Supreme Court case tests FCC’s power to police TV indecency

Daily News Article   —   Posted on January 10, 2012

*The Federal Communications Commission (FCC) is an independent agency of the U.S. government…with the majority of its commissioners appointed by the current President.  The FCC was established by the Communications Act of 1934…and is charged with regulating all non-federal government use of the radio spectrum (including radio and television broadcasting), and all interstate telecommunications (wire, satellite and cable) as well as all international communications that originate or terminate in the U.S.

(by Robert Barnes, WashingtonPost.com) LOS ANGELES – …The Supreme Court is set to hear arguments [today, Jan. 10] about whether the FCC should still have a role in policing the nation’s airwaves or whether its indecency regulations violate guarantees of free speech and due process.

The networks have argued successfully in lower courts that in a revolutionized world in which they exist “side by side” with cable channels that are beyond the FCC’s regulation,  singling them out is…unconstitutional.

“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,” Washington lawyer Carter G. Phillips, who represents Fox [Broadcasting] and other networks, told the [Supreme] Court in a brief.

“To the average American viewer, broadcasting is just one source among hundreds in a media-saturated environment, a mere press of a button on the remote control away from other, fully protected sources [“protected” from government regulations on indecency],” he wrote.

The Obama administration is defending the FCC’s powers. If anything, it told the court, the new media world requires continued federal oversight of the public airwaves to provide a haven for parents and children from the anything-goes world of cable and the Internet.

“Generations of parents have relied on indecency regulation to safeguard broadcast television as a relatively safe medium for their children,” U.S. Solicitor General Donald B. Verrilli Jr. wrote in the government’s brief.

The “uniquely pervasive” language in Fox’s brief comes from the Supreme Court’s 1978 decision in FCC v. Pacifica Foundation, in which it upheld the [FCC’s] decision that an afternoon radio broadcast of comedian George Carlin’s 1973 monologue about words that could not be said on television violated indecency standards.

The court found that the FCC was within constitutional boundaries to police the radio and television airwaves during the times children would probably be listening, which was interpreted between 6 a.m. and 10 p.m.

Parents Television Council President Tim Winter said that even though nearly nine of 10 households have cable, broadcast channels remain paramount [predominant; number one]: The [majority] of the country’s most watched shows reside there, commanding the most money from advertisers and bringing the highest salaries to the stars and producers.

With the right to the public airwaves, Winter said, come responsibilities.

“If they want to be indecent, as we’ve said in the past, they can wait until 10 o’clock and be as indecent as they want,” Winter said.

…………………….

The cases before the Supreme Court concern the FCC’s role in policing the airwaves for material that describes or depicts “sexual or excretory organs or activities” and is “patently offensive as measured by contemporary community standards for the broadcast medium.”

After Fox broadcast award shows in which Cher and Nicole Richie [used expletives], the FCC announced in 2004 that it was changing its policy so that even one-time utterances of profanity could be penalized.

The Supreme Court ruled 5 to 4 in 2009 that the agency was within its rights as a matter of administrative law to change its policy to protect the public against what Justice Antonin Scalia called “foul-mouthed glitteratae from Hollywood.”

But justices sent the case back to the U.S. Court of Appeals for the 2nd Circuit in New York to determine whether there were constitutional problems with the [FCC’s] actions.

That court agreed that there were. It said the [FCC’s] context-heavy determinations about indecency mean that broadcasters “are left to guess” when profanity and nudity might be deemed appropriate or punishable.

For example, the FCC allowed the profanity in an ABC broadcast of the movie “Saving Private Ryan” but disallowed some of the same words in a PBS documentary on blues singers.

So the Fox profanity cases are back at the Supreme Court, along with ABC’s challenge of an FCC decision that a seven-second camera pan of an actress’s bare [bottom] in a 2003 episode of “NYPD Blue” violated the indecency standards. That resulted in a $1.2 million fine for 40 ABC affiliates that aired the show (including a Texas station owned by a subsidiary of The Washington Post Co.).

The court’s deliberations this time will focus on whether the FCC’s indecency regulations violate the First Amendment and the Fifth Amendment’s guarantee of due process.

In the 2009 case, Justice Clarence Thomas voted with the majority but said the court should reexamine the [1978] Pacifica decision. “Traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were,” he wrote.

