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Court puts brakes on FCC

Indecency ruling brings temporary sobriety to subject

AFTER YEARS OF SILLINESS, the Federal Communications Commission’s futile efforts to shackle and penalize fleeting instances of indecency on television has, at least temporarily, hit the fan.

Tuesday’s ruling by the 2nd U.S. Circuit Court of Appeals in Manhattan — striking down the FCC’s existing policy — zeroed in on what should have been an obvious point: “By prohibiting all ‘patently offensive’ references to sex, sexual organs and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.”

To anyone paying attention, it has long been clear the feds are playing an increasingly fruitless Whac-A-Mole game, trying to slap back a handful of channels when the average consumer now receives well over 100. Yet while the decision would seem to further erode the lines between broadcast and cable — further frayed by broadcasters’ gains on the retransmission front, garnering fees from cable, satellite and telco operators to carry their signals — it’s doubtful such sobriety and logic will prevail for long.

Imposing separate standards on broadcasting has proved awkward, especially as the attributes distinguishing that medium from cable, as well as pay and free TV, continue to blur.

There are longtime curbs and safeguards built into the content process — the most obvious being advertisers, which generally make it a habit to shun controversy. Affiliates also still have the right to voice concerns about local standards, although admittedly, their power in this equation — the pushback against the Jay Leno-to-primetime experiment notwithstanding — has surely waned.

As imperfect as those brakes against crudity might be, the government is even more ill-equipped to be in the content nanny business by enforcing guidelines limited to the public airwaves. The main threat — bringing the hammer down by yanking licenses — is one officials have been reluctant to pursue, making an increase in fines the preferred method of trying to bare their teeth.

Nevertheless, pressure on the FCC to intervene has persisted and created strange bedfellows (which isn’t meant to suggest, in this context, engaging in explicit sex in the aforementioned bed). Protecting children from smut has brought together high-profile Democrats — from Tipper Gore’s crusade against music in the 1980s to Sen. Paul Simon, from then-Sen. Hillary Rodham Clinton’s assault on violent video games to FCC commissioner Michael Copps — with conservative groups, often with a religious orientation.

Despite their coziness with Hollywood, thwarting indecency has become liberals’ go-to “family values” issue — one with appeal to cultural conservatives, even if the cause runs counter to the GOP pro-business wing’s laissez-faire, “Let the marketplace decide” approach to economics.

If anything, the court decision is wonderful news for people like L. Brent Bozell III — founder of the Parents Television Council — who have built careers around remaining in a constant snit over pop culture’s corrosive influence on American values.

Anything that alters the status quo serves as an excuse to rally the faithful, which explains the hyperbolic tone of the PTC’s statement, which makes it sound like expletives will be freely thrown around during “The Price Is Right:” “A three-judge panel in New York once again has authorized the broadcast networks’ unbridled use of the ‘f-word’ at any time of the day, even in front of children.”

Given all that, there’s little reason to believe the FCC will be allowed to abandon an area of oversight viewed as such fertile ground for politicians, meaning there will be future trips to the drawing board, however pointless that exercise might be. In such matters, sometimes it’s enough just to demonstrate that you care, without really expecting to truly accomplish anything.

More than 45 years ago, Supreme Court Justice Potter Stewart famously said in seeking to explain his decision on an obscenity case, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Like Stewart, I don’t know of any system or framework in this day and age that will in all instances effectively curb broadcasting — or as critics would like, dial it back to the 1950s. But I can recognize a hopelessly flawed one when I see it.

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