The future of broadcast television isn't the only thing at stake in the Supreme Court's case weighing the constitutionality of "indecency" rules governing prime-time television—a ruling could also affect radio censorship. On Tuesday, the high court heard oral arguments on the constitutionality of banning nipple slips and four-letter words on television in the much-anticipated case Federal Communications Commission v. Fox Television Stations, et al. During the arguments, SCOTUS blog's Lyle Denniston latched onto an interesting exchange about the viability of letting TV networks broadcast profanity while keeping radio broadcasting rules the same:
A bit later, Justice Alito raised an intriguing question with Fox TV’s lawyer, Carter G. Phillips of Washington, about whether the Court could fashion a constitutional rule that would give TV broadcasting more freedom, but keep radio under the existing restraints. Phillips said the Court could do that, on a theory that the Court normally deals with each medium as a separate phenomenon.
Alito was not alone in exhibiting some concern that, if the Court found the FCC policy invalid as to TV, that would give radio the same freedom — a concern that appeared to be based on the premise that radio is definitely a raunchier medium.
As it stands, no one knows how the Supreme Court will rule on FCC vs. Fox. If the court upheld the "indecency ban," radio would not be affected. However, if the court were to strike down the ban, the idea that rules governing radio indecency would be abolished is a tantalizing prospect.
For years, record labels have had to tweak some of the most popular singles in pop music, with varying degrees of creativity, to comply with the standards of radio broadcast. Think about Cee Lo Green's "Fuck You" or the Black Eyed Peas' "Let's Get Retarded" or Radiohead's "Creep." The list is nearly endless. And while the Internet age rendered much of the censorship rules pointless (go on YouTube and hear the uncensored version), the rules were powerful enough to transform decades of hip-hop and rock singles into family-friendly-ish anthems. And that doesn't even begin to address talk radio, where shock jocks like Howard Stern were driven from the medium to Sirius XM radio to avoid incurring odious FCC fines. Would Stern come home?
Obviously it's too early to start pondering such things. By the sound the justice's questioning today, a number of them appear reluctant to strike down the rules, The Los Angeles Times reports. The AP says a decision is expected by late June.
We oppose censorship as a rule, but one has to admit we may one day come to miss the humorous results of corporate executives transforming curse words into kind words. Without the broadcast ban, would we have ultimately had Cee Lo's impromptu version of "Fox News" on the Colbert Report last November? Maybe not.