Congratulations, American broadcasters. You have escaped censure – and censorship – over indecent content appearing on our screens, thanks to a Supreme Court decision that not only overturned Federal Communications Commission sanctions against two networks, but may also result in the need for the FCC to rework their indecency guidelines in general.
The Supreme Court today found that the FCC had given ABC and Fox “fair notice” of what, exactly, would constitute a violation of indecency standards in two cases that had seen Fox criticized for the accidental broadcast of swearing during awards shows in 2004 and ABC and affiliates being fined $1.24 million for the sight of a character’s bare buttocks during a 2003 episode of NYPD Blue (Each of the 45 affiliates who aired the scene were fined $27,500).
Writing for the court, Judge Anthony M. Kennedy explained that “The commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the commission’s standards as applied to these broadcasts were vague, and the commission’s orders must be set aside.”
Despite the overturning of the original FCC decisions, free speech activists have nonetheless been disappointed by the Supreme Court’s actions because the court actively avoided the question of whether or not the FCC’s guidelines and ability to control what is and isn’t considered indecent and, therefore, “allowed” to be broadcast over the airwaves is a breach of the First Amendment right of free speech. The FCC has theoretically had that power since the Supreme Court’s FCC vs. Pacifica ruling in 1978 declared that the government agency did have the ability to monitor and regulate broadcasts during the times children were likely to be watching, explained as 6am through 10pm. Kennedy mentions in his written opinion that, “in light of the court’s holding that the commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time.”
Certainly, it seems that the FCC is considering that a tacit approval of its overall aims; Julius Genachowski, chairman of the FCC, has been quoted as saying that the ruling “appears to be narrowly limited to procedural issues related to actions taken a number of years ago,” adding that “Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.”
That said, the court itself may not agree with that reading of the decision. Elsewhere in the written opinion, Kennedy suggests that the FCC should consider itself “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements,” suggesting that – while it may not be willing to push the issue at this current time – the agency shouldn’t consider themselves being given free rein to continue as was by this ruling.
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