It will come as no surprise to veterans of the 21st Century indecency wars to learn that the Parents Television Council has filed an amicus brief with the Supreme Court supporting the FCC’s ability to punish incidents of fleeting profanity. Another organization has similarly weighed in – the American Center for Law and Justice is doing to on behalf of 18 members of Congress.
ACLJ wrote, “Rather than forcing the FCC to ignore harm to children simply because offensive material is uttered in isolation, this policy allows the FCC to weigh all the relevant contextual factors before determining whether material is indecent. As previous FCC decisions demonstrate, consideration of the entire context of broadcast material may result in a determination that expletives are not actionably indecent even when repeated throughout a program. The FCC should be free to apply this context-based approach in a consistent manner, regardless of how many times offensive material is broadcast in a single program.”
“Rather than simply ruling on an administrative aspect of this matter, we hope the Court will fully rebuke last year’s Second Circuit Court decision. That decision ran contrary to nearly 80 years of jurisprudence about the publicly-owned airwaves, not to mention running contrary to the overwhelming sense of the nation,” said PTC President Tim Winter. “Two federal judges in New York City ostensibly stole the airwaves from the public and handed ownership to the TV networks. They said that broadcasters can use the ‘F-word’ and ‘S-word’ in front of children at any time of the day. We urge the Supreme Court to reverse the lower court’s decision which clearly defies the public interest, congressional intent, long-established law and common sense.”
RBR/TVBR observation: If there is a problem with indecency enforcement, it is the fact that it is very subjective and full of shadings of gray. The FCC has struggled for years to find as bright a line as possible so that broadcasters have some idea what is and what is not permissible. ACLJ’s argument would actually make the whole thing one great big gray area. Every incident would be a snowflake, and nothing could be taken for granted ever. That will open every single FCC finding open to appeal on grounds that it is arbitrary and capricious, and the defendants will have a cornucopia of incidents to choose from to argue, “that broadcast was far worse than mine, and if it was OK, than mine should be too.” It strikes us as taking the regulatory machinery in exactly the wrong direction for the FCC’s own good.
In our humble opinion, Mr. Winter is just saying things, whether or not they have any basis in reality. For example, he mentions 80 years of established — what? The established FCC method for dealing with the occasional accidental broadcast of an f-bomb or s-bomb was pretty much to ignore it. It was handled via admonition if at all. And if two judges opened the airwaves to a steady bombardment of filth, then just where is the filth? PTC loves to pretend that all broadcasters want to do is run their mouths in as foul a manner as possible, yet months go by without a single incident. Finally, PTC’s gripes may well reflect the “overwhelming sense” of PTC headquarters, but there is plenty of evidence to suggest that it does not in any way reflect the overwhelming sense of the nation. The public supports the notion that the government should stay out of programming issues, as supported by polling data, and that broadcast programming is by and large worth viewing or hearing, as supported by ratings data.
We suggest that the Supreme Court honor its commitment to upholding the Constitution, which means keeping the FCC as far from becoming a content cop as possible.