I’d like to think the market could police itself, but it certainly hasn’t, even with the FCC’s help. The justices must weigh our First Amendment right to freedom of speech against our need for moral standards and decency, however that
By ROY OCKERT
Stephens Media
The U.S. Supreme Court is accustomed to tackling the most difficult legal issues — that’s the nature of the appellate process. But a combined case that came before the court last week may be even tougher than usual.
Those cases are Federal Communications Commission v. Fox Television Stations and FCC v. ABC, and both involve a question of whether the government should serve as censor for programming available to viewers free over the airwaves.
The cases specifically involve programming received by antennas mounted on a television set, house or building and thus apply mainly to the so-called major networks — NBC, ABC, CBS and Fox. Of course, not many of us (about one in 10) receive TV programming that way any more, and that fact appears to be the crux of the argument. The rest of us pay a cable or satellite provider, and we have some options for what we receive and watch.
The broadcasters want the high court to overturn a 1978 decision upholding the FCC’s authority to regulate radio and TV content, at least during the hours when children may be listening or watching. That’s basically the prime-time hours before 10 p.m.
For a few years the networks kept the programming pretty clear of violent and racy content until 9 p.m. If you’ve watched any TV over the past 30 years, you must be thinking that the FCC is doing a sorry job of keeping indecent content out of prime-time programming. And you would be right. The words used and stories told in almost any prime-time show today would never have made the cut for “The Cosby Show,” “Happy Days” and “Eight Is Enough,” which were favorite shows of my family when our daughters were growing up.
Whether that’s good or bad is a matter of perspective. If you have young children, you probably would like to shield them from shows like “Two and a Half Men” and “Modern Family.” Otherwise, you might enjoy such fare.
Our culture certainly has changed over the past 30 years, not necessarily for the better. I don’t know what we’d watch today if I had kids of grade school age. It’s a challenge when the grandkids are here, but they’re now 16 and above.
The networks, which are in the business of making money, would like more consistency from the FCC — read that as freedom from censorship, because this is a First Amendment case. The networks face hefty fines for violating vague FCC guidelines about what is indecent in popular programs.
For example, 40 ABC affiliates paid a $1.2 million fine for airing a 2003 episode of “NYPD Blue” that included a 7-second scene with partial nudity. CBS was fined $500,000 over the “wardrobe malfunction” that occurred during the halftime show for the 2004 Super Bowl — a case that is still being litigated. Profanity is routinely “bleeped.” However, the FCC took no action after TV broadcasts of two movies — “Saving Private Ryan” and “Schindler’s List” — that included cursing and nudity.
Solicitor General Donald Verrilli Jr. told the justices during oral arguments last week that if they were to overrule the 1978 decision, “the risk of a race to the bottom is real.”
But two lawyers for the broadcasters contended that the present situation subjects networks to fines, for example, stemming from complaints that the broadcast of the 2008 Summer Olympics in Beijing showed a statue with bare breasts and buttocks.
Former Solicitor General Seth Waxman, representing ABC, pointed out that the statue is an image much like those in the marbled panels of the Supreme Court chambers. Of course, cameras aren’t allowed in there.
I’d like to think the market could police itself, but it certainly hasn’t, even with the FCC’s help. The justices must weigh our First Amendment right to freedom of speech against our need for moral standards and decency, however that may be defined. No court has yet been able to find a good answer to that conflict.
