Supreme Court leaning on indecency case up in the air


The next term of the Supreme Court, which kicks off in October 2011, will feature arguments on the topic of the FCC’s indecency regulations and their enforcement. While at least one anti-indecency watchdog is hoping that SCOTUS will come in and undo the wrongs of the Second Circuit, it is hardly clear that the watchdog will get its way.

The court, in agreeing to take the case, defined it like this: “Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.”

Tim Winter of Parents Television Council sees the case as an opportunity for the Supremes to correct the Second Circuit. ““On behalf of families across the country, we extend our thanks to the U.S. Supreme Court for agreeing to take up broadcast decency. The High Court will have the opportunity to reverse misguided Second Circuit Court of Appeals rulings that would open the floodgates for graphic nudity and some of the harshest profanity in the English language. Decency has been a fixture of federal law since the dawn of broadcasting and despite the opinion of the TV networks and three judges in New York, it has not suddenly become an outdated relic. The case for commonsense decency protections in exchange for free use of the publicly-owned broadcast airwaves is a no brainer. The networks make our case for us every time they tell advertisers the medium remains uniquely pervasive and highly accessible to children.”

Andrew Jay Schartzman of Media Access Project and representative of the Center for Creative Voices in Media and the Future of Music Coalition in the case sees it much differently. He said, “It is hardly a surprise that the Supreme Court decided to hear this case. This action does not suggest that the Court is inclined to reverse the lower court’s decision. The Court almost always hears appeals when a federal policy has been declared unconstitutional. It is noteworthy – and encouraging – that the Court limited its review to the specific question of whether the FCC’s policies violate the Constitution. Several of the broadcasters in the case had invited the Court to consider the constitutionality of the entire scheme of broadcast regulation. MAP’s clients argued against this, because it is the wrong question, and the wrong case, to take up that question.”

RBR-TVBR observation: We have long suspected that the ultimate result of this case will be a finding that the FCC does have an obligation to police the airwaves – however, it must go back to the drawing board and come up with rules that are both minimalistic and crystal clear – if such a thing is possible. We still suspect that may be where this is going.