The U.S. Supreme Court announced today that it will review a ruling by the U.S. Court of Appeals for the Second Circuit in FCC v. Fox permitting “fleeting,” as opposed to “repetitive,” use of the F-bomb and other indecencies on broadcast television during the hours when children are in the audience.
The case involves a January 2003 broadcast of the Golden Globes awards show by NBC, during which U2 lead singer Bono uttered the phrase “f——— brilliant.” A year later, the Federal Communications Commission (FCC) announced that the “F-word” in any context “inherently has a sexual connotation” and can be subject to enforcement action. Subsequently, the FCC ruled that four different TV programs were indecent under its revised policy, but did not impose any fines.
The networks, led by Fox, appealed the rulings. On June 4, 2007, a three-judge panel of the Second Circuit held 2-1 that it might violate the First Amendment if the FCC fines broadcasters for “fleeting” indecencies, and invalidated the rulings. However, the court did not outlaw the policy outright. It returned the case to the FCC, instructing the agency to try to provide a “reasoned analysis” for its new approach to indecency and profanity.” Both the FCC and the U.S. Solicitor General petitioned the Supreme Court to review the ruling.
In 1978, U.S. Supreme Court Justice John Paul Stevens wrote the Court’s landmark broadcast indecency ruling in FCC v. Pacifica Foundation. He summed it up well.
A nuisance may be merely a right thing in the wrong place – like a pig in the parlor instead of the barnyard. … We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.
Picture it this way:
In a March 2007 Zogby poll, 79 percent of respondents agreed that there is too much sex, violence and coarse language on television. And the public has confirmed the polling results by filing hundreds of thousands of complaints with the FCC in the last few years. See this statement by FCC Chairman Kevin J. Martin.
The public (We the People) own the public airwaves. Radio and television broadcasters hold a broadcast license as a privilege in the public trust and subject to federal law.
Congress, acting on our behalf, has delegated responsibility to the FCC to enforce the laws. 18 U.S.C. § 1464 prohibits broadcasts that are “indecent.” The federal courts have held that the law is enforceable between the hours of 6 a.m. to 10 p.m., to further the compelling government interests in supporting parental supervision of children and more generally its concern for children’s well being.
The FCC defines broadcast indecency as “language or material that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”
Pacifica involved the radio broadcast of a recording of George Carlin’s infamous nightclub monologue known as the “Seven Dirty Words.” A dad who heard the program while driving with his young son in the car complained to the FCC, which ruled that the broadcast was indecent. Pacifica appealed to the Supreme Court.
The Court ruled that because the monologue was broadcast on an afternoon radio program in “a uniquely pervasive medium,” when children are part of the audience, the FCC could ban the words:
Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place. Id. at 748-49.
The FCC policy at the time of Pacifica emphasized repetitive use of indecent words. The Court, however, did not limit enforcement to repetitive uses. In fact, Justice Stevens noted that “Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant.”
FCC enforcement of indecency laws are not about censorship. Indecent broadcasts are permitted during the so-called safe harbor from 10 p.m. to 6 a.m. Second, the Supreme Court has ruled that a penalty imposed after the law has been violated is not a prior restraint, which is the legal definition of censorship.
The Court’s decision in Fox v. FCC won’t be announced until its 2008-2009 term. In the mean time, Congress needs to reaffirm its support of FCC efforts to keep “fleeting” pigs out of your parlor and not just a whole herd:
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