Court Upholds FCC Authority Over Broadcast Indecency
by S.T. Karnick
The U.S. Supreme Court has upheld the FCC’s authority to impose fines on broadcasters for allowing obscene language on the air.
By a 5-4 majority the Court ruled that the Federal Communications Commission did not violate the federal Administrative Procedure Act in its 2006 decision that the Fox TV network had violated decency rules in 2002 and 2003 when singer Cher and actress/TV personality Nicole Ritchie blurted out expletives on live television in separate incidents. The FCC did not actually impose any fines in the case at issue.
The Court will likely be asked to rule on the constitutionality of the FCC policy as broadcasters challenge the ruling on constitutional grounds.
Supporters and opponents of the FCC policy lined up in the usual camps, with media corporations and civil liberties groups opposing the FCC, and parent and consumer groups supporting the court’s action.
The bottom line: if the Commerce Clause of the U.S. Constitution has any meaning at all (as opposed to the ultra-expansive interpretation given it by the Court in the twentieth century to justify all sorts of outrages by the Congress), Congress surely has the authority to ban indecency in interstate television broadcasts (while leaving people free to state any ideas they wish, as the First Amendment of the Constitution requires), which it does through the FCC.
Whether that is a good policy is open to debate, of course, as is the question of where and how to draw the line regarding what is to be considered indecent, but Congress does indeed have a right and a responsibility to say how the line should be drawn and to define the consequence of crossing it. The right to free speech has never extended to indecency, and to do so formally now would be a great perversion of the Founders’ intent.
If giant businesses want to enjoy the advantages of broadcasting across state lines, they certainly should be willing to accept the very minor constraints that accompany that privilege.
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34 Comments
Next years headline: Court upholds FCC authority over Conservative/Christian Radio
This one is going to be a doozy. So far the Court has only ruled on the technicality of the FCC's right to regulate certain forms of speech and activity under the current FCC rules. The constitutionality of the enabling legislation is still very much in play. Eventually they will have the fun of determining whether a licensing agency has the right to censor public speech. We will be watching a much grander version of the obscenity debates when that comes down. And if the FCC doesn't have the power, who does? This is going to be a lawyer's dream and a judge's nightmare. There is no good answer. Conservatives dislike censorship. But we also dislike obscenity thrust at us without warning. My earliest guess is that the Supreme Court will recognize that some agency of some sort has the right to determine what is acceptable on commercial broadcast TV. It might then determine that commercial broadcast TV is a fictional "community" which is subject to the Miller-Roth obscenity tests. And then we will see years of litigation over exactly what comprises contemporary community standards. The one argument we will hear, and which the Court will not accept, is the "if you don't want to see (or hear) adult content, don't watch." Without some rules or guidelines, it is impossible to know what is going to pop up on broadcast TV in prime-time/family hours until after it has already happened. That argument only works for cable, satellite or pay-per-view broadcasts where there is at least some guidance as to what will be shown or heard. Without rules or guidelines, with advance notice to broadcasters of what is forbidden, the only way to avoid unregulated obscenity would be not to watch TV at all. That may actually be a very good idea, but it isn't a valid legal argument nor would it be a practical one for the large majority of American households.
It's very early in the game, so much may occur before the issue makes it back to the Supreme Court, but I'm guessing it will decide that an agency acting in the public interest has at least a modicum of legitimate interest in regulating certain very clearly-defined speech or activity on public TV, and to assess penalties for violations of the regulations. After all, the Court has already allowed agencies to ban one of the few clearly protected basic rights–political speech–under the most dubious of legal reasoning. This is going to be a very interesting decade or two for TV viewers and court-watchers.
reminder: FCC meets this Thursday . . . "Fairness" running amok under whatever it's being called now.
(but May 7 also is National Day of Prayer for U.S.A.)
One cannot discuss the legality of language prohibitions without considering the 1st Amendment issue. Is using a prohibited word equivalent to shouting fire in a crowded theater? Will this kind of ruling also keep open the door to other government censorship, such as the "fairness" doctrine? Will is support (or derive support from) the outrageous campaign finance "reform" type of censorship?
I am no fan of obscene language on broadcast TV, but censorship cuts both ways.
"After all, the Court has already allowed agencies to ban one of the few clearly protected basic rights–political speech–under the most dubious of legal reasoning."
