Bidding Good Riddance to FCC Indecency Rules

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In a big win for television and radio broadcasters, a federal appeals court has deemed the FCC's policing of "patently offensive" language unconstitutionally vague. In the last decade, the FCC and Congress clamped down on broadcasters issuing fines and penalties following high-profile events such as Janet Jackson's "wardrobe malfunction" and Bono's Golden Globes acceptance speech.

The three-panel judge, wrote:

The absence of reliable guidance in the FCC's standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and science. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity ... By prohibiting all 'patentently offensive' references to sex, sexual organs, and excretion without giving adequate guidance ... the FCC effectively chills speech because broadcasters have no way of know what the FCC will find offensive.

Is this the end of an era?

  • A Smart Move, says Tom Langmyer, a general manager at WGN-AM in Chicago: "It's a good decision. It wouldn't make any day-to-day difference at WGN, but it should lead to more understandable rules for broadcasters -- and perhaps an end to radio and television being singled out for harsher treatment than other media, such as satellite, Internet radio or cable TV."
  • A Blow to Families, says Tim Winter, president of the Parents Television Council: "The Court substituted its own opinion for that of the Supreme Court, the Congress of the United States, and the overwhelming majority of the American people. For parents and families around the country, this ruling is nothing less than a slap in their face."
  • Broadcasters Had Been Fed Up, writes Frank James at NPR: "The harder line, the fact that the FCC started to treat each broadcast of a show with a particular indecency as a separate instance, and an increase by ten times of the congressionally mandated fines for indecency eventually led broadcasters to say enough was enough. So they sued."
  • Don't Expect More Sex and Swearing, writes Joe Flint at the Los Angeles Times: "TV viewers and radio listeners are not likely to see any immediate change as a result of the court ruling, especially because it is likely that this legal battle is far from over. Broadcast television has gotten much racier over the last two decades in response to competition from cable television, which does not have to comply with the FCC's indecency rules. Ultimately, broadcasters are wary of offending advertisers who sometimes steer clear of risque content. The envelope is pushed, but only when someone is willing to pay the bill for it."
  • It's Time for the FCC to Lighten Up, writes The Los Angeles Times editorial board: "Rather than trying to justify such a highly subjective regulatory scheme, the commission should return to the restrained approach it took in previous decades. Broadcast networks are no longer dominant, inescapable media voices. Besides, the FCC can't shield children from inappropriate programs -- it has no authority over cable TV channels, and it can't stop kids from using DVRs or the Internet to watch late-night programming in the middle of the day. Happily, parents now have better tools for blocking programs they don't want their children to see. The FCC would be better off promoting those tools than trying to micromanage what's said on the airwaves."

Recommended Reading

  • It's Risky for the FCC to Appeal This, writes Ashby Jones at The Wall Street Journal: "So what does the FCC have to lose by trying to take the case up? It risks that the court overturns much of its First Amendment jurisprudence on the governmental regulation of speech, it seems, and strips the FCC of further power to regulate speech over the airwaves. In other words, with an appeal, the FCC just might stand to lose more than it stands to gain by winning."

This article is from the archive of our partner The Wire.