Supreme Court, FCC Defining What’s Indecent in the Internet Age

Published August 1, 2009

A recent decision by the U.S. Supreme Court could have wide-ranging legal ramifications for the regulation of profanity and indecency, not just in the traditional media of radio and television broadcasts but throughout the rapidly growing sphere of new media.

“Some may not yet fear the crusty speech controls of the past, but technological convergence could lead to regulatory convergence and the imposition of broadcast industry content regulations on all other industries and outlets, especially the Internet,” said Adam Thierer, a senior fellow with the Progress & Freedom Foundation in Washington, DC. “In other words, YouTube could eventually be regulated like the old Boob Tube.”

Regulating ‘Fleeting’ Speech

The case of Federal Communications Commission v. Fox Television Stations, decided in April by a 5-4 majority, arose out of a recent change in the FCC’s application of longstanding policies on what qualifies as “indecency.”

In response to complaints about the Fox TV network’s live broadcasts of the Billboard Music Awards show—which included the use of the “F word” by pop singer Cher in 2002 and celebrity Nicole Richie in 2003—and NBC’s 2003 broadcast of the Golden Globes awards show, which featured a variant of the word by U2 singer Bono, the FCC announced a revision of its policies on television broadcasts featuring “isolated or fleeting” incidents of foul language.

The new FCC orders—the first major overhaul of the commission’s attitude toward broadcast profanity since the Pacifica radio decision of 1978—declared even a lone usage of certain profanities was officially banned.

Defining ‘Indecent’

The FCC allowed for a few exceptions, such as usage in the context of breaking news broadcasts, but it also eliminated previously existing distinctions between different forms of grammatical usage.

There was little question at the time among legal observers that the new policy would bring on a legal challenge from the networks on First Amendment grounds, and they were quickly proven correct.

During the argument phase, Justice John Paul Stevens, the last remaining member of the court to have ruled on the Pacifica case—which primarily concerned a radio broadcast of a routine of comedian George Carlin—and not coincidentally the author of the 1978 case’s majority opinion, expressed the difficulty of the Court’s task.

“In the last analysis, we are trying to decide what the word ‘indecent’ means,” Stephens wrote in the majority decision. “Do you think that a fleeting expletive could not be indecent but the same words could be indecent if they are repeated several times?”

First Amendment Questions

The most recent Supreme Court opinion displayed the difficulty of that analysis. Writing for the majority in what several experts have described as a narrow ruling, Justice Antonin Scalia mused on the difficulty of curtailing the “foul-mouthed glitterati from Hollywood” in a way that does not violate the First Amendment.

But he and four of his colleagues expressed a belief it can be done constitutionally, and thus they upheld the FCC’s authority over radio and television to the point of banning lone usages of profanity in certain situations.

However, Justice Clarence Thomas’s concurring opinion spoke to the need for reconsideration in an era when millions watch streaming video online at all hours, as opposed to television between the hours of 6 a.m. and 10 p.m., the only period currently covered by the FCC’s rule.

Arguing there was a “doctrinal incoherence” in applying the pre-Internet decisions of the Court to today’s media, Thomas questioned whether the Court ought to be forcing broadcasters to abide by a far narrower standard than other equally plentiful and popular forms of media.

“The extant facts that drove this court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today,” Thomas wrote.

Adjusting for ‘New Media’

Regulating new media to the same extent as old media would represent a major expansion of the FCC’s duties, perhaps to an impossible degree, says Jennifer Tatel, an attorney for Sidley Austin LLP, who represented Fox in the case.

“If the FCC’s position is ultimately thrown out as unconstitutional, and this decision suggests it might be, it’s going to be very difficult to have any significant content regulation of what is happening in the new media,” Tatel said.

“There have already been challenges to regulating indecency on the Internet that have run afoul of Constitutional limits,” Tatel noted. “In terms of new media, I’d expect there will be a great deal of reluctance on the agency level to go in that direction, and, if the agency were to go that way, at the court level to sanction regulation of content.”

Another Appeal

The case has returned to the Second Circuit Court of Appeals, so the consequences of this decision for the new media are only beginning to unfold. Whatever the outcome, many expect this issue to make a return visit to the Supreme Court within a year or two.

Ben Domenech
([email protected]) writes from Leesburg, Virginia.

For more information …

Federal Communications Commission v. Fox Television Stations, by Justice Antonin Scalia for the U.S. Supreme Court majority, April 28, 2009: