting Trade Agreement in a vote held on June 21. Superficially, this is consistent with the growing perception that ACTA in Europe is dead, at least as a formal agreement that the United States expected Europe to adopt in the near future. On a more substantive level, ACTA's underlying blueprint for tougher intellectual property enforcement, like many ideas, will not conveniently die just because a popular movement has been clamoring to kill it. Addressing the committee on June 20, EU Trade Commissioner Karel De Gucht outlined the European Commission's plans for the formal agreement's future. "ACTA is not an attack on our liberties, it is a defense of our livelihoods," he said while outlining possible actions that could include resubmitting a tweaked version of ACTA to the European Parliament after the European Court of Justice rules whether the agreement is consistent with Europeans' fundamental rights. Meanwhile, on the enforcement front, the planning outlined by ACTA is likely to move forward in practice, meeting opposition but gaining ground all the same. For example, if nations coordinate systematic reporting on their local IP enforcement efforts in a way that allows them to better share best practices and improve international governmental cooperation, ACTA's formal defeat is unlikely to be an impediment to progress.

On June 19 British Internet service provider BT became the last of the major UK ISPs to impose efforts to block subscribers from accessing copyright-infringing site the Pirate Bay. The Pirate Party UK and others are now offering proxy sites to help consumers avoid the effort to cut them off. Although BT took its time to do a thorough job, blocking more TPB Web addresses than other ISPs had, evasive action was effective within minutes, assisted by the Pirate Bay activating new numerical IP addresses — a process that can be continued almost indefinitely. Successful evasion of ISP blocks makes the effort appear futile to some observers, but the blocks send an important message expected to encourage consumers to take greater advantage of legitimate music websites.

Video-to-MP3 conversion websites and software have become a fresh target for takedown notices. Throughout June Google-owned YouTube has notified several offending websites that their ripping services violate the terms of service for YouTube's application programming interfaces, and one popular site has reportedly been blocked from accessing YouTube. In a similar vein, the RIAA asked tech destination Cnet to remove its Download.com links to ripping software YouTube Downloader.

Several announcements on Google's Public Policy blog detail its increasingly active role in mediating the relationship between Web users and questionable content:

  • In conjunction with the June 14 launch of the Ads Integrity Alliance — also including AOL, Facebook, the Interactive Advertising Bureau, and Twitter — Google tallied its 2011 takedowns as totaling more than 130 million bad ads and 800,000 policy-violating advertisers.
  • Updating its Transparency Report on June 17 with government takedown data for the last half of 2011, Google noted that it has not complied with several politically motivated efforts to have critical speech removed from the Web, including requests from Poland and Spain.
  • Summarizing highlights from five years of its Safe Browsing initiative, on June 19 Google estimated that it detects 9,500 new instances of websites hosting malware daily and that its warnings about malware are included on more than 12 million search query results daily.

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ GRAMMY.com and sign up for Advocacy Action E-lerts.

Click on the "ArtsWatch" tag for links to other GRAMMY News stories in this series.

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