Robert Peters of Morality in Media does not disagree with those who suggest that the FCC’s record on indecency enforcement is muddled, and suggests that the courts are at least partly responsible for that. But he cited an opinion from a recently retired Supreme Court justice to support the idea that setting indecency standards, even highly stringent standards, is not a violation of First Amendment speech rights.
Former Justice John Paul Stevens said, after the landmark Pacifica case that made comedian George Carlin a staple of First Amendment judicial precedent, “A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.”
In other words, the argument is that one can say “#$%^” without actually using the word “#$%,” and since one can express the concept of “#$%^,” the right of free expression guaranteed by the First Amendment has not been violated.
As Peters said, “In other words, from a First Amendment perspective little would be lost even by a rule that prohibited ANY indecent language in broadcasting.”
Peters also brought up a 1973 Supreme Court obscenity case in which the court said that the “…inability to define regulated materials with ultimate, god-like precision…” does not eliminate the right of a government agency to come up with regulation, to prevent obscene material from being presented inappropriately.
RBR-TVBR observation: We understand what Peters is saying, but we firmly believe that you cannot take the gray area out of this issue. When broadcasters play close to the edge, as is their right, somebody is going to have to determine if, when and why they went over – or not. The combination of opaque rules and harsh punishments will absolutely chill free speech.
Further, somebody has to decide which words are in the “#$%^” category — and if the word we are putting in quotes in this case turns out to be something like “poop,” than that person is way too timid for our tastes.
We are willing to accept some rules, but the simpler the better, with all regulatory erring done on the side of freedom of speech.