The New York Times editorial page has taken note of recent arguments over fleeting indecency. Its assessment: the FCC’s rules are hopelessly vague. And it believes the Second Circuit Court has gotten that message as well.
The Times pointed out, just as RBR-TVBR has been pointing out for years, that under longstanding FCC practice, the Cher and Nicole Ritchie incidents on Fox awards programs were not actionable.
As NYT put it, “Indecency was once limited to forms of expression that were truly outrageous. Now the commission considers itself free to pick and choose among not particularly shocking content based on its opinion about the words and the context.”
The FCC changed its mind about expletives, but not completely – it turned out it was OK to use the exact same words the FCC objected to in the Fox case if you’re airing a Spielberg war movie.
“Broadcasters have no way of knowing in advance what sort of content will upset the FCC’s indecency police — and possibly subject them to enormous financial penalties. When the government punishes speech with vague rules, it has a chilling effect on expression of all kinds. Speakers, unclear on where the lines are, and fearing sanctions, have a strong incentive to avoid engaging in speech that is legally protected.”
RBR-TVBR observation: Defining indecency is a hopeless task, and there will always be a certain amount of subjectivity involved. But the way it is now absolutely screams out the phrase “arbitrary and capricious.” The FCC is flat our wrong on this one, and the Court should give Fox, and all broadcasters, the victory they deserve.