RELATED:SupremeCourt Says FCC Indecency Policy Was Too Vague
Reaction was pouring in at press time from major players in
the indecency debate after the Supreme Court set aside FCC indecency findings
against Fox and ABC, but declined to rule on the constitutionality of its
fleeting indecency enforcement or the underlying indecency enforcement regime.
"The Court's decision quite correctly faults the FCC
for its failure to give effective guidance to broadcasters," said Andrew
Jay Schwartzman, who represented TV producers and others who intervened in
support of Fox and ABC. "Its lack of precision has been a particular
problem for writers and others in the creators' community, as well as small
broadcasters. It is, however, unfortunate that the Justices ducked the core
First Amendment issues. The resulting uncertainty will continue to chill
artistic expression.""The MPAA's preference has always been for self-regulation, but we are pleased that the Supreme Court today recognized that any rules regulating broadcast indecency must provide clarity and fair notice about what is permissible on the public airwaves," said Motion Picture Association of America senior EVP Henry Hoberman. "Vague rules that leave broadcasters guessing as to the legality of their programming chill legitimate speech, depriving viewers of the content they could otherwise enjoy."
Both Republican commissioners saw it as a chance to work
through the huge volume of backlogged indecency complaints.
"Today's narrow decision by the U.S. Supreme Court does
not call into question the Commission's overall indecency enforcement authority
or the constitutionality of the Commission's current indecency policy,"
said Commissioner Ajit Pai. "Rather, it highlights the need for the
Commission to make its policy clear. I look forward to working with my
colleagues to provide the clarity that both parents and broadcasters deserve.
At this point, the best way for us to proceed is to get to work resolving the
multitude of indecency complaints that have piled up during this litigation."
FCC Commissioner Robert McDowell also said it was time to
start processing indecency complaints.
"Today, the Supreme Court held that the FCC failed to
provide fair notice that Fox's airing of fleeting expletives and ABC's
broadcast of brief nudity during an NYPD episode would trigger enforcement
action and, therefore, the indecency standards as applied to these broadcasts
were impermissibly vague. The FCC must expeditiously implement the Court's
decision to put an end to years of litigation and uncertainty regarding the
Commission's regulation of indecent content on America's airwaves. As a matter
of good governance, it is now time for the FCC to get back to work so that we
can process the backlog of pending indecency complaints -- which currently
stands at just under 1.5 million involving about 9,700 TV broadcasts. Some of
these complaints date back to 2003. We owe it to the American public and the
broadcast licensees involved to carry out our statutory duties with all
deliberate speed. I look forward to working with the Chairman, my
Commission colleagues and FCC staff to reduce the backlog of indecency cases,
along with more than 300 license renewal applications that have remained
pending in light of this litigation, as soon as possible."
The Parents Television Council, whose complaints helped prompt the FCC's crackdown on fleeting indecency, was declaring a victory and pushing for clearing the backlog.
"The Court today specifically acknowledged the FCC's ability to continue broadcast decency enforcement as part of its public interest obligation," said PTC President Time Winter. "Pacifica is still good law. The FCC must now rule on the merits of more than 1.5 million backlogged indecency complaints. The ‘notice' requirement, which allowed Fox and ABC to slip off the hook in these two cases at issue today, has already been satisfied for all the pending complaints."
TV Watch, by contrast, said the court was agreeing with it.
"Today's decision by the Supreme Court re-emphasizes what we
have been advocating all along: That parents, not the government, are the best
arbiters of what their children should be watching on TV," said Jim Dyke,
executive director of TV Watch. "In the one-third of American homes with
children, parents have tools such as the V-Chip and content ratings to help
them make decisions about what their children watch based on the age of the
child and their family's tastes and values."
TV Watch is a broadcast network-backed online effort to
encourage parental control, rather than government control, of kids' TV
watching via the V-chip/ratings system. It was launched in response to
congressional pressure for stricter indecency regs.
The National Association of Broadcasters suggested that the
decision would not change broadcasters' game plan, which was to program to their
audiences. Broadcasters are already allowed to air sexual and profane content
between 10 p.m. and 6 a.m., the FCC's so-called "safe harbor" when
kids are least likely to be in the audience.
"NAB has long believed that responsible industry
self-regulation is preferable to government regulation in areas of programming
content," said NAB spokesman Dennis Wharton. "We don't believe that
broadcast programming will change as a result of today's decision, given the
expectation from viewers, listeners and advertisers that our programming will
be less explicit than pay-media platform providers. As broadcasters, we will
continue to offer programming reflective of the diverse communities we serve,
along with program blocking technologies like the V-chip that empower parents
in monitoring media consumption habits of children."
NAB did not challenge the constitutionality of FCC indecency
regs, but instead has always called for better guidance, which the Supreme
Court agreed on Thursday the FCC had not provided.
John Bergmayer, senior staff attorney for Public Knowledge,
said the court got it right. "We're happy that the Supreme Court struck
down the illegal fines against Fox and ABC," he said. "The Court has
held that the FCC cannot hold broadcasters to overly vague standards about what
is and is not allowed on the air. This is the right result, although the Court
did not address whether the indecency rules violate the First Amendment. In
this case, our primary concern was free expression, not administrative procedure.
We have been, and still are, concerned with the First Amendment problems caused
by the FCC's current indecency rules. But those problems will have to be
addressed another time."
Democratic FCC Commissioners Mignon Clyburn and Jessica Rosensworcel weighed in as well commiting to continue to protect kids from indecent content.
In reviewing the Supreme Court's decision, which is narrowly focused on conduct from a decade ago, we will adhere to the principles set forth by the Court," said Clyburn, echoing comments of the chairman. "Citizens depend on laws that protect their families, and look to both industry and government to ensure that no child is unduly influenced by harmful material before they reach the age of understanding. However, we must be mindful of the rights guaranteed under the First Amendment."
"I look forward to reviewing and assessing today's decision from the Supreme Court," said Rosenworcel. "I will work with my colleagues to help ensure that parents can protect their children from harmful content and that the agency faithfully implements its authority under the law."
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