Indecency victory may be short-lived

When it comes to indecency, has the FCC won the battle but lost the war?

The Supreme Court handed the agency a victory on April 28, upholding its right to punish broadcasters for “fleeting expletives.” That ensures the nets will be remain ever-vigilant with five-second delay devices for live telecasts out of fear that a “X@#!” from the likes of Bono or Cher will lead to onerous fines.

But the 5-4 decision, written for the majority by Justice Antonin Scalia, focused on a narrow procedural issue regarding whether the FCC provided adequate notice or rationale to broadcasters for its clampdown on fleeting expletives. The high court punted to a federal appellate court the big question of whether the FCC’s policy was in line with the First Amendment.

In fact, some experts believe that that larger issue could actually play to the networks’ advantage given that the government is held to a much higher standard on First Amendment boundaries. Some think the entire fight could even lead to the FCC losing its authority to regulate indecent content entirely.

Charles Zielinski, a former appellate lawyer for the FCC who is a member of the D.C. office of Bryan Cave, noted that Justice Clarence Thomas‘s concurring opinion challenges the idea that the feds could regulate content because of the “scarcity” of other options — something the high court held in its landmark 1969 ruling involving Red Lion Broadcasting.

“Red Lion was decided at a time when the world was very different,” Zielinski notes. “Television broadcasters were the main outlet for video content. You look at the landscape today, where the Internet is providing content unregulated, cable is providing content that is unregulated, and it is a good question to ask. The broadcaster today can argue that the underlying rationale of scarcity doesn’t apply anymore.”

Zielinski believes the high court will eventually have to grapple with the realities of contemporary TV via the current case or another challenge.

“The court at some point is going to have to take the case and recognize that the world has changed,” he says.

But even if the court acknowledges such a shift, it doesn’t mean it will tell the FCC to back off, as the nets fervently hope.

Broadcasters were more than a little alarmed at Scalia’s observation that the vast expansion of media and entertainment options might actually “justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”

At least one of the Supreme Court justices found some humor in the whole exercise of determining what words and images qualify as “indecent” these days. As Justice John Paul Stevens noted in his dissenting opinion:

“It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during primetime hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.”

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