Indecency at the Supreme Court

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This week the United States Supreme Court heard oral arguments on FCC v. Fox. This case presents a great opportunity for the Court to cement, once and for all, the Federal Communications Commission’s (FCC) ability to enforce decency standards on broadcast television in a real, practical way.

As you will recall, this case involves a series of “vulgar expletives” uttered by Cher and Nicole Richie during a broadcast of the Billboard Music Awards and also some nudity on an episode of NYPD Blue.

The case comes to the Court from the Second Circuit Court of Appeals, which was reversed by the Supreme Court the last time this case came up, on their finding that the FCC’s indecency policy was “arbitrary and capricious” under the Administrative Procedure Act (APA). The Supreme Court remanded the case back to the Second Circuit for the question of its constitutionality.

On remand, the Second Circuit held “the FCC’s policy violates the First Amendment because it is unconstitutionally vague.” The FCC now appeals that decision to the Supreme Court.

The Court has upheld the FCC’s power in the past, and it should do so again. “Vagueness” is a basic principle of constitutional law that says a law or regulation is “void for vagueness” if its prohibitions are not clearly defined. That is not the case with the FCC’s policy.

The FCC has defined indecent material as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” The restriction applies only when the program is aired between the hours of 6:00 a.m. to 10:00 p.m.

The FCC has made clear that, as we all know, the “‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language,” that “inherently has a sexual connotation.”

Nothing unreasonable about that! Or hard to figure out for that matter. It could be stated this way in the broadcaster’s operation manual: “No use of the ‘F-word’ during programming hours of 6:00 a.m. to 10:00 p.m., unless specifically approved by the network.” For live programming, a simple delay of a few seconds would allow them to bleep out unexpected uses of the word.

But according to the Second Circuit, that is just too hard to figure out. Worse yet, it is unconstitutionally “vague.” They refer to the “chilling effect” this could have on other types of protected speech. The court seems to have a real problem with the FCC’s emphasis on context.

Obviously, the FCC makes a distinction between the use of the “F-word” in a historical piece, like “Saving Private Ryan,” and the vulgar, gratuitous use of the word. That, according to the Second Circuit, is what makes this regulation unconstitutional.

And they are serious, too.

But most Americans know better, and we hope the Supreme Court can see right through their flawed reasoning as well.

There is nothing unconstitutionally vague about this policy. The Hollywood jet set is only complaining about this because they are simply being held accountable. As long as the standard moved towards more profanity, as it did for many years, they were fine with it, but as soon as the standard moved towards decency, they strenuously objected in the name of “freedom of speech.”

They want Hollywood’s standard of decency to be applied everywhere, complete with full-on nudity during the Super Bowl and “F-bombs” during music awards shows.

But Americans don’t need to accept it. We need standards on broadcast television, especially when children are watching. Remember, these are the peoples’ airwaves; this is not cable, where you pay to get a service. Broadcasters are allowed, through a license, to come into our homes with their messages, and we should be able to set a standard of decency to which they must adhere.

Nothing in the Constitution prohibits that.

No one is infringing on the broadcasters’ “freedom of speech.” They can express their filth in their own pay-to-view venue, but the free, public airwaves belong to “We the People.”

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