The Supreme Court ruled Thursday against the Federal Communications Commission’s (FCC) policy on certain expletives over the airwaves, vacating the lower court’s decision on due process and fair notice grounds.
Airwaves? The term “airwaves” brings up old memories like the “information super highway” or pagers – mere anachronisms. Today we consume information – TV programs, movies, news – from around the world and from a variety of sources including radio (over the internet and real radio waves), streaming Netflix, a wide array of video websites, cable and satellite DVR and various on demand providers.
Amidst this constellation of choices does it make a difference what is “broadcast” TV versus any of the aforementioned forms? No. But it does to an FCC hanging on to archaic doctrine. They make it seem as if one “broadcasts” something the subject matter is endowed with all of the strength of a locomotive and the unwitting citizen memorized by the power of the medium is powerless to change the channel.
The FCC penalizes TV and radio stations for airing programs that “describe or depict sexual or excretory organs or activities” in ways that are “patently offensive.” Suffice it to say their rubric is highly subjective and the reason why this is becoming an extra ideological issue, one in which we can all agree it is time to say: F the FCC.
The Supremes avoided on Thursday the looming and larger First Amendment issues about regulating broadcast indecency in another case, Fox v. FCC. The Fox case concerned several rather hefty fines leveled against Fox and ABC in the middle of the last decade, after Cher and Nicole Richie each let a fuck fly on live television. The show NYPD Blue had the gall to allow seven seconds of ass cheeks on air.
While dickhead and bullshit statements may be allowed on news broadcasts there is no official “news exemption” according to the FCC, albeit it may satisfy the “third prong” of their obscenity test – that “[obscene] material, taken as a whole, must lack serious literary, artistic, political or scientific value.” In other words, if they have their way we’ll have to continue to settle for their idea of what is of “serious value.”
Although the Supreme Court had endorsed the FCC’s authority to regulate broadcast indecency over three decades ago, the commission officially started punishing censors’ specific failures to hit the bleep button during President George W. Bush’s first term. When it was originally granted these powers content-based regulation relied on the argument that TV and radio were “uniquely pervasive” and “uniquely accessible to children.”
Considering there is a dizzying amount of children friendly programming and combined with the fact that nine out of 10 households are served by cable, satellite, fiber-optic TV or in a younger generation by nothing other than an internet connection it would be “unique” if a child or anyone else for that matter had access to “broadcast” TV.
Makes me feel like a song and dance:
In what will hopefully become a trend Justice Anthony Kennedy wrote for the majority, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, Samuel Alito and Elena Kagan. Justice Ruth Bader Ginsburg concurred in the judgment.
Don’t be too optimistic though. As history has shown government agencies, especially ones with the authority to control communication have a tendency to stick around. There are forces in the American government who would love to retain the services of the FCC to monitor “chatter” across multiple mediums, regulate the internet itself through innocuous sounding terms like “net neutrality” or resurrect in a different form the now dead fairness doctrine. Keep your fucking eyes peeled.