Is this McCain Fiengold you are refering too. I was actually hoping that law would be stricken. Which word do the supreme court justinces not understand "Free" or "Speach" or is it both.
Both, sad to say. So far, they've been fairly quiet about religious speech, the only other speech historically protected by the First Amendment, but give them time. The court vigorously supports the right of Cher to yell "f–k" in a crowded theater (commercial speech) but equally rigorously supports the right of the government to censor "Vote for Joe" (political speech). It's the Constitution and over two hundred years of precedent turned upside down. I have infinite faith in the Supreme Court's ability to be egregiously wrong, usually at the worst possible time. I guess they do understand one law–Murphy's Law.
If the Supreme Court ever bothered to read the Constitution and two hundred years of cases, your concern would be unnecessary. Until very recently historically, only political and religious speech were protected, for obvious reasons. Obscenity, even to this day, is not protected speech, there is simply a defining of obscenity down until there is no line of decency anymore. Commercial speech is not protected by the Constitution, and such speech may be regulated so long as the regulation does not run afoul of some other provision of the Constitution (for many, many years, no advertiser could mention the name of its competition in a derisive manner, for example). So your concern is real, not because the Constitution would allow such a misuse of the law for political purposes, but because Congress, the President and the Supreme Court will, regardless of what the Constitution says. McCain-Feingold is the shining example of the Supreme Court treating the Constitution as an impediment to good government.
Who gives a f—k? (Sorry – I couldn’t help myself.)
To this day I don't understand how any Supreme Court justice can believe McCain-Feingold is Constitutional. It limits the amount of money that individuals and groups can use to support a political candidate. What can possibly be more "political speech" that that? If that isn't political speech, then how the heck can half the other crap they've called "political speech" be political speech?
What if you yell "Vote for Joe" in a crowded theater?
I agree with your assessment. I don't think this decision means anything yet. The important one will be the next one, where they decide if the FCC has the right to do this.
At first blush, I can see why people may have a hard time caring about this. On it's face, it appears to apply only to network television. Moreover, commercial speech (and this was pretty obviously commerical speech) has always been subject to certain regulation. Since cable/satelite have effectively made network television irrelevant, and since we're only talking about obscentity, it doesn't seem to be that big of a deal.
But I'm concerned that the precedent established could end up being much broader. This could easily open the door for significant amounts (and types) of regulation "in the public interest." We'll have to see how this plays out.
That's a violation of McCain-Feingold, unless you yell "F–k you if you vote for Joe." Then it's protected.
This is clearly trickier than I originally anticipated. What if you yell: "Fire Joe!"
And I still wonder if it was his crony Harriet Miers who advised Bush to preserve his political capital by failing to veto McCain-Feingold? She is not a good lawyer, let alone a constitutional scholar, so I'm sure she believed the Court would do exactly what it did–the political thing, not the constitutional thing. And we almost got her as a Supreme Court justice. Whew!
I don't know who it was. I do know though, that the Bush insiders as a group where utterly incompetent politically. This is just another one of the many issues that they f….cked up beyond belief. McCain-Feingold not only spits in the face of 200 years of Constitutional law, but it was written by democratic hacks (and King Rhino McCain) as a 100% partisan attack on every type of political action group that conservatives have used in the past twenty years. It was the stuff that democratic porn is made off. And Bush signed it.
As for Harriet Meyers, thank God she's not on the court. . . can you say Souter II.
I don't see how a business enterprise can be held accountable for what an individual might say in a "live" situation. Whatever happened to taking responsibility for your own words or actions? People need to police themselves, rather than look for laws that hold a group responsible for the actions of the individual. Those laws only make the lawyers rich. Using obscenities to express yourself (except under extreme circumstances of anger or stress, such as when you hit your thumb with a hammer) is the first resort of the unlearned. There are many acceptable words you can use to present your point of view. No need to resort to vulgarities. In any case, down the road, I think Bill Maher could be in trouble (as well as every brain-dead Hollywood type who needs a little publicity).
I actually said "Souter Lite" in a post yesterday. As for "Fire Joe," shopkeeper's privilege.
"Souter Lite" is a great way to describe her. What a clusterf…ck that was.
I wonder what kind of atrocity Obama is going to put on the court to replace our retiring stealth liberal. I hear Hugo Chavez might be interested. . . or is that, Obama might be interested in Chavez?
HA!
Shopkeeper's Privilege.
