Fleeting Regulations

By Michael Baker

Last week, the Supreme Court issued its 8-0 decision (with Justice Sotomayor recused) in Federal Communications Commission v. Fox Television Stations, predictably ruling that the FCC’s regulation of “fleeting” obscenities is a First Amendment violation.  The opinion, which declared such regulations unconstitutionally vague, is a victory for those who have questioned the constitutionality of the FCC’s content-based fines for years.

The case centered on FFC fines that were levied for Fox’s live broadcast of an award show in which Cher used the dreaded f-word (please, don’t think about what that word actually is), and a 2003 episode of NYPD Blue that featured roughly seven seconds of female booty and – brace yourself – some side-boob.  Justice Kennedy’s opinion declared that the FCC “failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.”  According to the Court, that failure to give fair notice is highlighted by the fact that ABC was permitted to air an uncensored broadcast of Saving Private Ryan (in which f-bombs fall like…well, bombs) without facing FCC fines.

This decision is a positive step for Free Speech, albeit obvious and relatively uninteresting – after all, who’s going to argue that an inconsistently applied and purely discretionary standard that allows a federal agency to impose fines based on the context of “obscene” content is in line with the First Amendment?  Ok, so the FCC literally argued this, but they had little choice; hey, violating the First Amendment is how those guys make their living.

What is interesting about this decision is the 800-pound gorilla that it left almost completely untouched – the question of whether the FCC’s “decency” regulations have any viability in modern society.  Only Justice Ginsberg was willing to go near the question, briefly noting her willingness to reconsider the Court’s 1978 ruling that George Carlin’s famous “Seven Words You Can’t Say on Television” routine contains, well, seven words you can’t say on television.

The average American spends more time on the internet than he does watching TV (and I imagine spends more time on Facebook alone than he spends listening to broadcast radio).  And that begs the question: what is the import of regulating “decency” on TV and radio, given that they make up an increasingly small slice of the otherwise unregulated media pie?

If, like me, you take the insanely radical position that the First Amendment should be understood to prevent the government from regulating media content in the first place, you may be inclined to toss that inquiry aside as moot.  If the FCC’s regulation of TV and radio is a First Amendment violation, then who cares what relevance it has in the modern world?

But, for reasons that have never been fully explained to me, it is a well-settled point that the FCC is free to regulate the public airwaves because, like, they’re public and, like, the government is allowed to regulate public speech…I mean like, it’s not in general, but it can if it’s being broadcast because, like…you know…well, you see my point – under the current understanding of FCC regulation, you have a right to say things on the street corner that you can’t say on the 6 o’clock news, and that’s just inconsistent.  The Court’s decision chips away at that inconsistency, but not to the extent that it could have, and that omission is probably intentional.  Of course, if given a choice between judicial restraint in all cases and judicial restraint in some cases, I’d choose the former.  So I guess I’ll take what they gave us and be happy; it’s what I expected and nothing more, and there’s comfort in that.  And hey, at least they’ve shown that they can all agree on something (eight of them can, anyway).

So when will the Supreme Court answer the looming question of FCC-imposed limitations on speech in general?  I suspect that it never will.  I know little to nothing about technology (it’s amazing that I’ve been able to transcribe this text from my cave drawings), but I think it’s fair to say that in the relatively near future, most people will watch what we now think of as TV exclusively via free speech’s Wild West – the internet.  Companies like Netflix and Hulu already have us well on the path.

So the idea of FCC content regulation might just be old hat by the time another major legal challenge would arise.  Unless, of course, the Commission can find the legislative support to weasel its way into regulation of online content.  Not too likely, but there’s a curious part of me that wouldn’t mind seeing how a trick like that would get pulled off, both legally and politically.

Now if you’ll excuse me, I need to search YouTube for a certain NYPD Blue clip.