FCC chairman Kevin J. Martin is on the march against smut — and that may ultimately be the best news broadcasters have had in years.
Observers say the FCC’s indecency authority has been ripe for a court challenge for some time, and NBC, Fox and CBS have all but said they’re writing briefs in response to last week’s indecency rulings, which asserted new limits and seemed to redefine the term “arbitrary.”
In judging an episode of “The Surreal Life 2” to be indecent, for instance, the FCC explicitly said for the first time that pixilation of private parts is not enough. Nor is bleeping out obscenities.
Profanity typically had been actionable only when of a sexual nature. But not anymore.
“Far from backing away from its authority to regulate profanity, the FCC’s now quite serious about regulating it, even if it’s not indecent,” says John Crigler, a communications and First Amendment attorney. “It’s like the agency’s almost headed back to the old idea that there are some words that you just don’t say on TV.”
The commission also issued this round of indecency fines only to TV stations that provoked viewer complaints. Previously, the commission fined all stations involved in a broadcast.
As commissioner Jonathan Adelstein noted in his dissent, “It is patently arbitrary to hold some stations but not others accountable for the same broadcast.”
Such is the stuff lawsuits are made of.
“The FCC’s actions … will almost certainly be the start of a major court battle that could result in a historic First Amendment decision,” wrote Adam Thierer, senior fellow at the libertarian Progress & Freedom Foundation, on the PFF Web site. “The broadcasters have a very strong case, and the FCC will be hard-pressed to defend their increasingly arbitrary, unfair and unworkable indecency enforcement policy.”
The FCC could end up with no authority over content — indecent or otherwise.