Title: 'Smut and Nothing But': The FCC, Indecency, and Regulatory Transformations in the Shadows
Abstract: For almost a century, American broadcasting has received a lesser degree of constitutional protection than the print medium. Although many of the FCC’s regulations in “the public interest” have been upheld against First Amendment challenge on the ground that broadcasting is exceptional, the traditional reasons given for such exceptionalism – scarcity and pervasiveness – have become increasingly careworn. Fighting that consensus, the FCC has aggressively pursued the regulation of indecency on radio and television since 2003. When the FCC’s enhanced indecency prohibitions swept up U2 front-man Bono’s fleeting expletive on a music awards show, broadcasters finally thought they had found a vehicle to force revolutionary changes to the second-class status of broadcast media. That was not to be. In a profoundly anti-climactic opinion issued on June 21, 2012, the Supreme Court in Fox Broadcasting Company v. FCC refused to address the First Amendment status of broadcasters. The Court’s silence speaks volumes. Although Fox specifically invited the Commission to consider its indecency regime in light of the public interest, its refusal to tackle the broader regulatory question implicitly suggests that a majority is not unduly troubled by continuing the exceptional regulatory treatment of broadcasting as a constitutional matter.