Many organizations and individuals have weighed in on the Supreme Court’s decision upholding the FCC’s right to fine fleeting expletives but kicking the case back downstairs for a constitutionality ruling. ACLU, for one, says that trial is long overdue and stated its firm belief that this is only a temporary setback for fans of the First Amendment. According to the Wall Street Journal, the FCC has accumulated about 820K indecency cases in the interim, going back to 2006. Click the headline for more.
Steven R. Shapiro, Legal Director of the ACLU, stated, “Today’s decision, while disappointing, is likely to be only a temporary reprieve for the FCC’s claimed authority to ban even fleeting expletives from the airways. While recognizing that the FCC’s rule on fleeting expletives represented a change in policy, the Court’s 5-4 majority concluded that the new rule was neither arbitrary nor capricious. We disagree. More fundamentally, however, the Court expressly declined to decide whether the ban on fleeting expletives is constitutional until that issue is first addressed by the court of appeals in this case. That constitutional review is long overdue. The First Amendment does not grant government the power to censor speech that it labels indecent based on vague definitions that are inconsistently applied. The FCC’s renewed effort to act as national censor cannot survive serious constitutional scrutiny.”
Both of the children’s media watchdogs weighed in:
PTC President Tim Winter said, “We agree with the Court that the FCC’s broadcast decency enforcement policy is ‘entirely rational’. And we agree with the Court’s finding that the FCC was not ‘arbitrary’ or ‘capricious’ in its finding that those words were indecent on the public airwaves when children are in the audience.”
Common Sensse Media CEO James Steyer commented, “Today the U.S. Supreme Court made a crucial and wise decision upholding the Federal Communications Commission’s right to regulate the airwaves on behalf of kids and families. The six separate opinions from the Court in FCC v. Fox also show that the legal world is still divided on the best ways to balance the interests of families with the First Amendment rights of broadcasters, so the debate on these issues will clearly continue.”
Jim Dyke , Executive Director of TV Watch, disagreed with the Court, saying, “When it comes to what kids see on television, the highest authority in the land should be parents not government. Parents have the information to make informed decisions through television ratings and the tools to enforce those decisions such as the V-chip, cable and satellite controls. It is a right backed by parents’ ability to control their children’s viewing whether by using information, technology or old fashioned rules.”
Finally, upstate New York’s own William O’Shaughnessy weighed in, saying, “By focusing on the procedural issue of whether the FCC explained its new approach to ‘fleeting and isolated’ words, the Court delayed the decision everyone should care passionately about: whether the FCC’s Indecency Policy is constitutional. As an opinion about what a government agency has to do to change a prior policy, the decision is primarily fodder for lawyers. It is far more interesting if read as a rehearsal for the main event. Much more work has to be done on this Free Speech issue of fundamental importance for all Americans. The Commission should stay out of the censorship business.”
RBR/TVBR observation: An interesting thing to keep in mind is that the whole fleeting expletive battle is really nothing more than a side skirmish. The entire body of evidence on indecipherable definitions of the crime of indecency and the wildly inconsistent enforcement we’ve seen to date is still out there waiting for a court test.