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Thursday, July 15, 2010

More on the FCC's indecency ban

The following is by my colleague Hannibal Travis, who writes on telecom law.

The FCC warns broadcasters that it is illegal to program indecent programming or profane language during certain hours, and that a fine or loss of the station’s license may be imposed as a result.  But it refuses to define indecency in clear terms, which violates the principle of the rule of law and, as the Second Circuit held, the First Amendment.  As Howard points out, the Supreme Court upheld the FCC's fleeting expletives policy last year, in a decision that may well result in CBS being fined $550,000 for the Janet Jackson partial nudity charge arising out of the 2004 Super Bowl.  Justice Scalia maintained that the policy was needed to prevent the coarsening of the culture.  The majority invited the Second Circuit to review the case for First Amendment violations, and the Second Circuit's ruling was the result.  The Second Circuit's opinion tracks the analysis of the swing justices in the controlling opinion in FCC v. Pacifica Foundation, which said that the FCC's regulation of indecency may not amount to roving censorship or the banning of isolated swear words.  Four justices dissented last year and argued that the FCC’s rule would chill the coverage of local public events on live television.  Even Justice Thomas, though in the majority, attacked the opinion of the Court for relying on cases explaining that the FCC may constitutionally regulate television content for decency and political balance, in part because it allocates scarce frequencies to private operators, while excluding non-owners of FCC licenses from broadcasting altogether.

Thus, the implications of the decision seem significant enough for the Supreme Court to take the case.  The result may be difficult to predict, in that a majority voted last year to find the FCC's policy basically reasonable (or at least not arbitrary), while remanding for a free speech analysis.  Justice Thomas, part of the five-justice majority, strongly suggested that the FCC’s policy is unconstitutional.  So if this decision is appealed and decided, he and the four justices who voted that the FCC's fleeting expletive policy violated the First Amendment as explained in Pacifica may strike down the policy and mandate a more liberal rule permitting expletives or occasional indecency on over-the-air television. 

That being said, media regulation today is a much more complex tapestry than the media coverage on this case would suggest.  Past racial and ethnic discrimination in the allocation of FCC licenses, mergers and acquisitions , ownership regulation, intellectual property, advertiser contracts, and expectations, coordination of similar editorial and journalistic standards across media organizations, and negotiations with governments over security threats likely play a much greater role in shaping public debate than indecency or fleeting expletives rules. 

The Court may take the opportunity to undertake a historical analysis of the freedom to speak indecently as of the era in which the Constitution was ratified.  Nearly 40 years ago, Justices Douglas and Brennan argued that the First Amendment was a product of a licentious time in which offensive publications proliferated.  Other justices, of course, will catalogue draconian obscenity and indecency laws enacted in Congress and the states from the eighteenth century until today.  Much of that history also reflects anti-homosexual persecution of the type rejected by the Court in Romer v. Evans  and Lawrence v. Texas.  Elizabeth Glazer of Hofstra's law school has written a foundational paper on how the present framework of obscenity and indecency regulation cannot withstand scrutiny under the principles of individual autonomy and respect for privacy set forth in those cases.  If the fleeting expletives policy makes it to the Supreme Court on constitutional grounds, it may be a good opportunity to revisit that framework in light of the original understanding and evolving conceptions of freedom and dignity.  Perhaps even the broader jurisprudential question will be raised, whether the theory or the practice of the founders and ratifiers of the constitution controls when defining the outer boundaries of our civil rights.

Posted by Howard Wasserman on July 15, 2010 at 08:01 AM in Constitutional thoughts, Howard Wasserman, Information and Technology, Law and Politics, Web/Tech | Permalink

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