Public airwaves may be one step closer to becoming an indecent wasteland of swearing, nudity, and violence—a victory for First Amendment-lovers everywhere. Yesterday, the Supreme Court unanimously threw out fines against Fox and ABC for airing brief expletives and nudity, arguing that the FCC’s rule against “fleeting” indecency was too vague. The narrow decision won’t change the content of broadcasting anytime in the near future, but it has given the FCC more latitude in what it considers indecent and renewed the conversation about whether indecency rules are relevant in a world of Netflix, Hulu, and 24-hour access to the pornographic universe.
In FCC v. Fox Television Stations and FCC v. ABC Inc, the Court decided in an 8-0 decision against a rule levying heavy fines for “fleeting” indecency between the hours of 6 a.m. and 10 p.m.
ABC, which briefly showed the buttocks of a saucy NYPD cast member, faced a steep $1.2 million fine (or $600,000 per buttock, for those readers who are still learning their fractions).
Fox was charged for failing to censor expletives uttered during the Billboard Music Awards. Cher, referring to her critics, exclaimed, “F— ’em. I still have a job and they don’t.” Just one year later, soon-to-be-forgotten Nicole Richie said, “Have you ever tried to get cow s— out of a Prada purse? It’s not so f– -ing simple.”
“The 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,” wrote Justice Anthony Kennedy. The decision fell short of deciding the constitutionality of fleeting indecency or the broader question of indecency at all.
However, the Court did leave the FCC free to revise its policy, under the direction of Chairman Julius Genachowski, who has not made the punishment of indecency violations a top priority for the agency. Not that the chairman would tip his hand, saying in a statement, “We are reviewing today’s decision, which appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.”
More importantly, the court did at least acknowledge the argument that indecency rules could be “overruled” because the once scarce public airwaves have been “overtaken by technological change and the wide availability of multiple other choices for listeners and viewers.”
While the language might seem inconsequential, the Court is a compulsively coy institution, and acknowledging an argument is enough for First Amendment and broadcast groups to start gearing up for a fight in the future.
Censorship over public airwaves draws its legitimacy partly from the fact that broadcast television is aired through publicly owned spectrum. However, now that services like Hulu and Netflix can show the exact same filthy material that broadcasters can show after kiddies go to bed, it’s nearly impossible to truly police material. The Electronic Frontier Foundation made the case to the court in a brief, ” Consumers now have unprecedented freedom of choice to avoid exposure to inappropriate content, and, thus, it is simply no longer true that ‘[p]atently offensive, indecent material presented over the airwaves confronts the citizen” like an “intruder’ in the home.”
For instance, consider this gem from Saturday Night Live‘s Andy Samberg’s “J*zz in my pants,” which finds its way to the Hulu homepage “popular” section on occasion. Hulu has graciously covered its legal butt with a warning at the beginning of the video “The following material originally aired at 12:40 am and might not be suitable for younger viewers,” but doesn’t require an age verification to stream.
Of course, the digital short would be hilarious were it not for its unequivocal powers to turn straight-laced honor students into heathens of the night. With material like this digital short and worse easily accessibly for common websites, the government may (gasp!) lose its powers to keep adult material from impressionable young minds.
While the Court’s decision this week didn’t give sensible speech advocates the victory they hoped for, it does set the stage.