Editor’s note: The following editorial appeared Friday in the Chicago Tribune:
Television outlets that were fined for broadcasting bare butts and F-bombs got some relief from the U.S. Supreme Court on Thursday, but the ruling didn’t settle the question of whether the Federal Communications Commission’s indecency policy violates the First Amendment.
The sanctions against Fox TV and ABC were tossed out because the FCC hadn’t adequately explained its rules. Justices didn’t address the networks’ argument – and a lower court’s finding – that the policy chills free speech.
The Supreme Court said an FCC crackdown on content it deemed indecent was poorly explained and arbitrarily enforced: A blurted obscenity by Cher during the 2002 Billboard Music Awards drew a violation, for example, but prolific cursing by soldiers in “Saving Private Ryan” did not. As Justice Elena Kagan noted during case arguments in January, “It’s like nobody can use dirty words or nudity except for Steven Spielberg.”
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The FCC had long tolerated isolated bursts of profanity on the perfectly reasonable assumption that we’re all exposed to worse during, for example, our daily commute. But in the mid-2000s, the FCC began to hold stations responsible for airing “fleeting expletives” after on-air outbursts from Cher, actress Nicole Richie and U2 frontman Bono. ABC was cited for giving viewers an eyeful of Charlotte Ross’ bare behind during an episode of “NYPD Blue.” And who can forget Janet Jackson’s famous wardrobe malfunction during halftime of the 2004 Super Bowl?
The Supremes said broadcasters were deprived of due process because the FCC didn’t give fair notice of its policy change. That let ABC and Fox off the hook but also left the agency’s rules in place.
Conservative TV watchdogs were quick to point out that the FCC is now free to enforce its policy, as long as stations know the rules. It’s also free to revise those rules, and we urge it to do so. It’s simply not reasonable to hit broadcasters with hundreds of thousands of dollars in fines for failing to prevent a curse word from escaping someone’s lips on the air.
Broadcasters had argued that the rules are “hopelessly outdated and fundamentally unfair.” They’re right.
The rules apply to only the handful of broadcast stations regulated by the FCC, not to hundreds and hundreds of cable, satellite and Internet stations.
The FCC’s rules accomplish little. Scrubbed of what FCC lawyers delicately described as “the S-word and the F-word,” the airwaves still are loaded with racy content. Just watch the talk shows, the nightly news, the Viagra ads.
Earlier this year, the Parents Television Council reported that the word “vagina” had been uttered on television eight times more often last season than in 2001-02, when the group first started counting. “Penis” was used four times more often.
“So many shows and networks seem to think they need it to be funny or successful,” PTC president Tim Winter said. Another way of saying it is they need it to compete. Like it or not, the market rewards the sort of content that offends the Parents Television Council and others. It also provides an array of choices for countless tastes. There are plenty of channels that cater to viewers who don’t like anatomical terms tossed about lightly.
While most networks are free to adjust their content, trying to appeal to viewers without alienating them, the ones that are broadcast over the public airwaves are not. That distinction means little to the modern consumer, who accesses them all on the same flat screen.
Sooner or later, we expect the Supreme Court will have to reconcile the FCC’s policy against the First Amendment, though by the time it happens it likely will be over something far racier than seven seconds of butt cheeks on “NYPD Blue.” In the meantime, the FCC should stop trying to micromanage its slice of the broadcast business. Consumers who want to avoid profanity on television can do it just fine with the remote.