Another indecency watchdog weighs in on Second Circuit ruling


Robert Peters of Morality in Media agrees with many observers who suggest that the FCC’s indecency policy is a mess, difficult to either follow or enforce. However, he also says that the indecency of ABC’s “NYPD Blue” episode that drew a $1.21M fine should have been beyond question, and the court erred in finding the FCC’s ruling unconstitutionally vague.

“A small part of me sympathizes with the TV networks. The FCC’s broadcast indecency policy is a mess because enforcement policies change with changes in presidential administrations, because the FCC Commissioners and Enforcement Bureau don’t always see eye-to-eye when it comes to broadcast indecency, and because of foolish court decisions.”

Peters continued, “The truth of the matter is, however, that a more ‘coherent policy’ shouldn’t be needed. In particular, when it comes to the well-being of children, broadcasters should know what is and isn’t appropriate and act accordingly. If they don’t know, they shouldn’t be broadcasters.”

Peters said it’s clear that sometimes some broadcasters play close to the edge. “Not that they don’t know better now, but today they would rather play a cat and mouse game with the FCC, constantly pushing the envelope and then complaining that they don’t know whether the FCC will deem this or that transgression of community standards actionable.”

Peters went back over a hundred years to support his case. He argued, “As the U.S. Supreme Court put it in an 1896 obscenity case Rosen v. U.S., ‘Everyone who uses the mails…must take notice of what, in this enlightened age, is meant by decency…’”

RBR-TVBR observation: We are glad to see that at least one of the indecency watchdogs sees the need for clear, bright line rules as to what is and is not indecent. We suspect, however, that the bright line rules groups like Morality in Media and Parents Television Council would like would be far different than the more First Amendment-friendly rules that free speech advocates and RBR-TVBR would call for.

We completely disagree with Peters when he suggests that the rules are vague due to the transitory nature of the politicians and bureaucrats who write and administer them. They are vague because they are loaded to the gills with gray areas that require career FCC bureaucrats to make judgment calls.

As is amply demonstrated by the vast gulf of opinion on this issue, no two people will judge a given segment of programming the same way. Add to that the fact that former FCC Chairman Michael Powell released examples of fleeting expletives and subsequently changed the rules unilaterally, pretty much by executive fiat, and you have rules that not only are difficult to follow in the first place, but that also become moving targets.

On top of that, add in the brand new $325K top fine for an incident of indecency, and you make it a high stakes game, high enough to bankrupt a small broadcast company.

$325K is a lot of money to hold over a broadcast licensee when the government can’t even define the crime. The FCC should forget about pursuing this through the courts any longer, and should get to the task of rewriting the definitions in such a way that there is some small chance that broadcasters will know what is and is not allowed.