The US Supreme Court is set to hear oral argument on Tuesday in a case that examines whether tougher indecency standards enforced against broadcast television companies in recent years violate free speech protections of the First Amendment.
The tougher regulations subjected broadcast companies to substantial fines for the use of an isolated expletive or partial nudity during prime time programming.
For decades, the FCC had embraced a more lax enforcement posture, allowing the occasional four-letter “blooper” without subjecting broadcast companies to enforcement actions.
That changed in 2004, when the FCC shifted course and beefed up its policy on foul language and nudity on broadcast television.
Broadcasters are objecting to the policy change, claiming it is so ill-defined that it denies companies fair notice of what is banned. They also argue that such government censorship violates the free speech protections of the First Amendment.
Fox Television Stations and ABC are asking the Supreme Court to affirm the lower court’s decision and declare that the FCC’s regulatory regime is unconstitutional.
At issue is the extent to which broadcast television viewers will encounter coarse language and brief nudity on their television screens during prime time programming.
The FCC has sought to crack down on what it viewed as an increasingly permissive broadcast environment that failed to adequately self-police the use of four-letter words and risqué images.
The stations have fought back, arguing that the traditional broadcast companies should no longer be subject to special indecency regulations. They say the growth and popularity of other media – such as cable television and the Internet – have diminished the need for government controls on broadcast television content.
Government regulations were based on the fact that radio and television broadcasts were ubiquitous and readily accessible to children. In an effort to shield children from questionable content, the FCC established rules that certain offensive language and sexual content would not be broadcast from 6 a.m. to 10 p.m.
Broadcasters were free to schedule more adult-oriented programming after 10 p.m.
The government based its ability to regulate broadcast content on the fact that it was allowing private companies access to a limited band of government-controlled frequencies. The indecency standards were designed to promote the public good.
Now with the increasing popularity of cable television and Internet programming, the broadcast companies are questioning why they must still be regulated.
Cable and Internet companies do not face the same FCC regulations because they transmit their programming via privately built and owned networks, rather than via a government-granted monopoly over a segment of public airwaves.
“Regulation of indecent material has been a defining feature of broadcasting since the medium’s very inception, and it is one of the enforceable public obligations that broadcasters accept in return for their free use of the public’s airwaves,” writes Solicitor General Donald Verrilli in his brief to the court.
“Generations of parents have relied on indecency regulations to safeguard broadcast television as a relatively safe medium for their children,” he wrote. “The rise of alternative communications media has strengthened, not undermined, that reliance interest.”
Lawyers for television broadcasters say their companies are being treated like second-class citizens by the government.
“Only broadcasting is subject to content-based censorship by the federal government,” wrote Washington lawyer Carter Phillips in his brief on behalf of Fox Television.
“To the average American viewer, broadcasting is just one source among hundreds in a media-saturated environment, a mere press of a button on the remote control away from other, fully protected sources,” Mr. Phillips said.
He said the time has come to end the special FCC regulations on broadcast content. “The FCC’s indecency regime is the antithesis of what the First Amendment permits and should be declared unconstitutional.”
Washington lawyer Seth Waxman said broadcasting is no longer uniquely pervasive and uniquely accessible to children. “The vast majority of American households receive television through cable or satellite, and therefore receive numerous non-broadcast channels to the same extent, and with the same accessibility to children, as broadcast channels,” he said in his brief on behalf of ABC.
The FCC’s tougher standards were prompted in part by a series of celebrity bloopers featuring famous folks blurting out four-letter words during televised award shows. The offenders included Bono and Cher. Nicole Richie and Paris Hilton were also recognized for their salty dialogue during the 2003 Billboard Music Awards on Fox.
The FCC also cited an episode of the ABC police drama "NYPD Blue." The program included a seven-second shot of a woman’s naked buttocks and a side view of her unclothed body as she prepared to take a shower.
The cases are FCC v. Fox Television and FCC v. ABC Inc. (10-1293).