The Supreme Court seemed to come down on the side of broadcasters in a late-June ruling that struck down indecency cases over isolated curse words and flashes of nudity against Fox and ABC, respectively. About a week later, the high court opted out of hearing the FCC’s argument over why CBS should be fined for the 2004 Super Bowl halftime show that introduced “wardrobe malfunction” into the lexicon.
While the networks are relieved of having to pay out hundreds of thousands of dollars in fines, the cases were long and costly ones, and failed to address the real issue many in the industry want the Supremes to take on: Namely, why the FCC should be regulating broadcast content at all, considering cable programs are free from such considerations.
“The way broadcast is singled out for indecency seems rather antiquated,” says former NBC president Warren Littlefield, who was “disappointed” by the result. “We thought we were going to get a ruling that would end a decade-long battle over what the FCC could do with indecency. What we got was the Supreme Court throwing it back and saying, ‘There is no clarification here.’?”
By choosing not to address the First Amendment issues inherent in regulating broadcast content, the justices focused on the due process clause of the Constitution for their ruling, which effectively told the FCC to come up with new rules, make them specific, and make sure they’re well understood by the networks. “It was determined simply that the broadcasters didn’t have fair notice, and so couldn’t be held accountable,” says entertainment lawyer Neil Rosini of the narrow ruling.
It’s surprising that cable hasn’t been held up as a beacon as to how television content creators and executives can behave when there are no government rules.
“The whole issue is being overwhelmed by technology and how we receive our programming,” says telecom regulatory lawyer Robert Miller. “The FCC only has the right to regulate broadcast material. … This convergence of program outlets and the widespread availability of all kinds of programming raise the question as to whether any content restrictions at all should be imposed.”
Experts agree that even if the FCC dropped all restrictions tomorrow, hard-core pornography wouldn’t suddenly appear in primetime.
“The real balance wheel in broadcasting, what keeps it within community norms, is not the government,” says author and former Lifetime, USA and NBC executive Tim Brooks. “It’s the advertisers. They don’t want to get caught up in flashpoint controversy.”
Back in 2003, when “NYPD Blue” featured a brief image of a bare behind that helped kick off a new strictness in government oversight, exec producer Steven Bochco recalls the show had third- and fourth-tier advertisers with very low rates, because sponsors don’t want get involved. “That’s not what sells Cheerios or Budweiser,” he says.
Adds Littlefield: “It’s about protecting the brand. You don’t want to violate that.”
While many are willing to concede that regulation is a fact of life, the consensus remains that the court left too many issues unanswered. “It was a good decision to a certain extent,” says Steve Herz, president of media talent agency IF Management. “But the court should have gone further on the guidelines. Networks need to know what they need to do for similar infractions in the future.”
Bochco pointed to “thousands” of backlogged indecency complaints the FCC is going to have to plow through.
“They’re going to have to redesign their policies,” he says.