Topher Morrison
The Supreme Court ruled Thursday against the Federal Communications Commission’s (FCC) policy on certain expletives over the airwaves, vacating the lower court’s decision on due process and fair notice grounds.
Airwaves? The term “airwaves” brings up old memories like the
“information super highway” or pagers – mere anachronisms. Today we
consume information – TV programs, movies, news – from around the world
and from a variety of sources including radio (over the internet and
real radio waves), streaming Netflix, a wide array of video websites,
cable and satellite DVR and various on demand providers.
Amidst this constellation of choices does it make a difference what
is “broadcast” TV versus any of the aforementioned forms? No. But it
does to an FCC hanging on to archaic doctrine. They make it seem as if
one “broadcasts” something the subject matter is endowed with all of the
strength of a locomotive and the unwitting citizen memorized by the
power of the medium is powerless to change the channel.
The FCC penalizes TV and radio stations
for airing programs that “describe or depict sexual or excretory organs
or activities” in ways that are “patently offensive.” Suffice it to
say their rubric is highly subjective and the reason why this is
becoming an extra ideological issue, one in which we can all agree it is
time to say: F the FCC.
The Supremes avoided on Thursday the looming and larger First
Amendment issues about regulating broadcast indecency in another case, Fox v. FCC. The Fox case concerned several rather hefty fines leveled against Fox
and ABC in the middle of the last decade, after Cher and Nicole Richie
each let a fuck fly on live television. The show NYPD Blue had the gall to allow seven seconds of ass cheeks on air.
While dickhead and bullshit statements may be
allowed on news broadcasts there is no official “news exemption”
according to the FCC, albeit it may satisfy the “third prong” of their
obscenity test – that “[obscene] material, taken as a whole, must lack
serious literary, artistic, political or scientific value.” In other
words, if they have their way we’ll have to continue to settle for their
idea of what is of “serious value.”
Although the Supreme Court had endorsed the FCC’s authority to
regulate broadcast indecency over three decades ago, the commission
officially started punishing censors’ specific failures to hit the bleep
button during President George W. Bush’s first term. When it was
originally granted these powers content-based regulation relied on the
argument that TV and radio were “uniquely pervasive” and “uniquely
accessible to children.”
Considering there is a dizzying amount of children friendly
programming and combined with the fact that nine out of 10 households
are served by cable, satellite, fiber-optic TV or in a younger
generation by nothing other than an internet connection it would be
“unique” if a child or anyone else for that matter had access to
“broadcast” TV.
Makes me feel like a song and dance:
In what will hopefully become a trend Justice Anthony Kennedy wrote
for the majority, joined by Chief Justice John Roberts and Justices
Antonin Scalia, Clarence Thomas, Stephen Breyer, Samuel Alito and Elena
Kagan. Justice Ruth Bader Ginsburg concurred in the judgment.
Don’t be too optimistic though. As history has shown government
agencies, especially ones with the authority to control communication
have a tendency to stick around. There are forces in the American
government who would love to retain the services of the FCC to monitor
“chatter” across multiple mediums, regulate the internet itself through
innocuous sounding terms like “net neutrality” or resurrect in a
different form the now dead fairness doctrine. Keep your fucking eyes peeled.
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