Editor’s note: With this post by Ashley Smolic, the Biedermanblog’s new Editorial Board begins its term.
The U.S. Supreme Court is scheduled this week to dive into answering whether the Federal Communications Commission has overstepped broadcasters’ rights to free speech and due process in its efforts to wipe the airwaves of what agency regulators have termed offensive, including use on air of “fleeting” profanities by celebrities like Cher (shown at right in 2002 Kevin Winter photo). In FCC v Fox Television Studios, the Court will examine its prior rulings regarding the question that has plagued broadcasters and the FCC alike for years, with strict parameters and requirements set for certain types of acceptable broadcast language and images. 

In the landmark case of FCC v Pacifica Foundation438 U.S. 726 (1978), a 1978 Supreme Court ruling involving George Carlin’s “Seven Dirty Words,” the court established that the FCC can regulate indecency on the airwaves between 6 a.m. and 10 p.m., reasoning that, during those times, children are likely to be part of the television audience. For many broadcasters today, the issue is consistency. According to the Wall Street Journal, Dennis Wharton, a spokesman for the National Association of Broadcasters asserts: “It’s clarity that we’re looking for more than anything else. If you tell us what the rules are, we’ll follow the rules.”

In its brief, however, Fox and other networks argue that the FCC’s stringent patrol of the airwaves violates broadcasters’ free speech and due process rights, and that Pacifica should be reexamined. Using the court’s own language in that case, Fox argues that, “Today, broadcasting is neither uniquely pervasive nor uniquely accessible to children, yet broadcasters are still denied the same basic First Amendment freedoms as other media.” The argument boils down to whether and to what extent the court should update precedents to fit new technologies, trends and expectations in society. 

The government argues in its brief that, “Broadcast licenses are issued only to serve ‘the public interest, convenience, and necessity.’ ” 47 U.S.C. 309(a). Under this view, a “licensed broadcaster is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.”

According to the Parents Television Counsel (which conducts extensive broadcast monitoring) and other similar organizations, television over the past few years has gotten noticeably more sexual, violent and indecent. With shows like “Jersey Shore” and “Keeping Up With the Kardashians,” TV routinely depicts situations involving underage-excessive drinking, domestic violence, sex and drugs; these all have become common fodder for jokes and sketches on both the closely regulated network and (less so) cable shows.
Broadcasters retort, however, that regulatory inconsistency plays havoc with their work; in their brief they, for example, note that the FCC deemed the same profanity uttered in an awards show by rock star Bono to be inoffensive while use of that same word in a different awards program by Cher and Nicole Richie was a violation (for which a network was not penalized); the FCC said similar coarse language used used in NYPD Blue episodes offended, while it did not in an airing of the movie Saving Private Ryan.