Supreme Court Hears Arguments in FCC Obscenity Case

Published February 3, 2012

In 2002 and 2003, celebrities uttered obscenities during live television broadcasts. The offensive words led to a battle over the Federal Communication Commission’s indecency standards, ultimately argued Jan. 10 in front of the U.S. Supreme Court.

In the nearly 10 years it took for the case to reach the highest court, free-speech advocates question whether government censorship is still relevant as American viewing habits change with the growth of the Internet, and whether the FCC’s enforcement of its indecency standards violates the First or Fifth Amendment, which cover free speech and protection from government abuse in legal proceedings.

The FCC fined the Fox Network for profanities spoken during awards programs that were broadcast live. The network sued, arguing the FCC was unconstitutionally punishing speech and violating laws governing how agency rules are made. The Supreme Court upheld the FCC fines in 2009 on a 5 to 4 vote based on administrative law, but it declined to rule on the censorship issue until this year.

No Definitive List
In its landmark 1978 decision, FCC vs. Pacifica Foundation, the U.S. Supreme Court ruled radio and television broadcasting are “uniquely intrusive and that viewers or listeners would have no way of avoiding in advance the languages or images that might offend them.”

The FCC has never put together a list of indecent words, claiming it would be impossible to decide on a definitive list. Instead, the FCC released a policy statement in 2001 saying any broadcast found to “describe or depict sexual or excretory organs or activities” and “patently offensive as measured by contemporary community standards for a broadcast medium” could be deemed indecent.

The FCC listed as principal factors the explicitness or graphic nature of the description, whether the material dwells on or repeats at length the activities, and whether it was done for shock value.

‘No Rhyme or Reason’
During the January arguments, Justice Ruth Bader Ginsburg observed the FCC had not fined the networks for an uncensored telecast of the expletive-laced film Saving Private Ryan but saw fit to fine the Public Broadcasting System for airing a documentary about jazz in which several interviewed musicians employed off-color language.

“One of the problems,” said Ginsburg, “is that, seeing [the FCC’s rule] in operation, there seems to be no rhyme or reason for some of the decisions that the commission has made.”

Chief Justice John Roberts noted the FCC’s rules could simultaneously punish a network for  airing an expletive yet allow the same network to report the remark unedited on a subsequent newscast. Roberts also said the 1978 ruling may not be applicable to the abundance of programming choices in 2012.

Overall Viewing Increasing
A key element of the FCC’s defense of a need for industry standards is whether children are exposed to indecent language and activities.

The FCC’s brief refers to children throughout its defense of the need for industry standards on indecency. The FCC pointed out more than 1 million children under the age of 11 were watching the 2002 Billboard Music Awards on the Fox Network when singer and actor Cher used the “f-word,” and it noted millions of additional children heard celebrity Nicole Richie use the same profanity during the 2003 Billboard Music Awards. U2 singer Bono employed the same word during a live broadcast of the 2003 Golden Globes.

A 2010 report by the Kaiser Foundation, however, indicates children’s viewing habits are changing rapidly and are no longer tied solely to TV. The report stated the amount of time young people watch a television program during its initial broadcast has fallen. However, the survey found that the amount of television viewing by young people between the ages of eight and 18 has risen due to the availability of television programs on the Internet.

‘Kids Are Watching Netflix’
Trevor Burrus, a legal associate at the Cato Institute’s Center for Constitutional Studies, said the days of TV programming being only four channels with everything viewed live are over.

 “It’s a very different world we are living in. If you are a kid now, you are not watching the Golden Globes,” Burrus said. “That’s not how TV is watched anymore. Kids are watching Netflix.”

Burrus said technological advances give parents sufficient tools to monitor what their children watch. He cited the V-chip, which allows TV sets to block programs based on their rating.

The FCC notes the V-chip doesn’t work at all with radio and contends the television ratings on which it depends “are frequently inaccurate.” The FCC argued the V-chip wouldn’t have worked with the shows in question because the ratings “didn’t reflect the content that the FCC found indecent.”

Nonetheless, Burrus said, “Give parents the ability to make an informed choice. Let them decide what their kids should watch.”

The Supreme Court is expected to issue its ruling by summer of this year.

Tom Gantert ([email protected]) is senior capitol correspondent for the Mackinac Center for Public Policy in Midland, Michigan.

Internet Info

“FCC Guides: Obscenity, Indecency, and Profanity,” Federal Communications Commission: