Good #$%$ News for Broadcasters

You may have noticed that broadcast TV is far more restrained in its use of profanity, sex, and violence than cable. Even on basic cable, it’s not uncommon for some shows to drop the S-bomb like it’s going out of style.

But on a broadcast network (ABC, NBC, FOX, basically anything you can pick up with just an antenna), forget about it. Why is this? Well, the FCC has, under U.S. law, the explicit power to regulate the content of television broadcasts. How is this possible? After all, content-based restrictions on any form of speech are very difficult to justify constitutionally.

Well, the rationale is that the “airwaves” are public property, and as a representative of the public, the FCC has the power to prohibit obscene or profane material on the public airwaves. Also, these content-based restrictions are justified by the pervasiveness of radio and TV broadcasts, and their easy accessibility by children. However, the Communications Act of 1934 (the law that created the FCC) specifically prohibits them from censoring any content other than indecency.

This power is usually exercised when a member of the public complains about a particular program.

This power, though, apparently has limits. The WSJ Law Blog reports that the Second Circuit Court of Appeals has found that the FCC’s current indecency policy is so vague as to be unconstitutional (also reported here). The opinion can be read here (the court’s opinion contains profanity, as you might imagine). The lawsuit was filed by private broadcasters in response to an FCC crackdown on “fleeting expletives” – single utterances of profanities that can lead to six-figure fines.

While it’s generally agreed that federal and state governments have the power to censor content which is “obscene,” the FCC, with the greater discretion it has to censor over-the-air broadcasts, also prohibits material which is “indecent” – which is an easier standard to meet than obscene.

However, according to the court in this case, “indecency,” as used by the FCC, is so ill-defined that broadcasters have no real way to tell if something they wish to broadcast will be permitted or not. A basic requirement for a law to be fair is for it to be clear, so a person can be reasonably certain if a given course of conduct runs afoul of the law.

Laws that regulate speech are particularly susceptible to challenges based on vagueness, because they often compel people to engage in self-censorship far beyond what the government would be allowed to mandate. This means that they “chill” expression that’s clearly protected under the First Amendment, and they give those tasked with enforcing the law far too much discretion, possibly leading to selective enforcement, based on a particular political agenda. Furthermore, the fact that a single violation of the FCC’s indecency rules can carry fines in the hundreds of thousands of dollars further encourages content produces to steer far wider of the unlawful zone than they need to.

So, what will the practical result of this ruling be? Well, it may be extremely limited, especially if the FCC doesn’t appeal to the Supreme Court, or the Supreme Court decides not to hear their case.

This case is only binding precedent in the judicial circuit in which it was decided, so it’s not likely that broadcasters in other parts of the country will operate under the assumption that it’s law.

The Supreme Court has actually already heard this case, but it was to resolve an issue unrelated to the First Amendment. However, several of the Justices indicated that if the case comes back to them on this issue, they would be inclined to rule against the FCC. So, it’s possible that the FCC may decide that an appeal to the Supreme Court would be a losing proposition, and let this ruling stand.

However, this case originated when the FCC, under the Bush administration, zealously enforced its decency rules, and arguably looked at them through a conservative Christian lens. It’s possible that the Obama administration doesn’t want to put up a fight to hold onto this particular power, and will appeal the case to the Supreme Court just so the FCC can get some clear guidance on what type of speech it can and can’t regulate on decency grounds.

Should the Supreme Court rule the FCC’s policy unconstitutionally vague, will we start hearing the F-word in episodes of The Office? Almost certainly not. The power of the FCC to regulate indecency on the airwaves was never in question in this case, and is unlikely to ever be seriously questioned in court.

All this case says is that the FCC has to craft clearer guidelines as to what it considers indecent. Now, to the chagrin of some “pro-family” organizations (for whom “family values” translates to “MY values, or else”), this will probably lead to networks getting a little more latitude to broadcast expletives than they did in the past. However, this will largely be due to networks no longer engaging in extreme self-censorship, to avoid accidentally running afoul of the FCC’s vague decency standards.

The FCC’s stubborn insistence on keeping its decency standards as vague (sorry, “flexible”) as possible has gotten pretty old. Maybe if they went to the effort to come up with some clearer guidelines, life would be easier for them and the broadcasters. Broadcasters can focus on creative shows (if they want to, which they apparently don’t) without worrying too much about accidentally violating a vague rule, and the FCC will be able to spend much less time enforcing its vague rules.

Of course, there might be some losers in this: the family groups that organize mass complaints against networks because someone thinks they might have heard an extra utter the F-word in the background will have to find something else to keep themselves busy.

By: Rusty Shackleford