While this week’s Supreme Court decision upheld the FCC’s ludicrous policy of fining TV stations for “fleeting expletives,” there’s hope. The overarching question of whether any FCC control of language on TV or radio is constitutional will go back to the appeals court and then to the Supreme Court. And indications are the justices will side with broadcasters.
The FCC’s odious and discriminatory broadcast indecency policy lives, but it may have just been badly, perhaps mortally, wounded.
In a much anticipated ruling, the Supreme Court this week upheld the FCC’s ban on so-called “fleeting expletives” and the entire anti-indecency regimen upon which it is based.
At issue were live Fox broadcasts in which Cher, Nicole Ritchie and Bono dropped the F-bomb, producing viewer complaints and a major overreaction by the Bush FCC. (Richie also tossed out the S-word for good measure.)
Reversing a lower court, a 5-4 majority said the FCC ban against such random and presumably unplanned utterances was neither arbitrary nor capricious. In other words, it said, the ban makes sense in the context of the commission’s past enforcement and pronouncements.
But that’s only half the story.
The court side-stepped the great constitutional question — that is, in light of the First Amendment, should the government still be allowed to tell TV and radio stations what they may or may not air?
Significantly, the court didn’t dismiss the question. Rather, it set it up for later review, the one that the broadcast lawyers have been angling for and the one they think they can win.
As I understand it, the case now goes back to whence it came, the U.S. Court of Appeals for the Second Circuit in New York. There, a panel of judges will take up the constitutional question. The panel is expected to side with broadcasters, but, whether it does or doesn’t, its decision will probably end up before the Supreme Court.
And, based on what we saw this week, when the case circles back, five, possibly six, justices may be inclined to strike down the policy on First Amendment grounds. And five or six is just what you need on a nine-person panel.
The four dissenters this week — Stevens, Ginsburg, Breyer and Souter — raised First Amendment concerns about the policy, signaling their readiness to do it in. And the lawyers tell me that Justice Kennedy is a likely fifth vote, given his strong First Amendment record, even though he sided with the majority on the administrative question this week.
And a surprising sixth vote may come from the conservative wing of the court, Justice Clarence Thomas.
In a concurring statement, Thomas goes right after the two court precedents that undergird broadcast content regulation. “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued viability,” he writes.
“[E]ven if this court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions.
“The extant facts that drove this court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today.”
Such language suggests that Thomas could lead a charge not only to gut the FCC indecency rules, but all regulation of broadcasting based on the laughingly outdated notion that they are the only game in town.
But that’s wishful thinking. Courts tend to take baby steps.
In any event, it nice to think of Thomas being on board. His vote may be needed because by the time this case resurfaces at the Supreme Court, Justice Souter will likely be gone.
What this all means is that broadcasters have to suffer through another long legal cycle — back to the appeals court and then back to the Supreme Court. And it means that the broadcast networks will have to keep paying the lawyers, for which all broadcasters owe the networks a debt.
But, in the end, broadcasters just might be freed of content rules that only they, in today’s vast mediascape, are forced to follow.
What was discouraging about last week’s ruling was Michael Copps’ reaction to it.
The acting FCC chairman called the ruling a “big win for America’s families” and gave the majority a big slap on the back for recognizing that “when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations.”
Copps chose to ignore the First Amendment issue so that he could affirm his 1962 way of thinking about broadcasting and pander to the folks who believe that broadcasting should be a G-rated service now and forever.
Let’s just hope that Copps is speaking for himself and that he isn’t in any way reflecting White House thinking on the matter. I have a bad feeling that he may be. We’ll know one way or the other when the White House replaces Copps with Julius Genachowski within a month or two and he begins sharing his thoughts on the subject.
Winning this war, if not every battle, is critical for broadcasting.
Broadcasters have plenty of incentive to keep their programming clean. It comes mostly from advertisers who may not want their products associated with foul-mouthed oddities like Nicole Richie. And it comes from their viewers who let them know when they have gone too far.
But they can’t cover the news, sports and other live events if they have to worry about every clown that walks behind the camera and every celebrity who’s asked to stop in front of it.
And they can’t develop dramas and comedies that can keep up with cable and, to a growing extent, the Web, if they have the FCC censors looking over their shoulders.
ABC this week joined NBC and Fox in Hulu. Unless things change in Washington, I can see the day when the broadcast networks begin ordering two versions of a show — one for broadcast play and an edgier one for the Internet. Where do you think the viewers will go then?
That next Supreme Court decision cannot come soon enough.
Harry A. Jessell is editor of TVNewsCheck. You may contact him at [email protected]