Indecent, But Maybe Legal

Originally posted: August 22, 2009

Greencastle, Ind. – Citizens who favor strict enforcement of broadcast indecency laws were elated last spring when the Supreme Court narrowly upheld the Federal Communications Commission’s authority to fine broadcasters who air “fleeting expletives.” The case dealt with live broadcasts of awards shows in which celebrities such as Cher, Bono and Nicole Richie uttered off-the-cuff expletives to a national audience.

In a 5-4 ruling, the court upheld the FCC’s enforcement power to sanction broadcasters for such language, even if the remarks were unplanned or “fleeting.” Writing for the majority, Justice Antonin Scalia said the FCC did have authority to crack down on what he called “foul-mouthed glitterati from Hollywood.” He spoke of the harmful effects of broadcast profanity on children. He pointed out that technological means exist for broadcasters to “bleep out offending words,” a fact he said supports the FCC’s stepped-up enforcement.

The dissenting justices essentially said that “fleeting” expletives don’t qualify for FCC sanction, particularly if the broadcasters had no intention of airing such language. They also questioned whether the FCC had properly signaled its increased enforcement efforts. The applicable federal law, however, has no such qualifiers in place, and it clearly bans the broadcast of “obscene, indecent, or profane language.”

The ruling was hailed as a major victory by citizens who want the broadcast airwaves cleaned up. Such cheering, however, might be premature. This decision, while supporting FCC authority to regulate indecent broadcasts, unfortunately failed to address the underlying First Amendment questions involved. The Second Circuit Court of Appeals, from which the fleeting expletives case came, had sided with broadcasters on procedural grounds, dodging a definitive ruling on the free speech aspect. The Supreme Court, as the court of final review, chose not to provide a constitutional perspective without a lower court opinion in place. “We decline to address the constitutional questions at this time,” wrote Scalia.

The narrow scope of the Supreme Court’s ruling guarantees more arguing about indecent broadcast content. The court remanded the fleeting expletives case back to the Second Circuit for further review of the free speech issues. The court also ordered the Third Circuit to revisit its recent decision that overturned the FCC’s fine against CBS for the Janet Jackson Super Bowl wardrobe malfunction.

Given the lower courts’ earlier opinions, odds are that the Second and Third circuits will again side with broadcasters, this time on free speech grounds. When that happens, it will be up to the FCC to ask for a Supreme Court ruling. That is not a given.

The FCC is now headed by Obama-appointee Julius Genachowski, former chief counsel to Clinton-era FCC Chairman Reed Hundt. The Clinton FCC was known for a rather lax approach to broadcast indecency enforcement.

Bush FCC Chairman Kevin Martin and Commissioner Deborah Taylor Tate helped lead a crackdown on broadcast indecency in recent years, but neither remains on the FCC.

Early signals are that Genachowski might not see indecency enforcement as a priority. In an interview with the Los Angeles Times, Genachowski was asked directly about his support for the Supreme Court’s recent decision and a zero-tolerance approach to broadcast expletives.

Genachowski said only and without elaboration, “The FCC’s job in this area is to enforce and defend the law, and that’s what we’re going to do.” In other published interviews, Genachowski has trumpeted the use of blocking technology to protect kids from indecent broadcasts.

The V-chip in television sets was intended to do that, but the device has been a bust because parents don’t use it or don’t know it even exists. Further, the V-chip only catches programs that are accurately labeled for foul content, and live broadcasts are outside of that net.

Even if the FCC were to ask the Supreme Court for closure on the First Amendment issue, it is not clear the court would again rule against broadcasters. It is one thing to endorse the FCC’s authority, but quite another to rule on constitutionality of a free speech matter. It’s a complicated issue, to be sure. Last spring’s decision not only featured a 5-4 margin, but it also generated written opinions from six of the nine justices. Justice Clarence Thomas wrote that he supported the majority “as a matter of administrative law,” but he proceeded to express concerns about “disfavored treatment of broadcasters under the First Amendment.”

If federal broadcast indecency laws would be ruled unconstitutional, Congress would be challenged to provide new laws that pass constitutional muster. Or, the public may just have to live with a constant “viewer discretion advised” mentality.

Jeffrey M. McCall is a professor of communication at DePauw University in Greencastle, Ind., and author of “Viewer Discretion Advised: Taking Control of Mass Media Influences.”


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