The U.S. Supreme Court has agreed this fall to hear arguments as to whether Federal Communications Commission enforcement policies on “indecent” content ( nudity and explicit words) violate constitutional rights. A key issue is whether the FCC should continue to wield broad enforcement powers over the broadcasting of such material from 6 a.m. to 10 p.m. or whether the current expansion of available media platforms have made enforcement of old standards an archaic, useless task.
The high court specifically will evaluate the Second Circuit’s decisions on two live Fox broadcasts of the Billboard Music Awards involving blue language employed by Cher and Nicole Richie and an ABC broadcast of “NYPD Blue” that showed a woman’s backside. The New York Times examines the issue and summarizes arguments here.
Because the Roberts court has set down a path arguing for the preeminence of First Amendment liberties (see its recent rulings on regulating for children video games deemed violent and on campaign finance), some analysts look for the justices to revisit their key 1978 ruling in Pacifica and to look to whether the FCC regulation is constitutional at all or to send regulators back to the drawing boards. Broadcasters, both on the television and radio sides, say that some kind of consistency needs to be achieved so that indecency complaints — many filed en masse by interest groups — don’t keep regulators hovering constantly over their industry.
The proliferation of media outlets also, some analysts point out, has made the current FCC regulatory practices seem irrelevant — allowing cable broadcasts that reach tens of millions, including the allegedly young and impressionable, to view increasingly frank and explicit content that gets regular network broadcasters slapped silly[see clip from 2011 MTV awards video below] and, at the same time, permitting off-hour ribaldry, which also arguably is clear though vulgar protected expression of opinion, to air freely [see ‘Family Guy’ satirical clip below].