Broadcast Indecency Landscape is Muddled

Originally posted: July 14, 2012

Broadcasters and Federal Communications Commission regulators went to the U.S. Supreme Court this year to seek clarity about how much dirty content the Constitution should allow on publicly owned airwaves. The court issued two rulings last month, but neither clarifies this ongoing and confusing free speech matter.The rulings got little news coverage because they emerged during the same week as the health-care and immigration rulings. Besides, the electronic media industry seldom reports much about itself. No need to inform a passive citizenry that the broadcast networks have spent millions of dollars over a decade fighting the FCC in court, demanding their “right” to talk dirty and show skin on prime-time television.To make a long story short, the Supreme Court ruled on procedural grounds to give broadcasters a pass for airing the f-word, the s-word and showing a woman’s naked backside. The case was FCC v. Fox Television Stations. The court ruled that broadcasters were insufficiently notified in advance about the FCC’s enforcement plans to sanction “fleeting” incidences of indecent content.

So, even though a federal law banning “obscene, indecent, or profane language” on broadcast airwaves has been in place for decades, and even though a Supreme Court ruling (Pacifica) in 1978 upheld the FCC’s authority to regulate indecency, broadcasters convinced the court they were unaware that foul language and naked backsides were problematic. Who could have known that f-words and naked backsides might be offensive to the average television viewer?

The court followed this strained ruling a few days later by announcing it would let stand a lower court ruling that vacated the FCC’s half-million-dollar fine against CBS for the 2004 Super Bowl “wardrobe malfunction.”

The broadcast industry responded like a football team doing a victory dance after a first down. A deeper reading of the ruling, however, should dampen broadcaster excitement. Justice Anthony Kennedy, who wrote the unanimous opinion, pointed out that the decision was based only on due process factors and not on First Amendment grounds, writing “it is unnecessary to reconsider Pacifica at this time.” Kennedy also gave the FCC the green light to modify its policies and move forward “in light of its determination of the public interest and applicable legal requirements.”

In writing to announce the court would not hear the “wardrobe malfunction” case, Chief Justice John Roberts nonetheless said the FCC has clearly indicated its policy of enforcing against fleeting expletives. He emphasized that the brevity of an indecent broadcast “cannot immunize it from FCC censure.”

Justice Ruth Bader Ginsburg wrote separately after both decisions, suggesting that broadcasters have complete First Amendment freedom. She said the Pacifica decision was wrong and that “technological advances” sufficiently protect the public. The Fox programs in question and the Super Bowl broadcast were live, however, and blocking technology wouldn’t have shielded people from offensive material. During oral argument last winter, Ginsburg asserted the FCC shouldn’t restrict on-air expletives because such words are “common parlance” today. She must run with a rough crowd.

Essentially, these decisions get the cases off the docket and broadcasters off the hook for sanctions issued years ago. What is left hanging is any sense from this court about the free speech implications of questionable content on broadcast airwaves. The current law remains on the books, but the court wants the FCC to more clearly define what its enforcement practices will be. The FCC has sat on more than 9,000 unresolved indecency cases while waiting for guidance from the Supreme Court. The court simply told the FCC to figure it out on its own. That guarantees that broadcasters will be back in court the first time the FCC slaps a station on the wrist.

FCC Chairman Julius Genachowski responded with a brief statement that concluded “the FCC will carry out Congress’ directive to protect young TV viewers.” His guarded comments seem to signal an unwillingness to hold broadcasters accountable for their key role in establishing cultural barometers. Too bad the Supreme Court didn’t give him more guidance either to enforce the indecency laws and affirm their constitutionality, or to simply let the content free-for-all begin.

by Jeffrey M. McCall, professor of communication at DePauw University and author of Viewer Discretion Advised: Taking Control of Mass Media Influences. Follow the professor on Twitter: @Prof_McCall.

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