Image via WikipediaThe Supreme Court has agreed to take up a case that involves the Federal Communications Commission's decency rules for prime-time television. The justices will be reviewing an appeals court ruling that rejected the FCC's standards forbidding the isolated use of expletives and, specifically, nudity on a 2003 episode of ABC's "NYPD Blue." NAB spokesman Dennis Wharton said, "NAB supports a constitutional review of the FCC's enforcement of program content rules." TVNewsCheck (free registration) (6/27), Broadcasting & Cable(6/27)
Free Speech Issue
Should broadcasters continue to be held to an indecency standard when all other forms of media are not. Should constitutionally protected speech receive equal protection in all media?
The Indecency Standard
If consistency is the hobgoblin of little minds, the FCC certainly should receive an award of virtue. For decades it has enforced a series of vague and inconsistent standards surrounding indecent broadcasting.
Originally, over-the-air broadcasters were granted licenses to "serve the public interest, necessity, and convenience" and the Federal Communications Commission (FCC) was the government agency created to oversee this. The FCC has done a reasonably effective job at enforcing the technical standards for broadcasting; but, a rather supercilious job at handling programming and content.
One of the areas of continued chafing between broadcasters and government has been the so called "indecency standard." These rules prohibit programs from using language and programming that receive constitutional protection in all others mediums (such as magazines, newspapers, cable programming, satellite radio, and the internet) because they are considered as either crude, vulgar, or sexually indecent.
What are these indecency standards? Well, no one really knows for sure. It seems to be decided on a case-by-case basis with the exception of George Carlin's seven dirty words. What happens is this, when something happens and people complain, the FCC issues a citation and fine for indecency. Generally, it is cheaper to pay the fine than contest the government bureaucracy. The only problem is, government continues to arbitrarily forbid a category of speech while allowing and protecting the same in all other mediums.
Perhaps there was a time when enforcing this standard made sense--back in those days when the only programs were broadcast over-the-air. But these days are long over and enforcement of these rules is anything but consistent. For instance, the FCC will fine a broadcaster for broadcasting a program it considers indecent while, at the same moment in time, cable networks are broadcasting frontal nudity. An accidental slip of the "F word during an award's ceremony will land a network a huge fine while the acclaimed network cable program Deadwood uses the same word 43 separate times in the first episode alone. Radio broadcasters are fined for the same "indecent" language that Howard Stern uses daily in his satellite broadcasts over Sirrus-XM.
It's time to move on. These standards are arbitrary at best and do not protect the public. It's time for them to go. No politician is going to vote against indecency--even though their constituent base watches indecent programming on a daily basis. It's time the courts do what the politicians, can't or won't do--afford equal protection to all media for speech that is constitutionally protected.