On Tuesday the high court will hear oral arguments on whether broadcast networks should be punished for the stray expletive or fleeting nudity on their airwaves. In my latest column, what’s at stake is much more. Broadcasters say that it’s time that court weigh the constitutionality of the the way that the FCC has policed the airwaves for more than three decades.
Seven years ago, when the FCC was in the midst of a crackdown on fleeting expletives uttered in primetime, and Congress was on the warpath after Janet Jackson’s wardrobe malfunction, I asked a network chief what to make of the situation.
The end result, he predicted, would be a showdown in the Supreme Court, where the FCC’s very ability to regulate indecent content could well be watered down — or maybe eliminated all together.
Well, here we are. On Tuesday, the Supreme Court will hear oral arguments in FCC v. Fox Television Stations, the networks’ challenge to the FCC’s current indecency regime. Broadcasters not only want the high court to throw out the FCC’s W-era hardline on so-called fleeting expletives and images, sanctions for a stray f-bomb or shot of a woman’s behind, but to reconsider the landmark 1978 Pacifica decision that upheld the FCC’s authority to regulate indecent content on the airwaves after George Carlin gave his infamous “seven dirty words” monologue on the radio during the daytime.
In the eyes of the networks, Pacifica is ripe for re-evaluation given the changes in technology and viewing habits. Back in 1978, the high court’s justification for a lower First Amendment threshold for broadcasters was that stations have a “uniquely pervasive presence in the lives of all Americans” because their reach extended into the privacy of the home. Now it is more than likely that cable and satellite, which don’t face the same scrutiny, are what viewers watch in their living rooms.
The case stems from Fox broadcasts of the Billboard Music Awards in 2002 and 2003 in which Cher and Nicole Richie, in separate incidents, uttered expletives during the live telecasts. But the high court also is taking up a sanction against ABC for a 2003 “NYPD Blue” episode, “Nude Awakening,” that showed a woman’s behind and a small portion of the side of one of her breasts. Officially, the high court is not taking up the most famous of all incidents, the 9/16th of a second shot of Janet Jackson’s nipple during the 2004 Super Bowl halftime show, but their decision will undoubtedly have an impact on the future disposition of that case. The 3rd Circuit Court of Appeals recently struck down a $550,000 fine on CBS stations for the exposure.
The networks found sympathy in appellate courts that the FCC’s rulings were unconstitutionally vague and violated the First and Fifth amendments. Oddly enough, they responded optimistically when the Supreme Court ruled against them in 2009. In the 5-4 decision, the high court ruled that the FCC was within its authority in its rulings, but the justices kicked constitutional questions back to the lower courts. Justice Clarence Thomas voted in the majority but, in a concurrent opinion, wondered whether the indecency policy made sense in a landscape where broadcast television is no longer “uniquely pervasive.” Broadcasters not only see the FCC’s regime as outdated but believe that the crackdown on fleeting expletives went beyond the intent of the court in the Pacifica decision.