High Court says FCC’S pol­icy on ob­scen­ity on TV is ‘vague’

The Washington Times Weekly - - Politics - BY BEN WOLF­GANG

Net­work tele­vi­sion scored a vic­tory June 21 in its fight with the fed­eral govern­ment over dirty words and nu­dity, but the Supreme Court punted on the larger, more daunt­ing ques­tion of whether in­de­cency stan­dards by their very na­ture vi­o­late the First Amend­ment.

In a closely watched case, the high court de­ter­mined that the Fed­eral Com­mu­ni­ca­tions Com­mis­sion’s cur­rent pol­icy is too “vague” and ruled that fines and sanc­tions levied against Fox and ABC — stem­ming from brief in­stances of nu­dity and the use of ex­ple­tives dur­ing prime-time broad­casts — were un­war­ranted and un­fair.

“Reg­u­lated par­ties should know what is re­quired of them so they may act ac­cord­ingly,” said Jus­tice An­thony M. Kennedy, who wrote the ma­jor­ity opin­ion. “Pre­ci­sion and guid­ance are nec­es­sary so that those en­forc­ing the law do not act in an ar­bi­trary or dis­crim­i­na­tory way.”

But in its 8-0 de­ci­sion, with Jus­tice So­nia So­tomayor ab­stain­ing, the court did not ad­dress the broader free speech ques­tion of whether fed­eral reg­u­la­tors should have any con­trol over tele­vi­sion con­tent. In­stead, the judg­ment dealt only with sev­eral spe­cific in­stances and sub­se­quent fines.

Fox vi­o­lated the FCC’s pol­icy sev­eral times in the past decade, in­clud­ing a 2002 in­ci­dent in which the en­ter­tainer Cher ut­tered the F-word dur­ing the 2002 Bill­board Mu­sic Awards. Re­al­ity star Ni­cole Richie did the same in 2003.

ABC sta­tions were hit with fines af­ter an episode of “NYPD Blue” fea­tured a lengthy shot of a woman’s naked but­tocks. The nu­dity was shown be­fore 10 p.m. East­ern, the tra­di­tional cut­off point for in­de­cent ma­te­rial.

Le­gal an­a­lysts be­lieve the court’s nar­row rul­ing — which ap­plies only to the Fox and ABC cases — guar­an­tees it will have an­other show­down with broad­cast TV in the near fu­ture.

“The court avoided the big ques­tion that was pre­sented here, which is whether the FCC’s in­de­cency poli­cies are un­con­sti­tu­tional. You could say that, in a sense, it’s kick­ing the can down the road,” said Nathan Siegel, a First Amend­ment lawyer and law pro­fes­sor at the Univer­sity of Mary­land. “It doesn’t an­swer the ques­tion that peo­ple are look­ing for guid­ance on.”

Crit­ics have con­tended that the com­mis­sion is se­lec­tive in its en­force­ment, pun­ish­ing sta­tions for some vi­o­la­tions while turn­ing a blind eye to oth­ers.

The movie “Sav­ing Pri­vate Ryan,” for ex­am­ple, has been shown on broad­cast tele­vi­sion unedited, with no fines or sanc­tions levied.

The de­ci­sion al­lows the FCC to con­tinue en­forc­ing an in­de­cency stan­dard, and Jus­tice Kennedy specif­i­cally noted that the com­mis­sion is free to ad­just its pol­icy at any time.

By al­low­ing cen­sor­ship to stand, the court to a cer­tain de­gree pleased both sides of the de­bate, in­clud­ing those who be­lieve the govern­ment must pro­tect the pub­lic air­waves from sex, vi­o­lence and pro­fan­ity.

“Today, 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,” said Tony Perkins, pres­i­dent of the Fam­ily Re­search Coun­cil. “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.”

AS­SO­CI­ATED PRESS PHOTO/CBS

What’s ‘less vague’ gonna be like? Ash­ton Kutcher “stars” in a typ­i­cal scene from the raunchy CBS com­edy “Two and a Half Men.”

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