Broadcasters wary over the FCC’s crusade against “indecent” programming may have found a First Amendment champion at the Supreme Court in Judge Ruth Bader Ginsburg, who President Clinton nominated on Monday to serve on the high court.
Ginsburg, a member of the U.S. Court of Appeals for the D.C. Circuit since 1980, wrote an opinion in 1988 overturning an FCC policy designed to “channel” indecent programs to the “safe harbor” hours of midnight to 6 a.m.
On another front, however, the nominee may disappoint broadcasters. In 1985 she signed an appellate opinion declaring must-carry rules unconstitutional.
Several media laywers said they expected her nomination would be confirmed by the Senate.
Ginsburg’s indecency opinion came after the FCC had unveiled plans for tougher enforcement of its indecency rules.
Prior to 1987, FCC enforcement mostly focused on stations that aired one of the “seven dirty words” made famous in a monologue by comedian George Carlin and that were broadcast between the hours of 10 p.m. and 6 a.m.
In 1987, the FCC broadened its indecency crackdown by considering not just seven profanities, but also whether program themes contained innuendo considered “too racy” or suggestive for an audience that might include children. The new policy also cut back to midnight-6 a.m. the safe period during which broadcasters could legally channel “indecent” programs.
In a 3-0 decision written by Ginsburg, the D.C. court upheld the FCC’s right to regulate broadcasts of questionable content, but ordered the commission to better justify its rule limiting such programming to midnight-6 a.m. The FCC needed to “allow scope for the First Amendment-shielded freedom and choice of broadcasters and their audiences,” wrote Ginsburg.
Ginsburg further wrote that the FCC should have taken into consideration whether children are supervised in the home and prohibited from watching racy programs.
The issue of broadcast standards remains highly unsettled. An attempt by Congress few years ago to pass a round-the-clock ban on “indecency” later was tossed out in court as unconstitutional. Last year, however, Congress passed legislation again limiting the airing of indecent programming to midnight-6 a.m. , a decision that is being challenged in court.
Barbara McDowell, a private First Amendent attorney in D.C., called the 1988 case a “great decision” for broadcasters. Ginsburg, per McDowell, has shown “great intellectual ability” and a “great commitment to the First Amendment.”
Not all representatives of media organizations share McDowell’s praise for Ginsburg, however. Jane Kirtley of the D.C.-based Reporters Committee For Freedom of the Press said Ginsburg has often voted against attempts by the media for government information in Freedom of Information Act cases.
Specifically, Kirtley said she is “troubled” by Ginsburg’s vote against allowing the media access to tapes of recorded conversations among astronauts just prior to the Space Shuttle Challenger explosion.
Andy Schwartzman, head of the liberal public–interest law firm Media Access Project in D.C., called Ginsburg “an excellent judge and a fine appointment in the broad sense.” However, Schwartzman said he thinks Ginsburg has shown too great a tendency to uphold decisions made by government agencies such as the FCC.