In a ruling Thursday, the US Supreme Court took the wise step of affirming the federal government’s ability to regulate indecency in the public airwaves. But to protect free speech, the justices also insisted that TV broadcasters deserve “fair notice” on what is considered indecent.
The 8-to-0 decision overturns hefty fines imposed on Fox and ABC for their airing of “fleeting expletives” and momentary nudity during broadcasts a decade ago. And it pushes the Federal Communications Commission (FCC) to now come up with new – and less vague – standards.
Those new rules need to satisfy a public interest in safeguarding children in the home while also meeting a constitutional requirement to provide enough clarity so that broadcasters don’t censor themselves simply out of fear.
This is a fine line to walk. Broadcast TV (and radio) are regulated because the airwaves are a scarce resource, limited by the amount of frequencies. And the high court has allowed FCC limits on free speech because parents still need help – despite the V-chip and other technology – in protecting children from the emotional shock of vulgarities on broadcast TV during normal viewing hours.
Commercial media have plenty of other, nonregulated outlets, such as cable and the Internet, if they insist on airing edgy material. TV broadcasting is still uniquely accessible to children and still a popular medium in the home. Swearwords are generally offensive because many of them only serve as a reminder of base bodily functions or depraved activities – or those kind of things best left to parents to decide on what a child can bear.
For those reasons, the court likely did not want to decide this case on First Amendment grounds. And it stated there is no need for the FCC to “provide detailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one.”
Courts have found little social value in obscenities, giving them less free-speech protection, much as libel or verbal threats are not often protected by the Constitution.
The courts have cited a special need for homes to be a sanctuary for young children. And there will be little danger of society lacking a free flow of ideas and opinions if government insists on decency for the images and language where it has clear jurisdiction – on the public airwaves.
Yet challenges remain in being fair to broadcasters. The FCC has its work cut out for it. Defining indecency is as troublesome as knowing how to regulate it with fairness.
No doubt courts will revisit any new FCC rules. But for now the court has struck the right balance between vice on TV and the vice of legal vagueness.