A potentially landmark Supreme Court case on broadcast indecency may be the beginning rather than the end of a renewed fight over content on TV and radio in an age of almost unlimited media sources.
On Tuesday the Court will hear oral arguments in a legal battle between Fox and ABC and the Federal Communications Commission over whether federal indecency regulations are unconstitutionally vague.
“The day has come for the FCC’s indecency regime to be subjected to the same strict standards that apply to all government attempts to abridge freedom of speech,” lawyers for Fox and other broadcasters argued in legal documents. “The FCC’s indecency regime is the antithesis of what the First Amendment permits and should be declared unconstitutional.”
An Appeals Court ruled that the regulations are “impermissibly vague” and sided with the broadcasters, whose complaints stemmed from FCC efforts to punish Fox after Cher dropped the F-word during a live awards show nine years ago; and ABC for showing an actress’s bare backside in an episode of NYPD Blue in 2003.
Taking the case to the Supreme Court is a gamble for the FCC, which won narrow support for its efforts from a divided Court in 2009. In that instance, the justices found that the commission's increased enforcement was a legitimate use of its authority. This time, the Appeals Court threw out the FCC’s entire indecency policy.
But if the Supreme Court sides with media companies and agrees with the lower court on the decades-old rules, the FCC may find itself back at the drawing board, trapped between free-speech advocates and activists worried about the spread of offensive content.
The Parents Television Council, which has already taken FCC Chairman Julius Genachowski to task for being slow to act on more than 1.4 million pending indecency complaints, argues that dropping the restrictions would allow broadcasters to push more adult content to compete with unhindered cable and online outlets.
“If you play this out beyond contemporary community standards, an overturning of broadcast decency opens the door for the airing of hard-core pornography at any time of the day – even when children are in the audience – so long as the marketplace will support it. How does that serve the public interest?” the group's president Tim Winter said in a statement on Monday.
But broadcasters say that the rules are not only vague to the point of uselessness, they are also moot in an age of Internet and cable TV.
“For more than 30 years, broadcasting, alone among all mass media, has been a second-class citizen,” broadcasters argued in their legal brief. “Today, broadcasting is neither uniquely pervasive nor uniquely accessible to children, yet broadcasters are still denied the same basic First Amendment freedoms as other media.”
Much of the FCC’s anti-indecency efforts – which slacked off after a 2006 lawsuit by Fox, ABC, and CBS – have been based on the Supreme Court's 1978 "Seven Dirty Words" case in which it ruled that the FCC could regulate offensive content between 6 a.m. and 10 p.m.
To be indecent under FCC rules, “material must describe or depict sexual or excretory organs or activities." Further, the content must be “patently offensive as measured by contemporary community standards for the broadcast medium."
Tuesday’s case will likely be heard by a reduced panel of judges.
Because Justice Sonia Sotomayor participated in some of the Appeals Court proceedings, she recused herself when the high court agreed to hear the case last year. Justice Samuel Alito acknowledged that he owned stock in Walt Disney, ABC's parent company, when he took part in the 2009 decision. But he has since sold the stock and plans to hear the latest case.