Supreme indecency decision has everybody talking


GavelThe two big winners in the Supreme Court opinion are ABC and Fox, and we have comments from them, the NAB, a US Senator, an academic and a couple of watchdogs.

While ABC was happy but reticent, Fox was happy and ready to continue the battle depending on where the FCC takes it.

One watchdog, the Parents Television Council, believes that no rules need to be changed at all, not even the fleeting expletive ones, because this very case serves to put broadcasters on notice. We think PTC would like that, but find it to be a bit of wishful thinking.

An academic, Boston U. Professor T. Barton Carter, expressed disappointment that the Court ducked the deeper underlying issues and predicted that indecency is just going to be the subject of further litigation, just as Fox is expecting.

Here’s what people are saying.

* ABC: “We’re pleased with the decision of the Supreme Court regarding the episode of NYPD Blue, and we are reviewing the entire ruling carefully.”

* Fox: “We are pleased with the decision of the Supreme Court today finding that the FCC failed to comply with the requirement of the Fifth Amendment due process clause by not providing Fox with adequate notice that it could be punished for broadcasting fleeting expletives. The Court recognized that the case has significant First Amendment implications that require notice to be clearer, but declined to decide the broader First Amendment issues concerning the FCC’s authority to regulate the content of speech. Those issues remain for future litigation depending on what regulatory approach the FCC takes to these broadcasts in the future. We have always believed that the government must tread carefully with regard to matters implicating speech, and we hope in the future broadcasters will have the ability to rely on a governmental review process that takes careful account of the important Constitutional principles at stake.”

* NAB’s Dennis Wharton: “NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content. We don’t believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers. As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children.”

* Senate Commerce Committee Chairman Jay Rockefeller (D-WV): “I am encouraged by the Supreme Court’s decision today to throw out the ruling by the 2nd U.S. Circuit Court of Appeals on regulating broadcast indecency standards. The decision leaves in place the FCC’s authority to protect children from indecent programming. This is a victory for those of us who believe that we must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming.”

* Professor T. Barton Carter, Boston University’s College of Communication: “The decision is extremely disappointing because the court failed to decide the First Amendment question presented in the case. By ruling on the narrow due process question as applied to the specific case at hand, the court avoided the much broader question of whether the indecency rules violate the First Amendment and whether Pacifica is still good law in a world where broadcasting is no longer the dominant medium. This can only produce more rulemaking proceedings followed by more litigation”

* PTC President Tim Winter: “Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards. Contrary to some erroneous media reports, the Court today did not strike down the FCC’s broadcast decency policy, but in fact only ruled against the timing and order of events related to the FCC’s enforcement. The Court today specifically acknowledged the FCC’s ability to continue broadcast decency enforcement as part of its public interest obligation. Pacifica is still good law. The FCC must now rule on the merits of more than 1.5 million backlogged indecency complaints. The ‘notice’ requirement, which allowed Fox and ABC to slip off the hook in these two cases at issue today, has already been satisfied for all the pending complaints. Broadcast decency rules have existed to protect children since the dawn of the broadcast medium. It is for their sake that there will still be decency rules and the TV networks will be required to abide by them.”

* TV Watch Executive Director Jim Dyke: “Today’s decision by the Supreme Court re-emphasizes what we have been advocating all along: That parents, not the Government, are the best arbiters of what their children should be watching on TV. In the one-third of American homes with children, parents have tools such as the V-Chip and content ratings to help them make decisions about what their children watch based on the age of the child and their family’s tastes and values.”

RBR-TVBR observation: There is no getting around the fact that ABC and Fox are big winners here – the case against them was tossed. But it was tossed on Fifth Amendment grounds, whereas most rational people see indecency as being for the most part a First Amendment issue.

Do you know how you can tell that the Supreme Court essentially ducked the issue? Everybody seems to think their side won.

We agree with Professor Carter and Fox – what the Court basically did is kick the can down the road for further court action.