And some of it may be racy – well, not likely, but it will concern the topic of fleeting indecency. The DOJ is arguing that the FCC was well within its rights to change the fleeting indecency rules on the fly, and that the change actually makes the rules more consistent because it applies a context test to all indecency decisions.
The fleeting indecency exception has traditionally protected broadcasters when an inadvertent expletive goes out over their airwaves. An incident was considered safe if it was fleeting and inadvertent, or was not repetitive nor intended to pander or titillate.
DOJ said that automatically allowing fleeting utterances deprives the Commission of the ability to consider context, as it did in finding that language in “Saving Private Ryan” was not indecent, and gives broadcasters one freebie no matter what.
DOJ also argues that lack of ability to go after fleeing expletives deprives the FCC of its ability to protect citizens, particularly children, from indecent speech. It notes an accepted precedent that held that Congress “…does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sexually explicit material.”
RBR/TVBR observation: Part of the problem broadcasters have with the change of course on fleeting indecency is that it occurred overnight, as the result of the Janet Jackson incident, which was visual rather than verbal in the first place. Instead of going through the usual procedures when changing the rules – especially rules that when broken can carry a hefty penalty — then-Chairman Michael Powell just changed them.
Powell was the one who put out a handy guide to indecency enforcement which offered specific examples of fleeting indecency, along with the promise that such incidents would not be prosecuted (for lack of a better word). Until we add an amendment to the Constitution that would have made Powell King of the FCC, we would argue that he can’t just make the rules up when he feels like it.
As for Congress, it DOES need psychiatrists and social scientists to prove that fleeting expletives are a threat to public health. But they won’t find them. They are sure to find instead that the rarity of fleeting expletive incidents makes them no threat at all, and indeed, they are sure to find that even if our citizens were exposed to repeated harsh language, it will do nothing more than rob our current foul vocabulary of its ability to shock and titillate, and will cause the current words to be replaced with others that for a time will assume that power. They are not likely to find any mental health issues that are traceable to exposure to an F-bomb on TV or radio.
The Bill of Rights, on the other hand, exists specifically so that a misguided majority cannot assail certain rights. A majority of Congress that chooses to shun expert advice and restrict free speech is a danger. They are exceeding their authority. This is just one of many free speech battlegrounds. The Supreme Court should strike down this FCC power grab in no uncertain terms.