"What part of ‘no' do you not understand?" That sums up the message from the Second Circuit Court of Appeals to the FCC on the issue of indecency enforcement.
Last week, that court told the FCC that both its enforcement of indecency regs against scripted and unscripted content was unconstitutionally void, for vagueness.
From our vantage, that was the inevitable conclusion as far back as half a decade ago, when the FCC, under the guise of giving broadcasters guidance on what would and would not pass muster, tried to draw a distinction between swearing in, say, Saving Private Ryan (which was OK) and in an awards show on Fox (which wasn’t), all for the sake of kids—as though children would be able to distinguish a cuss word in a war movie from one on the Billboard awards.
And then to open another rabbit hole for the White Rabbit to disappear into, the commission found that swearing on an artsy PBS documentary was indecent.
Now, after a peripatetic trip through the courts, both the FCC’s NYPD Blue fine for a bare backside and its finding that Fox violated indecency regs with its broadcast of fleeting, unscripted profanity— no fine involved there—have been found to be unconstitutional.
Only the Third Circuit court’s action on the most high-profile indecency ruling in history—Janet Jackson and Justin Timberlake’s Super Bowl “disrobe duet” on CBS—remains to complete the picture.
So to recap, the FCC has failed to stay within the law in its regulation of fleeting profanity and scripted nudity. Sounds like its “fleeting nudity” crusade against CBS—Ahab and the whale continues to come to mind—is about to get harpooned as well.
The FCC will likely appeal the Fox decision to the Supreme Court. Bring it on, because it is time for the High Court to address the constitutional question of whether we should still be holding broadcasters to a 20th century standard.
We believe that will make the old regulatory silos so much scrap for the heap. We disagree with Austin Schlick, the FCC’s general counsel, who said last week that by striking down the NYPD Blue order on the basis of the Fox case, “the Second Circuit’s decision confirms what we have already said: The Court’s Fox decision was excessively broad in rejecting the FCC’s ability to use context to evaluate indecency cases.”
Sorry, but what the court recognized was the FCC’s inability to use context to regulate content without confusing and chilling broadcasters. The court summed it up succinctly in a summary judgment vacating the $1.2 million NYPDBlue fine: “According to the FCC, ‘nudity itself is not per se indecent.’ The FCC, therefore, decides in which contexts nudity is permissible and in which contexts it is not pursuant to an indecency policy that a panel of this Court has determined is unconstitutionally vague.” Bingo.
Some free legal advice for the FCC and its chairman, who we would wager is no zealot for content regulation: Accept the court’s finding, and recognize the indecency crackdown for what it was—a congressionally-driven overreaction under a chairman, Michael Powell, who has since conceded that pressure from Congress can make commissioners act against their better judgment.
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