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The FCC and Indecency: Here We Go Again

How far can the FCC go in regulating blue language and nipple slips on broadcast media? Three decades since tackling the seven dirty words, the Supreme Court is poised to answer that question again.

“It is a violation of federal law to air obscene programming at any time. It is also a violation of federal law to air indecent programming or profane language during certain hours...The courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.”
The Federal Communications Commission

In 1973, a public radio station in New York City broadcast comedian George Carlin’s “Seven Words You Can Never Say on Television” routine, itself a satire on the limitations on free speech. When a father and son heard the monologue on a car radio, the father filed a complaint with the Federal Communications Commission. The resulting case eventually made its way to the U.S. Supreme Court, and in a 1978 ruling, the court decided that due to broadcasting’s pervasive properties and the possible presence of children, the FCC was right to censure the station.

Since that ruling, there have been numerous collisions, both major and minor, at the intersection of Freedom of Speech and Protection of Children in the land of broadcast.  Some of the lesser transgressions have involved slips of the tongue (Cher, Nicole Ritchie, Bono) and others slips of clothing (Janet Jackson, Nicki Minaj). Decidedly major would be the $1.183 million fine, eventually dropped to $91,000, levied by the FCC against the FOX Network in 2004 for pixilated party hijinks in the program Married by America.

At 11 a.m. January 10, the Supreme Court, the only traffic cop in the vicinity, will hear arguments in two cases — that FOX incident, in FCC v. Fox Television Stations, Inc., and a case from the old cop drama NYPD Blue in FCC v. ABC Inc. — on whether or not the FCC’s current indecency policy violates the U.S. Constitution’s protections of free speech.

Said an FCC spokesperson, “We are pleased the Supreme Court will review the lower court rulings that blocked the FCC’s broadcast indecency policy, and are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming.”

But it’s a very different media landscape the high court is visiting this go round, without even considering the presumed coarsening of culture since then.

“In 1978 we found broadcasting to be a unique medium that pervaded the households and invaded privacy,” says First Amendment expert John Crigler, a partner in Garvey, Schubert, Barer, and the current communications lawyer for the Pacifica Network, which was the defendant in the 1978 case. “But is it any longer a unique medium? How is broadcasting now different from cable and mobile apps and iPhones and Internet and every other form of media that invades the home?”

(University of Chicago law professor Adam M. Samaha asks something similar in a 2010 working paper on the Pacifica case, suggesting that by not being inclusive of new media, the FCC’s jurisdiction promotes audience choice. “A fair question for advocates of deregulation in 2010 is whether preservation of indecency constraints on an increasingly narrow strip of communications technology is seriously problematic. It is easier than ever before to exit broadcast into less regulated content providers, if you so choose.”)

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What are the justices looking at?

The linked cases are an appeal from a 2010 decision by the Second Circuit Court of Appeals that found the FCC’s indecency policy against “fleeting expletives” and other examples in what it deems (on a case-by-case basis) to be so “unconstitutionally vague” as to have a “chilling effect” on freedom of speech, and thus a violation of the First Amendment.

The case involves two prime-time broadcasts. In one, the bare backside of an actress on ABC’s NYPD Blue was clearly visible, and in the other celebrities used expletives during live broadcasts on FOX.

“There is,” says Crigler, “the narrow issue of whether the FCC’s most recent modification of its indecency policy — it eliminated the exemption for so-called fleeting utterances — was constitutional. The current policy is that any single word is potentially indecent, and some words, and this almost takes us back to the ‘Seven Deadly Words,’ are so offensive that they are, almost automatically, indecent.”

That fleeting policy grates against the Pacifica case, where Justice John Paul Stevens wrote for the majority in emphasizing the narrowness of the decision, “We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution.”

Looking for some clarity regardless of the decision, the National Association of Broadcasters welcomed the current high court’s decision to hear the case, stating that it "supports a constitutional review of the FCC's enforcement of program content rules."

A citizen advocacy group, the Parents Television Council, also praised the court for agreeing to hear the case, but it definitely wants the FCC to win. Council President Tim Winter, made his group’s wishes quite clear: "The high court will have the opportunity to reverse misguided Second Circuit Court of Appeals rulings that would open the floodgates for graphic nudity and some of the harshest profanity in the English language.”

FCC Commissioner Michael J. Copps, widely considered a liberal, doesn’t sound like one in this instance. “I am shocked by such an anti-family decision coming out of the Second Circuit Court of Appeals,” he was quoted in a statement from the FCC. “Sadly, the court focused its energies on the purported chilling effect our indecency policy has on broadcasters of indecent programming, and no time focusing on the chilling effect today’s decision will have on the ability of American parents to safeguard the interests of their children.”

The court may side with Crigler’s suggestion that broadcast isn’t so unique anymore in this iAge, or it may hew closer to something Samaha wrote: “But FCC oversight adds a modest guarantee that one segment of mass media will stay faithful to ordinary or conservative sensibilities.”

Given that celebrities have uttered naughty words on live network TV and radio broadcasts during prime time when children comprise part of the audience, the court might decide that no one is really hurt if networks have to install seven-second delay mechanisms.

The other side of that coin, says Crigler, “[I]s that the policy doesn’t just affect trash talk, it affects the whole range of things, including the kinds of things that organizations like Pacifica want to do all the time, like its day-long reading of James Joyce’s Ulysses.”

What makes this regulatory posture frustrating to broadcasters in general, and small broadcasters in particular, is that the government/FCC fines them, the broadcasters, not the networks. For a small-to-medium station, getting hit with a $35,000 fine for a single “fleeting expletive” could mean lights (and transmitter) out.

Miller-McCune asked Sidley & Austin partner Newton Minow, who was John F. Kennedy’s FCC chairman (and author of the ubiquitous quote that television is a “vast wasteland”), his opinion of the current contretemps. He demurred, citing unfamiliarity with the current arguments, so we turned to his daughter Nell.

Ms. Minow, a lawyer, is well-known in two distinctively different areas, as a specialist in corporate compensation, and, as “Movie Mom,” a reviewer of films from the perspective of a parent/expert. She is a frequent commentator on the issues of free speech and indecency.

“I’m more troubled by what is in scripted shows,” she said, “material that comes right up to the edge of that and gets around it. For example, every couple of years some new boundary-crossing epithet becomes popular. And now it’s ‘douche.’ I’m not convinced that douche is a better word than f---. I find it horribly misogynistic and awful, yet it’s even in shows for teenagers.”

Nell Minow says, “Families are very concerned about the coarsening of language and that we’re stealing childhood from our children.”

While no one is predicting what the Supreme Court will decide, most experienced observers agree on two things: one, there is a vast chasm (as opposed to a wasteland) between what can be said on cable and what can’t be said on network television.

The second point of agreement is that with 87 percent of American households having cable and thus the ability to zap back and forth between cable and broadcast with the speed of a button push, the media menu has changed radically.

As the Second Circuit said in its opinion, “We face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did YouTube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a uniquely pervasive presence in the lives of all Americans."

So, what will happen? As they are allowed to say on televsion, without fear of being fined, “Stay tuned.”

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