June 28, 2011
Monday morning’s order from the Supreme Court agreeing to hear the indecency case asks lawyers for both sides to address “Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.” For far too long broadcasters have been baffled by the “community standards” intepretation, not to mention the inconsistency between radio and TV rulings.
The granting of a hearing in F.C.C. v. Fox Television puts into question whether the court will overturn a 1978 ruling on indecency, F.C.C. v. Pacifica Foundation. The Pacifica decision, which upheld the commission’s finding that George Carlin’s classic “seven dirty words” radio monologue was indecent, cemented the F.C.C.’s ability to police the public airwaves.
For sure broadcasters have not been looking for ways to make a mad dash to the microphone so they can drop the F-Bomb. They would however like to see an easily understandable rule or law they can share with their employees so everyone knows where the line is. We wanted to know what it really meant for broadcasters now that the indecency policy of the FCC has made it all the way to the nation’s most powerful judges. We asked attorney John Garziglia to address the topic for us.
“The Supreme Court’s acceptance of cert in the FCC v. Fox case may mark the final end to the FCC’s indecency enforcement. Broadly stated, the issue that will be before the Supreme Court is whether, in an effort to protect children, our government can continue to restrict radio and television broadcast stations from the broadcast of programming that meets the FCC’s test of indecency, but is not otherwise obscene.”
“A concurrent Supreme Court decision overturning California’s ban on the sale or rental of violent video games to minor provides several hints as to which way the Supreme Court will go when the FCC’s broadcast indecency enforcement is considered. In this 7-2 decision, Justice Thomas dissenting believes that government has the right to restrict speech to children that bypasses parents, and Justice Breyer believes that the protection of children trumps First Amendment protections that video games might otherwise have.”
“One of the significant reasons for the statute giving the FCC authority to regulate indecency on the airwaves, but not for other media, is the protection of children. Indeed, broadcast stations are allowed to air programming that is otherwise indecent after 10:00 p.m. when children are presumably no longer in the audience. If only two Supreme Court Justices were willing to find in favor of a California statue designed to protect minors from violent video games, it may be that the Supreme Court will likewise find that broadcast stations are no longer that special guest in the home that merits treatment different than cable, DVDs, CDs, MP3s and the Internet.”
“If the FCC’s indecency enforcement is overturned, radio comedy could become a mainstream format. Over time, we will likely hear radio personalities speaking in the vernacular of the community they serve, rather than restricting the use of words and thoughts that our government now deems illegal to broadcast. Songs, for better or worse, will be the versions that our children are actually listening to on their MP3s, not sanitized airplay versions. And finally, radio and television will be on a playing field that is level with cable and satellite, free to compete with the same horrible, offensive, shocking, titillating or boring content. Or, the Supreme Court could just punt and uphold the FCC’s current indecency regulations so that at least children will continue to be protected from broadcasters, even if children are not protected from the rest of the media world.”