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Opinions Divided Over Close Profanity Decision

Reaction poured in Tuesday to the Supreme Court’s decision that the FCC sufficiently justified its decision to start finding fleeting profanities indecent.

"Today’s decision is extremely disappointing," said Andrew Jay Schwartzman of the Media Access Project. "We remain hopeful that the FCC’s restrictive policies will ultimately be declared unconstitutional, but there will be several more years of uncertainty, and impaired artistic expression, while the lower courts address the First Amendment issues which the Court chose not to confront today."

"As Justice Breyer’s dissent points out, the chilling effect of the FCC’s new policies are especially severe on smaller independent and public broadcasters. Writers, artists and directors on the front lines of the First Amendment face continuing pressure to err on the side of the blandness."

MAP represented some of the Hollywood creative folks in the Supreme Court challenge as counsel to the Center for Creative Voices in the Media.

Think tank the Progress and Freedom Foundation, which filed a brief in support of those challenging the FCC policy, was equally disheartened. "While the Court decided this case on purely procedural grounds, its failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years," said the group in a statement.

Not surprisingly, the Parents Television Council, whose complaints have helped trigger numerous FCC indecency inquiries, was pleased, calling it an "incredible victory for families."

“We implore the broadcast networks to abide by today’s Court’s ruling rather than to pursue a path of attempted obstruction with countless legal maneuverings," said PTC President Tim Winter in celebrating the decision.

Also giving the decision a shout-out was Common Sense Media CEO James Steyer. "Today the U.S. Supreme Court made a crucial and wise decision upholding the Federal Communications Commission’s right to regulate the airwaves on behalf of kids and families,” said Steyer. Following up with B&C, he said he thought that because it was a close and narrow opinion, in fact six different opinions, it was a "modest negative for braodcasters. I'm sure the broadcasters are disappointed. But we look at it through a kids and families perspective, and from that perspective you care that the FCC’s authority to regulate on their behalf is affirmed."

Common Sense Media provides ratings and reviews to help parents pick age-approprate media. In addition, the Obama administration's pick for FCC chair is Julius Genachowski, a founding board member of Common Sense.

The American Civil Liberties Union said it still expected the FCC's content-control powers ultimately to be curtailed.

"Today's decision, while disappointing, is likely to be only a temporary reprieve for the FCC's claimed authority to ban even fleeting expletives from the airways," asid ACLU in a statement. "While recognizing that the FCC's rule on fleeting expletives represented a change in policy, the Court's 5-4 majority concluded that the new rule was neither arbitrary nor capricious. We disagree. More fundamentally, however, the Court expressly declined to decide whether the ban on fleeting expletives is constitutional until that issue is first addressed by the court of appeals in this case. That constitutional review is long overdue.

The First Amendment does not grant government the power to censor speech that it labels indecent based on vague definitions that are inconsistently applied. The FCC's renewed effort to act as national censor cannot survive serious constitutional scrutiny."

Patrick Maines, president of the media indsutry's First Amendment think tank, The Media Institute, put the decision in the context of other issues, and didn't like the result. Calling it a mistaken opinion, he said that, “When added to proposed advertising restrictions and continued opposition to liberalization of the cross ownership rules, fines for fleeting expletives become just another burden for the struggling broadcast industry.”

“While the Supreme Court reversed and remanded on administrative law grounds the court of appeals decision holding the FCC "fleeting expletive" order, the Court recognized that it may soon be forced to confront the First Amendment issue left unresolved by the appellate court," said Randolph May, president of the Free State Foundation. He cited Justice Clarence Thomas' willingness to reconsider the constitutional underpinnings of indecency regulations in another context, saying it "heightens the sense a constitutional reckoning is still possible in the near-term."

John Eggerton
John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.