A sharply-divided US Supreme Court has voted 5-4 to uphold the FCC’s policy change in 2004 which permitted it to fine stations for “fleeting expletives” under the law prohibiting broadcasting of indecent material. However, the high court has sent the case back to a federal appeals court in New York to consider whether or not the policy violates the First Amendment. NAB was disappointed with the ruling, but Acting FCC Chair Michael Copps and Commerce Committee Chair Sen. Jay Rockefeller (D-WV) were thrilled.
Although dissenting justices brought up many reasons to uphold the lower court ruling, including the “long shadow of the First Amendment,” as Justice Ginsburg put it, Justice Scalia said that the FCC “could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media” justified a stricter policy “so as to give conscientious parents a relatively safe haven for their children.”
NAB’s Dennis Wharton said, “Regardless of today’s opinion, broadcasters will continue to offer programming that is reflective of the diverse communities we serve. Nonetheless, we’re disappointed the court majority seemingly failed to understand the need for clear and consistent regulatory policies, especially in light of the various ways audiences now receive broadcast programming. We continue to believe that voluntary self regulation — coupled with blocking technologies like the V-chip — is far preferable to government regulation of program content, and we question why speech restrictions should apply only to broadcasters.”
“Today’s Supreme Court decision in Fox is a big win for America’s families,” Said Copps. “The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The Court’s decision should reassure parents that their children can still be protected from indecent material on the nation’s airwaves.”
Stated Rockefeller, “I am encouraged by the Supreme Court’s decision today to reverse the ruling by the 2nd U.S. Circuit Court of Appeals on regulating broadcast indecency standards. We must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming.”
RBR/TVBR observation: If this doesn’t qualify as “arbitrary and capricious” to Justice Scalia and four other members of the court, one has to wonder what would. Perhaps they are in need of access to a dictionary.
Scalia used the word “pervasiveness” to describe the quantity of foul language on the nation’s airwaves. To quote a lawyer quoted by RBR/TVBR in the past, horse puckey! Scalia should be forced to sit in front of a television set tuned to any broadcast station from 6AM to 10PM every day until he hears just one fleeting expletive. We expect he’d be sitting there for a long, long time.
What this case is really about is the ability of broadcasters to cover live events without having to worry about someone slipping up within earshot of an open mic, just like President Bush did once while abroad. If some bureaucrat wearing the FCC’s National Nanny hat happens to take offense, an honest broadcaster could be looking at a serious multimillion dollar fine all for taking the trouble to cover important events of national import.
And then after finding for the FCC the court that is supposed to have the final say in matters of national jurisprudence kicks it back to the Second Circuit anyway? What a gutless, shameful ruling.