At issue is whether the Federal Communications Commission (FCC) has the constitutional authority to set rules governing what is permissible on the airwaves and to fine stations that cross the line. One example is the infamous Janet Jackson Super Bowl incident in 2004 and the FCC's ensuing fine of CBS and CBS stations. Lower courts overruled the fine, and CBS has yet to pay.
Among other examples of TV indecency that led to FCC fines yet to be paid because of lower court rulings, ABC's "NYPD Blue" showed a nude female character in 2003 and Fox's Billboard Music Awards in 2002 and 2003 failed to bleep profane words by Cher and Nicole Richie.
The Supreme Court case is an appeal from the U.S. Second Court of Appeals, which in 2010 struck down the FCC's entire broadcast indecency policy. Fox, ABC, CBS and NBC want the Second Circuit's decision upheld.
Focus on the Family and the Family Research Council co-sponsored a friend-of-the-court brief in support of the FCC.
"If the court opens the floodgates to so-called 'adult material' at all hours on broadcast TV and radio in the name of the First Amendment, then TV and radio will be open only to adults, not children, and, at that, adults who desire only more indecent material," the brief stated. "Television viewers will be forced to listen to indecent material. Profanity and sex will dominate daytime radio. Nothing in the First Amendment requires this result."
Conservative groups are concerned about the case because the high court's four-member conservative bloc -- often reliable in taking the conservative stance on such social issue cases -- might not hold together. Specifically, Justice Clarence Thomas in 2009 questioned the "viability" of two Supreme Court cases cited by the FCC as constitutionally supporting the current indecency policy: a 1969 case, Red Lion Broadcasting Co. v. FCC, and a 1978 case, FCC v. Pacifica Foundation.
"Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity," Thomas wrote in a 2009 concurring opinion.
In Red Lion, the Supreme Court upheld the so-called Fairness Doctrine; in FCC v. Pacifica, the high court ruled that the FCC had the authority to regulate indecent language on the airwaves. The latter case involved comedian George Carlin's "seven dirty words" routine.
Focus on the Family and the Family Research Council argued that the Supreme Court was right in its 1978 ruling to note that "since broadcasting was uniquely available to children merely by turning on the television or radio, it could be regulated to a greater extent than other forms of media." The two pro-family groups also cited studies showing that media has a negative impact on children and can lead to risky sexual behaviors, poor body image, violence and smoking.
The networks already are allowed to broadcast patently offensive material, as long as it is between 10 p.m. and 6 a.m., the groups say. But it is wrong to broadcast such material during the daytime and early evening when "children are likely to be in the audience," the groups say.
The American Center for Law and Justice (ACLJ) filed a brief arguing that regulations on broadcast indecency are similar to regulations on public indecency. An indecent television broadcast, the legal organization said, "is essentially an indecent public display."
"Just as a state could prohibit someone from strutting around naked in public, the state could forbid someone from strutting around carrying a display -- still or video -- of someone naked," the ACLJ brief, which supported neither party, said. "Likewise, a state may forbid companies from broadcasting into people's homes programs depicting someone strutting around naked. Thus, an indecent broadcast is properly subject to government prohibition."
Broadcasters are different from other types of media -- such as print media, which has more freedom -- because of their ability to "intrude on the privacy of the home without prior warning," especially for the viewer who is "just tuning in or switching channels," the ACLJ brief said. Further, broadcast media is "uniquely accessible to children."
The Parents Television Council (PTC) filed a brief supporting the FCC policy and quoted its own research showing a 69 percent increase in profanity in prime-time programming from 2005 to 2010. If the FCC's policy falls, the Parents Television Council said, television will only become more coarse.
"The public airwaves will afford no shelter for parents who want to shield their children for as long as they can from the corrosive effects of what broadcasters think is appropriate," the PTC brief said.
Despite the popularity of cable television, over-the-air broadcasting remains uniquely popular and has 90 of the top 100 primetime shows on TV, the PTC said in citing data from BusinessWire.com. The percentage of Americans who rely solely on broadcast television -- and who don't subscribe to cable or satellite -- actually has tripled since 2003 to 15 percent of the public, the PTC said.
"Simply put, broadcast programming saturates the nation's airwaves and dominates what is seen and heard in the nation's homes, particularly by children," the PTC brief said. "That is why, despite their claims that they are besieged on all sides by viewing and listening alternatives on cable, the internet and elsewhere, none of the broadcasters has chosen to abandon the free public airwaves."
Michael Foust is associate editor of Baptist Press.
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