The Supreme Court just heard the pros and cons of the FCC’s indecency enforcement policies, and is trying to determine whether or not a lower court got it right when it said the policies fail to hold constitutional water. The New York Times issued a strong endorsement of the broadcast position in the matter.
The newspaper said the rules should be tossed or fixed.
NYT noted that the rules were adopted in 1978 when broadcast television was considered to be a pervasive medium. Since then, the steady onslaught of new competitors has completely eroded that pervasiveness, and noted that on the television side blocking technologies can mitigate the accessibility of potentially offensive program to children.
[We must note that the Times cited Justice Samuel Alito, who said “Broadcast TV is living on borrowed time,” in making its argument. We thought it odd that a member of a medium that seemingly is about to run out of time loaners would bring that up about broadcasters, who it would seem have a stronger claim to a productive future than any paper and ink medium.]
Even if the rules are needed, noted the Times, they are enforced so erratically that they are impossible to follow; the potential for huge fines and the death penalty of license loss are too high in such an uncertain enforcement environment; and the sudden elimination of the fleeting expletive exception after Janet Jackson only made matters worse.
The Times concluded, “Justice Antonin Scalia said on Tuesday that ‘the government is entitled to insist upon a certain modicum of decency.’ But the revolution in communications has wiped out the basis for any special indecency restrictions by the F.C.C. The court should end the anomalous treatment of radio and television. If it does not overturn the 1978 decision, it must require the F.C.C. to rewrite the vague and subjective restrictions that chill protected speech.”