Three cheers for the Second Circuit Court of Appeals, which last week told the FCC in no uncertain terms that its indecency enforcement regime is indecipherably vague and consequently chills speech. The issue was the FCC’s fi nding that swearing on Fox awards shows was indecent. The Second Circuit had initially ruled the decision arbitrary and capricious on procedural grounds. The Supreme Court disagreed and sent the case back to the circuit court to take a second look.
On remand, the court delivered a decision right on constitutional point, which should tee up the decision for eventual Supreme Court consideration of the constitutional question. The Supremes did not reach that question because the Court could rule on the procedural issue (courts don’t generally go to constitutional questions if cases can be decided on lesser grounds). Now that question will be squarely in their sights.
Last week’s conclusion has seemed obvious to many since the FCC’s Alice in Wonderland decision to reverse itself and conclude that swearing on TV, even in the excited heat of the moment, is indecent, except when it’s not. And even though they wear robes and sit slightly above the rest of us, these judges seem to recognize that the world has changed in the last 30 years. The FCC promotes this position when talking about the technological changes requiring spectrum reclamation, but conveniently forgets when trying to justify an indecency policy that, if it ever made sense, certainly does not now.
The Supreme Court in the Playboy case ruled that cable operators’ ability to block channels was a more narrowly tailored solution than government regulation. The Second Circuit said last week that it thinks broadcasters should be able to invoke a similar argument. “We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available,” the court said. Make that four cheers!
Now all we need is for the Third Circuit to come back with its decision on the remand of the FCC’s fine of CBS over the Janet Jackson Super Bowl reveal. The FCC may well wait to see what happens there before acting, but either way the Supreme Court should get a crack at rectifying years of chilled speech.
In the meantime, don’t look for big changes in programming. Broadcasters will continue to program to their audiences and occasionally push the envelope either accidentally or on purpose, just as they should under the protection of the First Amendment.
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