Sunday, July 25, 2010

Gene Policinski: Court ruling questions rationale for FCC’s control of TV

  What do you do when you hear foul language on television?

  As for me, sometimes I cringe, sometimes I don’t. Sometimes I’m surprised, sometimes disappointed, and sometimes the words just come and go without much effect.

  If I’m offended, I change the channel. But sometimes I intentionally tune to a channel knowing that I’m going to hear language that I wouldn’t want even my two adult sons to use.

  And speaking of my sons, when they were younger we didn’t subscribe for a number of years to some cable channels where they would hear words, and see images, that my wife and I didn’t think they were ready to see.

  Note that we made our own decisions about what to hear and see. No government instruction manual or censor involved. Well — mostly. The Federal Communications Commission has policed broadcast TV for decades in ways never permitted with other traditional media — from a now-discredited and abandoned “fairness doctrine,” to setting out times when certain words and images could not be broadcast, to limits on ownership, to must-do public service directives.

  But that may be changing. The 2nd U.S. Circuit Court of Appeals ruled July 13, in a case involving a television-industry challenge, that the FCC’s policy on indecent language uttered during TV shows was too vague to enforce.

  The effect of the decision may go well beyond whether broadcasters can be fined because of a common, four-letter “fleeting expletive” uttered several times on various awards programs earlier this decade. The court questioned the entire legal regime under which broadcast television may be controlled — some say censored — under FCC regulations.

  As my colleague David Hudson has noted, the appellate court directly questioned the two underpinnings of government control that have existed since broadcasting began, bolstered by a 1978 Supreme Court decision (FCC v. Pacifica — 1., that public airwaves are a scarce commodity, and thus the public has a right to control how those airwaves are used; and 2., that broadcast programs are so uniquely pervasive and influential in our lives, particularly for children, that there is a substantial public interest regulating some content.

  The 2nd Circuit, in challenging both ideas, effectively joined critics who say neither condition for regulation exists today. As a result, they say, even if the two rationales ever supported a second-class First Amendment status for broadcasters, they should not do so today.

  One non-legal consideration that the FCC’s regulations have going for them is “expediency.” Nobody says that being your own censor isn’t difficult. A government agency is a convenient place to file complaints about broadcast programming you don’t like. It’s even better when it handles the follow-up.

  And for parents and others beset by the pressures of a 24/7 media-saturated world, keeping up with what your children are viewing may well seem a mountain too steep to climb.

  Still, bringing public pressure to bear directly on broadcasters and their commercial sponsors — if harder to do — may well be more effective than complaining to a government agency. While the “expletives” case and others like it take years to move through the administrative and court systems, other situations where a broadcaster’s offensive words have been at issue (think Dom Imus) were over and dealt with quickly in the court of public opinion.

  When we all had access to just a relative handful of TV and radio stations, which, if we’re honest about it, had virtual monopolies to operate, having a big brother like the FCC to turn to with a complaint may have justified placing the public good over broadcasters’ free-speech rights.

  But with 500 channels on cable TV, more and more programming on the Web and an amazing spectrum of choices among programs, opinions and news, empowering government officials to vet individual words for acceptability to the masses seems more like “Big Brother.”

  The U.S. Supreme Court will have the final say in the matter, if the FCC appeals the 2nd Circuit decision.

  But how ironic if, in the end, a dispute over a four-letter word leads to a seven-letter result: “freedom” for the nation’s broadcasters.

  About the author: Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. Web: E-mail:

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