Television Stations, INC. (2012)
“Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people.”
“[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
FCC v. Pacifica Foundation (1987)
A lot of you probably remember when Cher dropped the F-bomb on live television during the 2003 Billboard Music Awards. This incident, as well as a similar slip-up by Nicole Richie and a 7-second butt shot during an episode NYPD Blue, was the subject of FCC v. Fox Television State, Inc., which came before the Court in January. As juicy as this case
sounds, it has been floundering around in typical American-justice-system fashion for the last three years as courts deliver and repeal decisions about its less glamorous aspects.
Fox and ABC, ultimately the respondents in the Supreme Court Case, originally brought suit against the Federal Communication Commission after being fined for violating broadcasting standards. The FCC forbids the transmission of indecent material between the hours of 6am and 10 pm; both the Billboard Awards and the NYPD episode were broadcasted during this time period. The case reached the Supreme Court for the first time in 2009, but was remanded back to the Second Circuit Court of Appeals because it had failed to fully address the constitutional issues at stake. The second time around, the Second Circuit
ruled that the FCC regulations were unconstitutionally vague, a decision that was appealed back up to the Supreme Court to be addressed in the present case.
Putting aside its sensational aspects, the most appealing elements of this case relate to rights enumerated in the Bill of Rights. The respondent’s primary claim that the FCC regulations were too vague was essentially based on the fifth amendment right to due process. Seth
Waxmen, arguing for ABC, pointed out that the FCC had authorized the broadcast of other media containing expletives and nudity, notably Catch-22 and Saving Private Ryan. He said that clients could not be expected to know what would be considered indecent material, and apparently the Second Circuit Appeals Court agreed as they ruled in his favor. The Supreme
Court ruled for the respondents as well, but for a different reason. While FCC
broadcasting standards forbidding material that dwells on obscenity have been enforced since the 1970s, the prohibition of fleeting expletives postdated the broadcast of both ABC and Fox’s material (it was formally established after Bono used profanity to express his gratitude at the 2003 Golden Globes). The fines were unjust because the law was not in place when the incidents occurred. The Court made it clear, however, that the FCC theoretically had the right to regulate broadcasting and not did address whether the current standards, which include the Golden Globes decision, are too vague to be enforced.
Fox and ABC also claimed that the FCC was violating their first amendment rights by
restricting what could be broadcast. The issue was briefly discussed during the oral argument and the court referred in FCC v. Pacifica Foundation (1987) as a precedent. The case deals with a George Carlin monologue entitled “Filthy Words” that was broadcasted in the afternoon. Referring to Schenk v. US, the Court acknowledge that the government has the right to limit speech in certain circumstances. They suggested that broadcast media, like radio and TV, create a unique sphere because they are accessible to all audiences in their private homes. Just as the government can forbid people from shouting fire in a theater unprovoked, they can regulate what is said in this sphere
Because the court decided the fifth amendment issue, they refrained from ruling on the freedom of speech question. If they had responded to this claim, they would have had to re-evaluate Pacifica, a measure Justice Ginsburg suggested was advisable in the concurring opinion she filed for the case.
Should the FCC have the right to regulate what people can broadcast? On the surface, this entire argument seems a little archaic. A few curse words and a fleeting glimpse of someone’s butt are not really a big deal in our society; children hear and see much worse on the satellite channels and internet TV they undoubtedly watch. But it’s for that very reason that I think the right to regulate makes sense. There are many different mediums for broadcasting speech without using federally allotted airwaves. Besides, the type of speech limited by the FCC is not speech that is necessary to expresses ideas or religious beliefs. In theory, the regulations do nothing to prevent the speech protected by the first amendment. The FCC is tasked with judging that nudity in Schindler’s List aids in expressing an idea but nudity in “NYPD Blue” does not, and in my opinion, that is how the regulations have to work. The entire right to regulate is based on the idea that speech is unacceptable in certain contexts. In seems to me that the regulations put in place by the FCC must be contextual in order to be constitutional.