By Drew Clark
Here’s a maxim for Supreme Court watchers: the high court likes to be entertained.
The justices’ decision to take the Federal Communications Commission v. Fox Television Stations case means that the court will finally hear a case pitting broadcast-style indecency regulation against the more recent rulings that the First Amendment forbids restrictions on the Internet and cable television.
The tension between the rules governing broadcasting and the rules governing cable television and the Internet has become extreme. The FCC has been vigorously enforcing broadcast indecency over the past five years — at the very time in which technological developments are making the broadcast versus Internet distinction meaningless.
Some First Amendment observers believe that the FCC v. Fox case could result in a decision overturning the entire framework of broadcast indecency.
Although the Supreme Court could rule more narrowly, the fact that it took the case may signal that the justices are finally ready to square what appears to be the single most glaring inconsistency in First Amendment jurisprudence.
The tension has arisen as the FCC has significantly increased the number and the dollar value of the fines it has levied against about broadcasters for airing indecency. The agency has also begun to sanction isolated instances of a single profanity, including the words “fuck” and “shit.”
As the Forum on Communications and Society last August at the Aspen Institute in Colorado, FCC Chairman Kevin Martin defended this approach by referring to the George Carlin monologue – about the seven dirty words that you can’t say on the public airwaves – that was the subject of the 1978 Supreme Court decision, Pacifica v. FCC, that sustained the indecency ban:
The commission has never had an action about anything besides the words that were included in that original monologue. We are down to enforcing only two to three of those words, and we actually take into consideration the context…. It is important to distinguish between the fact that we have a narrow set of words, and we have been very restrained in our enforcement…. Indeed, those broadcasters that have complained that it is not clear, if we had a per se ban, they would complain just as much.
Broadcast indecency rules have existed since the passage of the Federal Radio Act in 1927. But notwithstanding the 1978 Pacifica decision (decided on a 5-4 vote), indecency has only recently become a live political and legal controversy.
Our current indecency watch began in late 2002, when a string of celebrities, including Cher, Bono, and Nicole Ritchie, used an instance of the “f-word” in awards ceremonies that were carried on live television. These instances raised the hackles of Congress. And then, after Janet Jackson’s breast was briefly exposed by Justin Timberlake during the half-time show of the Super Bowl on February 1, 2004, political momentum became strong for new indecency legislation. The law, passed in 2006, raised the maximum fine for each instance of indecency from $32,500 to $500,000.
After the FCC imposed sanctions against the Fox television network, and others, over the Cher and Nicole Ritchie utterances, during the December 2002 and December 2003 Billboard Music Awards, the network sued, challenging the agency’s decision. In June 2007, the 2nd Circuit Court of Appeals court sided with Fox, holding that the agency had acted arbitrarily in imposing the fine for a single instance of the “f-word.” In November 2007, Solicitor General Paul Clement urged the high court to weigh in, and yesterday, the high court took the bait.
The FCC v. Fox case lies at the fulcrum of he indecency framework — and what might be called a line of Internet free speech cases.
In 1997, the Supreme Court decision American Civil Liberties Union v. Reno held that the Internet should receive the level of protection according the printed world – and not inherit the restrictions that had been imposed upon broadcasters.
The use of filtering technology ended up playing a central role in the ACLU v. Reno case - as well as subsequent cases involving Internet and cable pornography. Because software filters are less restrictive than other forms of regulating content, the Supreme Court seized upon their existence in striking down the Communications Decency Act (CDA) of 1996. It also placed a heavy emphasis on the value of filters in Ashcroft v. ACLU in 2004.The decision effectively undercut the Child Online Protection Act of 1998 – which, as with the CDA, attempted to regulate objectionable material on the Internet.
Now, issues caused by the television/Internet convergence are higher on the political agenda. “Indecency” applies only to broadcast television and radio – and not to cable, satellite, or the Internet. Sometimes this difference has been justified because broadcasters utilize publicly-owned airwaves, and sometimes because of the pervasiveness of broadcast television. Remaining categories of speech – material that is “harmful to minors,” obscenity, and child pornography – apply across media.
“Harmful to minors” material like pornography is intrinsically hard to define, because it is legal for adults and yet forbidden for children. This standard has been the focus of the Supreme Court decisions focusing on Internet filtering. State laws that require Playboy and Penthouse to be wrapped up on magazine stances are a variant of these laws.
Obscenity differs from both indecency and material that is harmful to minors in that obscene material is not protected by the First Amendment, even for adults. But in practice, even hard-core pornography – which may, legally speaking, be obscene – is infrequently prosecuted because the difficulty of meeting the Supreme Court’s “community standards” test. The very notion of community standards has itself been undercut by the Internet.
Child pornography remains the one clear-cut case of harmful content that is illegal throughout the U.S. Prosecutions and criminal sentence are quite strict.
Now that filtering has proven itself – both legally and practically – in the online world, broadcasters seek to use filtering as example about why the indecency laws can no longer pass constitutional muster, even for broadcast television.
In the FCC v. Fox case that is now before the Supreme Court, Fox’s argument relies heavily on the existence of the “v-chip,” named after the images of violence or sexual content on TV the display of which it aims to guard against. After the passage of the Telecommunications Act of 1996, all television manufacturers must include this electronic device within their sets. The consumer has the option of activating it. Cable is already exempt from indecency law because it uses a subscription medium, and because it will “filter” shows and channels that the subscriber wants blocked. In U.S. v. Playboy Entertainment Group (2000), the high court held that Congress didn’t even have the power to limit the hours in which cable subscribers could view pornography on the Playboy channel!
If the least-restrictive means of Internet filtering makes the Communications Decency Act unconstitutional, strains the effectiveness of the Child Online Protection Act, and invalidates laws restricting the time in which cable subscribers may view pornography, surely the existence of the v-chip filter renders broadcast indecency rules obsolete.
After FCC v. Fox, indecency rules could be dead, or at least fatally wounded. Particularly in an election year, this may be a decision that the body politic has failed to anticipate, let alone absorb.