Tuesday's ruling by the New York-based Second Circuit Court of Appeals, which sends the FCC back to the drawing board for its policy on “fleeting expletives” on broadcast television, has unexpectedly raised the hopes of First Amendment scholars and legal experts who would like to see less government regulation of the media.
At the same time, the surprise decision to ask the FCC to refine its guidelines for unacceptable over-the-air moments has rallied watchdog groups concerned about the coarsening of civic life.
“The FCC has been running wild with these huge fines,” argues Fordham University’s Paul Levinson, who says “any fines of any broadcaster communication is an obvious blatant violation of the First Amendment.” Pointing to recent discussions in Congress to expand FCC authority to both cable and the Internet, the author of “New New Media” says that this breather in the lockstep march toward increased regulatory intrusion provides an opening for a broader debate.
“What champions of the First Amendment who have been in despair over decades now hope is that this is the beginning of the turning of the tide towards more respect for the First Amendment,” he says adding, “a week ago, before this ruling, I would have called that a pipe dream, but now it may not be.”
While Mr. Levinson suggests that the proper role of the FCC should be limited to technical oversight of broadcasting signals, with no involvement in content, others such as Southwestern Law School professor Butler Shaffer take the argument one step further. [Editor's note: The original misstated the name of Southwestern Law School.]
“Get rid of it,” he says, referring to the FCC. In this new media environment of virtually bottomless media outlets, he says, the argument that a government agency needs to be in the middle, directing traffic for scarce resources, is no longer valid. “How can you possibly argue that this is a limited resource when anyone who wants to can go on the Internet and broadcast?” he asks.
As for the argument that licenses granted to broadcasters require them to act in the public interest because the airwaves belong to the public, he says the terms of that agreement are maddeningly vague. “What do those terms even mean?” asks Mr. Shaffer, adding that what is really going on is a struggle at the heart of our society over who shall control the future.
“We are in one of those major transitions that history has seen, as big as the shift from before and after the invention of movable type by Gutenberg,” says Shaffer, “and the government and corporate powers that control these things won’t give up easily.”
But family advocate groups such as the Parents Television Council say the discussion is not so complicated. “We are talking about the reasonable expectation of families when they tune into a major event such as the Super Bowl or an awards show during prime time,” says Dan Isett, director of the group’s public policy.
“Poll after poll of the American people suggests that the vast majority of the country is concerned about the growing amount of profanity and vulgar material on television,” says Mr. Isett, explaining that he does not see any issues with the First Amendment. “We are not talking about all speech, we are only talking about the hours when children could be expected to be watching. Broadcasters can air what they like after 10 o’clock.”
While these considerations may dictate the short-term decisions by the FCC and Congress, the future is clear, say those who consider extending FCC authority to the Internet a non-starter. Diversity, localism and competition – formerly reasons to regulate broadcast – no longer apply in an Internet-enabled world where consumers may pick their preferred content.
“Internet-delivered video – relying on a technology that eliminates previous barriers to free speech, and makes the free press even more accessible to and by all – should, arguably, remain free of unnecessary regulations that were uniquely intended for the environment of legacy video platforms,” writes Jonathan Askin, an Associate Professor of Clinical Law at Brooklyn Law School.
In the interim, adds Terrence Oved, a New York attorney who specializes in media issues, it is valuable to appreciate that we as a society have always recognized the need for regulations.
“We decide what we want to promote – for instance, we do not wish to further cocaine use so we make laws about that and any number of other social values we wish to further.”
What’s important, he says, is to make sure we don’t lose sight of the bigger picture. “The Talmud says, ‘asking the right question is half the answer’.”