Academic journal article Albany Law Review

Punting in the First Amendment's Red Zone: The Supreme Court's "Indecision" on the FCC's Indecency Regulations Leaves Broadcasters Still Searching for Answers

Academic journal article Albany Law Review

Punting in the First Amendment's Red Zone: The Supreme Court's "Indecision" on the FCC's Indecency Regulations Leaves Broadcasters Still Searching for Answers

Article excerpt

I. INTRODUCTION

Just one week before rendering its controversial landmark decision on the Patient Protection and Affordable Care Act (1)--arguably the most anticipated ruling of the October 2011 Term--the U.S. Supreme Court sidestepped the longstanding question of whether the First Amendment, given today's multifaceted media landscape, no longer permits the Federal Communications Commission to regulate broadcast indecency on the nation's airwaves. The Court's narrow ruling in FCC v. Fox Television Stations, Inc. (2) ("Fox IF') let broadcasters off the hook for the specific on-air transgressions that brought the case to the Court's docket-twice (3)--but did little to resolve the larger looming issue of whether such content regulations have become obsolete.

Justice Anthony Kennedy, writing for a unanimous Court, instead concluded that "[t]he Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent." (4) As a result of this lack of notice, "the Commission's standards as applied to these broadcasts were vague, and the Commission's orders must be set aside." (5) The Court specifically declined to rule on the constitutionality of the Commission's indecency regulations, noting that 'because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission's indecency policy." (6)

The broadcasters argued that the indecency regulations no longer made sense because other forms of technology have undercut the traditional rationale, articulated in the 1978 case of FCC v. Pacifica Foundation, (7) that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans." (8) In their brief to the Court, they asserted that "[b]roadcasting is not uniquely pervasive because Americans today spend more time engaged with cable and satellite television, the internet, video games, and other media than they do with broadcast media. Nor is broadcasting uniquely accessible to children because other media are no less accessible than broadcasting." (9) The latter point was also in reference to the Pacifica Court's concern that radio and television was so easily in reach of minors that exposure to indecent language "could have enlarged a child's vocabulary in an instant." (10)

Initially, proponents on both sides of the issue claimed victory. Tim Winter, president of the media watchdog group Parents Television Council, stated that "[o]nce again, the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards." (11) Similarly, Family Research Council President Tony Perkins released a statement saying that

   [t]oday, the U.S. Supreme Court gave the FCC the green
   light to continue imposing indecency fines on the networks
   for fleeting expletives and brief nudity. When a similar case
   goes before the Supreme Court again for fines imposed for
   any future violations, we expect the Court to once again

decide that fleeting expletives and brief nudity are not protected under the First Amendment. (12)

Meanwhile, Steven Shapiro, legal director for the American Civil Liberties Union, (13) had a different interpretation--one more favorable to broadcasters. To that end, he observed that

   [a]lthough today's decision is a narrow one, the indecency
   regime is now on life support. Speaking unanimously, the
   Court made clear that it will not uphold an indecency rule
   that fails to give broadcasters clear notice of what is allowed
   and what is prohibited. The FCC's track record in enforcing
   the indecency rule makes clear that it cannot provide the
   clarity that the Court and the Constitution demand. (14)

In the days immediately following the release of the Court's opinion, a torrent of criticism appeared in the press, (15) signaling that the decision, a decade in the making, (16) clarified very little with respect to what broadcasters could legally air on broadcast radio and television. …

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