Title: Punting in the First Amendment's Red Zone: The Supreme Court's "Indecision" on the FCC's Indecency Regulations Leaves Broadcasters Still Searching for Answers
Abstract: I. INTRODUCTION Just one week before rendering its controversial landmark decision on Patient Protection and Affordable Care Act (1)--arguably most anticipated ruling of October 2011 Term--the U.S. Supreme Court sidestepped longstanding question of whether First Amendment, given today's multifaceted media landscape, no longer permits Federal Communications Commission to regulate broadcast indecency on nation's airwaves. The Court's narrow ruling in FCC v. Fox Television Stations, Inc. (2) (Fox IF') let broadcasters off hook for specific on-air transgressions that brought case to Court's docket-twice (3)--but did little to resolve larger looming issue of whether such content regulations have become obsolete. Justice Anthony Kennedy, writing for a unanimous Court, instead concluded that [t]he Commission failed to give Fox or ABC fair notice prior to broadcasts in question that fleeting expletives and momentary nudity be found actionably indecent. (4) As a result of this lack of notice, the Commission's standards as applied to these broadcasts were vague, and Commission's orders must be set aside. (5) The Court specifically declined to rule on constitutionality of Commission's indecency regulations, noting that 'because Court resolves these cases on fair notice grounds under Due Process Clause, it need not address First Amendment implications of Commission's indecency policy. (6) The broadcasters argued that indecency regulations no longer made sense because other forms of technology have undercut traditional rationale, articulated in 1978 case of FCC v. Pacifica Foundation, (7) that the broadcast media have established a uniquely pervasive presence in lives of all Americans. (8) In their brief to Court, they asserted that [b]roadcasting is not uniquely pervasive because Americans today spend more time engaged with cable and satellite television, internet, video games, and other media than they do with broadcast media. Nor is broadcasting uniquely accessible to children because other media are no less accessible than broadcasting. (9) The latter point was also in reference to Pacifica Court's concern that radio and television was so easily in reach of minors that exposure to indecent language could have enlarged a child's vocabulary in an instant. (10) Initially, proponents on both sides of issue claimed victory. Tim Winter, president of media watchdog group Parents Television Council, stated that [o]nce again, Supreme Court has ruled against networks in their years-long campaign to obliterate broadcast decency standards. (11) Similarly, Family Research Council President Tony Perkins released a statement saying that [t]oday, U.S. Supreme Court gave FCC green light to continue imposing indecency fines on networks for fleeting expletives and brief nudity. When a similar case goes before Supreme Court again for fines imposed for any future violations, we expect Court to once again decide that fleeting expletives and brief nudity are not protected under First Amendment. (12) Meanwhile, Steven Shapiro, legal director for American Civil Liberties Union, (13) had a different interpretation--one more favorable to broadcasters. To that end, he observed that [a]lthough today's decision is a narrow one, indecency regime is now on life support. Speaking unanimously, Court made clear that it will not uphold an indecency rule that fails to give broadcasters clear notice of what is allowed and what is prohibited. The FCC's track record in enforcing indecency rule makes clear that it cannot provide clarity that Court and Constitution demand. (14) In days immediately following release of Court's opinion, a torrent of criticism appeared in press, (15) signaling that decision, a decade in making, (16) clarified very little with respect to what broadcasters legally air on broadcast radio and television. …
Publication Year: 2012
Publication Date: 2012-09-22
Language: en
Type: article
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