The author of this piece hasn't a clue as to what he's talking about. Indecency is absolutely protected by the First Amendment. It's obscenity that isn't. Jesus, this is basic fact checking.
More to the point, it's just one more ruling that's as unnecessary as it is unconstitutional. But that's just not the roadblock it used to be, and too bad for that.
I guess that's better than Shopkeeper's Revenge.
Only if your name is Montezuma.
Ever notice that history has a way of lucking out with names? "Montezuma's Revenge". . . sounds impressive. "Gomer Gilligan's Revenge". . . not so much.
Aren't your definitions of what is protected and what is not themselves derived from decisions by SCOTUS, the same institution that decided McCain-Feingold was constitutional?
Wait a minute you two…
Don't you know that this site is a conservative/Republican echo chamber where we only talk about how great the GOP is and how evil all the Democrats/liberals/hippies are?
At least, that is what the trolls keep telling me.
This is my THIRD attempt to reply to your question. The previous two are gone with the wind. Sorry.
I replied to your question right after you posted. Ijust realized that it disappeared. Another response gone into moderation hell forever. So here goes:
My definition of what is protected is by default the Supreme Court definition, at least until some political body decides that Marbury v Madison and Chief Justice Marshall were wrong. That does not necessarily mean that many of us agree with those decisions, but the definition remains the definition until changed by a subsequent Court. If Bush had been able to appoint one more justice like Roberts, Alito, Scalia and Thomas, McCain-Feingold would never have survived a constitutional test. Five gray eminences can veto the will of the people, the Congress and the President, and for some time have been making up the Constitution as they go along. Clearly, the speech prohibited is by definition "political," but this Court has determined that it's OK to limit some political speech. Thus, it is not the definition that is in question, it's what the Court has decided to do about it.
When I say "until recently, only political and religious speech were protected" I was stating the law as it has evolved at the Supreme Court. When I say "obscenity has never been protected" I am again stating the view of the Supreme Court since the founding. But that's a more complicated issue, since they have defined obscenity down to the point that what used to be obscenity is now routine speech. The definition today of an obscene work is "the work, taken as a whole, applying contemporary community standards, is lacking in serious literary, artistic, political or scientific value." Which is a definition so broad that it includes almost anything.
When I post about the law, I try to make sure that it's clear when I'm stating my personal opinion, and when I'm citing the law as defined by the Supreme Court. So when I say "commercial speech has never been protected" I am using the Supreme Court's definition of commercial speech. If I say "commercial speech should be protected" I would be stating my opinion, not the Supreme Court's definition of commercial speech. Although I try very hard not to mix my opinion with Supreme Court definitions without some sort of warning, I don't always succeed in making that clear, and then it has to be gleaned from the context of the post.
whats obscene and whats indecent? Is Fonda using the c word on a morning show either of those? Or both?
shouting fire in a crowded theatre is the same as flying a massive 747 and an F16 at low alt over lower Manhattan early in the day…except no one went to jail last week. No one was fired. in fact hardly anyone admitted they were even told about it….yet it sounds like crimes were committed as well as lies by the dozen.
"Is using a prohibited word equivalent to shouting fire in a crowded theater?"
No. Nor does it represent a "clear and present danger". But the federal government loves circumventing the Constitution. Who's going to stop them?
what?! Dear lord! The government excercising control over a government mediated medium? Shocked. I am SHOCKED I say!
What kind of nation is this becoming, where a corporation cannot enjoy complete unbridled freedom and has to be held accountable to the people of the country? This is really getting disgusting!
LOL!!
Yeah, the trolls must be mightly confused if they read this. . . can they even read?
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
I keep getting stuck on that 'no law' part. Not 'some law', not 'certain law' or 'good law', but NO LAW. If the people wanna say obscene things, seems to me that the Constitution makes it pretty damned clear that the Congress has absolutely no standing with which to stop them.
But then, we abandoned this 'First Amendment' thing a long time ago.
You do realize that one of the biggest advocates for these fines is non other than Jay Rockefeller himself? Of course, in retrospect, it seems like a brilliant idea for the government to make money: fine a broadcaster over a technicality, while helping to cut off funds for the troops in Iraq and Afghanistan. That's the Democrat way: Censorship and cutting the defense budget. It's the reason I'm no Democrat… well, not anymore anyway. Of course, it's also because of the censorship issue that I'm not a Republican, either. I just choose what I feel is the right way to go.
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