And Justice Ruth Bader Ginsburg, in dissent, said that when the court considers constitutional questions, “we should be mindful that words unpalatable to some may be commonplace for others.”

In their briefs, the networks say worries about what they will show if the FCC’s regulations are struck down are overblown. They are free to show whatever they want after 10 p.m., and it is not comparable with what is on cable, they say.

Winter said the networks “know they would not win in the court of public opinion,” but he is not as confident about the high court.

“The amount of content that used to be considered too much for broadcast is now ubiquitous [common; frequent],” he said. “They are editing into shows the harshest profanities with bleeps. What will happen is that those bleeps will go away.”

The cases are FCC v. Fox Television Stations and FCC v. ABC.

Copyright 2011 The Washington Post.  Reprinted from the Washington Post for educational purposes only.  Visit the website at washingtonpost.com.

Questions

1.  Define the following words as used in the article:
-indecency (from para. 1)
-pervasive (para. 3)
-brief (para. 3)
-deliberations (para. 19)
-unpalatable (para. 21)

2.  In 1978 the Supreme Court ruled that the FCC could sanction a radio station for airing a comedian’s profane monologue. The court found that the FCC was within constitutional boundaries to police radio and television airwaves during the times children would probably be listening, which was interpreted between 6 a.m. and 10 p.m.  The court said broadcast TV and radio had a “uniquely pervasive presence in the lives of all Americans” and were “uniquely accessible to children.”  
Fox and ABC are asking the court to overturn that ruling (that lets the FCC regulate broadcast indecency while exempting cable and satellite TV and the internet).  What specifically do these networks want the court to decide?

3.  What argument have the networks used successfully in lower courts to win their case?

4.  What argument does the networks’ lawyer use in his brief to the Supreme Court?

5.  How does the Obama administration defend the FCC to the Supreme Court?  

6.  In 2009, The Supreme Court ruled that the FCC was within its rights to change its policy (so that even one-time utterances of profanity could be penalized) to protect the public against indecency. But justices sent the case back to the U.S. Court of Appeals 2nd Circuit to determine whether there were constitutional problems with the FCC’s actions. What ruling did the 2nd Circuit court make (which is the reason for this case to now come again before the Supreme Court)?

7.  Consider the following views.  Which view or idea do you think makes the most sense?  Explain your answer.

  1. Parents Television Council President Tim Winter said that even though nearly nine of 10 households have cable, broadcast channels remain the most watched.  He says that with the right to the public airwaves come responsibilities.  “If they want to be indecent, as we’ve said in the past, they can wait until 10 o’clock and be as indecent as they want,” Winter said.
  2. In the 2009 case, Justice Clarence Thomas voted with the majority but said the court should reexamine the [1978] Pacifica decision. “Traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were,” he wrote.
  3. Justice Ruth Bader Ginsburg, in dissent in the 2009 case said that when the court considers constitutional questions, “we should be mindful that words [offensive] to some may be commonplace for others.”
  4. Carter G. Phillips, who represents Fox [Broadcasting] and other networks, told the court in a brief wrote: “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. To the average American viewer, broadcasting is just one source among hundreds in a media-saturated environment, a mere press of a button on the remote control away from other [sources not regulated by the FCC]” he wrote.
  5. Different from TV, but very interesting:  In an attempt to avoid federal regulation in response to public outcry, Hollywood decided to regulate itself in 1930.  Read about Hollywood’s Motion Picture Code which was strictly enforced to monitor the moral content of movies from 1934 to 1968.  The Production Code spelled out what was morally acceptable and morally unacceptable content for motion pictures produced for a public audience in the United States.

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Background

On the Supreme Court from BensGuide.gpo.gov:

  • Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. …
  • The Supreme Court convenes the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in “conference”) to discuss cases they’ve heard and to vote on them. …
  • Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
  • Once the lower court makes a decision, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
  • If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land.

Resources

Visit the FCC website at: fcc.gov/what-we-do.

Visit the U.S. Supreme Court website at: supremecourt.gov/Default.aspx

For a relevant cartoon, go to: studentnewsdaily.com/cartoon/public-airwaves-ramirez/print/?part=cartoon.