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Red Lion Redux

We find ourselves in agreement with the Parents Television Council and not with the Parent Teacher Association on how deeply the Supreme Court should delve into the arcane workings of the FCC's indecency campaign.

In short, we want the court to wade in and rule on whether the FCC should still be in the business of regulating broadcast content based on the shopworn and ludicrous justification of spectrum scarcity. As you can guess, we don't think that scarcity issue is justified, especially now.

The issue surfaced last week in friend-of-the-court briefs. They were filed with the court in the FCC's challenge of a lower court's reversal of the FCC ruling that swearing that occurred on two live awards shows shown on Fox was indecent. Of course, it was not.

But the current case digs up old bones. In 1969's Red Lion v. FCC, the Supreme Court upheld the FCC's now-defunct Fairness Doctrine by ruling that, astoundingly, broadcast speech was less protected than print because spectrum was scarce.

While spectrum is a finite thing, that doesn't trump the First Amendment. And broadcasting's corner on the pervasiveness market was history a long time ago.

The Supreme Court has the option of ruling narrowly on whether the FCC violated administrative procedures by not justifying its change in policy about punishing occasional unplanned swearing. That is what the PTA and other children's activist groups want the FCC to do. They fear that a more broad review would call into question the constitutionality of rules that mandate minimum amounts of children's programming, and limit commercials.

Those are laudable ends, but they do not justify the means if the means are to relegate the most powerful news and communications medium (or with the rise of the Internet, at least one of them) to second-class status. Imagine the howling from the print and online journalists if a regulatory commission prevented them from speaking freely.

By contrast, the Parents Television Council has asked the court to rule on the constitutionality of the FCC's indecency enforcement regime. Would the court uphold it?

We don't think the justices would. In a world where there are literally millions of information outlets, arguing that broadcasting must be micromanaged by government bureaucrats because it is unique is a joke.

“[The FCC] can say 'on broadcast, you can't do this,' but my children get every single show they would ever want on YouTube 10 minutes after it runs,” said a veteran Washington media observer last week. “As a parent, I am not going to be able to control the values that I raise my children with by trying to cabin them off from particular sources of media, or worse, have the government try to do it for me.”

That speaker was former FCC chairman Michael Powell, who initiated the FCC changes about fleeting obscenities. In a forum about media issues a new president will have to face, he said the country needs to be “honest and realistic about the explosion of media.” If the Supreme Court follows that guidance, it could finally free broadcasters to be as responsible, or irresponsible, as print and online without fear of government reprisal.